cbc.ca (© Copyright: (C) Canadian Broadcasting Corporation, http://www.cbc.ca/aboutcbc/discover/termsofuse.html#Rss)
Updated: Thu, 01 May 2014 09:54:40 GMT | By CBC News, cbc.ca

NBA may face fight if it forces Donald Sterling to sell Clippers



Since audio featuring racist comments from L.A. Clippers owner Donald Sterling emerged, there has been discussion of a forced sale of the team. Stephen Dunn/Getty Images

Since audio featuring racist comments from L.A. Clippers owner Donald Sterling emerged, there has been discussion of a forced sale of the team. Stephen Dunn/Getty Images

After days of public debate and conjecture over the leaked audio of L.A. Clippers owner Donald Sterling uttering racist comments, the National Basketball Association took the unprecedented step of fining him $2.5 million US and banning him for life from the sport.

In Tuesday's announcement, NBA commissioner Adam Silver said the league is also hoping to force Sterling to sell the team, a move legal analysts say could have unintended consequences.

"The ban and the fine seem well within [Silver's] legal authority. But the forced sale is something that might be challenged by Sterling," says Warren Zola, a professor of sports law at Boston College.

"I would certainly anticipate that we may have a fight on our hands."

Silver's announcement was the league's much-anticipated response to a controversial audio clip posted to the celebrity website TMZ on the weekend. The clip features a man lecturing Sterling's girlfriend, who goes by the name V. Stiviano.

He criticizes her for being photographed with black people, including former L.A. Laker Magic Johnson, and telling her sternly, "Don't bring him to my games, OK?"

Silver said Sterling admitted that it was indeed his voice in the clip.

The league's punishment was met with widespread approval from players and fans, as well as the mayors of Sacramento and Los Angeles, who held a joint press conference Tuesday afternoon flanked by NBA legends such as Kareem Abdul-Jabbar and Canadian Steve Nash.

Paragraph 13

In his announcement, Silver said Sterling's punishment was in keeping with the terms of the NBA's constitution, which had been, up to Tuesday, a private document.

Paragraph 13 of the organization's constitution gives the NBA the authority to force a sale under special circumstances. To do so, the commissioner needs to get 75 per cent agreement from the league's board of governors, which is made up of the 30 team owners.

Gordon Kirke, a Toronto-based sports lawyer, says that based on his understanding the league cannot "expropriate" a team from an owner, but the aim of the vote would be to strongly urge the owner in question to sell.

Typically, paragraph 13 would be invoked to force the sale of a team that can't meet its financial obligations, says Len Glickman, a sports lawyer and partner at Toronto firm Cassels Brock & Blackwell.

However, this is clearly not the case with the L.A. Clippers, who are profitable and backed by an owner who is reported to be worth $1.9 billion US.

In an article for Sports Illustrated, U.S. attorney Michael McCann wrote, "Article 13 lists a series of enumerated wrongs, some of which are specific but none of which seem directly relevant to an owner whose racism expressed in a private conversation sparks national outrage."

Trying to force a sale on such an ethical basis is an interpretation of the constitution that might not stand up in a court of law, says Glickman.

Gentlemen's agreement

As a professional association, the league has drafted its own bylaws and constitution, "which is nothing more than an agreement among the owners," says Kirke.

That agreement, however, does give the league commissioner broad abilities to address any matter or conduct that could hurt the best interests of the teams or the league, notes Zola from Boston College.

In the event that a commissioner does take action, the question legally may be whether or not the league followed its own bylaws and constitution.

"When evaluating what commissioner Silver did yesterday, if we find our way to court, the question is, did the commissioner's office appropriately follow existing bylaws in the constitution in taking this action?" Zola says.

If they didn't, the league's efforts could be seen as "arbitrary and capricious," says Zola.

This could then give Sterling cause to file a lawsuit, adds Kirke.

"His claim would likely be under the U.S. anti-trust legislation, for the owners conspiring or combining to deprive him of an important asset," says Kirke.

According to the Wall Street Journal, that asset could fetch Sterling upwards of $700 million, a significant increase from the $12.5 million US he paid for the franchise in 1981.

Buyers waiting

Since speculation of a sale first emerged, there have been a number of rumoured potential buyers, including a consortium involving Magic Johnson, as well as one that includes Oprah Winfrey, record executive David Geffen and Oracle founder Larry Ellison.

Glickman says there has been discussion about allowing Sterling to sell his interest in the team to a family member or a Clippers executive, so the franchise "stays in the family" even if he's not an owner.

"From a practical point of view, it's in both parties' interest for him to sell the team, in a non-confrontational way," says Glickman.

"If Mr. Sterling fights this and challenges the league's authority under the constitution to do this, this will be dragged into litigation and it will be a story for a number of years. I think the league wants this story out of the news as quickly as possible."

Looking at this from Sterling's perspective, "if he's going to sell the team, its value is probably at its highest right now.

"If he continues to own the team, it's going to be hard for them to attract players, sponsors and advertisers are going to stay away and the value of the team is going to diminish substantially," Glickman says.

As for Kirke, he says a Sterling lawsuit "would complicate matters. But I don't think it would take away from the general support for what the commissioner and the league have done."

more video