Can the NBA Legally Oust Donald Sterling?

ClippersatStaplesCenterIf you’ve been following the news at all in the last week, you know that L.A. Clippers’ owner Donald Sterling is in hot water thanks to racist comments he made to his mistress. His mistress recorded and later released his tirade to TMZ, unleashing a media frenzy around the 80-year-old billionaire.

Sterling’s bigoted mindset isn’t exactly breaking news. He was almost ousted from the NBA over recorded comments he made in 1982, as reported by Nathan Fenno at the Los Angeles Times. But the latest outburst prompted NBA commissioner Adam Silver to issue an unprecedented lifetime ban against the beleaguered owner:

Effective immediately, I am banning Mr. Sterling for life from any association with the Clippers organization or the NBA. Mr. Sterling may not attend any NBA games or practices. He may not be present at any Clippers facility. He may not participate in any business or player personnel decisions involving the team. He will also be barred from attending NBA Board of Governors meetings or participating in any other league activity.

Ben Golliver at Sports Illustrated reports that Sterling also received a small (for him) $2.5 million fine, which was the maximum allowable fine under his agreements with the NBA.

More dramatically, Silver said that he would seek the three-quarters approval required from other NBA team owners to force a sale of the Clippers. “I will urge the Board of Governors to exercise its authority to force the sale of the team. I will do everything in my power to ensure that that happens. … I fully expect to get the support I need from the other NBA owners.”

Michael McCann, also at SI, has raised interesting questions about the legality of the actions being taken against Sterling.

According to McCann, the NBA constitution and bylaws authorize the suspension and the fine because Sterling’s actions were harmful to the NBA. Furthermore, a court would review the suspension and fine under the “arbitrary and capricious” standard of review. So it’s highly unlikely Sterling could successfully challenge this aspect of his punishment. About the only way he could challenge the fine and suspension would be to show that the NBA didn’t follow its own procedures in meting out the punishment.

Silver’s plan to have the other NBA owners force a sale of the Clippers is on shakier legal ground. A forced sale is governed by Article 13 of the NBA constitution. Article 13 requires (1) a vote of three-fourths of the Board of Governors and (2) proof that the owner being forced to sell have committed one of ten enumerated violations. The NBA recently made its constitution public for the first time, so here are the violations enumerated in Article 13:

(a) Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.

(b) Transfer or attempt to transfer a Membership or an interest in a Member without complying with the provisions of Article 5.

(c) Fail to pay any dues or other indebtedness owing to the Association within thirty (30) days after Written Notice from the Commissioner of default in such payment.

(d) Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.

(e) Wager or countenance wagering by its officers or employees on any game in which a Team operated by a Member of the Association participates.

(f) Willfully permit open betting, pool selling, or any other form of gambling upon any premises owned, leased, or otherwise controlled by the Member or an Owner, except, subject to Article 8(a), for gambling activities that are lawful in the applicable jurisdiction and do not involve in any way, directly or indirectly, gambling with respect to any aspect of the Association’s games, events, property, players, or other personnel.

(g) Offer, agree, conspire, or attempt to lose or control the score of any game participated in by a Team operated by a Member of the Association, or fail to suspend immediately any officer or any Player or other employee of the Member who shall be found guilty, in a court of law or in any hearing sanctioned by this Constitution and By-Laws, of offering, agreeing, conspiring, or attempting to lose or control the score of any such game or of being interested in any pool or wager on any game in which a Team operated by a Member of the Association participates.

(h) Disband its Team during the Season, dissolve its business, or cease its operation.

(i) Willfully fail to present its Team at the time and place it is scheduled to play in an Exhibition, Regular Season, or Playoff Game.

(j) Willfully misrepresent any material fact contained in its application for Membership in the Association.

Clearly, most of these provisions could not apply to the Sterling situation. The only arguable provisions are (a) and (d). But as McCann points out, NBA owners do not execute a general “morality provision” with the league. So it’s hard to see what contracts or agreements Sterling could have violated that would justify his ouster. The NBA constitution is long and complex, though, so there’s no doubt both sides will have plenty to argue over.

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