Could Donald Sterling Halt the Sale of the Clippers?

by Marc Tracy | April 29, 2014

NBA commissioner Adam Silver announced Tuesday afternoon his immediate ban of Los Angeles Clippers owner Donald Sterling for life and his intention to get the league's other owners to force Sterling to sell the team. But because we don’t know how Sterling will respond, and because the NBA’s constitution and by-laws are secret, it is unclear where this story ends. Will Sterling put up a fight in the courts? And if so, does he have a case?

“This could take years,” said an antitrust expert with experience dealing with sports leagues who is unfamiliar with the NBA’s secret rules, which were released online early Tuesday evening. In the event of a lawsuit, “My guess is the court would issue some sort of preliminary injunction that says, ‘I’m going to take a look before I rule.’” A look at the “equities” could very well militate against a sale of the team until the matter is decided, according to the expert, who requested anonymity because of potential future business with sports leagues.

“I can't tell you what a judge will actually do,” said Jeffrey Kessler, a prominent antitrust lawyer. Kessler was speaking only for himself, but he has represented the NBA players union and is “familiar” with the NBA’s secret rules. He added, “I believe the league has the authority to do this and that circumstances would justify it.” (Skadden Arps attorney Jeffrey Mishkin, the league’s chief outside counsel, referred an inquiry to the league.)

Sterling would face a particularly high hurdle in challenging Silver’s lifetime ban. The commissioner’s decision is treated as a “final arbitration decision” under the league constitution, leaving the NBA with “a lot of good arguments that there’s no grounds to challenge it,” said Kessler. He added, “The only way you can challenge it in court is on very, very narrow grounds. You can’t challenge it on the merits.”

However, should the league’s owners vote by three-fourths majority to force Sterling to sell the team, that would be different, according to Kessler: “That’s something you could file a lawsuit over.”

And filing lawsuits is something Sterling has had few compunctions about. Sterling is a former plaintiffs lawyer who 30 years ago sued the NBA for fining him for moving his team from San Diego, getting the league to drastically reduce the fine. This, Michael McCann told the Los Angeles Times before Silver’s announcement, is why it might be have been wiser for Silver not to go nuclear on Sterling. “I think there’s a distinction between what Adam Silver could do as a maximum penalty versus what is the maximum penalty that would lead to the optimal outcome,” he said.

Deadspin reports that the constitution gives Silver substantial power to levy fines and suspensions in the "best interests of the Association" and for "conduct prejudicial or detrimental to the Association."

Dallas Mavericks owner Mark Cuban seemed to suggest as much when he Instagrammed a picture of the NBA "Constitution and By-Laws" with the caption, “It exists for a reason.”

Theoretically, Sterling could challenge both how faithfully the NBA followed its own rules and the legitimacy of those rules themselves under antitrust law. A federal statute effectively exempts football, baseball, basketball, and hockey leagues from antitrust claims. As the expert put it, “For any of these sports leagues to operate, there needs to be some league rules.”  

Kessler was skeptical that such a challenge from Sterling would be successful, though he might try it anyway: “I think it'd be very difficult for him to assert an antitrust claim here.” But the expert mused that although Sterling “lived with them for years,” he could assert that the rules unfairly restrain competition: “Antitrust laws don’t like it when competitors agree with each other to prevent other competitors,” the expert said. “The court would take a look at these kinds of rules, and see whether they're reasonable or not.”

If the owners vote to force Sterling to divest, the surest way for the process not to be drawn out is for Sterling not to sue or otherwise not press his case for too long. The myriad cancelled sponsorships as well a statements from players, coaches, other teams, other owners, and even Sterling’s own team—which posted the statement, “We Are One,” in big letters on its website just after Silver’s press conference Tuesday afternoon, and added elsewhere, “We wholeheartedly support and embrace the decision”—might speak to Sterling with a kind of eloquence the law can’t muster.

“I do not think he has a case,” Kessler said. “I think if he had any good sense, which he may or may not have, he would agree to go off into the sunset and promptly sell his team.”

Source URL: http://www.newrepublic.com//article/117583/clippers-owner-donald-sterling-could-halt-nbas-silvers-planned-sale