Commentary

Sterling's suit against NBA will fail

Updated: May 31, 2014, 3:13 AM ET
By Lester Munson | ESPN.com

Donald Sterling's lawsuit against the NBA and commissioner Adam Silver asserts that Sterling is the victim of an unconstitutional and illegal termination of his ownership of the Los Angeles Clippers, even though his ownership was not officially terminated by the league. The lawsuit and its timing raise legal questions about the actions the NBA has taken against Sterling; the apparent sale of the team by Sterling's wife, Shelly; and Sterling's attempt to stop the process that began with his racist rant:

Q: Can Sterling use this lawsuit to stop the NBA from ending his ownership of the Clippers?

A: No. For starters, the league did not vote to terminate his ownership. That was set for Tuesday, but that meeting has been cancelled because of the sale of his team by his wife, Shelly.

In his lawsuit, Donald Sterling makes a number of claims against the NBA -- breach of contract, violation of constitutional rights and flaunting of the nation's antitrust laws. None of them is valid. As the owner of the Clippers, he agreed to the terms of the NBA constitution, the governing document of the league. It provides that his ownership can be terminated when he acts in a way that is adverse to the interests of his fellow owners and reduces the value of their enterprises.

The termination process is specified in the constitution, and commissioner Adam Silver has followed it precisely. When he became an owner, Sterling agreed that he could not and would not sue either his fellow owners or the commissioner. Any disputes would be submitted to arbitration. Sterling's lawsuit ignores these basic agreements among the owners of the NBA. His lawsuit will be dismissed early, with the judge telling Sterling to submit his claims to NBA arbitration.

Q: Sterling claims that the recording of his racist rant was made secretly and without his consent. Can the recording be used against him?

A: Yes. There is no doubt that California privacy laws prevent the use of recordings that are made without the consent of all participants in the conversation. But, in an arbitration, the rules of evidence are not strictly applied. In a trial in a court, Sterling could rely on the privacy law. In an arbitration with his fellow owners, the recording would be used against him.

Q: Sterling also claims that his constitutional rights were violated. Can the NBA terminate his ownership if it violated his rights?

A: Yes. The words "due process" do not appear anywhere in the NBA constitution. Like most owners of a sports franchise, Sterling waived certain rights in return for the privileges of ownership of a professional sports team. It is highly doubtful that Silver and the league violated any of Sterling's rights, but even if they did, it would be of no help to Sterling. In return for the waiver of his rights, Sterling owns a franchise that has increased in value from $12 million when he purchased it in 1981 to a potential value of $2 billion in a sale to Microsoft billionaire Steve Ballmer.

Q: What will be the outcome of Sterling's lawsuit?

A: It will be dismissed as soon as the NBA is able to file the necessary papers. It will not only be dismissed, Sterling faces the prospect of paying the NBA's attorneys' fees and expenses in obtaining the dismissal. According to the NBA, Shelly Sterling promised the league that the Sterling family trust would pay any expenses that resulted from a lawsuit filed by Donald. Even without Shelly's promise of indemnification, the lawsuit that Sterling filed is so filled with incorrect facts and failures of legal doctrine that he would be forced to pay anyway.

Q: Is there anything that Sterling can do to stop the sale of his team?

A: No. Silver and his lawyers have performed at the highest level, anticipating every move that Sterling could make. They have used the powers of the NBA constitution in ways they have never been used before, but they have done so with precision. Sterling may have a legal claim against his wife, Shelly, but he would be well advised to calm down and accept his fate.

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