Like a movie villain who jumps back to life in the final scene, Donald Sterling might have one last act of horror in store for the NBA.
It’s a nightmare scenario for the Los Angeles Clippers: Sterling decides to fight to keep his family’s ownership of the team, dragging out his case and creating a problem for the league next season if players decide they won’t work for a team owned by Sterling.
Sterling has been mum publicly on his plans since NBA Commissioner Adam Silver banned him for life Tuesday. Sterling’s attorney declined to comment when contacted Thursday by USA TODAY Sports. But independent attorneys note Sterling has the deep pockets to stage lengthy court battles against big opponents. He’s also a former divorce attorney who knows how to extract benefits from ugly separations.
“He has a long history of filing cases, whether they are well-founded or not,” said Jeffrey Kessler, a New York attorney who specializes in antitrust and sports law.
How could it happen? In the case of the Clippers, a divorce filing by either Sterling or his wife, Rochelle, could stall the NBA’s move to force a sale, putting the team under the jurisdiction of a California family court as the Sterlings divide their community property. That process could be complicated as the team is owned by a family trust, which includes Sterling’s wife.
Rochelle Sterling already has distanced herself from her husband, labeling him “estranged” after his racist comments about black people surfaced in an audio recording that was leaked to the website TMZ last weekend. Rochelle Sterling also is suing the woman Sterling is heard talking to on the audio and claims the woman, identified as V. Stiviano, was her husband’s mistress. Stiviano denied the allegation.
“If somebody is looking for a litigation strategy, and they want to slow down a forced sale by the league, you file for divorce so you get more people involved arguing over it,” said Sharon Kalemkiarian, a family law specialist in San Diego. “Everybody’s got to spend more money trying to figure out what happens to it. Getting the family court involved in it would create another layer of complexity to the sale and another set of lawyers who would be trying stop it from getting sold.”
Elbert Robertson, a law professor at Suffolk University in Boston, told USA TODAY Sports he envisions two other possible lines of attack Sterling might use against the NBA.
• Challenging the NBA’s authority to force a sale of his property just because of personal opinions he shared in a conversation he thought was private. This could be a breach-of-contract because the reason for his ouster arguably doesn’t follow league bylaws.
• Filing an antitrust suit against the league, arguing that a forced sale of his team in this circumstance is an illegal restraint of trade that could make him accept a below-market price.
Sterling might not prevail in the end, but litigation could last anywhere from weeks to years, and certainly hover long enough to cast a shadow over the rest of the NBA playoffs, the draft in June and the start of free agency in July. Even if he’s not allowed to show his face at games, prospective and current team members would like to know if they’re still helping make money for Sterling as an absentee Oz behind the Clippers’ curtain.
Sterling has shown staying power before. In 1984, the league sued the Clippers for $25 million after Sterling moved the team from San Diego to Los Angeles without permission. Sterling and the Clippers countersued for $100 million, accusing the league of “various fraudulent acts” against the team after Sterling purchased it in 1981. The case settled just before trial in 1987 — when the Clippers agreed to a reduced fee of about $6 million.
The NBA bylaws and constitution gives the league power to force an owner to sell his team with a three-quarters vote of league ownership if the owner is found to have willfully violated the constitution, bylaws, resolutions, or agreements of the league. If a situation arises that is not covered in the league’s constitution and bylaws, the constitution gives the league’s commissioner broad power. In that case, the commissioner “shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association,” according to the constitution.
Such decisions are considered binding, with the legal force of an arbitration ruling, according to the constitution.
Sterling could claim the league’s rulings are unfair and sue to have them set aside, but judges typically don’t set aside arbitration rulings unless there’s a compelling reason.
“As the section is very broad and doesn’t cover Sterling’s specific conduct, there will always be room for a legal challenge,” players union attorney Ron Klempner told USA TODAY Sports. “But in light of all the facts and circumstances, I don’t think he’d prevail.”
A challenge by Sterling could point out these were remarks were not intended for public consumption and that NBA bylaws don’t specifically forbid personal views expressed to a woman in private.
“It’s not clear that what he’s done — engage in a private conversation — whether that satisfies the best interests-of-the-sport clause,” Robertson said. “Normally that has to do with betting on the team or other violations. This is different kind of thing, about a private conversation.”
In banning Sterling and fining him $2.5 million, Silver said his “hateful opinions” were contrary to league principles, adding that even though the remarks “were initially shared in private, they are now public, and they represent his views.” Silver said he will urge the league’s Board of Governor’s to “exercise its authority to force a sale of the team.”
All 29 other owners have publicly endorsed Silver’s decision, and one said he expects the commissioner will have 100% support in removing Sterling. The league announced Thursday its advisory/finance committee “unanimously agreed to move forward as expeditiously as possible” to terminate Sterling’s ownership.
The league thinks Sterling, with his racist history, has become a liability dragging down its business. But can league rivals force a competitor to sell his family business against his will — at a price he might not find fair — when he didn’t make a specific rules violation?
Sterling might test antitrust laws on this basis, Robertson said.
It doesn’t mean he’d win. Kessler predicts Sterling probably would lose such an argument because he said antitrust claims must show an “injury” to the process of competition, such as with prices or choices in a market. Financial injury to a person or business isn’t enough, he said.
“It’s not clear to me how removing a racist owner and bringing in a different owner who’s not a racist is going to have any effect on competition at all,” Kessler told USA TODAY Sports. “You have to have some restriction on competition (in an antitrust claim). I’m sure he has a lot of lawyers who are clever and may come up with something, but I don’t see a viable claim.”
The big question for Sterling might be whether the fight is worth becoming even more of a pariah.
Clinging to the Clippers in a court case probably wouldn’t be popular, though Sterling could extract a settlement from the NBA — a possible cherry on top of the money he’d get from selling the team. After buying the team for $12.5 million in 1981, the Clippers might be worth more than 50 times that today.
“He’s a very litigious billionaire,” Robertson said.