Sterling’s silver (lining)
Been meaning to comment on this for some time, but at NRO, A.J. Delgado provides the jumping off point: “Go Get ‘Em, Donald!”
TMZ reported last week that embattled L.A. Clippers owner Donald Sterling is considering suing the National Basketball Association. But according to the Los Angeles Daily News, Sterling has been rejected by at least eight law firms, who worry that taking him on as a client may upset existing clients and their images.
But does Sterling have a case? Yes.
Let’s take a look.
First, was Sterling’s punishment (a $2.5 million fee and a lifetime ban) justified by the NBA’s Constitution and By-Laws?
The NBA based the punishment on Article 24 of the NBA Constitution, which reads:
Where a situation arises which is not covered in the Constitution and By-Laws, 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. The penalty that may be assessed under the preceding two sentences may include, without limitation, a fine, suspension, and/or the forfeiture or assignment of draft choices. No monetary penalty fixed under this provision shall exceed $2,500,000.
But notice the first bit: “[w]here a situation arises which is not covered in the Constitution and By-Laws….” Sterling’s situation is, however, addressed in the documents – hence Article 24 does not apply.
Where are Sterling’s circumstances addressed? In Article 35A(c), which reads:
(c) Any person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner. […]
In other words, the NBA did consider a situation such as this (a member of the organization making an ill statement), specifically addressed it, and prescribed the punishment. That punishment is $1 million (not $2.5 million) and no ban (certainly not a lifetime ban, as was imposed on Sterling).
It gets more complicated, however. The next clause, Article 35A(d), covers another area of discipline:
(d) The Commissioner shall have the power to suspend for a definite or indefinite period, or to impose a fine not exceeding $1,000,000, or inflict both such suspension and fine upon any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association. […]
You’re probably thinking: “What’s the difference between (c) and (d)” or “Was someone actually paid to write this terribly worded document?” (The NBA constitution, for the record, is five times longer than the Constitution of the United States.)
Both are excellent questions. But let’s stick with the first. While 35A(d) allows for a lifetime suspension, that disciplinary measure is limited to punishment regarding conduct. Sterling’s statements could fall under the umbrella of ‘conduct,’ but when there is a contradictory clause that more specifically touches upon the situation (e.g., a clause specifically addressing an ill statement) that would be the clause most courts would find applicable. Subsection (d) and its potential lifetime ban seem to refer to a broader situation: not a harmful statement/s but a harmful action.
And this is all assuming the ‘statement’ or ‘conduct’ referred to in the documents encompasses statements or conduct outside of one’s NBA-related or professional capacity. It is arguable – and likely – that they were not, in fact, intended to extend into one’s personal and private life.
It therefore seems the applicable clause to this situation is Article 35A(c), not Article 24, in which case the punishment should simply be a fine of $1,000,000.
Alright, but even if the fine imposed was incorrect under the documents, the other owners can still force him out, right?
Legal analysts have breathlessly proclaimed that yes, Sterling can be forced out by three-fourths of the NBA Board of Governors (which consists of the other NBA owners). They are citing Article 13 of the NBA Constitution.
Article 13 requires certain violations for this to be allowed, with subsection (a) stating members may be shown the door if they “Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association,” and subsection (d) authorizing this sanction if a member is found to “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.”
But what contract or agreement with the NBA did Sterling breach exactly? The Constitution and By-Laws make no mention of a morality clause for owners. The documents do, interestingly enough, mention such requirements for players (in the By-Laws, Section 2.01). But the lack of a morality clause for owners almost implies the owners are not subject to such restrictions. Even if Sterling and other owners signed separate morality contracts with the NBA, the wording of such would need to be closely analyzed. It would also need to be decided whether a private conversation was a breach of any such morality agreement.
In a Q&A regarding the legality issues, an ESPN legal analyst was asked: “Sterling is notoriously litigious. Can he go to court to stop Silver from punishing him?,” to which he answered:
Not effectively. When Silver issues his punishment to Sterling, the decision is final. The constitution provides in Paragraph 24(m) that a commissioner’s decision shall be “final, binding, and conclusive” and shall be as final as an award of arbitration. It is almost impossible to find a judge in the United States judicial system who would set aside an award of arbitration. Sterling can file a lawsuit, but he would face a humiliating defeat early in the process . . .
Don’t be so sure. While the documents do give Commissioner Adam Silver ultimate authority in this decision, that is only if Silver’s decision was grounded in, and supported by, the governing documents. As shown above, it is entirely arguable that the punishment was not, in fact, in line with the NBA’s rules.
So what would be Sterling’s recourse?
In addition to the breach of contract, breach of implied contract, or business interference claims, Sterling may also boost his case by arguing that the NBA has inconsistently applied its Constitution and By-Laws. Other owners and players have misbehaved yet have not received a corresponding punishment (see the New York Post’s Phil Mushnick’s piece, “NBA’s zero tolerance hypocrites feast on Sterling’s carcass”).
In addition, there is the angle of whether the provision in the NBA documents, allowing a member to be deprived of his ownership interest, is an unconscionable provision and should be void. A ban from attending games or actively participating in the organization’s events and decisions? Sure, fair enough. But depriving Sterling of his property? That does not seem to pass the smell test. When Sterling recently exclaimed: “You can’t force somebody to sell property in America!” , he hit upon a valid defense. Critics were quick to smirk by bringing up the existence of eminent domain, but the (controversial) practice of eminent domain exists because one’s property rights are balanced against a compelling governmental or societal interest. Where is the societal interest or need in forcing Sterling to sell his property?
The answer is simple: there is none, save to satiate a mob conditioned to respond to speech that offends them will charges of “intolerance” that they then use to demand “action” — in this case, to strip a citizen of his private property over a private conversation illegally taped and then released to the media.
That members of the aggrieved ethnic group (hi, Oprah!) are now making a play for an asset worth over $1 billion, suggests to me at least that there may be something more insidious going on here — Sterling being set up, for instance — though that is all speculation.
But speculation aside, this entire sanctimonious wilding by the braying racialist mob pretending to be so terribly upset by a racist owner whose checks they’ve cashed and whose team they’ve continued to follow and support, despite earlier instances suggestive of Sterling’s racialist proclivities, is not only hypocritical, but from a constitutional standpoint is quite dangerous.
If political correctness — and one’s failure to follow it while engaging in what he believed to be private conversation — can lead to what is essentially the theft of property disguised as moral outrage, then it won’t be long before we’re determining legitimacy of ownership by way of second hand testimony, and then thought crimes extrapolated by religious or policy positions, be it on same-sex marriage or some other issue championed by some vocal grievance group looking to be appeased by a risk-averse industry.
You don’t have to like or agree with Donald Sterling or Cliven Bundy — and most recently, the Dolphins secondary player who is now being shuttled off to some Soviet-style re-education and “sensitivity” class (along with being fined) for expressing his personal views on ESPN’s political “get,” live video of a late-round draft pick engaging in same-sex PDA with his boyfriend after being selected in the last round of the draft, of which the player showed disapproval — but that doesn’t mean that suddenly they don’t have a right to their beliefs, or that attempts to deprive them of their property or livelihood by way of turning them into public offerings to the braying thought police mobs, isn’t absolutely Orwellian, not to mention an affront to equality before the law.
The idea of free speech and “tolerance” embraced at our founding was to protect unpopular speech, not to institutionalize government or temporary-societally approved speech. This, however, goes even further, and ties such a complete inversion of the idea of tolerance to a measure of inequality before the law: the NBA is attempting to deprive Sterling of his private property for speech that he made in private, in essence, claiming the moral authority to steal from him because they had (at least initially) public opinion on their side, and were fearful of blowback from the race-hustlers who are every bit as racialist and even racists in their speech, much of public, as was Sterling.
This is not a case about race. It’s a case about private property rights and this dangerous move to assert that property can be taken simply because you happen to be unpopular for holding a specific belief. With Sterling, it’s easy to demonize him. It proved much harder to do so with Chic-fil-A and Hobby Lobby, but the attempt was certainly there.
And if we allow this to continue, it won’t be long before holding to certain core religious beliefs means you are a hater, and will be justification enough to take away your business (and not just small local bakeries, either) and / or deprive you of your ability to make a living inside your trade (as either a Google hire, or a theater producer).
I’ve been writing about the dangerous linguistic totalitarianism that flows from identity politics — and pointing how it does and must work — for going on 20 years now, beginning with an op-ed that deconstructed the academic dogma on racialism, and continuing on through the gambit of feminists, current black “civil rights” leaders, Said’s repulsively incoherent Orientalism, which influencing so much of how academia has come to treat identity narratives (and has led to the current anti-semitism on campuses by useful idiots playing at radical chic when they aren’t in the dorms playing at bi-curious), and the whole phony and superficial “diversity” movement, which was never anything other than an attempt to artificially rejigger and re-colorize an increasingly color-blind society in order to keep us divided, requiring governmental fixes to bridge the gap of “hate.”
Political correctness is anathema to the country’s founding principles. Were I that Dolphins cornerback, I’d refuse to attend some re-education camp, take getting cut, and try to catch on elsewhere. And if I didn’t, I’d live with the consequences.
But that’s me. I’m incapable of shying away from a battle over deeply held principle. And yes, it has cost me financially and in a number of other ways.
Still, if you don’t stick up for your rights, then you can’t really complain when they are taken away.
I’m happy to be called a racist or a homophobe for standing up to this repulsive movement to use the demonization of speech to justify the theft of property or the blockage of gainful employment. Because I am neither. What I am, frankly, is a constitutionalist and a classical liberal who believes in the founding principles of this country and the unalienable rights enshrined in the documents that provided the basis for our social compact.
It’s easy to go the other way and accept the plaudits for showing the populist “outrage” you believe will gain you favor. It’s more difficult to shrug off public sentiment and insist we do what’s right in terms of the law and in terms of our fundamental political beliefs.
Because if we don’t, one day we may find ourselves on the business end of a mob attack (hell, I’ve been there) and, are we not prepared to face it down, armed with the intellectual weaponry to do so, we may as well just hold out our wrists and plead that the shackles not be applied too tightly.
(h/t Mark Levin)