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Legal Look: What's next for Clippers owner Sterling?

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Eric Macramalla, TSN Legal Analyst
4/27/2014 5:34:41 PM
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TMZ has released an audio recording where a voice identified as Donald Sterling, owner of the LA Clippers, is making highly offensive remarks about African-Americans to his then-girlfriend V. Stiviano.

The Comments

He are some of the comments attributed to Sterling on the recording:

- "It bothers me a lot that you want to broadcast that you're associating with black people. Do you have to?"

- "You can sleep with [black people]. You can bring them in, you can do whatever you want. The little I ask you is not to promote it on that ... and not to bring them to my games."

- "I'm just saying, in your lousy (expletive) Instagram, you don't have to have yourself with, walking with black people."

- "...Don't put him [Magic] on an Instagram for the world to have to see so they have to call me. And don't bring him to my games."

League Responds

NBA Commissioner Adam Silver has expressed profound disappointment over the comments and has urged the public to allow for due process to run its course before any action is taken.

"All members of the NBA family should be afforded due process and a fair opportunity to present their side of any controversy," Mr. Silver said, "which is why I'm not yet prepared to discuss any potential sanctions against Donald Sterling. We will, however, move extraordinarily quickly in our investigation."

The Clippers have declared that these comments do not reflect the views of Sterling and that they are looking into the issue. The public was also reminded that the source of the recording, Stiviano, is being sued by Sterling's wife for embezzling $1.8 million in the form of cash, cars and other items from the Clippers owner, thereby suggesting that the veracity of the recording should be questioned.

Investigation

The first step for the NBA is authenticating the recording. That means confirming that the voice on the recording is that of Sterling and that the recording was not doctored. Sterling may admit that the voice is his, but allege that his ex-girlfriend doctored the tape as payback for being sued by the Clippers owner.

Authenticating the recording may not be an easy process. The NBA will need to get Stiviano to agree to be interviewed (likely under oath), which she may decline. If she refuses to talk to the league, there is little it can do to force her since the NBA does not have subpoena power (or an ability to force Stiviano to submit to an interview). The NBA could also hire an expert to review the recording to assess the likelihood that it has been tampered with and whether the voice is that of Sterling.

The NBA is being criticized for not suspending Sterling pending the outcome of the investigation. While the sentiment is understandable, the NBA is bang on here. It is important to observe the principles of fundamental justice, which include that justice be administered fairly.

A person is entitled to a fair shake even in the face of despicable comments.

The NBA is proceeding with its investigation expeditiously and is aiming to have it done in a "few days". Until then, it is important, if not critical, that the process be respected.

Fines, Suspensions and Sale of Team

Some people around the league want Sterling gone permanently given his a history of being racially insensitive. In 2009, Sterling was sued for discriminatory housing practices after being accused of seeking to drive African-Americans and Latinos from his apartment buildings. The billionaire settled the lawsuit by paying $2.725 million. He was also sued by his former GM Elgin Baylor, who filed a wrongful termination lawsuit that included allegations of racism. In part, Baylor alleged that Sterling rejected a coach because he was African-American.

While some want Sterling gone, the NBA is unlikely to force Sterling to sell the team. If the league tried, they would likely be sued by Sterling, who in part, would allege that the league is violating antitrust laws. If successful, such a lawsuit could get Sterling a massive payout.

A more likely scenario is a long suspension. And there is a precedent for that: former Cincinnati Reds owner Marge Schott. In December 1992, Schott was quoted in the New York Times as saying that her use of the N-word was a joke after referring to Eric Davis and Dave Parker as her "million-dollar n------". In that same interview, she made favourable comments about Adolf Hitler. As a result, MLB suspended Schott for one year. In 1996, she was suspended for another two years after more racially insensitive comments. In 1998, with her health failing, she agreed to sell the team.

Apart from a suspension, we could also see a substantial fine. Ultimately, a fine of $1 million to $5 million would not be surprise.

If authenticated, the comments are of course completely unacceptable, highly offensive and frankly disturbing. As well, according to a recent report, African-Americans comprise 76 per cent of all NBA players, while 81 per cent of players are of colour.

So the NBA knows one thing: it has to get this right. And that may mean a long suspension and hefty fine. Expulsion, however, doesn't seem likely given the legal challenges.

Donald Sterling (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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