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Legal Look: NBA takes its shot at Sterling with discipline

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Eric Macramalla, TSN Legal Analyst
4/29/2014 4:58:38 PM
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NBA Commissioner Adam Silver announced Tuesday that Donald Sterling is banned for life from the Clippers organization. As well, he has been fined $2.5 million. Finally, Silver will recommend to the Board of Governors that Sterling be forced to sell the team.

Fine and Expulsion

The fine of $2.5 million was not a surprise.  The likely range was somewhere between $1 million and $5 million. However, the NBA went farther than expected by banning Sterling for life from the Clippers. That means that Sterling is not only permanently removed from the day-to-day operations of the league, but he can't be part of the franchise in any way. A suspension of 1 to 2 years was initially expected.

Banning Sterling for life is a precedent setting punishment and appropriate under the circumstances. The comments were of course despicable and disturbing. As well, the majority of the NBA player population is of color. According to a 2013 report, 76.3 per cent of NBA players are African-American and 80.1 per cent are of color. So when the majority of the league workforce is African-American, the NBA has no choice but to ask as decisively as possible within its legal framework.

Forcing the Sale of the Team

This is where things get a bit messy. The NBA by-laws allow the league to remove an owner in limited circumstances, including if the team is in financial distress. We saw something similar in baseball when MLB took over the Dodgers when Frank McCourt made a mess of the team.

The NBA by-laws, however, are unlikely to provide a reasonable basis for the league to terminate his ownership.

Rather, the NBA will likely look to Article 35 of the NBA Constitution, which allows the commissioner to indefinitely suspend owners for "conduct prejudicial or detrimental to the association". The NBA needs three-quarters of owners to agree to the sale.

This is broad language and does provide an arguable legal basis to remove Sterling. However, I emphasize "arguable." This language does not unequivocally give the NBA the authority to hand down the most dramatic and substantial of all penalties - forcing an owner to sell.

So that means it's possible that Sterling could fire back with a lawsuit if forced to sell alleging that the league's owners have acted unlawfully. That type of lawsuit could be worth $100 million plus for Sterling. That's why the NBA didn't announce Sterling is being forced to sell; rather they announced they would recommend that he be forced to sell and take it from there.

As part of that same lawsuit, Sterling could allege that the NBA doesn't have the authority to ban him for life, and that the penalty is disproportionately high.

Not only does Sterling have a history of racially insensitive comments, he also has a history of suing the NBA. After acquiring the San Diego Clippers in 1981, Sterling moved the team to Los Angeles without the league's consent in 1984. David Stern, Commissioner of the NBA at the time, fined Sterling $25 million.

What did Sterling do in response?

He sued the NBA for $100 million. The fine was later reduced to $6 million.

So depending on how Sterling takes Tuesday's news, this may not be done.

Donald Sterling (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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