We previously discussed the racist comments of Clippers owner Donald Sterling. We discussed the possible sanctions under the NBA rules, which are confidential. This afternoon NBA Commissioner Adam Silver announced that Clippers owner Donald Sterling will be suspended for life and fined $2.5 million. That blows away any prior sanction of the NBA.
Silver announced “I am banning Mr. Sterling for life from any association with the Clippers association or the NBA. Mr. Sterling may not attend any NBA games or practices, he may not be present at any Clippers facility, and he may not participate in any business or decisions involving the team.” That is pretty much a demand that he sell the team though he could use his general manager for some of those functions.
The $2.5 million fine will be donated to anti-discrimination organizations, which is a particularly nice touch.
I have little sympathy for Sterling and found his comments deeply disturbing and unsettling. However, it will be interesting to see if Sterling, who is a lawyer, will fight the fine. He is being banned and fine for private comments that he did not intend to be released publicly. While this is not the government (raising first amendment issues), it is a free speech questions. We have been discussing how government employees like teachers and police officers have been punished for statements and activities in their private lives. I have opposed that trend. In this case, Sterling did not even intend for this comments to go to anyone other than his girlfriend.
The question is where the line is drawn on private comments. No one would suggest sanctions Larry Johnson for (after the Sterling comments) reportedly called for all-black teams and league or his prior comments calling players “rebellious slaves.” He was clearly upset with the news and venting on social media. I understand that. Indeed, his call for some black owners of NBA team is understandable given this controversy and reflects a long-standing objection to the paucity of black owners in the NBA. Yet, those were intended to be public comments and might be viewed as offensive by white players or owners or fans. If the NBA rules extend to private communications, I am curious as to how it distinguishes between comments both public and private. When it comes to free speech, we tend to favor bright line rules but this is a rule that is neither published nor clear. Sterling may be the easy case due to the vile nature of these comments but Silver does not address the standard that has been and will be applied to owners and players.
The counter to this argument is that, as a NBA owner, Sterling agreed to comply with the rules, including the undisclosed rules of conduct. His comments clearly created an embarrassment for the NBA and other teams. Yet, my guess is that these rules are vaguely worded and this sanction is far beyond prior punishments. He probably could challenge it under contractual and even anti-trust theories.
In the end, he is being banned for being a racist (which he vehemently denies). However, if he did not act in a racist manner to the team or fans, should his private views be the basis for a ban. What is owners are anti-gay or anti-Semitic or anti-Muslim in private? Can they all be banned if a third party reveals their views or a private conversation surfaces?
What do you think?
Although there does seem seems to be a few new posters that have cropped up, teji malik has been around a few years.
JT:
I enter into a teaching contract and convey the subject quite well. During a chat with a fellow teacher I’m eavesdropped upon by a third party who overhears me say: the dean is a chump. I am fined for the comment under the disparaging words provision of the school’s rule book thatI agreed to abide by in the contract. Actionable to enforce the fine? By the dean?
Mark:
Fortunately, I do not know of such a provision in teaching though there are analogous provisions in some business and media contracts. Usually such provisions involve public comments not accidentally disclosed private communications as you know. Fortunately, in the academic realm, we have academic protections on speech that would trump such an interpretation. However, if the question is whether it is enforceable, some would clearly argue that it is. When it comes to the media, such embarrassment grounds are routinely cited for termination. Of course, the media is a market driven field where such repeatedly comments directly affect the bottom-line of the organization.
JT:
As an aside, I never liked or thought prudent so-called morals clauses in contracts. They never address the behavior, are incredibly vague and are always enforced by hypocrites.
JT:
That’s an interesting comment you make about contract law. May I enter into a contract that permits the other party to punish me financially for what I think privately. Is that a violation of public policy like say a contract for indentured servitude?
Mark, that is a funny but actually quite poignant question. We often say that you can contract yourself out of rights and claims so long as it is not allowing unlawful conduct. Presumably, you could waive all claims to arbitrary treatment. However, I doubt that these rules contain such a suicide pact. Instead, we have seen in a variety of professional sports the use of wildly vague provisions. The fact that you sign a contract or agreement containing vague provisions does not mean that you are agreeing to arbitrary enforcement. The punishment for private communications seems a legitimate question as to the presumptions of the signatories on these agreements.
Karen S.
I retrieved your comment that was in the spam filter.
Folks: Karen’s post is above at 2:23
Girlfriends taping their boyfriends is much more routine than you would think. I always got requests along that line. And, I had a good looking female PI who could have done it, but for several reasons I never took those cases. So, it’s sleazy, nasty, in some states illegal. Well, Sterling is sleazy and nasty. It is in many respects a sleazy and nasty culture in which we operate. The less legal and more economic issue folks here are not considering is how Sterling is hurting the NBA brand. Remember, the NBA had a bad brand not long ago. Magic, Bird and then MJ, along w/ the leadership of David Stern, rebranded the NBA to a progressive, exciting, sport. I prefer college but there was a time, not long ago, when the NBA could hardly find a TV contract. Their fan base is black. The commish and owners have a good case that Sterling is hurting their brand.
Sean J
This will sound bad to most, but it still deserves to be said. This country is in no doubt at a maximum level of liberal views; I also argue that it’s at its most sensitive. A man was stripped of something that he owns for using racist comments, comments said in private to his girlfriend.
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It does not sound “bad” to be, it is just inaccurate and irrelevant.
1) he has not been stripped of anything he owns, yet, only the Board of Governors can do that.
2) he has been banished from the NBA, which only the Commissioner can do, and did.
3) What was said and its damage to the NBA is the only thing that is relevant, and it did cause damage.
4) the NBA has the right and the duty to mitigate the damage done to it, and did so.
You also said: “I feel Silver’s announcement on the punishment for Sterling had a lot to do with outside pressure and appeasement.”
Correct, the NBA, and each team within it, is a business. They were being damaged by a raging boycott that was gaining steam.
Commissioner Silver, and the Owners, did what any intelligent business management team would do … stop the damage and get rid of what was the source of the damage.
They are to be commended IMO.
Paul Schulte
“Teji – If I thought liberals were interconnected with freedom I would join up in a heartbeat. What I find they are interconnected with is control. They seem to want to control my life, my thought, my speech, my education, my job, etc”.
Paul, it is simple. Open your internet dictionary and educate yourself.:-)
jonathanturley
“Teji Malik, we would appreciate it if you would not continue to attack individual posters over your view that they are “un-American” or lacking other values”.
Pardon my ignorance Professor Turley, do you mean not respecting the office of the President is part of the good American values? And decency is not a personal opinion I might add.
Help – my post got eaten by the Spam Filter. I really have to stop writing like Spam.
Teji – If I thought liberals were interconnected with freedom I would join up in a heartbeat. What I find they are interconnected with is control. They seem to want to control my life, my thought, my speech, my education, my job, etc.
This is very interesting.
I condemn Sterling’s remarks in the harshest possible way. But he legally is allowed to think them, and express them in a private conversation.
The act of racial discrimination in the workplace or housing is prohibited by law. He settled just such a case for millions of dollars.
But if has not currently discriminated against his staff or players, can he be legally sanctioned for his private comments? I would have thought, no, and left it to the public to express their displeasure. But boycotting Clippers games hurts innocent players, and employees.
If everyone who makes a horrible comment privately can be forced to lose his business, then I assume a lot of businesses would go dark. If a jilted girlfriend disclosed a man’s KKK lifetime membership to the public, I would assume people would boycott his business, not that it would be legally removed from him or his control.
Doesn’t the law say, it’s OK to think what you want, what only matters is that you follow the law?
I do not like this man, and his comments turned my stomach, but I think he can and will fight this in court.
I know very little about the NBA. Are owners considered employees of the NBA? Is embarrassing the organization grounds for losing a team, or control of a team? He is legally bound by whatever contract he’s entered into.
Karen, This situation is more akin to a homeowners association which you are forced to join if you buy your house in their territory. Those associations can TAKE your house if you do not follow the HOA rules. So even though you might own it, it can and will be taken away, in some cases without compensation or very reduced equity. Sterling is an owner, by LEAVE of the NBA. It is no more an absolute right than anything else in our country. You are not an island in any country, unless you find an island of your own, THEN you can set your rules. Of course, you will have to defend it arms in hand too.
As for the privacy issue, it is no longer one of privacy since he admitted saying that. Had he denied it, then it would be a different issue on many fronts. Since he is a lawyer, I am only surprised he didn’t lie. But given his past ACTIONS and FACT of racist practices, he is smart enough to know he would not be believed if he did deny it.
As I pointed out in an earlier post, as an airline captain, I was prohibited by company policy from being in a bar in uniform at ANY TIME OR PLACE, on duty, off duty, on vacation etc… I could not even be in civilian clothes and be in a bar with anything IDing me as an aircrew member such as my bags. At one company, we fired an F/O who lied about being a captain for DHL when he was on the beach at MIA. He had the misfortune to run into a REAL DHL captain who got his name and turned him into the company. That was a private conversation too, but he got gone.
Paul Schulte
“Sean – I think Obama should offer to sit down and have a brewski with Sterling and Silver and smooth the whole thing over. Perfect solution, don cha thunk”.
Paul: Do you mean PRESIDENT OBAMA? Or you are too insecure and demeaning in your own values which are anti American from all aspects.
Learn what decency and respect of the office means.
Teji – I always said/say Bush, too, if it makes you feel any better.
This will sound bad to most, but it still deserves to be said. This country is in no doubt at a maximum level of liberal views; I also argue that it’s at its most sensitive. A man was stripped of something that he owns for using racist comments, comments said in private to his girlfriend. If these ignorant comments were directed at any other demographic there would’ve been not nearly as much backlash. Also, I feel Silver’s announcement on the punishment for Sterling had a lot to do with outside pressure and appeasement. All of this being said, this is the most ridiculous “major media issue” I have ever seen. If a man’s ignorant statements can cause the selling of his business and tarnishing of his name until he dies; then I must say this country is soft. I am a black man, who took offense to these comments. But there are worse things said to all demographics, a fine and we’ll written apology would’ve sufficed.
Sean – I think Obama should offer to sit down and have a brewski with Sterling and Silver and smooth the whole thing over. Perfect solution, don cha thunk.
Sean J: I think you forgot that the word Liberal is interconnected with Freedom. It seems you hate the latter. Lastly, there is no room for racism in the closet or out. This should be our family value as humans.
Teji Malik, we would appreciate it if you would not continue to attack individual posters over your view that they are “un-American” or lacking other values.
Teji Malki has been suspended from posting after responding to a request not to attack posters with profanity. We have had a number of postings by what appears to be fake alias to continue to flaunt the civility rule and try to re-ignite personal criticisms of posters. I do not know if this is one of these false personas. However, the response to our request shows a continuing refusal to comply with our rules. We can only try to stop these threads before they take over the comment section but of course it takes little skill to create new identities once someone is suspended. This includes someone who has previously posted under my own name. It is a juvenile practice but all we can do is try to stop these efforts when they are discovered. I ask that legitimate posters try to refrain from responding to these posters and focus on the discussion of our posts rather than personalities. Your cooperation is greatly appreciated.
sean, I have no idea if you are black, but I will assume until proven otherwise that is the case. My question is if you feel that way, Why is a written apology even needed or required? What if he refuses to do that,, then What?
I have no idea of how you get the idea that this is flood tide of liberalism given the FACT of the current composition of Congress and the government doing nothing to enforce court orders against armed right wing thugs. I would say it is quite the opposite.
Once the Board of Governors strip Sterling of ownership interest, this takes effect:
(NBA Constitution and Bylaws)
As I read it, the Commissioner, Silver, did what he has the authority to do, and then asked the Board of Governors to do what only they can do with a 3/4 majority vote (23 owners is a 3/4 majority as I understand it now).
The Commissioner has the authority to do what he did per:
(Constitution & Bylaws of the NBA). The gravamen of the case of the lifetime suspension (not ownership) is whether Sterling is “guilty of conduct prejudicial or detrimental to the Association” which the Commissioner has the power to decide.
Once that finding of fact and decision to suspend for life has been made by the Commissioner, then the Board of Governors have a basis.
They can then determine by their power of a 3/4 majority vote that Sterling did willfully “violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association“, because as the Commissioner determined, Sterling has damaged the NBA.
There are two authorities, the Commissioner and the Board of Governors, each with different powers.
Dredd – you will notice the fine can only be 1 mill. And I think the key are the words “willfully violate” Is there a rule I will not trash talk with my gf?
I remember when the Suns sold. It really took awhile to get the financing together, get enough contributors to chip in enough so they could buy the team. Selling the Clippers is not like someone is going to step up today and say, hey I got cash.
Since Sterling was engaged in a private communication that he never intended to become public (presumably) and only became so because of the possibly criminal acts of his mistress is the NBA actually punishing him for his thoughts rather than his comments?
I thought we didn’t do that in this country.
I agree Mespo but that leads us to this interesting intersection between contracts law and antitrust law. Here you have the control of a monopoly enforcing a contract that does not address such distinctions. I hate to wish for litigation but it would be a fascinating and perhaps long-overdue case.
Jonathan – does the NBA have an exemption from anti-trust law. I think baseball does, but not sure about the others. An anti-trust action could be very interesting during an election season. 🙂
If Sterling were smart and not that egotistic racist (because he has fired people under contract and not paid them, so they could spend more money in the court), he would be able beat on this hot iron now and sell the Clippers because he can get a golden nugget for that. It is worth $375 million but he may be able to fetch north of a billion, thanks to this Communist, Socialist Liberal President who has made the richer even much richer.
If he delays this process with litigation laced with his ego, then the franchise’s value will drop faster than mercury in Sarah Palin’s Alaska during winter time.
mespo – I couldn’t agree with you more, but I thought Shirley Sherrod should not be fired but the Obama administration did it anyway. CYA is the name of the game.
He could threaten greymail. Where you threaten to expose all the dirty little secrets of the other owners if you litigate it, this does work in some cases.
Johnathan – this could cause some problems because next year schedule is probably already locked. 🙂 Unless they are planning to sell the veterans and play the rookies or sell the rookies and play the veterans, or completely strip the team of players, which means other players have to go. If I was a marginal player on a team somewhere I would be getting nervous.