Donald Sterling ouster: Are ugly comments enough to remove a business owner?

If Donald Sterling decides to contest an ouster from NBA ownership, legal experts foresee a protracted legal battle. The case offers a window on the intersection of social values, property rights, and public responsibility for private speech.

Richard Drew/AP
NBA Commissioner Adam Silver addresses the media during a news conference in New York, April 29. Silver announced that he is banning Los Angeles Clipper owner Donald Sterling for life and urging other NBA owners to force a sale of the Clippers, after racist comments Sterling made in a recording.

After the National Basketball Association dropped the hammer on Los Angeles Clippers owner Donald Sterling Tuesday, exiling him for life from every facet of his 33-year business and fining him $2.5 million for allegedly making jealousy-fueled, racist remarks to his mistress, the league must now begin a delicate process of forcing him to divest a property worth perhaps $1 billion.

For Mr. Sterling to be ousted, at least 23 of the NBA’s 30 principal owners would have to vote to do so. Commissioner Adam Silver vowed Tuesday that he will do “everything in his power” to ensure that result, drawing sweeping praise from players, sponsors, and many owners.

But it may not be so simple, observers say. If Sterling decides to vigorously contest the ouster – and most believe he will – legal experts foresee a protracted legal battle.

In fact, some have wondered whether there may be larger principles at stake than ostracizing an alleged racist. Can ugly, indefensible, and socially offensive comments, apparently made during a private lovers' spat and recorded surreptitiously, be enough to force a person out of private ownership of a billion-dollar business?

The case offers a wide-lens view on the intersection of American social values, property rights, and public responsibility for private speech.

“It would not be a frivolous lawsuit,” says Jeffrey Shinder, managing partner of the New York office of Constantine Cannon, which specializes in antitrust law.

Removing an owner of a private business is never taken lightly in US jurisprudence, with its precepts of free enterprise. Yet sports leagues are often given wide legal leeway for their collective “best interests.”

The NBA is its own private entity, of course, with its own private constitution and bylaws. Membership in this basketball association is not a right, and Article 13 of the NBA constitution lists 10 situations in which its board of governors can, with a three-fourths majority vote, oust an owner or any other member.

“Problem is it generally involves fraud or gambling, not a private conversation in the living room with your ‘girlfriend,’ ” writes Boston Herald columnist Ron Borges.

Indeed, if he were forced to sell, Sterling could sue the league, saying he broke no concrete bylaw. He could even make an antitrust argument, saying in effect that the league’s competitive owners are conspiring against another owner.

Then again, the sheer ugliness of Sterling’s alleged words, and the unambiguous contempt for black people expressed to his then-girlfriend – who is black and Latina herself – has provoked widespread social disgust for the NBA’s longest-tenured owner.

“Consider the ramifications of him continuing to own this team,” Mr. Shinder says. “[The team] could substantially atrophy back to the time – even worse than the team was back when it was the laughingstock of the league. No one is going to want to sponsor it, it’s going to lose its season ticket holders, players aren’t going to want to play it.”

Still, before the NBA exiled and fined Sterling on Tuesday, Mark Cuban, the billionaire owner of the Dallas Mavericks known for his provocative remarks, publicly expressed worries that punishing Sterling for his alleged “abhorrent” words might lead to a “slippery slope.”

“In this country, people are allowed to be morons,” Mr. Cuban said Monday night. “They're allowed to be stupid. They're allowed to think idiotic thoughts.”

“But regardless of your background, regardless of the history they have, if we're taking something somebody said in their home and we're trying to turn it into something that leads to you being forced to divest property in any way, shape, or form, that's not the United States of America,” he continued. “I don't want to be part of that.”

Cuban even retweeted the words of a follower: “Sterling's no victim. But one doesn't need to agree w/ his beliefs in order to argue his right to privately have them.”

After Tuesday’s press conference, however, Cuban seemed to soften his view, tweeting: “I agree 100% with Commissioner Silver's findings and the actions taken against Donald Sterling.”

By Wednesday, though, others began to echo his initial worry, saying even a vile racist doesn’t merit having private property taken away.

“[The] process does raise some troubling issues,” writes Mike Pesca in Slate. “A private citizen whose private thoughts were audio-taped (perhaps illegally) has been told he can no longer own his private property because of the thoughts that were revealed on that tape. These thoughts were loathsome to be sure, but didn’t advocate anything illegal and didn’t call for any violent or even literally hurtful actions.”

But for others, private property is not the only factor to consider. Not only is the NBA its own kind of private entity, with the right to enforce its rules and pursue its collective best interests, but a broader concern for the greater social good is also at stake, given the historical horrors of racism.

“Although it’s a tough question, I think as an owner of a sports team, you owe some kind of obligation to a greater whole,” says Shinder. “He’s a public figure in the sense that he owns a now-marquee franchise, and the interests of the NBA have a profound effect on our culture – which is why these leagues have constitutions and allow commissioners to ban people for a year, or ban them for life.”

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