In the midst of anger directed at Donald Sterling, current owner of the LA Clippers, it is easy to get lost in the media cacophony. Across the country, media moguls and casual twitter users alike have called for his immediate resignation, for the NBA to forcibly remove him as head of the LA Clippers, and for monetary sanctions to be placed against him. On the other side of the coin, people rage on about his First Amendment Protections and right to privacy. So before discussing the matter of whether the NBA has the ability to instate a lifelong ban on Sterling, and whether it can force Sterling to sell the Clippers, let’s first briefly go over the First Amendment.
The First Amendment of the Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” The first four words of the Amendment are critical: Congress shall make no law. Whenever there is a private entity at play, such as the case here, the First Amendment does not apply. While Sterling has the right to be a racist jerk, the NBA is not forced to sit on its hands and let such behavior continue.
The real question here is whether the NBA Franchise has the ability, within its own private constitution, to ban an owner for life and force the sale of a team. Luckily, the NBA Constitution and By-laws can be found here. So, turning to the NBA’s own By-Laws, to which Donald Sterling is bound by owning the Clippers Franchise, determines whether the NBA and the Commissioner of the NBA has the authority to ban him.
Article 35A of the NBA Constitution deals with Misconduct of Persons Other Than Players, and states “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.” (NBA Constitution Article 35 A (d)). This article gives the Commissioner extremely broad discretion. Clearly making racial slurs that enrage an entire nation, never mind its core basketball fan base, is detrimental to the Association. The NBA has complete authority to ban Donald Sterling for life.
Donald Sterling reacted to this news by filing an Answer. (You can read that here ). Sterling argues that the audio clip used against him was obtained illegally under California State law, and that the comments were the result of a “lover’s quarrel.” However, even if Sterling has a point, the NBA’s Constitution states that the Commissioner’s decisions are “final, binding, conclusive, and unappealable.” Courts are hesitant to interpret a private organization’s by-laws differently than the organization itself, and even so, the wording of the NBA’s by-laws make it clear that the Commissioner’s word is final. The next question becomes, can the NBA force Donald Sterling to sell his team? That is where the law becomes cloudy. To force termination, a vote of “three fourths of the Board of Governors” is required. (Article 13). However, this Article applies to specific instances such as failing to pay dues, participating in open betting, gambling, or willfully failing to send their team to a game. Article 13 may not technically apply here.
The discussion of whether or not the NBA can force the sale of the LA Clippers may end up becoming a moot point anyway. Despite being a racist, adulterer, and all around jerk of a person, no one would argue that Donald Sterling is a bad businessman. A self-made real estate mogul, Donald Sterling bought the team for $12.5 million in 1981. Various billionaires, including Oprah Winfrey and Oracle software co-founder Larry Ellison, are reportedly making bids on the team, which may end up selling for roughly $1 billion. It is also unclear on whether Donald Sterling has authorized his wife, Shelly Sterling, to sell both his 50% and her own 50% interest in the team.
With bids due by Thursday, it may be possible that Sterling’s racial slurs managed to earn him even more money, despite the NBA’s $2.5 million dollar fine. Some punishment.
If you would like to read Donald Sterling’s Answer to his termination, it is available here.
The NBA Constitution and By-Laws can be found here.
And for additional reading:
NBA’s Effort to Force Clippers Sale Is Illegal
Shelly Sterling attempting to push through hurried sale of Clippers
That “Secret” NBA Constitution Is Now Online
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