As the sports world awaits an announcement Tuesday from Adam Silver regarding the NBA's investigation of Clippers owner Donald Sterling, the commissioner already may have provided a window into part of the legal justification for whatever action he takes.
At a news conference in Memphis on Saturday night discussing the scandalous audio recording attributed to Sterling, Silver was asked why the NBA had never disciplined Sterling before despite allegations of racially insensitive comments in the public record. In 2009, for example, Sterling settled a federal housing discrimination lawsuit for $2.73 million, and though he admitted no wrongdoing, the court record contains accusations of racially insensitive remarks attributed to the owner.
Silver's response: "I can't speak to the past as to why decisions were made."
In short, Silver was not the commissioner at the time, and while he most certainly played an important role in the NBA's day-to-day decisions as deputy commissioner, he did not have the broad powers vested solely in the commissioner by the league's Constitution and By-Laws.
Now, however, he does.
"One can make an argument that the commissioner [David Stern], by not taking action previously, indicated or waived the right to be able to punish him in the future for similar conduct," said noted sports attorney Gabe Feldman, director of the Sports Law Center at Tulane University Law School. "I don't think that's a particularly strong argument, and we simply don't know what was said to Sterling by David Stern in the past. There may have been notice that what he's done is unacceptable and might be grounds for punishment in the future."
If the comments attributed to Sterling in the recording are authenticated as his own, it all comes back to the "broad powers" Silver alluded to in his news conference on Saturday night and how he chooses to exercise them. Those powers, given to the commissioner by the owners themselves, are at the crux of Silver's disciplinary options. Handing down a severe enough punishment while not overstepping his powers is the key for Silver to pass the first defining test of his tenure, Feldman said.
"This is not about defending these statements -- there's no way to defend these statements -- but it's about defending ownership interest in an NBA team and following the procedures that are in the Constitution and By-laws," Feldman said. "That's both to protect the other owners' interests in their own teams but also to protect the league and the commissioner from legal attack from Donald Sterling. If they tried to overreach or tried to expand the interpretation or the breadth of the commissioner's powers or the Board of Governors' powers, that's likely going to lead to a lawsuit. And a lawsuit is a lose-lose for the league here."
Though the NBA's by-laws never have been made publicly available in their entirety, Feldman's familiarity with the legal structure of pro sports leagues causes him to focus on a key phrase governing the behavior of all participants: "conduct that is materially detrimental or materially prejudicial to the best interests of the team or the league." The commissioner has broad discretion in punishing such behavior, though Feldman believes there is a $1 million cap on fines.
"My educated guess is, we'll see a fairly lengthy suspension and a hefty fine," Feldman said. "But the commissioner has tremendous discretion to choose how hefty the fine will be and how long the suspension will be. And given that we don't have much precedent to guide us here, it's very hard to gauge the severity of the discipline."
To avoid a messy, expensive and public legal battle, Feldman said it's likely Silver would reach some sort of agreement with Sterling on any discipline he decides to issue.
"Given that the rules governing this situation are private, one would think that the league would want the suspension and the terms of the suspension and all the details to remain private as well," Feldman said. "And privacy is gone if it ends up in federal court."
As for the notion of a forced sale, Feldman said sports leagues specifically reserve such severe punishment for narrowly defined instances, such as game-fixing or financial inability to operate the team. Legally, Silver would not be able to apply that clause and the one dealing with "conduct detrimental or prejudicial." He'd have to pick one or the other.
"When you have a specific provision that delineates acceptable punishment for conduct detrimental or prejudicial, it's then difficult to argue that a broad provision controls a specific," Feldman said. "In contract law, it's the opposite. The specific trumps the general. And here we have a specific provision that seems to have been intended to deal with these types of situations. And to then say that this is such a drastic example of this situation that we have to go beyond this clause is sort of a dangerous precedent to set.
"Even if you are an owner who is unhappy with these comments, you have to be wary of a broad interpretation of the commissioner's power being used against you -- or a broad interpretation of the Board of Governors' power being used against you -- in a future situation. Particularly in a case like this, where this was a private comment."
That's the other legal challenge facing Silver, Feldman said: If the comments are authenticated and determined to have been Sterling's, they nonetheless were made in a private conversation that may not have been recorded with his consent.
"There's no question that the comments are unacceptable and abhorrent, but the issue becomes more complicated because these were not publicly made statements," Feldman said. "We all know that doesn't excuse the statements, but it does raise some questions about whether this is the type of conduct that the owners intended the commissioner to punish for. ... At the end of the day, whether these comments were made publicly, privately, or were being recorded with or without his knowledge, I think you can make a strong argument that the statements clearly are prejudicial to the league and some discipline is warranted."
Whatever the outcome in the short term, Feldman said the ultimate determination on Sterling's ownership of the Clippers might be economic in nature, as well as legal. Already, a lengthy list of some of the team's biggest and most lucrative sponsors have ceased or suspended marketing relationships with the team. If revenue streams are cut off and players and coaches do not want to be employed by the team, that might lead to Sterling being unable to financially operate it in a manner that is in the best interests of the NBA.
"Whether that's a combination of pressure from the other owners, from the players, the players' association, the sponsors, the fans, potentially that might be enough economic pressure to make financial sense for Sterling to sell," Feldman said. "... I think certainly that type of pressure might be enough, but it might have to come from all angles. And it looks like it might be coming from all angles already."