Sterling issue Q&A: The NBA's disciplinary process and options
What is the NBA investigating, what disciplinary options are available and how will the process go down if Clippers owner Donald Sterling is found to have made racially incendiary remarks? Here are the key questions and answers.
As the NBA investigation continues into Clippers owner Donald Sterling's alleged racially insensitive remarks, there are more questions than answers as to the process and options on the table for commissioner Adam Silver and the owners. The league will hold a news conference on Tuesday regarding its investigation. Here are a few of the most important questions and my best attempts at answering them:
Question: What exactly is the NBA investigating?
Answer: The league security department, first and foremost, must determine whether it is, in fact, Sterling's voice on the tape and that the recording was not doctored. Stu Jackson, who worked for many years in the league office and now is an analyst for FOX Sports 1 and Turner Sports, correctly stated over the weekend that voice recognition experts and technology would be employed. If it sounds MacGyver-ish, it is. Sports leagues, including the NBA, often employ former FBI agents in their security departments.
Q: What else should the investigation involve?
A: Silver said Saturday night that the probe also would include interviewing Sterling and perhaps the woman who allegedly recorded the conversation. Silver carefully chose the words "due process" in his news conference from Memphis because he knows that to impose severe discipline on an NBA executive, coach, player, employee or owner, that person must be given the opportunity to defend himself or herself against the allegations.
Q: What happens once the investigation is concluded?
A: If Sterling is found to have made the comments, this is where attention turns to the NBA's Constitution and By-Laws, which governs all aspects of league business falling outside the collectively bargained work arrangement with the players. This is not a public document, and I have never seen it. All Silver said regarding its governance of potential owner discipline is that it contains "broad powers" that include "a range of sanctions." Among those obviously is a fine, since the NBA fines people all the time (especially Dallas Mavericks owner Mark Cuban). A suspension of definite or indefinite length also is believed to be included in those broad powers. As was the case with Major League Baseball and late Cincinnati Reds owner Marge Schott, a suspension also could include orders for the owner to be removed from the day-to-day business and basketball operations of the team.
Q: Can the NBA force an owner to sell a team?
A: This is not believed to be among the "broad powers" in the Constitution and By-Laws. Even in the case of Schott, who was suspended multiple times for making racially insensitive remarks, she was eventually pressured to sell the Reds in 1999 -- but only after years of pressure from baseball and fellow owners, and only after General Motors accused her of falsifying car sales with the names of team employees at a Chevrolet dealership she had since sold. Even then, Schott reaped the financial benefit of the sale and retained one ownership share as well as 21 box seats and a luxury suite, according to this story from the Cincinnati Enquirer. She died in 2004 at age 75.
Q: If the investigation calls for disciplinary action, which person or group of people will act first?
A: That will depend largely on the NBA's legal interpretation of the disciplinary powers in the Constitution and By-Laws. Silver, a smart and talented lawyer, is extremely process-oriented. Most significant action taken at the league level, such as the transfer of ownership or relocation of a team, for example, would go through the appropriate ownership committee first. That committee would weigh the facts, hear testimony, review documents, and make a recommendation to the full Board of Governors, which includes a representative (usually the owner) from all 30 teams. The board would then vote on that recommendation.
Q: With the Sterling controversy embarrassing the league and overshadowing its most important time of year, does the NBA have time for all that now?
A: Likely not. That's why my gut feeling, if the investigation shows that Sterling made the comments, is that Silver will exercise his broad powers to hand out discipline for actions that are detrimental to the game by imposing an indefinite suspension on the Clippers' owner. The suspension could be imposed pending the outcome of the committee and full Board of Governors process, which potentially could take weeks or even months. Such action likely would remove Sterling from his involvement in the day-to-day operations of the team -- and from his courtside seat at Tuesday night's Warriors-Clippers game -- while his fellow owners take the time needed to fully examine the issues and take definitive action. Of course, if Silver wanted the backing of the Board of Governors instead of solely acting on his broad powers as commissioner, an emergency session and vote of the board could be convened via conference call. Either way, an indefinite suspension pending a full board review of the matter would solve the immediate problem of Sterling being involved in team and league business amid so much public backlash. Legally speaking, think of it as an injunction -- not a final judgment but a temporary one that buys the appropriate authorities time to act.
Q: What would Sterling's legal options be?
A: I'm not a lawyer, but I'm confident Sterling employs many talented ones. My best guess here is that he could seek an injunction of his own in federal court to block such a suspension. Of course, this could get dicey because Sterling essentially would be suing his own business partners -- the same ones who'd be in a position to dictate terms of his eventual sale of the team, if that is what Sterling were someday pressured to do. This is why, in my opinion, whatever disciplinary action the league might consider if the comments attributed to Sterling are authenticated will be negotiated with his legal team prior to being announced. A legal battle over Sterling's status could take months and would overshadow the rest of the playoffs (including the NBA Finals) as well as the draft and free agency. This would inflict financial harm on the NBA business, in which Sterling is a 1/30th partner. It would inflict the most financial harm on Sterling's 1/30th share, as in the enormous equity he has amassed since buying the Clippers for $12 million in 1981. If the Milwaukee Bucks are selling for $550 million, imagine how much a championship-contending team in the nation's second-largest market would command.
Q: What other legal issues are involved?
A: Even if the remarks are authenticated and determined to have been made by Sterling, there is the issue of how the recording was obtained. According to the Digital Media Law project, California is one of 11 states that require two parties to give consent for telephone or other conversations to be recorded. If it was Sterling on the recording, if the recording wasn't doctored, and if he did not give consent to have the conversation recorded, could the NBA take disciplinary action based on a such a recording? For this reason, the ultimate case against Sterling could become extremely far-reaching and complicated. As the basis for any disciplinary action, the league also could cite Sterling's prior public record for allegedly making racially insensitive remarks (such as those in the court documents for a federal housing discrimination lawsuit that Sterling settled, with no admission of wrongdoing, for $2.73 million in 2009.) In that case, however, Sterling's legal argument would be simple and potentially compelling: If the NBA took no disciplinary action at the time based on those circumstances, how could it discipline him years later?
Q: How soon will all of this transpire?
A: Silver said the league will move "extraordinarily quickly," and Tuesday's scheduled announcement regarding the probe is proof that he wasn't kidding. As of now, the only agreement with Sterling was for him not to attend the Clippers' playoff game in Oakland, Calif., against the Warriors on Sunday. So while the first shoe will drop on Tuesday, this figures to be a lengthy and complicated saga going forward.
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