In a historic announcement, NBA commissioner Adam Silver has handed Los Angeles Clippers owner Donald Sterling a lifetime ban from the NBA, along with issuing the maximum allowable fine of $2.5 million. Of greater significance, Silver has also instructed NBA owners to oust Sterling as owner of the team. The announcement sets the table for an epic legal fight over ownership of the Clippers and the powers of the commissioner.
Legality of Sterling's suspension and fine
Silver has broad authority under the NBA's constitution and bylaws to suspend and fine an owner for conduct detrimental to the NBA. According to Sliver, Sterling admitted it was his voice on the recording in which he made racist remarks. Even if the recording was unlawfully created under California law -- the recording would likely be unlawful if the conversation was confidential and Sterling didn't give consent -- Silver is authorized to punish Sterling based on the recording's impact on the league. It is safe to say that Sterling's comments, which elicited the rebuke of President Barack Obama, have deeply harmed the NBA and its relationship with players, sponsors and fans. Sterling seems to lack a viable argument that his conduct was not seriously detrimental to the NBA.
Sterling is also disadvantaged in challenging the suspension and fine because of how a court would treat such a challenge. A court would review Silver's decision under the deferential "arbitrary and capricious" standard of review. This standard would essentially require Sterling prove that the NBA -- and specifically Silver, acting as the NBA's ultimate arbiter -- failed to follow its own rules in how it investigated Sterling and punished him. For instance, if the NBA failed to authenticate the recording, concealed evidence or not requested a meeting with Sterling, Sterling might have sufficient grounds. Silver's remarks during the press conference, however, suggest all relevant rules and policies were followed. Absent Sterling proving there was a procedural defect of serious importance, Sterling likely has no viable appeal to either the fine or suspension.
ROSENERG: Lifetime ban fitting punishment for Sterling
As a practical effect, the suspension all but excommunicates Sterling from both his team and the NBA. He is forbidden from any contact with players, coaches and staff, and he is barred from attending games or practices. Sterling is also prohibited from participating in league activities. He is now, essentially, in NBA exile.
The fine of $2.5 million may seem inconsequential given that Sterling is worth reportedly $1.9 billion, but it was the highest amount of money permitted by the league's constitution and bylaws. Had Silver issued a higher fine, and justified it on policy or moral grounds, he would have provided Sterling with an opportunity to raise a legal point. Specifically, Sterling might have argued such a penalty is "arbitrary and capricious" because it would not have followed NBA rules. Silver, an attorney, wisely adhered to the rules instead.
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