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There’s an old legal aphorism that we all learned in law school — tough cases make bad law. It’s a statement that keeps coming to mind as the Donald Sterling legal mess continues to unspool. Yesterday Sterling filed a 32 page legal response to the NBA’s charges. It’s a very strong legal defense, one buttressed by the NBA’s own precedents both on and off the court. I’d encourage all of you to read the full document.
In particular, the Sterling case is opening a disastrous precedential front for NBA owners and players, who heretofore had mostly escaped significant punishment for on and off-court comments. In his response Sterling cites several public comments by players that attracted media attention. While Sterling doesn’t name the players, it isn’t difficult to figure out who they are.
On page 20, Sterling asserts, “A player was fined $100,000 but not suspended for referring to a referree as a “fu—– fa—-” on television.”
That player, of course, is Kobe Bryant. While no two situations are exactly similar in any of these cited circumstances — welcome to the legal system, where precedents are rarely exactly on point — how can the NBA determine that a privately recorded and illegally taped conversation in California that doesn’t involve the league is deserving of an infinitely more significant punishment than an on-court homophobic slur by a player that’s directed to an NBA employee? In a pre-Sterling precedent NBA, Kobe got away with a relatively inconsequential fine. But do you really think a player would escape significant suspension in a post-Sterling NBA? Once you’ve extracted a pound of flesh of punishment for Sterling’s private comments, the precedent has been set — it’s open season on players too.
While it may feel gratifying to publicly condemn Sterling’s private comments, did anyone bother to advise the players that they were in very real danger of winning the battle and losing the war?
Sterling also goes after Shaquille O’Neal, asserting in his filing, “Referring to Yao Ming,… (on a television show): “Tell Yao Ming, ching chong yang wah ah soh.” And although the statement offended many in the Chinese community, the NBA neither fined nor suspended the player. Last month (Shaq) was accused of publicly mocking (on Instagram) a picture of a man with ectodermal dysplasia, a rare genetic disorder affecting one’s appearance. Despite being a minority owner of the Sacramento Kings, the NBA has yet to take any action against this individual.”
He also cited the public comments of Knicks executive Larry Johnson. “After Mr. Sterling’s illegally recorded private comments were leaked, a former player and current Knicks executive tweeted: “Black people your Focusing on the wrong thing. We should be focusing on having our own, Own team own League! To For Self!” The NBA ignored this call for a racially homogenous league.”
All three of these player actions were public, that is, they were spoken with the clear intent that they would be published to the community. Sterling’s comments, clearly, were not not public. Yet no significant punishments were levied for any of these acts.
Sterling also cites several owner actions that resulted in no punishment, including the Orlando Magic owner’s $500,000 donation to combat gay marriage that led to calls for an NBA boycott from the LGBT community.
Sterling then cites the following past owner punishments:
“An owner was suspended for nearly a year for signing a player to a secret contract, which violated the salary cap rules.
An owner was fined $25,000 and suspended two games for being convicted of drunk driving.
An owner was fined $100,000 for confronting referees on a court after the game and using inappropriate language toward them.
Multiple owners were fined undisclosed sums (reported at between $100,000 and $500,000) for making public comments on Twitter about the collective bargaining process during the 2011 NBA lockout.”
Just two NBA games for a DUI?! That’s like one quarter of an NFL game. Somewhere Jim Irsay’s lawyers are doing cartwheels.
My point in citing all of these examples isn’t to defend Donald Sterling, it’s to illustrate how difficult the NBA’s past punishment history is to reconcile with the extraordinary league punishment of Sterling. What’s more, if Sterling’s punishment stands — which may well take years to determine for sure — the rest of the NBA players and owners are facing a much more difficult future, one in which they are all subject to punishment for on or off the court speech, private or otherwise. Indeed, on a broader scale, we’re moving towards a society where the distinction between public and private speech doesn’t exist anymore.
The NBA is leading that charge, mostly cheered on by the public mob, who wants punishment but doesn’t bother to think about the troubles with the precedent that is being set.
Again, tough cases make bad law. The Donald Sterling incident is a tough case that’s in danger of making bad law. Both sides, the NBA and Sterling, desperately need to reach an agreed upon compromise here. Perhaps it’s Shelly Sterling maintaining control of the team, perhaps it’s Donald Sterling agreeing to sell the team so long as he can select the buyer, maybe there’s another possibility that both sides can agree upon. But if not we’re heading for a legal disaster, the NBA doesn’t want to face a lawsuit and the resulting discovery process that could be incredibly embarrassing to the league — this is why Major League Baseball didn’t force out Marge Schott — and Donald Sterling probably doesn’t want to spend the rest of his life fighting the NBA in court.
But right now that’s exactly where we’re headed.
In the meantime, it’s open season on NBA players and owners.
And the only real winner is TMZ.