Sources: Donald Sterling refuses NBA sanctions, threatens to sue
SI.com has learned that Clippers owner Donald Sterling has hired prominent antitrust litigator Maxwell Blecher, who has written a letter to NBA executive vice president and general counsel Rick Buchanan threatening to sue the NBA. The letter, sources tell SI.com, claims that Sterling has done nothing wrong and that "no punishment is warranted" for Sterling. Blecher also tells Buchanan that Sterling will not pay the $2.5 million fine, which is already past due. Blecher ends the letter by saying this controversy "will be adjudicated."
Blecher's letter makes clear what many have anticipated: Donald Sterling will not go down without a fight and that he is taking active steps toward litigation. A letter of this type is considered a precursor to the filing of a lawsuit. Blecher's letter offers no ambiguity about Sterling's intentions.
"We reject your demand for payment," the letter tells Buchanan, who on May 14 informed Sterling by letter that he must pay the $2.5 million fine.
Blecher's letter goes on to identify two basic legal defenses for Sterling.
First, Blecher claims that Sterling has not violated any article of the NBA constitution. The letter curiously references Article 35, which governs players' misconduct, and several other provisions. The NBA is expected to argue that Sterling violated Article 13(d) among other provisions. Article 13 (d) bars owners from violating contractual obligations, including the obligation that owners no engage in unethical conduct or take positions adverse to the NBA. Blecher does not explain how he intends to prove Sterling's racist remarks captured on the secret recording -- followed by Sterling's incendiary remarks to Anderson Cooper about Magic Johnson -- do not give rise to unethical conduct or positions adverse to the NBA.
Second, Blecher argues that Sterling's "due process rights" have been violated by the NBA. A due process claim may sound superficially reasonable. After all, Sterling was banned permanently from the NBA after a mere four-day investigation, without any formal proceedings. If the NBA were a federal agency or a state college, Sterling might have a good argument, as those are public entities that must provide safeguards found under the U.S. Constitution and state constitutions. The problem for Sterling is that the NBA is a private association and is not required to provide due process rights. Sterling, moreover, contractually assented to the NBA's system of justice through various contracts, including his franchise agreement to purchase the Clippers and the joint venture agreement, which indicates the NBA has binding authority over the teams.
Any lawsuit by Sterling against the NBA would face a daunting task, as Sterling contractually agreed to follow the NBA's system of justice. Sterling's failure to pay the fine is additional evidence of his insubordination of league policies. His failure triggers other contractual provisions that can be used by the NBA under Article 13(d) to justify his ouster. It is also possible the NBA could deduct $2.5 million, plus interest, from proceeds the NBA would share with the Sterlings after the league sells the Clippers.
The letter's claim that Sterling has done nothing wrong seems at odds with Sterling's own words to Anderson Cooper. Sterling was unequivocal in the interview, "I made a terrible, terrible mistake." His lawyer, however, appears to believe otherwise. Keep in mind, the NBA will be able to use Sterling's apparent admission to Cooper as evidence.
The real weapon Sterling could obtain through a lawsuit is pretrial discovery, which is the process of each side sharing evidence and deposing witnesses before a trial. Filing a lawsuit does not automatically lead to pretrial discovery, as a lawsuit can be quickly dismissed by a judge on a number of grounds. If a lawsuit advances past dismissal, however, a judge normally commands that each side cooperate in answering questions under oath.
As explained in a previous SI.com article, Sterling could attempt to use pretrial discovery to portray NBA owners as hypocritical. He'd argue that if he is being expelled over bigoted comments, he'd want to know why other owners haven't suffered the same fate over similar statements. Along those lines, Sterling would likely demand that former commissioner David Stern testify about his knowledge of owner misconduct.
The NBA is well-poised to argue that Sterling's pending ouster is mainly due to the impact of his conduct -- which nearly triggered a player boycott, caused sponsors to drop the Clippers and led to critical words from President Obama -- rather than the conduct itself. Still, Sterling could try to damage the NBA on the way out.
Blecher is no stranger to expensive and lengthy litigation in sports. He was a lead attorney for the Los Angeles Memorial Coliseum in successful antitrust litigation against the NFL. The litigation concerned the Raiders relocating between Oakland and Los Angeles. Blecher, who is in his early 80s, is one of small number of attorneys who can say he beat the NFL. He will have an uphill battle to say the same of the NBA.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.