In a development that makes Donald Sterling reacquiring the Los Angeles Clippers virtually impossible, court records indicate that Sterling failed to petition the California Supreme Court for review by Monday’s deadline. The failure means that Sterling has run out of legal options in California to force former Microsoft CEO Steve Ballmer to return the franchise to him.
Under California law, Sterling had 10 business days from Aug. 13 – the date an intermediate appellate court summarily rejected Sterling’s two petitions for the $2 billion sale of the Clippers be halted or reversed – to petition the California Supreme Court with the same request. It would have been a long shot request, to be sure, but Sterling was entitled to give it a try. By allowing the deadline to pass without a petition to the California Supreme Court, Sterling effectively acquiesces to Ballmer’s ownership of the team.
On one hand, Sterling’s inaction is stunning given his litigious past and reputation for trying every legal move imaginable. This is, after-all, the same Donald Sterling who earlier in the summer described NBA officials as “despicable monsters” and who vowed a “fight to the bloody end” to keep the Clippers. On the other hand, Sterling’s capitulation is consistent with his more recent comments to TMZ.com when he lamented, “I’m finished. I’m over.” When it comes to owning the Clippers, Sterling is indeed finished.
To be clear, Sterling can continue to wage litigation against his wife of 59 years, Shelly Sterling, and the NBA and commissioner Adam Silver. Along those lines, Sterling’s appeal of Los Angeles County Superior Court Judge Michael Levanas’ order that Shelly Sterling lawfully interpreted the Sterling Family Trust remains pending. Sterling has also filed separate federal and state lawsuits against the NBA that raise various claims under antitrust, contract, fraud and privacy laws. These legal maneuvers, however, mainly threaten monetary damages, not reversal of the sale of the team. In fact, the only injunctive relief sought by Sterling is to preserve the status quo, not to unwind the completed transfer. As a practical matter, Sterling would have to amend his complaints to request relief directed at the completed transfer and also name Ballmer as a defendant. Plausible? Sure. Likely? No.
Even the threat of monetary damages is not especially worrisome to the NBA, as Shelly Sterling has indemnified the league from litigation costs associated with her husband. Donald Sterling’s real legal weapon is what he might accomplish in pretrial discovery, where he would seek to have league officials and owners deposed under oath about their own past missteps and personal failings. Sterling would want them to appear hypocritical in forcing him out of the league. League officials, however, appear unworried by such a threat.
Daniel Wallach, an appellate attorney with Becker & Poliakoff, P.A., who has closely studied the Sterling legal saga, expresses surprise that Sterling allowed Monday's deadline to pass. “Donald Sterling wasted no time in asking the intermediate appellate court to unwind the sale,” Wallach tells SI.com. “He initiated two separate appellate proceedings less than one day after the 1310(b) order was entered. Given his recent and frequent legal maneuverings, I expected him to take one more shot at this. He has nothing to lose.”
But Wallach points out that Sterling's legal strategy before the intermediate appellate court “may have doomed his chances before the California Supreme Court.” Wallach explains that Sterling “only sought a stay before the intermediate appellate court – that is, a request to prevent the sale from being completed. But as the intermediate appellate court noted in its order denying the petition, there was nothing to 'stay' since the sale had already been completed.”
A more prudent legal strategy, Wallach asserts, “might have been to request an injunction unwinding the completed sale." But Wallach explains that Sterling "may have waived his right to such relief by not formally requesting the issuance of an injunction from the intermediate appellate court. It also appears that Donald Sterling's petition did not adequately address the 'balancing of the harms,' which is critical to any request for an injunction.” According to Wallach, “these may have been critical omissions, as the California Supreme Court will generally not consider issues that were not raised below. So, Donald Sterling's attorneys may have realized that such a filing would have been futile.”
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.