It was worth the wait. A day after Donald Sterling was curiously missing from a decisive courtroom hearing on his family trust, he appeared Tuesday and took the stand. Sterling then provided riveting, if at times hard-to-believe, commentary about a wide-range of subjects related to his pending ouster from the NBA. The 80-year-old owner of the Los Angeles Clippers also frequently sparred with 85-year-old attorney Bert Fields, who represents 80-year-old Shelly Sterling and was tasked with Sterling’s cross-examination.
This was a different Donald Sterling from the one who chatted aimlessly with CNN’s Anderson Cooper in May. This Sterling often seemed intent on advancing a legal strategy: undermine the credibility of the two physicians who concluded that he was incapacitated and, as a consequence, imply that Shelly Sterling failed to meet her fiduciary duties under the family trust.
To be sure, Sterling at times deviated from the script. This was especially apparent when he grossly inflated the values of his franchise and its broadcast rights, and when he needlessly lambasted the NBA, which is not a party to the hearing. Overall, however, Sterling performed better than expected.
Donald Sterling’s legal strategy clearly evident during his testimony
At the end of the day, Donald Sterling and his attorneys have one core objective in this hearing: They must convince Los Angeles County Superior Court Judge Michael Levanas that Shelly Sterling failed to follow the trust’s procedures and failed to satisfy her fiduciary duties to the trust. Crucially, for Shelly Sterling to have lawfully removed her husband as a trustee, she needed credible medical evaluations from two physicians. If either evaluation was not credible, then Shelly Sterling likely lacked the legal authority to agree to sell the Clippers to Steve Ballmer.
Keep in mind, the NBA does not need Shelly Sterling to win this hearing in order to force Donald Sterling out of the NBA. As explained in detail on SI.com, the NBA can end Sterling’s ownership of the Clippers through a franchise termination process contemplated under Article 14 of the league’s constitution. The league, however, would clearly prefer a smoother and faster transition of Clippers ownership from Shelly Sterling, acting on behalf of the trust, to Ballmer.
Grading Donald Sterling’s testimony
Whether media and fans believe Donald Sterling is irrelevant in this hearing. The only person whose opinion matters is Levanas.
When viewed most favorably to Sterling, Sterling’s testimony may have raised important questions about neurologist Meril Platzer and her examination of Sterling. Platzer evaluated Sterling at his home in May and concluded that he displays symptoms consistent with Alzheimer’s. According to Platzer, Sterling could not spell the word “world” backward, among other signs that Sterling was unable to discharge his duties and obligations under the trust.
Donald Sterling, however, painted a different portrait of Platzer. He said her visit shared more in common with a social encounter than a medical evaluation. Sterling also charged that Platzer was primarily interested in consuming alcohol during her visit to his home, rather than evaluating his mental state. Finally, Sterling insisted that Platzer, in this relaxed setting, never revealed her true purpose for meeting with him. Sterling complained, “I didn't know [the physicians] were guns that were going to testify against me.”
At this point, there appears to be no evidence supporting Sterling’s scurrilous accusations against Platzer. Then again, Sterling made these accusations while under oath. At least in theory, he would risk criminal charges under perjury law if he knowingly lied to the court.
If Levanas found Sterling at least somewhat believable, the account offered by Sterling raises questions that ultimately trace back to Shelly Sterling’s judgment and her duties as a trustee. Specifically, why would Shelly Sterling retain a doctor to make a crucial determination of her husband’s mental state when the doctor’s examination occurred in an informal setting and where information about the examination was (allegedly) concealed from its target, Donald Sterling? These issues, if Levanas raises them in his mind, might prompt him to have concerns about the quality of Platzer’s examination and whether Shelly Sterling acted in good faith.
In Donald Sterling’s view, NBA officials are despicable monsters who 'terrified' Shelly Sterling
Of much less benefit to his case, Donald Sterling also used his time on the stand to repudiate the NBA. Last month, he called the NBA’s top officials “despicable monsters.” Today, Sterling claimed they are “not to be trusted” and they “terrified” his wife into seeking to sell the Clippers.
Sterling also implied he would have maintained his acquiescence to Ballmer buying Clippers if the NBA had dropped the lifetime ban and $2.5 million fine. Then, toward the end of his testimony, Sterling predicted he would win his $1 billion lawsuit against the NBA and it would lead to $9 billion in damages (he never explained his math). Sterling also estimated the Clippers are worth as much as $5 billion and could attract the same broadcast deals as those negotiated by the Los Angeles Lakers (he never explained why the Clippers haven’t already done so). These financial descriptions of the Clippers are exaggerative, at best. On the other hand, they may help Sterling explain why he won’t agree to Ballmer’s $2 billion offer, which would be the highest price ever paid for an NBA team.
Potential impact of Dr. James Edward Spar’s testimony
Psychiatrist James Edward Spar also testified Tuesday. Spar, like Platzer, concluded that Sterling was incapacitated. Spar acknowledged, however, that he never considered Sterling to be his patient. Although Spar could still make a lawful assessment of Sterling’s mental state for purposes of the trust, his acknowledgement might raise questions in Levanas’ mind. Specifically, Levanas might inquire as to whether Shelly Sterling acted properly in retaining Spar’s services, rather than the services of a doctor whose purpose would have been more transparent to her husband.
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.