Go Get ‘Em, Donald!
Why Sterling should sue the pants off the NBA.



TMZ reported last week that embattled L.A. Clippers owner Donald Sterling is considering suing the National Basketball Association. But according to the Los Angeles Daily News, Sterling has been rejected by at least eight law firms, who worry that taking him on as a client may upset existing clients and their images.

But does Sterling have a case? Yes.


Let’s take a look.

First, was Sterling’s punishment (a $2.5 million fee and a lifetime ban) justified by the NBA’s Constitution and By-Laws?

The NBA based the punishment on Article 24 of the NBA Constitution, which reads:

Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association. The penalty that may be assessed under the preceding two sentences may include, without limitation, a fine, suspension, and/or the forfeiture or assignment of draft choices. No monetary penalty fixed under this provision shall exceed $2,500,000.

But notice the first bit: “[w]here a situation arises which is not covered in the Constitution and By-Laws….” Sterling’s situation is, however, addressed in the documents – hence Article 24 does not apply.

Where are Sterling’s circumstances addressed? In Article 35A(c), which reads:

(c) Any person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner. [emphasis mine]

In other words, the NBA did consider a situation such as this (a member of the organization making an ill statement), specifically addressed it, and prescribed the punishment. That punishment is $1 million (not $2.5 million) and no ban (certainly not a lifetime ban, as was imposed on Sterling).

It gets more complicated, however. The next clause, Article 35A(d), covers another area of discipline:

(d) The Commissioner shall have the power to suspend for a definite or indefinite period, or to impose a fine not exceeding $1,000,000, or inflict both such suspension and fine upon any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association. [emphasis mine]

You’re probably thinking: “What’s the difference between (c) and (d)” or “Was someone actually paid to write this terribly worded document?” (The NBA constitution, for the record, is five times longer than the Constitution of the United States.)

Both are excellent questions. But let’s stick with the first. While 35A(d) allows for a lifetime suspension, that disciplinary measure is limited to punishment regarding conduct. Sterling’s statements could fall under the umbrella of ‘conduct,’ but when there is a contradictory clause that more specifically touches upon the situation (e.g., a clause specifically addressing an ill statement) that would be the clause most courts would find applicable. Subsection (d) and its potential lifetime ban seem to refer to a broader situation: not a harmful statement/s but a harmful action.