NBA Can't Legally Terminate Sterling's Ownership
On Tuesday, the National Basketball Association released its Constitution and By-laws – and the release of the text demonstrates clearly that despite media reports, Los Angeles Clippers owner Donald Sterling cannot be voted out of ownership of his team by colleagues for his racist statements.
Yesterday, NBA commissioner Adam Silver fined Sterling $2.5 million and suspended him for life from the league. He certainly has that power under the Constitution and By-laws. Under Article 24(l), the commissioner has the power to do that which is in his best judgment with regard to remedies not covered by the Constitution or By-laws:
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.
Provision 35A(d) spells this out further:
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 to 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.
In other words, Silver’s peremptory power is limited to Sterling’s suspension from the NBA and a fine of $2.5 million. It does not extend to booting him from ownership of his team. Furthermore, the association by-laws do not grant the power for owners to force Sterling to sell his team. Termination provisions can only be initiated for violation of specific rules, none of which include a prohibition on offensive or racist statements causing detriment to the NBA. Article 13 spells out these various crimes which would allow the famed 3/4 vote by owners to oust an owner:
(a) Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.
(b) Transfer or attempt to transfer a Membership or an interest in a Member without complying with the provisions of Article 5.
(c) Fail to pay any dues or other indebtedness owing to the Association within thirty (30) days after Written Notice from the Commissioner of default in such payment.
(d) Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.
(e) Wager or countenance wagering by its officers or employees on any game in which a Team operated by a Member of the Association participates.
(f) Willfully permit open betting, pool selling, or any other form of gambling upon any premises owned, leased, or otherwise controlled by the Member or an Owner, except, subject to Article 8(a), for gambling activities that are lawful in the applicable jurisdiction and do not involve in any way, directly or indirectly, gambling with respect to any aspect of the Association’s games, events, property, players, or other personnel.
(g) Offer, agree, conspire, or attempt to lose or control the score of any game participated in by a Team operated by a Member of the Association, or fail to suspend immediately any officer or any Player or other employee of the Member who shall be found guilty, in a court of law or in any hearing sanctioned by this Constitution and By- Laws, of offering, agreeing, conspiring, or attempting to lose or control the score of any such game or of being interested in any pool or wager on any game in which a Team operated by a Member of the Association participates.
(h) Disband its Team during the Season, dissolve its business, or cease its operation.
(i) Willfully fail to present its Team at the time and place it is scheduled to play in an Exhibition, Regular Season, or Playoff Game.
(j) Willfully misrepresent any material fact contained in its application for Membership in the Association.
None of these provisions have anything to do with Sterling’s racist statements. Were the owners to vote to terminate his ownership, he would sue, and he would win. The NBA’s failure to make that clear to the media has resulted in the widespread perception that should Sterling maintain ownership, it will be due to the racism of the other owners. That is simply untrue.
The NBA is desperately attempting to pressure Sterling into selling. The truth is that legally, they cannot force him to do so. Even racists still have contract rights.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the New York Times bestseller “Bullies: How the Left’s Culture of Fear and Intimidation Silences America” (Threshold Editions, January 8, 2013). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.