Now that Donald Sterling’s on again, off again, on again lawsuit against the NBA is on again, it appears that he intends to drag the entire league, and his fellow owners, through the mud:
(CNN) — Donald Sterling is digging into his wallet to dig into the NBA and its owners.
In his latest salvo against the league that’s moved to oust him over racist remarks, the embattled Los Angeles Clippers co-owner has hired “multiple private investigation firms” to look into alleged discriminatory conduct by fellow team owners and the NBA itself, said a person familiar with Sterling’s legal strategy.
He will give each firm a budget of $50,000 and 30 days to finish an investigation, according to this source, who is not authorized to speak publicly and spoke to CNN on condition of anonymity.
The billionaire real estate mogul bought the Clippers in 1981 for about $12 million; his estranged wife, Shelly, recently reached an agreement with former Microsoft CEO Steve Ballmer to sell the franchise for $2 billion.
After initially signaling his openness to this deal, Sterling has backed off. Not only won’t he sell the franchise — as league leaders have insisted should happen — but Sterling insists he won’t pay a $2.5 million fine or accept a lifetime ban ordered by NBA Commissioner Adam Silver.
(…)
The source said that the private investigators will look into discrimination cases filed by African-Americans and women targeting the NBA.
Sterling’s camp knows of at least 12 such cases of alleged discrimination dating back to 2008, about half of which involve pregnant women who filed complaints against the league office, said the source.
The investigators will also try to dig up instances where league owners made questionable remarks, including anything that would be considered sexist or racist, a source told the Associated Press. The AP described its source as a person familiar with Sterling’s legal strategy, though it wasn’t immediately clear whether this was the same person who talked to CNN.
The strategy that Sterling’s lawyers appears to be following here is pretty obvious, but I don’t see how it can possibly work. Since the league’s decision to seek to oust Sterling as an owner, which ultimately led to the sale of the team to Steve Ballmer, is based upon the racist statements that Sterling made on the tapes that became public in May, his attorneys are looking for similar incidents of racist or sexist behavior by NBA players, owners, or officials who made similar comments or engaged in discriminatory behavior but were not severely punished by the league. Then, their argument will be that the league’s decision to attempt to terminate Sterling’s franchise because of his comments should be voided because of the evidence of inconsistent treatment.
In some cases, it is true that inconsistent treatment even by a private organization can be used in effort to blunt disciplinary action of some kind or another. For example, an employee who was fired based on behavior not related to their work performance could potentially make a discrimination claim if they could show that similar conduct by other employees was either not punished, or punished far less severely. While I haven’t heard of this kind of defense being used in a this type of case, that doesn’t necessarily preclude the possibility that Sterling’s attorneys could make the argument if they had the evidence.
However, it strikes me that there’s almost nothing that they could find that would seem to be legally sufficient to support an argument that the NBA’s efforts to enforce its own Constitution should be barred by the Court. This is because the argument they would have to make completely ignores the real reason that the NBA took the action it did against Sterling. The reason they are attempting to oust him as an owner isn’t because he made racist statements to his girlfriend, it’s because those statements became public. Once that happened, we saw how quick and negative the public reaction was. Led by Miami’s Lebron James, players started openly talking about staging a walkout is the league didn’t take action against Sterling. Sponsors started canceling their contracts with the Clippers, and were threatening to do the same thing with their contracts with the league if action wasn’t taken. And, day after day, the comments were in the news just as the league was beginning its playoffs. In the end, the NBA acted the way it did not because Sterling is a racist, but because he was causing damage to the league. It seems unlikely that you could say the same thing about anything that Sterling’s P.I.’s could uncover, and without that equivalence the arguments about unequal treatment wouldn’t hold any water.
Of course, digging up dirt like this could cause problems for the NBA even it never makes it into a courtroom. Allegations about past racist or sexist comments by players or owners that didn’t become public, and thus weren’t really punished, would at the very least embarrassing to the league and could cause problems similar to those that arose after the Sterling tapes became publish. That may be just what Sterling is aiming for. Information like this may not have much legal merit, but it could be quite valuable in forcing a settlement that includes, for example, lifting the ban on Sterling ever attending another NBA function and the $2.5 million fine assessed against him. However it turns out, though, this is shaping up to be a full-on thermonuclear legal war.
