Experts weigh in: How should the NBA handle the Sterling controversy?

The National Basketball Association's investigation of Donald Sterling is pending, but the fallout is already drifting down on corporate suites, basketball courts and living rooms across the country.

What's not at issue is whether Sterling has the legal right to say what he supposedly said, because he does under the First Amendment. However, Sterling is the proprietor of an entertainment business, an NBA team, making him vulnerable to blowback from public opinion and immune from it at the same time.

It's far from clear what ammunition the league has to protect its brand, protect its following and protect itself from a guy whose suspected loose talk could cause serious damage. We asked two experts for the Inside Story.

Legally, what can the NBA do?

Layth Gafoor: The NBA can do a lot of things. The challenge is if it can do what it wants to. The league is relatively new, so there will be some concern that it may set a precedent of the owners. The most that’s ever happened to an owner is they’ve been fined. I imagine fining owners that are all billionaires becomes an issue because of low thresholds. Other leagues actually suspend owners, but nothing like that happens within the NBA.

The commissioner has broad power to investigate what’s in the best interest of game. In this situation, the NBA can make sure [Sterling] did this so it can fine him if so. The problem with that in the public perspective is that no matter how much you fine him, it will be chump change for someone like him. So people will still be aggrieved.

Another option the NBA has is suspension, but the league cannot technically remove him from the team. There’s only one small area that there’s precedent for — the NBA can step in if the team has financial problems. However, there’s no proof that there’s financial problems with Sterling’s team, so the NBA is concerned is that he can sue.

Why did the NBA wait so long to deal with this racial problem when Sterling’s views have been well known within the league for years?

I think its business perspective. Everyone is making lots of money. The league has been trying to stay quiet, and Sterling was playing along, except that now you have a private conversation that was intercepted.

This is now a court of public opinion versus a court of public law. The nature of the communication may be illegal, but the leak has to deal with the perceived condoning of those types of comments. If you don’t do something, what does that mean? President Barack Obama is saying something about this. What does that say? You can’t fine him enough. The NBA has to do something somewhere between suspending him and sending an unprecedented message.
 

What’s next for the L.A. Clippers? They considered boycotting Sunday’s game but didn’t. What can they do within the legal framework so as not to renege on their contractual obligations?

Under the agreement that the players have, if they refuse to play and are not injured, they can be suspended and fined by the league. The reason is that they’ll have to refund ticket prices for those players not eligible.

But there is a statute in California — Title VII prohibits a employer from fining an employee if it’s discrimination-based.

So it brings back the influence of athletes. The situation could get completely out of control or could be in line. This is where the pressure of the league is. If players boycott and they stop playing, there could be massive implications for the league. 

You were the owner of a major league basketball team. What kind of freedoms did you enjoy? The NBA is tough on players as far as zero-tolerance policies on homophobic statements and violence and went hard on Allen Iverson for his tattoos and image. Are owners held to the same standard as players?

Paula Madison: I would say no. For example, I haven’t seen an NBA player contract, but I would assume from some of the outcomes that there are moral clauses in their contracts. What I know is that there’s no such contract with owners.

I was a team owner for seven years. As an owner, you are heavily vetted in the WNBA. They vet you regarding where your income generates from, your financial standings, your holdings, your position and place in the community. That’s all done in order for you to be considered for team ownership.

Once you own a team, there’s no annual vetting process. It doesn’t exist. I would assume that there is one in player contracts, probably concerning language, behavior and so forth. They are held to higher standard. The players are like the news reporters — their behavior could negatively affect organizations.

What route will the NBA likely take? Sterling didn’t do anything illegal, and his personal views did not directly intrude on his responsibilities as an owner of a team.

I think that’s debatable. Again, you can remove players or terminate their contracts for actions or words. But could they fine him? Sure. As much as $1 million. When that happens, all those players who are under contract could make a valid argument that they’re being subject to a hostile work environment.

If he’s fined and suspended, why would the players say they’re happy to go back and play for his team? The workplace is set by the Clippers organization, so it would take a hit. He’s the CEO.