By Neil deMause
I didn't think it could happen, but I think I may finally be getting sick of Donald Sterling. The NBA owner who everyone loves to hate -- how can you not enjoy the sheer spectacle of a man who apologizes for racist remarks by going on Anderson Cooper's show and attacking Magic Johnson for contracting HIV? -- seemed set to finally take his leave last week, when it was reported that he was ready to OK the sale of the Clippers, only to turn around on Tuesday and declare that he's gotten offers of $2.5 billion for the team and that the NBA has no right to make him sell just because of "a jealous rant to a lover." At this point, he's dragging on so long that he's becoming the NBA equivalent of the Malaysian airliner story, with the twist that Sterling refuses to disappear.
However much Sterling kicks and screams, though, the endgame is pretty much set at this point: As Shaun Powell spelled out here, the NBA is set to vote to give Sterling the boot as Clippers owner next Tuesday. At that point, it will just be a matter of how long Sterling decides to fight in court, and at what point he gives in and agrees to receive the windfall profits -- if not $2.5 billion, then still potentially $1 billion or more -- that will invariably result when the suddenly relevant Clippers are put on the market.
It's a result that tends to stick in the craw of those of us who like our super villains to end either blown up or incarcerated, not rolling around in piles of fresh cash. And it raises some questions, such as: If the NBA has the power to expel Sterling from the league, can't it keep him from earning big bucks on his way out the door?
The answer appears to be "just maybe, but they probably won't." For why, we'll need to take a trip into the always murky world of sports franchise ownership.
Let's start with that word "franchise." As we're reminded every time a team owner tries to do something that the league doesn't agree with -- move to a new city without permission, for example, something that Sterling himself once got into hot water with the league for -- owning a sports team is less like running an independent corporation than like running a Dunkin' Donuts: You have the right to operate your local outlet, but it's the umbrella corporation that makes the rules. In this case, the NBA has a constitutional provision that requires team owners to fulfill certain contractual obligations to remain part of the league, which includes not just paying your bills on time (the technicality that MLB got Frank McCourt on) but also maintaining ethical conduct (the clause that MLB used to push Marge Schott out after her "Hitler was good at the beginning, but he just went too far" remarks).
In particular, the NBA is charging that Sterling's remarks to his mistress that she shouldn't bring Magic Johnson or other black people to his team's games constituted "actions and positions [that] significantly undermine and call into question the NBA's commitment to diversity and inclusion; damage the NBA's relationship with its fans; harm NBA owners, players and Clippers team personnel; and impair the NBA's relationship with marketing partners and licensees, as well as with government and community leaders." That may sound incredibly broad -- if sports leagues were to start kicking out anyone who "damaged the league's relationship with its fans," there would plenty of people hitting the unemployment line -- but it's the kind of thing that a partnership can legally do if it decides that one of its partners is becoming, to use the legal term, a pain in the tuchus.
But if the NBA can revoke Sterling's franchise -- which is, essentially, what the league is planning on doing -- why couldn't it just cast him adrift, start a new "L.A. Clipperzz" franchise, and have the new owner pay the league an expansion fee?
The catch, explains Stanford sports economist Roger Noll, is that while Sterling's team would no longer be part of the NBA, it would still own all the other stuff that goes along with playing in the NBA. "The entity that operates the team would still have an ownership or a lease in a stadium, broadcasting contracts, and contractswith players and coaches," says Noll. "I do not see how a court would allow a league simply to declare that the league owns these."
This actually came into play, he notes, when the short-lived American Basketball League folded in 1962. Future Knicks star Jerry Lucas had signed with the ABL's Cleveland Pipers, and ended up having to sit out an entire season because even though his team and league ceased to exist, his rights were still owned by the Pipers' owner. (Some guy named George Stein-something.)
Instead, the NBA is kicking Sterling out of its club, but letting him keep his property rights. It's one of the principles of rich-guy-hood, after all, that nobody challenges each other's money -- though, significantly, property rights aren't quite as sacred for non-rich-guys in America. As a scary New Yorker essay last summer made clear, if your crime is, say, selling marijuana (or even just looking like you might be selling marijuana) rather than committing civil rights violations -- and though Sterling's most recent statements may have been just talk, remember this is a man who also paid a record $2.725 million settlement of charges that he refused to rent apartments to black people -- then it's a very different story. Under the principle of "civil forfeiture," the government has the power to seize your car, your house or even the house of your parents if you happened to sell a joint from their porch.
Now, nobody really expects the government, let alone the NBA, to seize the Clippers without compensation just because Donald Sterling may have committed attempted apartheid from his owner's box. So are there any other options for, as the kids today call it, restorative justice?
There is one tiny loophole, but it's a doozy. While the NBA may be required by its own constitution to pay Sterling whatever it gets for the Clippers, it also isn't required to sell to the highest bidder. Most likely, it would use this power to hand the team to someone who it wants to be part of its club -- possibly to give preference to an African-American owner, possibly even Magic himself, which I suppose would be restorative justice in a certain sense. But there's nothing stopping the league from, say, giving preference to an owner who's willing to take part of his (or her) intended purchase price and give it to the NAACP, say, or the Adam Silver Fund for Yacht-Deprived Owners, instead of passing it along to Sterling. Or if that kind of quid pro quo is too bald-faced, it could simply try decreeing that the Clippers be bequeathed to a non-profit foundation with a mission to fight racism (or fight crime, or fight super villains with plans for world domination), and if they can only afford $1.20 for the team, well, that's not the league's problem, is it?
Sterling would sue, naturally. But he's going to sue regardless, and his case is much weaker if he's going up against the league's bylaw-guaranteed power to decide who gets to purchase franchises. (Recall that when Jim Balsillie sued to force the NHL to sell him the Phoenix Coyotes, a judge ruled that even bankruptcy court laws couldn't trump a league's internal rules.) The NBA almost certainly won't do it -- the other 29 owners are motivated to seek a high sale price that will boost the value of their own franchises, and besides, they care more about Sterling going quietly than with how many bills he can stuff into his pockets on the way out. But man, would it be even more entertaining than that Anderson Cooper interview.
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Neil deMause is a Brooklyn-based journalist who has covered sports economics for Slate, the Village Voice, Baseball Prospectus and a bunch of other places you wouldn't remember. He runs the stadium news website Field of Schemes, and co-authored the book of the same name.