Welcome to Full Court Press--A Blog on Sports and the First Amendment, run by the law firm of Levine, Sullivan, Koch & Schulz, a firm specializing in entertainment, media, IP, and First Amendment law. The introductory post rejects the hand-wringing over Donald Sterling's supposed privacy interests.
Worth adding to your bookmarks.
Wednesday, May 7, 2014
Tuesday, May 6, 2014
The Nation Turns to SLB Contributors for Legal Analysis!
Not surprising, Sports Law Blog contributors have been instrumental in providing their expert legal analysis on the NBA events surrounding Donald Sterling's comments and Commissioner Adam Silver's response. Here's a brief summary of some of the contributions many of us have made in the past week:
MICHAEL McCANN, UNIVERSITY OF NEW HAMPSHIRE
Michael McCann, of the University of New Hampshire School of Law, provided the initial legal analysis as a result of his work for Sports Illustrated. Mike authored two outstanding articles that have been widely discussed, quoted and cited. Mike, quite frankly, shaped the legal debate on this story.
What's Next for NBA in Donald Sterling Fight? (April 26, 2014)
Donald Sterling, NBA Set for Epic Legal Battle (April 29, 2014)
Additionally, it's virtually impossible not to change channels and see Mike on the news. Here's his YouTube channel which provides links to the TEN times he's been on national television in the past week. Of course he's really skimming the bottom of the coverage when he appears on CNN, The Today Show, MSNBC and PBS News Hour.
NPR, All Things Considered
Mike has also authored an essay that will run in this week's issue of Sports Illustrated on the Sterling scandal and the NBA's reaction. The magazine hits the newsstands today.
GABE FELDMAN, TULANE UNIVERSITY
Gabe Feldman, of Tulane University's Law School, has been all over the media as well. Here's just a sampling of his television appearances.
Marc Edelman, of the Zicklin School of Business, Baruch College, City University of New York, contributed the following:
Television:
CNN (May 3, 2014)
Article:
WARREN K. ZOLA, BOSTON COLLEGE
MICHAEL McCANN, UNIVERSITY OF NEW HAMPSHIRE
Michael McCann, of the University of New Hampshire School of Law, provided the initial legal analysis as a result of his work for Sports Illustrated. Mike authored two outstanding articles that have been widely discussed, quoted and cited. Mike, quite frankly, shaped the legal debate on this story.
What's Next for NBA in Donald Sterling Fight? (April 26, 2014)
Donald Sterling, NBA Set for Epic Legal Battle (April 29, 2014)
Additionally, it's virtually impossible not to change channels and see Mike on the news. Here's his YouTube channel which provides links to the TEN times he's been on national television in the past week. Of course he's really skimming the bottom of the coverage when he appears on CNN, The Today Show, MSNBC and PBS News Hour.
NPR, All Things Considered
Mike has also authored an essay that will run in this week's issue of Sports Illustrated on the Sterling scandal and the NBA's reaction. The magazine hits the newsstands today.
GABE FELDMAN, TULANE UNIVERSITY
Gabe Feldman, of Tulane University's Law School, has been all over the media as well. Here's just a sampling of his television appearances.
MSNBC, Jansing & Co.
MSNBC, The Last Word
CNN, The Lead:
NBC, The Today Show
I've given up trying to locate ALL of the other media impressions Gabe has made this week....
MARC EDELMAN, BARUCH COLLEGE, CUNY
MARC EDELMAN, BARUCH COLLEGE, CUNY
Marc Edelman, of the Zicklin School of Business, Baruch College, City University of New York, contributed the following:
Television:
CNN (May 3, 2014)
Article:
Quotes:
Radio interviews:
89.3 KPPC (Southern California) (Apr. 28, 2014) (audio link)
KABC (California) (Apr. 30,2014) (link to download)
590 The Fan (Toronto) (Apr. 29, 2014) (from Soundcloud)
WARREN K. ZOLA, BOSTON COLLEGE
So, if Mike, Gabe and Marc's phones were all busy, or they were live on the air, the media found me a few times. Most importantly, and I did trump the others in PR for The Sports Law Blog, was my appearance on MSNBC where my caption indicated my relationship with The Sports Law Blog and NOT Boston College. [You'll also note I've been "banned for life."
I was also on the radio 89.3KPPC (Southern California) (April 30, 2014) and Huff Po Live on April 30, 2014. I'll skip posting my various quotes on the topic because, at this point, you've got the message: the nation turns to the Sports Law Blog contributors for their analysis!
Thursday, May 1, 2014
Two additional thoughts on the Donald Sterling suspension
Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).
Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).
Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
NCAA-barred Tressel, seeking university presidency, to host live forum
Former OSU football coach Jim Tressel is a candidate for the presidency at the University of Akron, where he currently works in a non-sports role. Today he will be participating in an open forum from 1:30-2:30 pm EST, which will be streamed live and posted on the Akron search page: http://www.uakron.edu/bot/visit.dot#t
Tressel is one of three finalists; he is also one of five finalists for the presidency at Youngstown State, where he coached before his move to Columbus.
Tressel is one of three finalists; he is also one of five finalists for the presidency at Youngstown State, where he coached before his move to Columbus.
Tuesday, April 29, 2014
Sterling, Silver, and statutory interpretation
Allow me to add to Mike's analysis of NBA Commissioner Adam Silver's punishment of Clippers owner Donald Sterling, raising the possibility that the termination of ownership is on stronger footing than the fine and suspension.
Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.
The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Association" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.
First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on that for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).
But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all. Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.
Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.
Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.
Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions ("conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will, both to show support for Silver's leadership and to keep the players happy), appears proper under league rules. Note that I am disagreeing with Mike on this one, just based on the plain language of the laundry list in Article 13(a).
Finally, it will be interesting to see how the owners approach termination of ownership. Typically, under Article 14A(c), terminating a franchise transfers control to the league. But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.
Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.
The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Association" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.
First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on that for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).
But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all. Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.
Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.
Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.
Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions ("conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will, both to show support for Silver's leadership and to keep the players happy), appears proper under league rules. Note that I am disagreeing with Mike on this one, just based on the plain language of the laundry list in Article 13(a).
Finally, it will be interesting to see how the owners approach termination of ownership. Typically, under Article 14A(c), terminating a franchise transfers control to the league. But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.
Legal Analysis of Adam Silver's Punishment of Donald Sterling
I have a couple of pieces on SI.com about the the big news of the week:
Sterling, NBA set for epic legal fight over Clippers (April 29)
What's next for NBA in Donald Sterling case from a legal standpoint? (April 26)
Sterling, NBA set for epic legal fight over Clippers (April 29)
What's next for NBA in Donald Sterling case from a legal standpoint? (April 26)
More random thoughts on Donald Sterling
1) File this under "completely missing the symbolism." Last night, the Miami Heat recreated the Clippers' Sunday pre-game protest, leaving their warm-up jackets on the floor and wearing their shooting shirts inside-out, I guess as a show of solidarity. But the Clippers did this to symbolically reject that team name (and its association with that team owner), to say we play for ourselves and not for that name (and its association). But why are the Heat players rejecting the Heat name and ownership, which is what they did by obscuring their logos? It makes no sense, showing that the symbolic point of the warm-up protest (as opposed to wearing black socks, which other teams can and have recreated because it is generic) was lost or missed entirely.
2) A lot is being made of Donald Sterling's 30+-year history of misbehavior--particularly the almost-$3 million settlement of government-initiated lawsuit alleging discriminatory housing practices and the race- and age-discrimination lawsuit by former GM Elgin Baylor, in which Sterling prevailed--and why the NBA did not do something sooner. This conversation reminds me of the discussion following the multi-million-dollar sexual harassment verdict against Isiah Thomas in 2007, where then-Commissioner David Stern said the league would not get involved because this was a civil suit and not a criminal matter. I argued at the time that we needed a more-nuanced thinking, that there is a difference between civil matters directly implicating one's role in the league (such as a lawsuit claiming someone engaged in sexual harassment while running an NBA team) and other matters (such as a payment dispute with the contractor doing an addition to his house).
But I am wondering how to think about that line with respect to Sterling. The Baylor lawsuit fits my earlier framework, but is a mixed bag--while there were some damning allegations about Sterling's racist statements and attitudes, a jury ultimately found for Sterling. So while evidence shows him doing and saying some reprehensible things, he did not do anything legally wrong (based on the jury conclusion). Which piece should the league have seized upon?
More importantly, what about that housing-discrimination case? On one hand, how he operates one business says nothing about how he operates his NBA team; on the other hand, how he operates one business says everything about how he operates his NBA team. Are bad business practices in an unrelated business a bellwether of an owner's management style or are they the equivalent of a dispute with the contractor working on his house?
I am trying to figure out how to treat players, owners, and management consistently with respect to league punishment and non-league behavior. I wouldn't want a player suspended because of how his string of car dealerships are run. Should it be different for owners and, if so, why?
2) A lot is being made of Donald Sterling's 30+-year history of misbehavior--particularly the almost-$3 million settlement of government-initiated lawsuit alleging discriminatory housing practices and the race- and age-discrimination lawsuit by former GM Elgin Baylor, in which Sterling prevailed--and why the NBA did not do something sooner. This conversation reminds me of the discussion following the multi-million-dollar sexual harassment verdict against Isiah Thomas in 2007, where then-Commissioner David Stern said the league would not get involved because this was a civil suit and not a criminal matter. I argued at the time that we needed a more-nuanced thinking, that there is a difference between civil matters directly implicating one's role in the league (such as a lawsuit claiming someone engaged in sexual harassment while running an NBA team) and other matters (such as a payment dispute with the contractor doing an addition to his house).
But I am wondering how to think about that line with respect to Sterling. The Baylor lawsuit fits my earlier framework, but is a mixed bag--while there were some damning allegations about Sterling's racist statements and attitudes, a jury ultimately found for Sterling. So while evidence shows him doing and saying some reprehensible things, he did not do anything legally wrong (based on the jury conclusion). Which piece should the league have seized upon?
More importantly, what about that housing-discrimination case? On one hand, how he operates one business says nothing about how he operates his NBA team; on the other hand, how he operates one business says everything about how he operates his NBA team. Are bad business practices in an unrelated business a bellwether of an owner's management style or are they the equivalent of a dispute with the contractor working on his house?
I am trying to figure out how to treat players, owners, and management consistently with respect to league punishment and non-league behavior. I wouldn't want a player suspended because of how his string of car dealerships are run. Should it be different for owners and, if so, why?
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