By: Eric Thomas
Magic Johnson’s appearance on Anderson Cooper was refreshing. He’s always been charming and warm; a perfect antidote to the poison which seeped from the Donald Sterling discussion on both sides. He said he forgave Sterling (what a concept!) and called him a friend at the beginning of the interview. Unfortunately, as nice as it was to hear Magic talk instead of Sterling, it’s only the latest episode in what is apparently now a week-long series with Anderson Cooper, who announced that more Sterling tape would be released on Wednesday night’s show. God forbid Sterling wishes to respond to Magic.
No one is going to take this advice (why start now?) but everyone involved in the NBA needs to cool down on Donald Sterling. Give Rochelle Sterling the sole ownership of the team, ban Donald Sterling from ever attending games, and walk away. Continuing this will irrevocably hurt the NBA. Let me be blunt: Donald Sterling is an irrelevant racist and any further discussion will only add to the fire. We need to collectively move on and forget, so that there isn’t any more attention on what’s about to happen regarding the Clippers.
Donald Sterling can’t seem to stop shooting himself in the foot. Any privacy protection he once could have argued was rendered abrogate with that ponderous interview he gave to CNN. His racist thoughts were not uncovered in an illegally taped conversation, they were broadcast worldwide. He’s waived his right to privacy.
Rochelle (Shelly) Sterling is much, much smarter. She’s prepared to fight for control of the Clippers, and she’s been tactful in interviews with Barbara Walters and the New York Times. She’s already accused the NBA of sexism, and retained a cabal of lawyers to back her up.
She hired L.A. attorney Pierce O’Donnell, and this guy is a BEAST. He was once named one of the “100 most influential lawyers in America” and was called the “new Perry Mason of Hollywood,” until he was indicted for illegally funneling campaign contributions to John Edwards’ presidential campaign. He fought disbarment, won, served a six month suspension, and joined the famed Hollywood law firm of Greenberg Glusker earlier this year, a firm whose clients include Jeffery Katzenburg and Tom Cruise. He’s a talented attorney who seeks to restore his formerly celebrated reputation. The NBA needs to be worried. A brilliant lawyer with incentives beyond money is very, very dangerous. Especially when he smells blood.
O’Donnell didn’t take long to go on the offensive. When the NBA announced that Ms. Sterling’s ownership would be terminated along with her estranged husband’s, O’Donnell released a statement of his own, “We do not agree with the league’s self-serving interpretation of its constitution, its application to Shelly Sterling or its validity under these unique circumstances.” He added, “We live in a nation of laws. California law and the United States Constitution trump any such interpretation.”
He’s right. The NBA cannot do anything they want. If the United States was founded on anything, it would be the private enjoyment of personal property. If someone owns something in their current possession, it’s really hard to take it away. No business or organization is above the law.
O’Donnell’s mention of the Constitution sounds like he might pursue an argument based on the first and fourteenth amendments. Free speech and expression hasn’t been tested much in the digital age. While the first amendment hasn’t been traditionally extended to members of private business seeking protection from their employers, much has changed since the advent of social media and the ubiquity of recording devices. I’ve often wondered if what TMZ does is legal; do public figures surrender ALL rights to privacy? If this case gets that far, years from now, we might find out. Remember: just because an organization IS doing something doesn’t mean it’s legal. We often find out years after the fact.
We might not get there. In a separate statement to the New York Times, O’Donnell made the other owners sweat. “I want to know a lot of different things about the records of the NBA and what information they have about the conduct or misconduct of other owners that was not acted upon,” said O’Donnell. “It’s in everybody’s interest to avoid Armageddon.”
He’s talking about discovery. The NBA’s ban on Sterling is in reaction to private statements, so that means O’Donnell can cast a wide net. He can ask about anything concerning the owners, public or private, and subpoena their records. Does this include private statements made by players in a locker room? Maybe. Does this include statements made by players off the record? We don’t know. Discovery means they collect everything and pick through the pile. The salacious stuff becomes public record.
O’Donnell is mentioning “discovery” to scare the owners. It might work. We’re still waiting to hear the results of that vote to cast Sterling out of the league. I wonder if they have enough skeletons in their closet that they blink in the face of discovery. I wonder if O’Donnell’s statements to the New York Times gave them pause. Would you want a lawyer subpoenaing Google for the contents of your Gmail account? O’Donnell might argue that he’s allowed to because the Sterling controversy stems from an owner’s personal statements. If it’s fair game for Sterling, why not the other owners? That’s why they might pause.
In other words, this is a mess that will never end.
Adam Silver made a fatal error: he didn’t leave himself any wiggle room. He doesn’t have the ability to negotiate with Shelly Sterling. Silver has acted too quickly on almost every decision; while attempting to alleviate public rancor he’s tied himself in legal knots. If he emerges with anything less than a Sterling-free NBA, those same pitchforks and torches will be turned on him.
Donald Sterling has been punished and it doesn’t look like he’s going to fight. Silver needs to take the win, allow Shelly Sterling to keep the team and move on. Players need to understand that her lawsuit has legs and her lawyer is motivated. The players could get caught up in this fire if any personal correspondence took place between them and the owners, which is likely.
This stuff is all pretty scary, but it’s what happens when you open Pandora’s Box. You cannot punish someone without them pushing back. This stuff will go on and on, and it’s not clear what the outcome will be.