Celtics very Realistically could have potential top pick with Clippers pick

[mmmmm]

thank you sl. it seems, to me at least, that those years in law school really paid off...at least for cb posters such as myself. 

your points above are all good and i enjoyed reading them.

yet, on #1, i am not sure that the NBA would automatically object to the sterling estate keeping ownership, the sons/wife/someone obviously running the franchise as long as donald-the-bigot is 100% excluded and publicly chastised as proof.

final note, all your points are quite logical and rational. having said that, i am not sure in this particular case, given sterling's notorious pattern of litigation, that it would necessarily play out "rationally." it may be as you write, but it would seem to be out of character for sterling to step aside without a fight.

geez, perhaps someone should set up a soap opera based upon all this.

On #1, the owners vote and the commissioner has final say on ties for any team ownership changes.   

I don't know if they have held such votes in the past on transfers-within such as a family member inheriting a team or a majority owner being bought out by an already-existing minority owner.  I suspect those ARE consider changes in the majority owner and are subject to vote, though, even if as a matter of course those votes may have been skipped in less 'controversial' transfers in the past.   I don't even know off the top of my head how many such transfers-within have occurred in the NBA.

[footey]

too many lawyers on this thread. I get a headache reading it, and I'm a lawyer!!

[jaketwice]

http://espn.go.com/espn/otl/story/_/id/10852199/challenge-donald-sterling

"Q: Sterling is notoriously litigious. Can he go to court to stop Silver from punishing him?

A: Not effectively. When Silver issues his punishment to Sterling, the decision is final. The constitution provides in Paragraph 24(m) that a commissioner's decision shall be "final, binding, and conclusive" and shall be as final as an award of arbitration. It is almost impossible to find a judge in the United States judicial system who would set aside an award of arbitration. Sterling can file a lawsuit, but he would face a humiliating defeat early in the process. There is no antitrust theory or principle that would help him against Silver and the NBA. He could claim an antitrust violation, for example, if he were trying to move his team to a different market. But under the terms of the NBA constitution, he has no chance to succeed in litigation over punishment."

This is not accurate. He could claim that Silver abused his discretion, and that the commissioner's decision was unfair. ...to me, it is a little unfair. Because Sterling had a private phone call with his girlfriend that she (as I understand California law) illegally leaked, he should lose the team? So if you have a private conversation with a friend of yours and say something negative about gay people, and your friend, angry because you are suing him, sends it to your boss - you ought to get fired? It's a histrionic reaction in a "gotcha" culture.

How is a quote from the NBA constitution not accurate?

Yes, Sterling can always make any claim such as 'abuse of discretion' - but that almost never wins an overrule of an arbitration decision.    The act of agreeing to arbitration (and implicitly, the contracts binding the owners, teams, staffs and players in the NBA all are granting the commissioner final arbitration power) is basically surrendering your right to second guess the outcome.

The only traction is if it (the decision) is out of the bounds of NBA-related business.   But Silver can very easily show that Sterling's behavior has been detrimental for the business of the NBA because of the many sponsorships that have been put at risk due to his behavior.

I would not be surprised if there is an explicit 'behavior detrimental to the league' clause somewhere in their constitution.

I don't think it is "almost impossible" that a District Court Judge would decline to confirm the award of Silver, as arbitrator, in this circumstance. While I'm sure the usual group of  politically correct internet-know-it-alls will jump down my throat for DARING to suggest that forcing someone to sell a gigantic asset for having a private telephone conversation is HORRIBLE and makes me (by association) a RACIST - I don't think it's a foregone conclusion that all this hysteria is justice.

I personally do not like Donald Sterling. But I do not think that the law necessarily supports stripping anyone of anything because of his personal views. You raise an interesting, and very valid, point about the "conduct detrimental to the league" clause - which I too think exists. However, we have not established that the conduct is, indeed, detrimental to the league. Those sponsorships belong to Sterling - not the other owners. Silver does not really have any evidence yet that Sterling's comments damaged league revenues.

It is an interesting question, what should happen - but it is not a foregone conclusion.

I want to make clear: I do not agree with Sterling's views. I do not condone those opinions. I am speaking solely on the issue of the league's response to the phone calls.

You are missing - because you want to, apparently - a vital legal point explained here before that renders your entire pro-Sterling argument null and void:


So I'll try again: Courts have upheld for decades the concept of "implied consent," which is the precise concept that dooms Sterling in any legal challenge he might mount.

The NBA constitution is clear: Silver has broad powers as an aribtrator, and the courts have again for decades disdained overruling the findings of an arbitrator. Fact, not what I want to believe.

But this is not to say Courts NEVER overturn the findings of an arbitrator. Arbitrators are reversed by courts. Silver is not a judge with the power to strip Sterling of his team. Whatever Sterling impliedly consented to - for reasons I have already explained and need not re-hash - I do not think a decision by the NBA owners, or Silver, or anyone - will necessarily survive a challenge by Sterling in Federal Court - as you seem to think.

Further, the constitution contains a clause requiring a three-fourths vote of the ownership to remove an owner. And let's be honest here: Is any owner going to vote no? No. Fact, not what I want to believe.

Have you read Mark Cuban's comments? The issue here is that it sets a scary precedent. If you owned a billion dollar asset, would you want to risk losing that asset if you expressed unpopular views to your girlfriend? How do you think NBA owners feel about that. ...what if it came out that Les Alexander has a large collection of Japanese "hentai" ****ography - particularly ****ography where large tentacles perform sex acts on anthropomorphic "female" animals? Should he lose the team for that proclivity? What if Mark Cuban invests in a company that is later found to have used child labor to manufacture its product? Should Mark Cuban lose the Mavs? It's an incredibly slippery slope.

What if an owner was merely unpopular; if Wyc wins the next ten championships due to the unparalleled organization and competence of his organization - would it be okay for Silver, as Arbitrator, to take his team simply because the other 29 owners were tired of losing? Of course not.

You've made a lot of somewhat snide comments about what you think I think - or what you think I feel. Have you been reading what I have been writing?

Here's the key: Sterling, by operating under the current constitution, has given his implied consent to its provisions. So, by running the Clippers he has consented legally to be governed by the very provisions that will be used successfully, eventually, in court to force him to sell.

Sterling is not the sole owner of a business; rather, he is a franchise holder in an association he is a voluntary member in, and in the real business world, franchises get revoked all the time. Fact, not what I want to believe

Sterling can sue, sue sue - and I hope he does, because the longer he remains with title to the Clippers, the greater the talent exodus will be from his club at a perfect time for the Celtics - but those of you who persist in claiming he's been legally wronged are wasting your time.

The league has done its homework. The more he sues, the more he will lose in court. Fact.

There's an awful lot of "Because I don't like it, it cannot be so" flawed logic in this thread. I imagine Sterling feels that way. But the law doesn't work that way.

So are you saying it a foregone conclusion that he should lose the team? I disagree with this statement: "The league has done its homework. The more he sues, the more he will lose in court. Fact." It is not a fact. There DO EXIST REASONS why Sterling deserves to keep his team - or even have his suspension overturned. It is not as black and white (no pun intended) as you suggest.  We do not wrest property rights from people - franchise rights - any rights - without some kind of due process.

While I agree that courts have generally upheld arbitration agreements - it is also well understood that an arbitrator's award can be overturned if it is - in layman's terms - unfair.

I do not think I said "Because I don't like it, it cannot be so" or anything of the kind. You have put a lot of words in my mouth that I did not put there. Mis-characterization is not argument.

You continue to throw one strawman after another in Sterling's behalf into an abundantly clear legal argument. I'm rather curious at this point why you are so frantic to construct a defense - particularly an illogical one - on behalf of this man.

So you are admitting that you cannot divorce your feelings about Sterling personally from the arguments about arbitration and so on? Are you implying that I am some kind of racist because I AM capable of divorcing those two concepts?

I will leave you to your credibility with respect to that assertion.

He has NO legal recourse against the league that he can successfully defend in court. It is indeed a foregone conclusion that he will lose the team. I have no doubt he can tie the case up for awhile with legal proceedings, but he cannot win. Period.

You think it isn't a slippery slope? You think property rights ought to be stripped due to private conversations? No matter what kind of rhetoric you use - or how firmly you state your point - it doesn't change the fact that arguments exist for him to keep the team.

If you choose not to accept the obvious, that is your issue. Since this thread is full of half-truths and misstatements, several made by you, my posts are to set the record straight and come directly from an attorney for a professional sports franchise.

Please point out those "half-truths and misstatements" that are truly germane (and not simply rhetorical questions, or metaphors designed to underpin a necessarily abstract argument). The mere fact that you describe something as "obvious" does not mean it is "obvious." You - whether or not your can accept it - do not know everything.

And yes, I do see you as a frantic practitioner of "I do not like what is happening, so it cannot be so." You will eventually see the truth when it plays out.

I note that (1) I made plain at the first that I did not like Sterling, that I had no skin in the game - and that I was making an argument about certainty; (2) I pointed out the phrase you quoted above - and you certainly had the opportunity to back up your assertion; you had my "implied consent" to back up your suggestion. You failed to do that. I will invite you to do it explicitly now. I do not think that you can.

In sum, you've managed to attack me personally, and support your statements with your own certainty - and nothing more. Neither you, nor anyone else, has managed to respond to even one of my counter-arguments. Granted, I have the easier task - since I merely have to point out some plausible reason why Silver's decision would not be upheld. I have pointed out several plausible reasons. Address them if you can.

Otherwise - I leave you to your credibility.

[Boston Garden Leprechaun]

meh. I'll have to see it to believe it!!!!

[mmmmm]

You think it isn't a slippery slope? You think property rights ought to be stripped due to private conversations? No matter what kind of rhetoric you use - or how firmly you state your point - it doesn't change the fact that arguments exist for him to keep the team.

This is a misunderstanding here.   Sterling is not being stripped of his property rights.

The BOG may vote to terminate his franchise grant.   That is a contractual relationship that he doesn't "own" but rather is a party to, and subject to it's terms - which includes the potential for it's termination.   As CoachBo has indicated, by signing onto that contract in the first place, Sterling already agreed to abide by it.

There is no god-given or legal right that forces the NBA to have to continue to associate with Sterling.  So they are ending that association.   People end business relationships all the time.

The termination of the franchise agreement will, if he doesn't sell, devalue the assets of the team that DO belong to him if he doesn't sell.   He could hold on to them.  But that would not be in his best financial interest.

So he will sell.  And he will get a huge profit.

He is in no way being stripped of his property rights.

[rocknrollforyoursoul]

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

[saltlover]

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

Are you new to the board?  90% of posts on here are fantasy.

I'd prefer we send back their pick in a trade for Blake Griffin, myself.

[saltlover]

thank you sl. it seems, to me at least, that those years in law school really paid off...at least for cb posters such as myself. 

your points above are all good and i enjoyed reading them.

yet, on #1, i am not sure that the NBA would automatically object to the sterling estate keeping ownership, the sons/wife/someone obviously running the franchise as long as donald-the-bigot is 100% excluded and publicly chastised as proof.

final note, all your points are quite logical and rational. having said that, i am not sure in this particular case, given sterling's notorious pattern of litigation, that it would necessarily play out "rationally." it may be as you write, but it would seem to be out of character for sterling to step aside without a fight.

geez, perhaps someone should set up a soap opera based upon all this.

I think Sterling is somewhat rational.  He settled with the DOJ instead of having a judgment against him, for instance.  He'll probably try to fight a little bit, which is why I've said in one of these threads that I don't see this being resolved by the start of free agency, in time for free agents to consider signing there, or people like Darren Collison to stay there.  I also don't see Doc staying if it isn't resolved quickly.

But at the end of the day, when it's clear that he is at the point where he can fight it, be 95% likely to lose, and file bankruptcy, or he can give in and cash out on his billion dollar profit, that he'll take the money and run.  I think right now he doesn't believe he's done anything wrong.  Once he realizes that if doesn't matter what he thinks, he'll sell.

[mmmmm]

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

I think most folks on this thread have commented to the extent that that is a very, very unlikely scenario.

[hwangjini_1]

i may be missing the points above, but it seems to me that the arguments now are not that sterling through the courts can overturn silver's arbitration ruling, which banned him, fined, etc.

i believe the questions now focus upon whether the NBA by trying to force a sale of the clippers by sterling is going to get what the NBA wants. that is far less clear since right now the only hammer the NBA has is to dissolve the clippers as a franchise through a 3/4 vote of the remaining owners. the NBA cannot take the clippers away and sell them on their own, or they would have done so by now.

as was pointed out by many, sterling is litigious, infamously so. next, as was also pointed out he will not hesitate to make the best of the situation by telling other owners that unless he receives an above market settlement price, he goes to court. and on this he may have a point that might win.

banning sterling is within the NBA rules. but him being forced to sell at a loss is much murkier ground since the NBA constitution does not expressly allow that. and let's face it, by threatening to dissolve the clipper team if sterling does not sell, that is exactly what the NBA and silver are trying to do here - compelling sterling to sell at what could very well be a loss in terms of its market value.

this does not appear to be as clear cut on this front as it does on the banning/fine front. my expectations are that sterling will fight the forced sale until he gets a king's/bigot's ransom for the clippers.

finally, it might strike the other owners that it is better to settle with sterling at high selling price rather than risk a court battle.

in any case, this may very well drag out for quite a while. should be fun drama for the summertime. 

[rocknrollforyoursoul]

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

Are you new to the board?  90% of posts on here are fantasy.

I'd prefer we send back their pick in a trade for Blake Griffin, myself.

LOL. No, I'm not, but touche.

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

I think most folks on this thread have commented to the extent that that is a very, very unlikely scenario.

Granted, I haven't read every post, but you could've fooled me. It seemed that as soon as the news of Sterling's demise broke, there was a flood of "omigosh! omigosh! omigosh!" reactions (not just on this site), like a bunch of prepubescent boys sighting the half-naked high school hottie through her open window and thinking they might have a shot with her.

Anyway, it's turned into quite a p---ing contest for something that's as likely to happen as the above scenario.

[Boston Garden Leprechaun]

Does anyone else think that all this talk of the Clippers losing every NBA-caliber player and becoming the worst team in history and leading to a great Boston draft pick is utter fantasy? Maybe it's technically a possibility, but I can't see it happening.

Are you new to the board?  90% of posts on here are fantasy.

I'd prefer we send back their pick in a trade for Blake Griffin, myself.

LOL

[fairweatherfan]

My impression is that the fine and lifetime suspension are basically irreversible, but legally forcing the sale of the team could be very difficult if Sterling fights it, which it so far looks like he will do.  The verbiage is much more unclear with the forced sale, and there are other issues like co-owning the property with his wife.

Also, isn't the Board of Governors vote technically to dissolve the franchise?  That could get pretty interesting.


EDIT:  On the topic, it ain't happening.

[footey]

You think it isn't a slippery slope? You think property rights ought to be stripped due to private conversations? No matter what kind of rhetoric you use - or how firmly you state your point - it doesn't change the fact that arguments exist for him to keep the team.

This is a misunderstanding here.   Sterling is not being stripped of his property rights.

The BOG may vote to terminate his franchise grant.   That is a contractual relationship that he doesn't "own" but rather is a party to, and subject to it's terms - which includes the potential for it's termination.   As CoachBo has indicated, by signing onto that contract in the first place, Sterling already agreed to abide by it.

There is no god-given or legal right that forces the NBA to have to continue to associate with Sterling.  So they are ending that association.   People end business relationships all the time.

The termination of the franchise agreement will, if he doesn't sell, devalue the assets of the team that DO belong to him if he doesn't sell.   He could hold on to them.  But that would not be in his best financial interest.

So he will sell.  And he will get a huge profit.

He is in no way being stripped of his property rights.

I have not seen the franchise agreement, so I have no idea whether the board can strip him of his franchise based on his private offensive conversations.  What are you basing this on?

[footey]

A lot of the comments about franchisees, and the limits of their rights, etc.  The legal documents governing the NBA are not, to my knowledge, a matter of public record.  So we have no idea what they say.  Any legal advice or speculation not based on the underlying written documents is absolutely worthless.  Second, we are not talking about McDonald's franchises, where the franchisee (the restaurant operator) has virtually no bargaining power against the franchisor (McDonalds).  I would speculate that the NBA owners, as very savvy businessmen, have adopted and/or amended a charter to protect their franchises to a considerable extent, in order to prevent them from being taken back without value.  Ditto on being forced to sell. 

Right now, the NBA owners and commissioner have made very strong pronouncements, some of which are probably enforceable (banning Sterling from attending any NBA event and a 2.5 mm fine) and one of which may not be (forcing him to sell).  They probably don't want to draw any more attention to this debacle until after the play-offs end.  Then the legal arguments will become much clearer.