What the NBA's Next Move Means for the Donald Sterling Case

The players are asking the league to enact the maximum punishment, but what that means remains unclear.

Los Angeles Clippers team owner Donald Sterling watches his team play in Los Angeles in 2010. The NBA is investigating a report of an audio recording in which a man purported to be Sterling makes racist remarks while speaking to his girlfriend.

Los Angeles Clippers team owner Donald Sterling is under fire after an alleged recording of him making racist remarks surfaced.

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The NBA will make its next major move in handling a controversy that exploded this weekend stemming from racist statements allegedly made by Los Angeles Clippers owner Donald Sterling to his girlfriend, V. Stiviano. NBA Commissioner Adam Silver is scheduled to hold a press conference Tuesday afternoon, ahead of the Clippers' fifth game in their first-round playoff series against the Golden State Warriors, to detail the league's next steps in dealing with the uproar.

Since TMZ posted the audiotape of Sterling chastising Stiviano for posing in an Instagram photo with Magic Johnson and making other racially inflammatory comments, everyone from basketball icons to celebrities to President Barack Obama have denounced his comments. The team's sponsors have been dropping like flies and the the National Basketball Player's Association has issued its own set of steps it would like to see the league take.

The speculation surrounding the NBA’s next move has reached a fever pitch, since a situation like this is unprecedented for the league -- its closest comparison is the suspensions and fines the baseball commissioner levied in the mid-1990s on Cincinnati Reds owner Marge Schott for sexist and racist remarks--- and it also marks the first major decision Silver will have to make since taking over the post in February.

“Normally, the commissioner has pretty broad authority under the best interest clause in the constitutions of sports leagues,” says Matthew Parlow, a sports law professor at Marquette University Law school. “What it essentially says is that the commissioner has the power to act in the best interest of the sport.”

However the NBA constitution is a document that is unavailable to the public, so exactly what the commissioner can do remains unclear.

“The rumors are that the NBA [constitution] has limitations to what the commissioner can do to the owner in certain circumstances,” Parlow says.

The league suspended owners before: Jerry Buss, of the Los Angeles Lakers, for two games after being convicted of a DUI, and Minnesota Timberwolves owner Glen Taylor for one year for violating player signing policies. However, the league stuck to non-suspension penalties, including a number of fines, when dealing with comments made by Dallas Mavericks owner Mark Cuban it deemed inappropriate.

Silver could go this route, and fine Sterling hundreds of thousands of dollars or even more for his remarks. That kind of punishment would amount to a financial slap on the wrist , says Jody Armour, a law professor at the University of Southern California, especially considering Sterling’s estimated $1.9 billion net worth.

“But they can still turn it into a teachable moment or a PR coup by taking the fine and donating it to an anti-racism cause , ” he says.

Even if Silver has the contractual wiggle room to issue Sterling a tougher punishment (and a portion of the NBA constitutional leaked to Deadspin suggests he might, according to some sources), he'll likely face resistance from Sterling’s 29 fellow franchise owners, including the owners who have publicly condemned Sterling’s alleged remarks.

“The owners would be reluctant to give Adam Silver the power to suspend an owner for something he said in private,” Armour says. “There’s a slippery slope problem from an owner's perspective.”

It’s especially slippery considering that, if authentic, Sterling’s comments were still probably recorded without his permission, which is against the law in California.

As Michael McCann pointed out in his detailed step-by-step for Sports Illustrated, before it does anything else, the NBA has a fiduciary duty to properly investigate the case. It will seek to confirm that the tape is authentic, but will also also explore whether Sterling’s supposedly racist attitudes ever affected his business practices in managing the team, in which case the franchise could liable for violating state and federal discrimination laws.

One question being considered is whether Sterling’s views, if to be what they appear, make the Clippers a hostile working place. The president of the National Basketball Players' Union coincidentally is Clippers star player Chris Paul. In a press conference Sunday, speaking on Paul’s behalf, Sacramento mayor and NBPA special adviser Kevin Johnson said the players wanted to the NBA to seek the maximum punishment it can against Sterling per the constitution; including, if possible, removing Sterling form the team.

Clippers players reportedly briefly considered boycotting Game 4 Saturday after the tape was released, but decided to symbolically protest instead Sterling’s remarks by warming up with their practice jerseys turned inside out. They reportedly are contemplating making an even more significant statement at Game 5 on Tuesday evening.

“That the players are making any political statements and taking any political stance is extraordinary considering all the pressure they are under not to get political,” Armour says. At The New Republic, Marc Tracy argued that the athletes have more sway over public opinion than ever before and thus the leverage to tilt the NBA’s ruling in their favor.

“They’re flexing their collective muscle in a really important way, and the media is paying attention, the fans are paying attention, and I think the owners are paying attention to the very unified position they are taking,” Paltow says, suggesting the players are in a stronger position now than they were during 2011’s NBA lockout battle, in which the owners came out ahead.

Additionally, the players associations are demanding the NBA look into previous allegations of Sterling exhibiting racist behavior -- including millions of dollars in lawsuits over the discriminatory policies of his housing properties -- and explain why the league did not take action.

“Even if nothing else comes out, it’s a cautionary tale to a lot of public figures and others that the public tolerance for discriminatory expressions is no longer what it was,” Armour says. “It can cost you not only in your personal reputation but in your bottom line.”