Donald Sterling’s Messy Apology: Make Him Stop

“It bothers me a lot that you want to broadcast that you’re associating with black people. Do you have to?” Donald Sterling to V. Stiviano.                                   

“I am not a racist.” Donald Sterling to Anderson Cooper.

Clippers owner Donald Sterling’s explicitly racist remarks, apparently to his alleged girlfriend V. Stiviano, reveal deep seated racism, deeply disturbing in any context and especially given that the majority of his team is African American, as are many of his customers, the fans.

He’s been fined and banned from his team for life, swift actions the National Basketball League appears to have had authority to take without going to court. But now comes the more difficult legal question: can he be forced to sell the team? Should he be?

Sterling’s only stirred the pot in his newest remarks. He gave a practiced, crisis-managed interview to CNN, initially sticking to a script that he is sorry for those he hurt, can’t he make one mistake in thirty-five years, yada yada. But then, astonishingly, in the very interview where he was trying to make amends for his overtly racist remarks, Sterling publicly attacked two African Americans:

Regarding Ms. Stiviano, who is half black, he blamed her for his racist remarks, accusing her of “baiting him,” and

Regarding Magic Johnson, Sterling suggested that Johnson had not done “everything he could do to help minorities” and that he was not a good role model for children of Los Angeles.

Unbelievable. If this were a fictional television show, we’d accuse the writers of going overboard. No one can be that stupid, can they?

His crisis managers must have been screaming for mercy in the green room.

Surely this will renew calls to get rid of him entirely. And indeed the NBA should go after him with everything they’ve got.

 What about the First Amendment?

That won’t help him. A common myth is that everyone has the right to free speech. But the First Amendment prohibits only the government from limiting speech (and even then many exceptions exist). Private employers and business contracts restrict speech frequently. So do morals clauses.

Donald Sterling is an example of how words can have legal consequences as NBA Commissioner Adam Silver is asking the other NBA owners to force Sterling to sell the Clippers. His legal battle against the NBA to come, however, will likely be lengthy with unclear results as much of the case is wide open to interpretation by a judge.

The NBA will likely be arguing for the forced sale on the basis that Sterling violated a morality clause. A contract that Sterling signed supposedly states, “that an owner will not take any position or action that will materially and adversely affect a team or the league” and “that [Sterling] will be upheld the highest standard of ethical and moral behavior.“ Such broad language will be left open to interpretation. But I’d far rather represent the NBA than Sterling here. I’d be happy to present evidence that in 2014 overt racism damages the brand and is disgustingly immoral.  As Exhibit A I’d present the public’s shock and horror in hearing Sterling’s words. That’s likely to be the winning position.

What will Donald Sterling argue?

First, he may say that the tape that was allegedly made and recorded by his ex-girlfriend was created without his knowledge and thereby obtained illegally. While in some states a person can legally tape someone else without their knowledge, in California both parties must consent to the recording.

I don’t see how that helps him on a contract issue, though. It’s a side issue – a criminal matter, potentially. And it’s extremely unlikely that a prosecutor is going after Ms. Stiviano.

Most likely, Sterling will argue that he did not willfully commit these actions, and that he cannot be forced to sell the team unless that element of willfulness is met. After all, he had no idea the conversation would be released for the public, he may say, so his actions were not intentional.

But his two prior cases of race discrimination in housing can be used against him. Really, Mr. Sterling, you weren’t aware that racism has legal consequences? Let’s take a look at that $5 million judgment you had to pay in 2003 to African American tenants you discriminated against. You said, “black tenants smell and attract vermin.” Is that the fault of some African American baiter too? How about the 2009 judgment of nearly $3 million for more of your bigotry against African Americans? Is that Magic Johnson’s fault?

He’d be a delight to depose or cross-examine. I’d keep him on the witness stand for as long as humanly possible. He couldn’t withstand Anderson Cooper’s easy, open-ended questions.  He’d be destroyed by a lawyer’s interrogation.

I don’t see any judge being sympathetic to Sterling. The lawyers may tie all this up in protracted litigation, but Sterling has too much history, and every time he opens his mouth, he makes the situation markedly worse.

Sterling, of course, is not really sorry. If he was, he’d sell his team and spare them the torture he’s continuing to cause them, and accept the financial loss as the appropriate consequences for his hate filled behavior over many years.

He can fight a legal battle, but he’ll do it alone, and ultimately he’s unlikely to prevail. And when he loses, no one will shed a tear for him.

It’s over, Mr. Sterling. Accept your fate and go away.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.