How Donald Sterling Will Beat The NBA

First off, to be clear I am not a lawyer. I am an over the road truck driver. While this may make you want to be quick to dismiss my observations here, hear me out first. If at the end of the article you still want to dismiss me, feel free. If, however, this article leaves you thinking that I make some valid points, come back and read this first paragraph again. A truck driver, not a lawyer, came up with this. Donald Sterling will be represented by lawyers, not truckers. I'm willing to bet that they can do at least as good a job making a case for him as I am doing right here, and I would even go so far as to suggest that they might do better. Hard to imagine, I know, but it is possible.

Let me start off by dismissing this idiotic notion pushed by Steve Phillips that the courts can't get involved because there is an arbitration agreement in the NBA contract. Let's be honest here, shall we? People can enter into any contract that they want. I could enter into a contract with a woman where she would agree to perform sexual enterprises for money at the truck stop and give half of the money to me. I could also put in the contract that any disputes will be arbitrated by my friend Jim Bob. Thus, in the event that she becomes dissatisfied with the contract and cannot get satisfaction through Jim Bob,  the courts will say "Sorry about your luck, you signed the contract." Right? Of course not. Courts will not stand by and allow an illegal contract to be enforced through arbitration.

Now, I am not arguing that the NBA contract is illegal, I'm simply making the point that a contract is not a "be all end all." A more relevant point would be that courts will not allow legal contracts to be enforced illegally. So let's say I hire the girl instead to dispatch my truck, but I word into the contract that if she make racist comments I can withhold her pay. Making a person work without compensation is illegal, so the courts will not enforce that.

Now we are getting warmer. Let's assume that you and I each own a franchise for a freight broker, and part of our job capacity is to bid on freight and make contracts with customers. Because the process of bidding and the amounts of the bids is sensitive information that could damage the company if leaked, we are required to sign contracts that include non disclosure agreements and specific fines and withholding of bonuses if we violate the agreement. Then, let's say that I were to post a video to the internet where I disclose sensitive information. The company fines me, the arbitrator enforces the fine, and I sue. Will the court hear my case? Most likely not. So Sterling is done, right? Not exactly.

Let's modify the above scenario. Let's say you and I are working on a contract together. You come by my office and I am discussing specific details of the contract with you. Without my knowledge, you tape record the conversation. Later, you sell your franchise and post the recording to the internet. Now the company has a recording of my voice disclosing the information. You posted it, but since you are no longer affiliated with the company they will have a hard time getting money from you, so they pressure the board of directors to come after me. They vote to enforce the fines against me. I file for arbitration, yet the arbitrator sides with them. Case closed? Not exactly.

In this scenario, I could go to the court and make the case that the board acted in collusion against me. I could establish that the conversation that I had was held with their knowledge and consent. I could present evidence that this type of conversation was held regularly with their knowledge, yet no reprimand was ever given nor was I told to cease and desist. I could point out that I was comfortable that the audience that I had with a fellow contractor was not one that would harm the company, as he was working on the contracts with me and subject to the same disclosure rules that I was. I could also point out that any losses suffered by the company were suffered as a result of the release of the recording and not as a result of the conversation that was recorded.

Sound familiar? Let me ask you this. On the eve of the conversation where Sterling made his racially insensitive remarks, how many players threatened to boycott? How many sponsors dropped the Clippers that next day? The answer to both is none. If the NBA intends to make the case that they can force Sterling out because his remarks cost them money, I would submit that this is factually incorrect. It was the actions of V. Stiviano recording and releasing the conversation that cost the league money, assuming they have lost any. Statements made in the privacy of the Sterling home are no threat to the league. Bimbos with tape recorders are.

Now I'm sure you are ready to split with me here. After all, it is still his voice and the words he used that are at issue. Fair enough. Which of the following statements were on the tape?

• That's because of all the blacks in this building, they smell, they're not clean.
• And it's because of all of the Mexicans that just sit around and smoke and drink all day.
• Is she one of those black people that stink? [...] Just evict the bitch.

The answer, of course, is none of them. Yet all of those statements were on the public record as being attributed in court testimony to Donald Sterling. What did the NBA do about it? Nothing. So how does the NBA make the case that racial statements by an owner cost them money when he made more offensive statements in the past and they did nothing? They can't. It's not his words that hurt them, it is hearing the words in his voice that damages the league. And how are we hearing his words in his voice? Did he call a press conference? Did he yell it out from the sidelines of the Staples Center? No. It's from a tape that he did not record, and that he did not release. If the NBA was damaged, they were damaged by Stiviano, not Sterling. Like in our scenario above, the NBA can't recoup damages from Stiviano, so they are going after Sterling.

In his press conference, Silver said he had spoken to some of the owners and "he has their support." The players said they were going to boycott if they didn't get the exact penalty that was handed down. Again, if they invoke the clause that allows them to force the sale of his team because of lost revenue, and it is not his actions that created the scenario where revenue would be lost, how do they go after him? Well, by talking to the owners and getting them to agree. And what is the best way to get them to go along? Fear of their players boycotting. Am I 100% confident that a court will call this collusion? No, but I am pretty comfortable in saying that it is evidence of possible collusion. And it matters not where the collusion originated. If the commissioner acted out of fear of the boycott, or if the threat of the boycott was put in place to force the hand of the owners, it really doesn't matter. Either way the other franchises are acting in concert to force out an owner, and the ensuing lawsuit could cost the league 100s of millions were they to lose.

Now at this point you make get the impression that I am routing for Sterling. Guess what? I am. Sort of. I'm not so much routing for Sterling as I am routing against hypocrisy. Adam Silver is a bully here, and I hope he loses. And yes, you read that right. I said he's a bully, and I know what a bully is. I remember it from Richie Incognito.

Richie didn't like Jonathan Martin because he saw him as week, so he bullied him. He ganged up with his other teammates against the guy. He called him terrible names (the "N" word and more). He forced him to pay money without receiving value in return (meals for Incognito and trips he didn't attend). He didn't stop until he had forced Martin off of the team.

Silver doesn't like Sterling, so he is attacking him in a moment of weakness. A woman he trusted took advantage of him, so it is time for the bully to strike. Silver is ganging up on Sterling with the other owners. They are forcing him to pay money without receiving value in return. They are calling him awful names (like racist and bigot). At his press conference, Silver said he would do "everything in his power" to force Sterling out of the league.

What is the difference? And before you call me a hypocrite here, you're damn right I defended Incognito. I was ripped for it in comments on my article here, on facebook, and by Adam Schein and Steve Phillips of Mad Dog Radio. This behavior is unacceptable and intolerable, they told me. Until, that is, the bullying affected someone that they don't like. Now all of the sudden it is okay to gang up on a guy, call him names, take his money, and force him out of your league. Now don't get me wrong here, I get it. Sterling made racist comments, and racism is immoral, wrong, and sinful. Isn't that also what people who bully gays say about their victims though? Don't they do it because their victim is "immoral" and their behavior is wrong and sinful? So again, what is the difference here? There is none.

Don't get me wrong here. I'm not ripping Adam Silver here for being a bully. I'm not attacking you for being his fellow bully if you are joining in. I'm simply observing your behavior and acknowledging it for what it is. Hell, I would join in with you and support you in your bullying of an 82 year old man were it not for one thing. I didn't like Jonathan Martin. I didn't like him because the only difference between having Martin on the offensive line of the Miami Dolphins and replacing him with a subway turnstile is that the Martin doesn't have a pocket full of tokens at the end of the game from all of the guys he turned to let through to sack the quarterback. I was fine with Incognito bullying him because it got him out of there. And then some of you guys came along.

My team was better off with Incognito the bully and without Martin the sorry excuse for an offensive lineman. You wouldn't let that happen. Richie got suspended for the season and then cut because he was a bully. Your league is better off with Silver the bully and without Sterling the racist. I agree. You, however, didn't care about my misfortunes so I give not one damn about yours. I hope you suffer here, NBA. I hope you are still ranting against Sterling 3 years from now Adam Schein. May the guy you are bullying live long and prosper in your face, Steve Phillips, the way Martin prospered against the Miami Dolphins. I hope Sterling continues to make public appearances and embarrass the NBA the way Martin did at Stanford games and other venues against the Dolphins. I hope this turns the public against your bully, Adam Silver. Not that I think that the public who claimed to be anti bullying last winter is sincere enough to stand up to bullying here. I know better than that. I just hope that they get so frustrated with the failed bullying that they run Silver off the way that Incognito was run off for his successful bullying.