NBA's case against Donald Sterling: Would it hold up in court?

The National Basketball Association formally charged Los Angeles Clippers owner Donald Sterling Tuesday in its bid to drive him from the league for making disparaging comments about African-Americans in a secret recording.

Mr. Sterling has suggested in public comments that he would go all the way to the United States Supreme Court to keep his team.

So the battle lines seem drawn. With a potentially lengthy legal challenge looming, one emerging question is whether the NBA's case could stand up in court.

The question is one of enormous import to the NBA. There has been talk of players boycotting next season if Sterling is still an owner, though NBA commissioner Adam Silver has quelled that talk for now by pushing for decisive action. Fan boycotts of Clipper games are also a possibility, and the team has already lost more than a dozen sponsors.

Sterling has until May 27 to respond in writing, and then NBA owners will hold a meeting on June 3 to hear both the league and Sterling present their cases. To expel Sterling, 23 of the 30 league owners – a three-quarters majority – must agree.

Sterling was recorded by a mistress telling her not to bring African-Americans – including NBA legend Earvin "Magic" Johnson – to Clipper games. Commissioner Silver fined Sterling $2.5 million, banned him for life from league activities, and vowed to push owners to expel him.

The charges announced by the NBA Tuesday are the league's first attempt to formally make its case to the owners, though reports say Sterling turned many owners against him with further insensitive comments during an "apology" interview with CNN's Anderson Cooper.

With Sterling's ouster looking increasingly likely, the deeper question is whether his expulsion would pass muster in court.

Tuesday's charges show that the NBA would present evidence that Sterling’s behavior undermined the NBA's efforts to promote diversity and inclusion; harmed NBA owners, players, and personnel; and impaired the league’s relationship with marketing and merchandising partners.

That’s the easy part, say many analysts.

“The case is not about whether or not Donald Sterling has done things that many, even most, people feel are detrimental to the league,” says Michael Chasalow, a professor at the University of Southern California Gould School of Law in Los Angeles. “Rather, the issue is whether or not the league’s rules say clearly that what he has done enables them to force a sale of the team.”

One issue that likely would not complicate matters is the effort by Sterling's estranged wife, Shelly, to keep her stake in the team. “NBA rules say clearly that if they can force one owner to sell, they can force that owner’s partner, as well,” says Professor Chasalow.

Sterling could also play into the NBA's hands by refusing to pay the $2.5 million fine levied by Silver – an intention he stated last week.

“If he doesn’t pay a fine that was levied according to the rules, he is giving them the ammo they need to say he broke the rules and has to sell the team,” says Chasalow.

Sterling has a long history of litigiousness, and possible curve balls and detours could be in the works, analysts add.

“Any time you have someone in the mix with his kind of litigious mentality, it’s never simple,” says Andrew Brandt, director of the Center for Sports Law at Villanova University in Philadelphia. “He has been in the league for 33 years and may know a lot about skeletons in the closets of the other owners. He is certainly motivated to bring that out now.”

If the owners throw him out, Sterling says he is prepared to take the NBA to court. He will likely try to take issue with the original audio recording, which is illegal under California law.

“Everyone seems to have leaped to the conclusion that it is acceptable to strip ownership from someone on the basis of private utterances to a confidante, possibly criminally recorded without his consent, certainly broadcast against his will,” says Jody Armour, a specialist in sports law at USC's Gould School.

It's not enough simply to say that the NBA constitution gives owners the right to strip Sterling of ownership, he adds.

“That argument would empower owners to deprive another of his team if he wrote something in his diary that someone stole and broadcast," Professor Armour says. “The illustrations could be multiplied, but it's a slippery slope we should hesitate to start sliding down. Our righteous indignation must be tempered by principle, by care and concern for competing interests such as personal privacy and free speech.”