Donald Sterling is not going down without a fight. Not only has he declared that he will not pay the $2.5 million fine for his statements, he and his antitrust attorney Maxwell M. Blecher are threatening to sue the NBA for violating his due process rights.
Sports Illustrated reports:
SI.com has learned that Clippers owner Donald Sterling has hired prominent antitrust litigator Maxwell Blecher, who has written a letter to NBA executive vice president and general counsel Rick Buchanan threatening to sue the NBA. The letter, sources tell SI.com, claims that Sterling has done nothing wrong and that "no punishment is warranted" for Sterling. Blecher also tells Buchanan that Sterling will not pay the $2.5 million fine, which is already past due. Blecher ends the letter by saying this controversy "will be adjudicated."
In what is almost certainly the first step in officially filing a lawsuit, the letter makes clear what many anticipated: Sterling is digging in. Blecher outlines two legal defenses for Sterling: that he has not violated any article of the NBA constitution and that his due process rights have been violated.
First, Blecher claims that Sterling has not violated any article of the NBA constitution. The letter curiously references Article 35, which governs players' misconduct, and several other provisions. The NBA is expected to argue that Sterling violated Article 13(d) among other provisions. Article 13 (d) bars owners from violating contractual obligations, including the obligation that owners no[t] engage in unethical conduct or take positions adverse to the NBA. [...] Second, Blecher argues that Sterling's "due process rights" have been violated by the NBA.
Blecher did not explain how he will argue that Sterling’s recorded statement and follow-up interview on Anderson Cooper are not either “unethical” or “adverse to the NBA,” though he will likely attempt to dismiss the private remarks due the illegal nature of their recording and release.
The “due process” argument certainly has grounds, as the NBA made its ruling after only a four-day investigation that offered no formal proceedings and did not involve Sterling in the process. However, the NBA is a private association and thus is not required to provide due process rights. Sterling's refusal to pay the fine might also trigger other means of justifying his removal.
SI highlights a “real weapon” Sterling might use in his defense: pretrial discovery:
The real weapon Sterling could obtain through a lawsuit is pretrial discovery, which is the process of each side sharing evidence and deposing witnesses before a trial. Filing a lawsuit does not automatically lead to pretrial discovery, as a lawsuit can be quickly dismissed by a judge on a number of grounds. If a lawsuit advances past dismissal, however, a judge normally commands that each side cooperate in answering questions under oath.
As explained in a previous SI.com article, Sterling could attempt to use pretrial discovery to portray NBA owners as hypocritical. He'd argue that if he is being expelled over bigoted comments, he'd want to know why other owners haven't suffered the same fate over similar statements. Along those lines, Sterling would likely demand that former commissioner David Stern testify about his knowledge of owner misconduct.
Many believe that the NBA will likely lean heavily on the “positions adverse to the NBA” clause, arguing that Sterling’s remarks were damaging to the league, as the threat of player boycott and the loss of season ticket purchases evidenced.
While Sterling digs in, many high profile NBA affiliates are continuing to push the league for swift action—perhaps none more so than Magic Johnson, who has repeatedly called for the NBA to entirely break ties with both Sterling and his estranged wife.
Sterling's wife is also pushing back against the NBA, insisting that regardless of what happens with her estranged husband, she should be able to maintain part ownership of the team. In a recent interview with Barbara Walters, she argued that Sterling was suffering from dementia.
The Clippers are currently being overseen by an interim CEO, former Time Warner chairman Richard Parsons. Forbes recently valued the Clippers at $575 million.