Yesterday, TMZ disseminated a recording that allegedly contained Los Angeles Clippers owner, Donald Sterling, making racist comments about African-Americans. In the wake of the recording’s dissemination, NBA players, civil rights leaders and President Barack Obama have shared their disgust over the recording’s comments and have called for the NBA to take action against Sterling. In response to the recording, NBA commissioner Adam Silver held a press conference and indicated that an investigation into the recording is ongoing and that all sides will be afforded due process. While the NBA holds power to levy serious sanctions against Sterling should its investigation reveal the voice on the recording is his, for the time being, fans and corporate sponsors hold the greatest power to punish Sterling.
As noted above, the NBA has power to sanction Sterling should the voice on the recording belong to him. This ability is held in the commissioner’s “best interest of the game” power. Utilizing that power, Silver can institute investigations and subsequently levy sanctions into matters that affect the best interests of the game. However, it is unlikely that this power would be utilized to directly remove Sterling from his position as an NBA owner. That is because other documents, specifically the NBA franchise agreement, constitution and bylaws, govern that ability. While those documents are confidential, the league can reportedly only remove an owner from his post if the team is embroiled in serious financial difficulties.
Thus, if the NBA’s investigation reveals that the voice on the recording is Sterling’s, it is likely that Silver will issue a combination of a fine and a suspension against Sterling. While Silver could issue a lengthy enough suspension to effectively motivate the 81-year-old Sterling to sell the team, doing so could invoke a legal challenge by Sterling. This legal challenge would likely arise, because Sterling would assert that because he has never been suspended by the NBA before, a suspension exceeding one season would be arbitrary and capricious.
Along with calling for the NBA to remove Sterling as an owner, others have called for the Clippers to refuse to play. While Clippers head coach Doc Rivers has indicated that the team has decided not to do this, the question remains whether the team legally could. Arguably, sitting out from a game would amount to a strike by Clippers players, as they would be boycotting their working conditions under Sterling. However, under the collective bargaining agreement the National Basketball Players Association signed with the NBA in 2011, strikes during the term of the collective bargaining agreement are not allowed. Thus, sitting out a game would violate the terms of the collective bargaining agreement and could open up the players to a labor law claim and also a breach of contract lawsuit.
Yet, another body of law arguably paves a way for the players to legally sit out from play. That is Title VII of the Civil Rights Act. Title VII grants employees the right to sit out from work to boycott an employer’s discriminatory practices. Arguably, Sterling’s conduct and a subsequent refusal to work by Clippers players would fall within the realm of Title VII. However, due to the collective bargaining and contractual issues discussed above, Sterling would likely wage a legal battle should players sit out of a game. Thus, it would be up to a court to decide whether players were within their legal right to not play. Given the legal intricacies of players sitting out from play, it is not a path they are likely to choose.
Given the legal issues limiting the message the NBA and its players can send to Sterling regarding his alleged racist comments, fans hold the greatest power in sending him a strong enough message that such speech will not be tolerated. Forbes valued the Clippers at $575 million in 2014. That valuation came after Sterling purchased the team for a mere $12 million some 33-years earlier. Thus, the Clippers are a team that fans, corporate sponsors and television broadcast network partners have built into a financial success through their ticket and merchandise purchases, partnership contracts and lucrative television broadcast contracts.
To send the greatest message to Sterling, fans should take a page out of the playbook of the 1960s Civil Rights Movement, which organized boycotts of companies that engaged in discriminatory behavior. The thought behind such movements is to hurt the companies’ bottom line so that they are pushed into adopting acceptable race relations practices. While sitting at home for the remainder of the playoffs will likely not be a strong enough move for fans to hit Sterling and the Clippers’ bottom line, over time, fans’ refusal to attend Clippers games will hurt the team’s bottom line. Additionally, the Clippers’ corporate sponsors should consider pulling their money from the team after reviewing their contracts, which likely include a morals clause. Finally, the team’s television broadcasting networks should consider similar action.
When news of Sterling’s alleged comments arose yesterday, many people cried out and said the comments were part of a pattern of behavior that has been ongoing for decades. Perhaps now is the time to end that behavior. If the NBA and its players are limited in how they can end the behavior, the power lies in the people and corporate entities who have helped line Sterling’s pockets. These individuals and corporations must pull back their monetary support of the team until Sterling not only issues an apology, but demonstrates that he has completely changed his beliefs and feelings towards people of races other than his.