Silver’s Sterling Decision Was A Layup

By Nicholas Galea, a public defender in central Illinois and a 2013 graduate of the University of Illinois College of Law. You can follow him on Twitter at @invertedWAR.

New NBA Commissioner Adam Silver laid down the law against racist Clippers owner Donald Sterling.

Unprecedented is really the only word you can use to describe the Donald Sterling fiasco. Sure, we all knew he was an old racist jerk, but this is the first time the sports world has universally cared about that. That’s probably equal parts the visceral nature of the comments recorded, as well as this playoff run being the highest profile the LA Clippers have had since Sterling bought the team. Many have expressed uneasiness about NBA Commissioner Adam Silver choosing to effectively kick Sterling out of the NBA for private comments, illegally recorded ones at that. But, I think “choosing” is the wrong word here. Ultimately, Adam Silver had no choice in the matter, thanks to the strong stand the players were willing to take.

Players for the Golden State Warriors were planning to walk off the court in protest if Silver didn’t throw the book at Sterling. That’s not a threat to be taken lightly. From a PR standpoint, it would be an outright revolt against the league office in the most visible way imaginable. But, there’s a pretty good chance the players didn’t have a contractual right to effect this protest. In their statements to the press, the players used the word “boycott” to describe the idea of walking off the court immediately after tipoff. A boycott is more of a consumer protest.

The act of refusing to work to send a message to management is more accurately called a “strike.” I don’t think the players misspoke, though. Turns out, the league’s Collective Bargaining Agreement contains a no-strike clause that prevents, well, strikes. When a union violates a no-strike provision, the remedies can vary greatly.

Some of these penalties include fines, an injunction, and potentially jail time for union executives if they continue to strike in defiance of an injunction. However, the walk-off is no less useful as a protest simply because it violates a contract. Courts and lawsuits cannot reverse time. Once the players commence their walk-off, their point is made. I doubt they would turn it into a full-fledged strike and miss multiple games, and fining the players a game check or two probably isn’t a substantial deterrent.

Under the threat of a walk-off, prohibited as it may be, Adam Silver is effectively choosing between two battles of law and public relations. In either battle, he’s on pretty solid footing.

Donald Sterling and the girlfriend that forced him out of the NBA

Labor law tends to enforce no-strike provisions pretty strictly. Likewise, in Silver’s battle to ban Sterling, courts are going to be reluctant to interfere with the league’s judgment in applying the league charter against Sterling. On the other hand, the PR implications of the decision are massive. A lawsuit from Sterling would be a mostly behind-the-scenes affair where lawyers argue over contract verbiage while basketball goes on. There’s not much in a breach-of-contract claim which captures the imagination of the American public. Silver can engage in that battle without risking the NBA brand name; even if he loses, he can say to the world that he tried to fight racism as best he could.

By contrast, labor lawsuits are often fierce, bitter legal battles. Attacking a prohibited strike puts Silver on Donald Sterling’s side, little more than a bureaucrat fighting sympathetic player actions. The players’ revulsion to Sterling’s comments are very understandable, especially given the racial composition of the NBA. The enforcement action might also encourage a more expansive strike by the players, causing further damage to the league brand. Even if Silver decides to ignore the walk-off, the distrust would most certainly damage labor relations in the future. Any of the potential consequences are simply unnecessary headaches. By comparison, punishing Donald Sterling becomes a safe and obvious move.

The hand-wringing about Sterling being punished for his private statements comes from a sort of esoteric concern. It’s not so much a defense of Donald Sterling as a general feeling that privacy is eroding in today’s world. I don’t begrudge anyone for feeling that way, but Adam Silver can’t make decisions for those reasons. When the players threatened to take their own action against Donald Sterling, Adam Silver faced a choice: a public labor fight over his players’ outrage against racial animus, or a relatively quiet legal battle which might offend some observers’ vague concerns for the private sphere.

This might be the easiest choice the new commissioner will ever make.

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