Below is a select Q&A with USC law professor Jody Armour surrounding Donald Sterling’s attempt to transfer Clippers’ ownership to his wife, Shelly:
On the latest development
Armour: It’s a play for sympathy. Donald Sterling, himself, is a very unsympathetic character to many people, not just on the basis of his words that were recorded and broadcast, but also on the basis of his history that nobody did anything about for a very long time. Now everyone is reacting very self-righteously about his words and maybe even overreacting because of the lack of action. But at the end of the day, he is a very unsympathetic lightning rod. His wife, on the other hand, could say ‘I’m an innocent party here. He has been philandering on me and I am the victim.’ She’s arguing the NBA can’t use the sins of her husband against the wife. That seems unfair. It would make it more difficult from a public relations standpoint for the owners to take stern action against his wife rather against Sterling himself. But the concern seems the league wants to burnish its tarnished image to whatever extent is necessary irrespective of niceties, such as privacy and free speech.
What sense do you get that whether the NBA owners would accept Donald transferring ownership to Shelly?
Armour: Once we’re down the road of having public perception drive human behavior, substance won’t matter much at all. The perception is that if they vote against it, it will show the league is very serious about equality, non-discrimination by getting rid of anyone named Sterling. They will be cleaning house more thoroughly if they get rid of everyone associated with the Sterling name. That may happen from a public relations standpoint. But that might not stand from an individual justice and fairness standpoint.
Is the NBA protected though because it’s a private company as opposed to a government institution?
Armour: State action is different than private individuals. But even when it comes to private individuals, the courts provide protection for individual liberty, privacy and freedom of speech. I’m a professor. If I started saying things my University didn’t like and they came at me on the basis of what I said, they’re a private institution, but I still have a legal claim against them for coming after me on the basis of my contents of my speech.
It’s much easier when there is a state actor that is sanctioning somebody for their speech or invading their privacy. But you can file torts for an invasion of privacy that has nothing to do with the government. A hotel loaner cannot eavesdrop and put a listening device in your room to hear what’s going on without incurring serious liability. These privacy interests are values we have protected both against state actors and individual actors.
What do you make of NBA Commissioner Adam Silver making the distinction that the league won’t penalize Shelly for any behavior, but that if Donald is voted to sell the team, she cannot be involved because she is considered to have a stake in the team?
Armour: This is going to be about dueling characterizations of Shelly. The league is characterizing Shelly as a business partner. Shelly is trying to characterize herself as a wronged wife. A wife is not the same as a business partner. Reducing a wife to a commercial entity is something she will resist. That’s why we have courts and judges. The judge will determine at some point when they go to court. I assume it will because of how litigious Donald Sterling is and I have no reason to think he won’t go through litigation. If and when it does go to the court, the court could adopt Shelly’s characterization as her status and treat her accordingly. But it could accept the NBA’s characterization. Both sides will have to make their arguments and the judge will decide. But the league cannot just declare unilaterally that she is just a business partner.
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