Posted on 06/11/2014 12:02:24 PM PDT by kathsua
The NBA's handling of the Donald Sterling controversy has a definite odor to it and it's not from sweaty socks. In April, NBA Commissioner Adam Silver decided that the NBA was above the law and thus didn't have to obey laws that interfered in the NBA's decisions. In its haste to get rid of Los Angeles Clippers owner Donald Sterling the NBA violated a California law that prohibits use of statements made in secret private recordings as a basis of punishment for an individual.
On April 25, TMZ released a secretly made illegal recordimng of an argument between Sterling and his girl friend V. Stiviano about her male companions. A controversy developed when some claimed Sterling's comments were racist. Four days later after what was likely only a cursory investigation, Silver imposed a fine, banned Sterling from NBA events and ordered the sale of the team.
California law explicitly bans recording a person's voice without his knowledge. The law further states that such secret recordings cannot be used against a person in a court of law. If government cannot use such evidence to take a person's property, how can a private business do so? Is the NBA more powerful than the State of California? Is the NBA above the law?
Our system of justice is based on the philosophy that it is more important for government to obey the law than to punish lawbreakers. If a police officer fails to advise someone he arrests of the suspect's constitutional rights and the individual confesses to murder, the confession must be thrown out because the law requires that those who are arrested be advised of their rights.
It Sterling had confessed to murder in a secret recording, the state would not have been able to use the recording to convict him. So where does the NBA get the authority to punish him for saying something unpopular during a lovers' quarrel? When people quarrel with people they are emotionally involved with they often say things they don't mean and wouldn't normally say. For example, a little girl arguing with her mother might say "I hate you" under the effect of the emotions involved in an argument.
The fine and lifetime ban imposed on Sterling by NBA commissioner Adam Silver are illegal and should be rescinded. The order to sell the team is also illegal, but the incident created such a negative public attitude to the Sterlings association with the team that Shelley Sterling had no real choice but to sell.
The negative attitude means the new owner should seriously consider moving the team and changing its name. When people develop a negative attitude to an individual or organization the negative attitude may remain long after they have forgotten why they developed the negative attitude. Many people will remember the controversial statements as coming from the "owner of the Clippers" rather than someone named Donald Sterling. These individuals may ignore the change in ownership and think the new owner made the statements.
Some have suggested that Sterling has a "plantation owner's attitude" to the team. I suspect many sports franchise owners have some degree of this attitude and it has nothing to do with the color of the athletes on the team. For example the decision by National Football League owners to ignore a concussion problem among NFL players might indicate a "plantation owner's attitude".
Adam Silver's seems to have a "Godfather's" attitude toward those in his organization. He feels he can ignore the law when dealing with those in his organization. Our system of laws is of little value if private organizations can ignore the laws of evidence and impose whatever punishments they want to impose. The word "vigilante" is used to describe those who convict individuals and impose penalties outside the law,
Yes, they’re above the law, as long as they pull the race card. Libs can do pretty much whatever they want, as long as they do it in the name of blacks, Hispanics, women, gays, or Muslims.
It ain’t over yet. If you’re not part of the solution, there is good money in prolonging the problem.
It’s clearly not actionable.
You can’t use illegally and unlawfully obtain evidence.
apparently too, the nba and nfl etc are part of the corporist oligharchy that runs the world....
how else could they get all the working class slobs to pay for the fancy stadiums?..
>>>California law explicitly bans recording a person’s voice without his knowledge. The law further states that such secret recordings cannot be used against a person in a court of law. If government cannot use such evidence to take a person’s property, how can a private business do so? Is the NBA more powerful than the State of California? Is the NBA above the law? <<<
While I don’t agree with the NBA using private, illegally obtained recordings, if the California law only forbids such recordings from being used in court, then I would think the NBA was within the law, rather than “above the law”.
If the case ever makes it to court, it will be interesting to see if the NBA is even allowed to use the recording or its contents to defend itself against Sterling. I would think, as far as a court is concerned, the recording wouldn’t exist and there would be no evidence that Sterling ever made the comments, unless they could get Stiviano to testify (which would likely force her to admit to committing a crime, under oath, in court).
I think Sterling’s real case would be that the NBA was acting arbitrarily and capriciously and breaching its contract with him, by banning him and forcing him to sell, based upon private comments, illegally recorded.
If government cannot use such evidence to take a person’s property, how can a private business do so?
And to use a simple example: The first amendment protects free speech, but see how long you keep your job if you tell n****R jokes, especially around customers. The first amendment may protect the speech, but you’ll still lose your job over it.
However, the caveat here is that the conversation in this case was completely private as well as illegally obtained.
That's by the state or local governments of California. And if the recordings were illegally made then that's a matter for the state to prosecute. But nothing in the law prohibits the NBA from using those recordings as evidence against one of their members.
Unless I miss my guess, it's also a violation of applicable Federal law to surreptitiously record conversational audio without the consent of all participants unless you're law enforcement.
Wasn’t there something about him voluntarily having all his conversations recorded? Did I imagine that or what?
Anyhow, what would a fast food company do if it was made public that one of it’s franchise owners told his lizard person open mistress that he didn’t want her to be seen eating 80% of the food they sell in public? What if a competitor started using the audio in an advertising campaign? Are they just supposed to not do anything or what? I ask because I don’t know.
FReegards
Fruit of the poison tree.
As you youself said, such recordings may not be used as evidence by the government in court. But the NBA is not the government and their use of the recordings for whatever purpose is no more illegal than TMZ's use of them was. So why couldn't they use them as part of their defense? It's not like the NBA had a hand in the illegal act of recording them in the first place. They got the tapes the same way we got them - when TMZ aired them.
I think Sterling’s real case would be that the NBA was acting arbitrarily and capriciously and breaching its contract with him, by banning him and forcing him to sell, based upon private comments, illegally recorded.
In the first place, the powers granted the commissioner are so broad that it's virtually impossible to define is actions as arbitrary or capricious. Second, the NBA would claim it was Sterling who breached the contract by acting contrary to the best interests of the association, which is why he was banned. Finally, the NBA did not force him to sell his team so that's off the table from the beginning.
I agree with what is being said here, and pointed it out when this first developed (to the dismay of non-lawyers who did not understand the legal issues involved), but at this point, it is probably moot. Sterling probably could have sued and prevented being forced to pay a fine or sell the team, but now that it has been sold, by someone authorized to sell, and at a price that is probably over and above market value, there may be no way to recover damages. At one point, there was discussion of the extra taxes caused by a forced sale, but I don’t know if this deal is structured to minimize taxes, and even so, Ballmer paid about $800 million above the highest estimates of value, which should cover the taxes. So, unless they are going after the $2.5 million fine, there is nothing worth suing about.
In this case, contract law would not override the statute. California law is very clear, illegal recordings may not be used in any proceeding, civil or criminal, except to prosecute the criminal who made the recordings. So, the NBA never could bring into any court proceeding the evidence it used to kick Sterling out of the league or fine him. They would therefore have not been able to show grounds why their charter and rules allow him to be kicked out.
Valid point. Hence my point that the recording is illegal is a caveat.
The way the recording has been treated, I assumed the state where it was made allowed recordings if one party knew it was being recorded. If this is not that sort of state, shouldn’t criminal charges be brought against the person making the recording?
Don't confuse constitutional law under the 4th amendment with the California statute regarding recording someone without their permission. The 4th amendment applies to governments, not individuals, to prevent the use in a criminal proceeding, or quasi-criminal proceeding (like an administrative matter)of evidence obtained in violation of the 4th amendment. Individuals, however, can obtain information any number of ways and it is not a violation of the 4th amendment, and it may later be used in a court proceeding for civil or criminal matters.
However, this statute creates a privacy right in California to not be recorded without your knowledge or consent. The law prohibits the use of such a recording in any civil or criminal proceeding. It's a little different situation than your standard 4th amendment case.
>>>In the first place, the powers granted the commissioner are so broad that it’s virtually impossible to define is actions as arbitrary or capricious. Second, the NBA would claim it was Sterling who breached the contract by acting contrary to the best interests of the association, which is why he was banned. Finally, the NBA did not force him to sell his team so that’s off the table from the beginning. <<<
I’m not saying Sterling would win. My point was that the original premise that the NBA was trying to be “above the law” was not valid.
I would also think that any type of agreement is always subject to good faith. No matter how broad the powers of a commissioner officially are, I could see a court overruling a decision that is outrageous or unconscionable.
For example, if an owner supported Obama or Romney in the last election and the others decided to throw him out based solely upon that, I would think a judge would overrule that, even if a 75% vote is all that is required.
Obviously there are much stronger grounds for banning Sterling, but a judge still might find such a decision, based upon illegally recorded, private conversations to be unconscionable (though I doubt it).
As for him not being forced to sell the team, he was essentially told that that would happen on June 3rd if he didn’t agree to sell. If he somehow get control of the team back from his darling wife, they would likely officially vote him out soon after that and then he would have grounds. If they don’t vote him out, it would be a moot point as he would still own the team, and then the lifetime ban would be the only thing left to be litigated.
Personally, I think he’d be better off just taking his half of the $2 billion, less taxes and running, but I guess if you are an 80 year old man, with prostate cancer (and possibly dementia), who is already a billionaire, principle or spite might mean more than money.
I’m in California and was referencing our lawz...
The simple answer is, a private contract may have many things in it that the govt. can not do.
I can make a contract to not allow the use of the work RED in my home, it would be dumb but it is still a contract that if agreed to is quite binding under civil law.
Only contracts that force and illegal action are absolutly unenforcable
Nope. Federal law, and the law of most states, permit a surreptitious recording with the consent of any one party to the conversation. California and only a handful of other states require the consent of all parties.
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