Is the NBA Above the Law?

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The fine and lifetime ban imposed on Sterling by NBA commissioner Adam Silver are illegal and should be rescinded.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,

Actually, what TMZ did may be illegal, as illegal recordings may not be used by anyone.

I don't think you're right on that.

What the NBA can't do, however, is use the recordings in any court proceeding, and that would prevent the NBA from providing evidence for the decisions that it made. That would present a conundrum to the NBA's lawyers.

Again, yes they can. But even if you were correct, the NBA wouldn't need them. They can claim that Sterling was responsible for loss of revenue, loss of sponsors, discord with the players, and any number of other things that were not in the best interest of the association. The NBA constitution gives the commissioner the power to impose the lifetime ban and the $2 million fine for that alone.

Let me explain it to you: You were analogizing between 4th amendment law and the California recording law. I explained that the two are different, in that an individual not acting on behalf of the state (meaning government) may violate another person's constitutional rights without penalty, and can even use evidence that would be inadmissible for the government in a court of law.

To give several examples, I can take the deposition of a person who is alleged to have embezzled from my client, and I don't have to give them a 5th amendment warning, and what they say can be used against them later in civil or criminal court. I can violate their First Amendment rights by refusing to allow them to be published on my web site. I can violate their Second Amendment rights by refusing to let them carry weapons on my property. I can gather information on them, maybe even illegally, and while I might be prosecuted for trespass, the evidence is still admissible. I am not the government.

Similarly, if a citizen gains information illegally from a criminal, it can be used in a criminal proceeding, because the state has not violated the criminal's rights. The bill of rights protects us from actions by the state.

Meanwhile, you have an entirely different situation presented by California's law on recording. There, the State of California passed a law making it illegal to record private conversations without consent of all parties, and made the use of such recordings illegal in any proceeding. Doesn't matter if the later proceeding is a criminal or civil or small claims, or if it is a private citizen, a sports league or the government who seeks to use it. It cannot be used, no matter the innocence of the person who wishes to proffer it.

You were using concepts that pertain to the 4th amendment to analyze the statute, and those don't really apply. The Sterling situation is all based on a statute and what it says. If it were not for the statute, the mistress could have recorded him to her heart's content, and used it however she wanted. A government needs a warrant, but a citizen doesn't. This is not a constitutional issue, but a violation of one law.

I linked to the law in this post way back in April. Take a look at that if you want to know what it says specifically.

I hope that helps. I was not trying to argue but to elucidate.

Re: TMZ's liability:

...or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year,

Cal. Penal Code Section 631.

This appears to make it illegal to disseminate the illegally obtained recording, by my reading of it. TMZ broadcasting it would be "communicating" it. The DA is probably not keen to go after a broadcaster, especially to defend Sterling's rights, but that does not make it legal. It's more like Obama refusing to enforce immigration laws.

They can claim that Sterling was responsible for loss of revenue, loss of sponsors, discord with the players, and any number of other things that were not in the best interest of the association.

Sterling didn't do or say anything that they can introduce into evidence to prove that he is responsible for the loss of revenue, sponsors, etc. He hasn't committed any "conduct" that the NBA can legally prove, and it is conduct of some kind that the NBA must show. The NBA has what is known as a proof problem. They can't connect the dots without evidence that is inadmissible. And that is the conundrum. I suggest that those who want to really delve into this issue read up on rules of evidence and trial practice.

The way I read it the person who illegally obtained and communicated the recording was Sterling's bimbo. Unless TMZ conspired with her from the beginning I don't see where they broke any law.

Sterling didn't do or say anything that they can introduce into evidence to prove that he is responsible for the loss of revenue, sponsors, etc.

Sure they can. Sterling admitted that it was him on that recording. Sponsors said they were cancelling because of what Sterling said. Players were talking about boycotting playoff games because of what Sterling said. Ticket holders were planning on cancelling tickets because of what Sterling said. His actions were responsible for financial loss and discord, and under the NBA constitution the commissioner was well within his authority to ban him and fine him.

I’ll go back and read your post but, I never considered 4th amendment as foundation for the argument.

The are too many laws that direclty deal with this issue.

Most of which I’m familiar with and help my clients comply 2ith, so they are legitimately performing their work as well as mitigating sanctions under the law, pprevnting civil action and giving them direct evidence of their work should either occur.

I have many clients in financial, healthcare and other industries where they are required to record transactions or call centers are a major part of their customer acquisition and support.

I’m in telecom and we advise our clients on wide variety of issues.

What you said that I responded to was this:

You can’t use illegally and unlawfully obtain evidence.

Actually, you can in many situations. The situation you are referring to is the exclusionary rule, which operates under the 4th amendment, and restricts the government, but doesn't apply to private citizens. I was trying to point out, for the edification of those interested in the legal issues, is that the reason the recordings will be excluded from any trial is not that they are "illegally and unlawfully obtained", because a private citizen's illegally obtained evidence can be used in court, but because in the State of California there is a statute that makes undisclosed recordings inadmissible in any proceeding.

Other types of illegally obtained evidence might well be admissible. If the maid stole some papers from Sterling, for example, and in the papers were inflammatory writings of his, or an admission of murder, for example, those documents could be used against him in a civil or criminal case.

Your experience in the telecom industry is most likely in connection with subpoenas in criminal and civil cases. Those are examples of legally obtaining information through lawful process (as opposed to the spy agencies, which take it in violation of the rights of all of us.)

It's interesting (and irritating) to argue the subject of Sterling on sports forums with liberals. Many times their argument is that Sterling is a lousy person. You then retort that even lousy people have rights, and you're called a racist for defending Sterling.

My own opinion is that any sports league has the right to police its members and set standards. I don't know what the NBA's laws and regulations are, but if they feel an owner's actions are detrimental to the integrity of the league, they can remove him.

My argument was that what Sterling said did not amount to the heinous crime all the Sterling haters said it did. The NBA has ignored many similar words by other people in the past or let them off with a much lighter punishment. Not so for Sterling. One illegally recorded conversation, and he is condemned. Libs are huge hypocrites.

The way I read it the person who illegally obtained and communicated the recording was Sterling's bimbo. Unless TMZ conspired with her from the beginning I don't see where they broke any law.

Let me break the statute down for you:

"Any person who......

[records private communications by any means]

willfully and without the consent of all parties to the communication....

That was the bimbo. Now, here comes the part you missed. Pay attention:

or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained..... [This is TMZ]....

is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year...."[This is how long the bimbo and TMZ can go to jail and how much fine they must pay.]

Now, granted, a corporation can't go to jail, but individuals inside the corporation who did all the above certainly can, and the corporation can be fined for criminal acts undertaken by its authorized agents. You'll have to trust me on that, it's not in this statute, it's in other ones.

Satisfied? Or shall we explicate the meaning of "in any manner".

I don't know why I get into legal discussions with nonlawyers here. When there is a thread on software engineering, or molecular biology, I sit back, sometimes ask questions, and appreciate the level of expertise that we have here on FR. What I don't do is try to pretend I know what I'm talking about on something I've never dealt with. Yet for some reason, legal threads bring out all kinds of people who slept at a Holiday Inn Express. You continue:

Sure they can. Sterling admitted that it was him on that recording.

What recording? The one that's not in evidence because it cannot be introduced?

Sponsors said they were cancelling because of what Sterling said. Players were talking about boycotting playoff games because of what Sterling said. Ticket holders were planning on cancelling tickets because of what Sterling said. His actions were responsible for financial loss

What did Sterling say? What actions did he commit? You can't introduce evidence of anything that Sterling said. You trying to introduce the sponsors cancelling as evidence of conduct by Sterling?? All that shows is conduct by sponsors, players, fans....and so on. The NBA bylaws refer to conduct by an owner, not conduct by third parties. Prove the conduct. Good luck. That, my in pro per friend, would be a fun day in court. I have fun with people who don't think through proof of the facts they are required to prove. The NBA knows that they had a problem. That's why they worked with Mrs. Sterling on a resolution.

Satisfied? Or shall we explicate the meaning of "in any manner".

No, you've made your...creative interpretation of the law very clear. So let me get this straight. If I were a Clippers season ticket holder and I said to a friend that I was so disgusted with Sterling's remarks that I was going to give up my tickets then according to you I'm guilt of violating the California Penal Code, Section 61? And I should be prosecuted?

A clear reading of the law makes it clear that the statute applies only to the party making the recording. The NBA is, at worst, a third party in that the first party - the bimbo - made the recording and passed it on to the second party - TMZ. There is no evidence at all that the league had any role in making the recording or distributing it. So the league can argue - successfully - that the privacy laws don't apply to it any more than they apply to any other individual who heard and repeated the recording. Even though the NBA didn't distribute the recording, they can argue that impact the recording had on their sponsors and players and fan base - none of whom are guilty of violating the law either - did cause damage to the NBA in terms of lost revenue and injured reputation, and that the commissioner had a fiduciary duty to take actions to limit the damage. None of this violates California law regarding privacy or anything else, and under Article 24(l) of the NBA Constitution the commissioner is empowered to act and apply the punishment he did.

What recording? The one that's not in evidence because it cannot be introduced?

You keep acting like this is a courtroom. The NBA is not a court of law and they don't have to follow procedures of evidence. The had Sterling on the recording. They have testimony from the Bimbo that Sterling said what he said. They have Sterling admitting that he said what he said. They have the reactions from the sponsors and fans and players. They have all that they need under their constitution - a constitution that Sterling agreed to abide by - to apply sanctions against Sterling to the extent that they did.

The NBA bylaws refer to conduct by an owner, not conduct by third parties. Prove the conduct. Good luck.

Again, you're acting like the NBA is a court of law with rules of evidence and constitutional protections for the defendant. You're delusional if you really believe that. The NBA is free to act on whatever evidence it wants to, legal or otherwise. And as to what they can do with that evidence, Article 24 (l) is clear: "The Commissioner shall, wherever there is a rule for which no penalty is specifically fixed for violation thereof, have the authority to fix such penalty as in the Commissioner’s judgment shall be in the best interests of the Association. Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association." So basically the Commissioner can ban an owner and fine him up to $2.5 million for anything which, in his opinion and his opinion alone, violates the best interest of the association. It will not be hard at all for the NBA to prove that they followed their rules and did not violate California law. So Sterling can sue, but sue for what? Violation of privacy? The NBA didn't do that, the Bimbo did. Forced him to sell his team? The owners have never voted to strip him of his team. Sterling's wife decided to do that on her own. Breach on contract? How is he going to do that? He'll have to prove that the NBA didn't follow its own rules, which it clearly did, or treated him worse than anyone else under the same circumstances, which is impossible to show. Strip him of his team? It was his wife that did that, sue her. In short, Sterling can file whatever suit he wants. He's going to lose.

Thanks for schooling me. I don't know what I would do if I didn't have you to teach me how to interpret a statute. Do you have any openings at your law firm? I would like to learn at the foot of the master. What, no law firm? You are just middle management working to pay the rent? How can this be?

So now you want to parse the word "use". And, in the technique of Obama, you set up ridiculous straw men to knock down in order to "prove" your point. So let's discuss what "use" means in the statute.

Your definition is apparently, that "use" means only Bimbo can be charged. That would mean that those who drafted the statute intended that only the person who created the illegal recording could be charged with an offense. And clearly, we know it is not limited to the Bimbo. "How"?, you say. Because the statute has an entire clause devoted to people other than the creator of the recording, starting with the word "or". In the context of this case, it says that Bimbo OR anyone who used Bimbo's illegal recording has committed an offense.

TMZ received it directly from Bimbo and then "used" it in its TV program to disseminate it to millions. It seems pretty likely that that is "use" as intended by the statute. Of course, to make a proper analysis of the legislative intent one would have to start with the legislative record and then from there look at the problem being remedied and the language of the statute to determine what the legislature intended when it said "use". I have not done a legislative intent analysis of the statute, so I am just going by the typical interpretation of a clause like that. I believe it likely that TMZ and anyone else who worked directly with the Bimbo are liable with her. TMZ's only defense would be a First Amendment one, as the First Amendment overrides California law. And they would have a good argument. It was quite a story, even if it was illegal for them to receive and use the illegal recording. It's not fair, but the press gets a lot of leeway. But most people who are not press organizations who receive such a recording and then disseminate it, would be criminally liable, and would have no similar defense.

People heard the recording after TMZ aired it, and spoke among themselves. News organizations aired it, and discussed it. So, how far downstream does it go when it says "use". Does repeating what was said by Sterling or reporting what TMZ did create a criminal violation? No, that's just your straw man. The legislature would not have intended a situation where, once an illegal recording is released into the public airwaves, such that millions have heard it, that anyone who repeated it, or aired it, would be responsible for the crime just like the Bimbo or TMZ. At that point, the cat is out of the bag. No, a fair reading of the statute shows that the crime is committed by the person who makes the recording, and the person who receives the recording with intent to use it at a point in time where it is still a private recording. After a "use" that makes the recording public, the public is not committing a crime.

So, no, you are not a criminal, but you did stay at a Ramada Inn and not a Holiday Inn Express, and therefore, you came up just a bit short in your arguments. But keep at it, you clearly enjoy it, and you are confident in your assertions, and if you ever represent yourself in court, I am sure you will destroy your opposition.

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