See my post 24. The tape will be inadmissible in any court proceeding.
If Sterling challenges the decision, it will be on the basis that the bylaws do not allow Sterling to be sanctioned for something that never happened. And legally, the words uttered by Sterling on those tapes never happened. The tapes can't be used, the transmissions of what's on those tapes can't be used, and the person who created and anyone who disseminated those tapes can be prosecuted. (Not that they would be in LA, but that doesn't make it not a crime.)
So, posit a scenario where the bylaws allow the league to act if an owner does X, Y and Z. The league will not be able to demonstrate that this owner did X, Y and Z.
You keep bringing prior acts into it. Silver explicitly stated (and I'm sure his written decision makes clear) that the evidence on which the league acted, the X, Y and Z of this decision, is the tape and what Sterling said on the tape. If the tape cannot be evidence in any legal proceeding, the league can't say a valid reason why it sanctioned Sterling.
The league can always bring a new proceeding, and try to prove that Sterling is a racist. There may be issues under the bylaws with a new proceeding, or with the X, Y and Z of that investigation, but it is entirely possible they could find a way to get rid of him after an investigation that found what the bylaws require. But that's not the state of things right now.
As for being kicked out by the owners, there will be tremendous pressure on the owners to vote to kick him out. Nearly irresistible pressure. The same race mongers who are after Sterling will come after any and all owners who even think of voting to let him stay in the league, no matter the reasoning. And that issue will come down to what the bylaws say as to the grounds on which an owner can be forced to lose his team. I am not privy to the NBA bylaws. I can venture to say that, whatever the bylaws say, the owners will not be able to use the tape or anything said on it as part of their "official" reason. If they do, they will run afoul of California law on evidentiary use of illegally obtained recordings, just as Silver has.
As for Silver being a lawyer with 22 years in the league, that may be his problem. He knows the bylaws through and through, no doubt. He appears not to be aware of the evidence code, and I doubt he's ever been a trial lawyer. Guys who do deals and who work in house for decades often lose sight of some of the key issues that a litigator spots instantly. This may be one.
I appreciate your layperson's perspective. Keep an eye on events, and see if what I am talking about do not become the issues in this dispute.
It doesn’t matter if the tapes are admissible (note the law you site is PENAL code, not civil, so they probably actually WILL be admissible). He’s not being punished for the tapes, he’s being punished for the REACTION to the tapes in the press, and one way or the other the press clipping will be admissible.
Something did happen, with or without the tapes it can be proven that Sterling drew a ton of bad press.
The league will be able to demonstrate this owner did X, Y, and Z. He brought bad press, easily shown.
Prior acts matter. They’re a significant part of the bad press he brought. And remember Silver’s statement was at a press conference, it hold no legal binding. He’s free to get up in a court of law under oath and say “hell yes his previous acts factored into the punishment, I said they didn’t in the press conference because I didn’t want to throw my good friend and predecessor David Stern under the bus, but I won’t perjure myself for him, they factored in”.
The league doesn’t need to prove Sterling is an anything other than embarrassment. He embarrassed the league, the league has a duty to its other owners and shareholders to protect its image, so they punished him.
The bylaws say a 3/4 vote is needed, if 3/4 of the owners agree that owner X is a pain in the #$% and needs to go he’s gone.
Evidence code does not matter. A - it’s penal, B - there’s TONS of evidence that isn’t the tapes of every reason the NBA has for punishing him.