Donald Sterling & The First Rule Of Holes
The first rule of holes is: When you are in a hole, stop digging!
According to an article in the Los Angeles Times, Donald Sterling violated the first rule of holes by attempting to engage in a cover-up after TMZ.com published the recording of his racist rant with his assistant, V. Stiviano. Immediately after TMZ.com published the recording on April 25, the NBA commissioned David Anders of Wachtell Lipton Rosen & Katz to investigate. Sterling's botched stonewall did not prevent Anders from quickly establishing the authenticity of the Sterling recording, but instead became part of the case for termination that the NBA has presented to its 30 owners.
Sterling Had The Tape Two Weeks Before It Went Public
On April 9 (16 days before TMZ published), a Clippers' employee received a copy of the Sterling tape. He immediately shared it with then-Clippers president Andy Roeser, who discussed the tape with Donald Sterling. Sterling did not take any action to prepare for the adverse consequences if the recording became public. He did not contact the NBA to inform them of the coming storm. Sterling did not take action to divest himself of his ownership interest in favor of his wife or son. Instead, Roeser ordered the employee to delete the recording and the message by which he received it.
When TMZ Released The Recording, The Clippers Pretended They Questioned Its Authenticity
On April 26, Donald Sterling met with Andy Roeser to discuss how to respond to TMZ's publication of the recording. The Clippers issued a press release - issued over Roeser's name - that pretended as if the Clippers were surprised by the existence of the recording and uncertain about its authenticity:
"We have heard the tape on TMZ. We do not know if it is legitimate or it has been altered. We do know that the woman on the tape -- who we believe released it to TMZ -- is the defendant in a lawsuit brought by the Sterling family alleging that she embezzled more than $1.8 million, who told Mr. Sterling that she would 'get even.' Mr. Sterling is emphatic that what is reflected on that recording is not consistent with, nor does it reflect his views, beliefs or feelings. It is the antithesis of who he is, what he believes and how he has lived his life. He feels terrible that such sentiments are being attributed to him and apologizes to anyone who might have been hurt by them. He is also upset and apologizes for sentiments attributed to him about Earvin Johnson. He has long considered Magic a friend and has only the utmost respect and admiration for him -- both in terms of who he is and what he has achieved. We are investigating this matter."
The problem, of course, was that the Clippers knew that the recording was authentic and had known of its existence for more than two weeks.
Donald Sterling Lied To The NBA Investigator
When David Anders interviewed Donald Sterling about the recording on April 26, Donald Sterling lied about its content and falsely claimed that it had been altered. Sterling denied that he ordered Stiviano not to bring Magic Johnson to Clipper games and that the tape must have been altered to create that false impression. He also denied that he ordered Stiviano not to post pictures of herself with black people on instagram, but instead only told her not to bring "gangbangers" to Clipper games because they made other fans uncomfortable.
Anders quickly determined that Sterling was lying. And how could he not? The Sterling recordings have none of the telltale signs of alteration. Anders interviewed Stiviano and 14 Clippers employees and learned that the tapes were authentic and had been in Sterling's possession for weeks. So, when NBA Commissioner Adam Silver determined what punishment to impose on Donald Sterling on April 29, he knew that Sterling not only had made the racist statements on the recording, but also that Sterling had affirmatively lied to impede the NBA's investigation.
After Being Banned For Life From The NBA, Sterling Solicited Stiviano To Falsely Recant
Donald Sterling dug his hole even deeper on May 2, when he solicited V. Stiviano to falsely retract her prior statement to the NBA that the recording was authentic. Sterling asked Stiviano to falsely admit that she had doctored the recording. Moreover, he made the bizarre proposal that Stiviano agree to settle the lawsuit brought by Sterling's wife for the $1.8 million in gifts that Sterling had given to Stiviano by (1) repaying the gifts to Mrs. Sterling while (2) Sterling made a new under-the-table payment to Stiviano for $1.8 million. Proving that she is not a complete fool, Stiviano requested that her attorneys enter the room and for Sterling to repeat his corrupt offer. Sterling reportedly became "extremely upset" and left the building.
Sterling's attempt to bribe Stiviano was reported to Anders and became an independent basis cited to terminate his ownership of the Clippers.
Sterling's Botched Stonewall Demonstrated "Willful"Misconduct
Under Article 13(a) of the NBA Constitution, one of the grounds to terminate a team's membership is if an owner "willfully" violates any of the provisions of the NBA Constitution, By-laws or contracts. "Willfully" means that a person acts with the conscious knowledge that his actions are improper. It is arguable whether Sterling knew that he was violating his obligations to the NBA when he made the initial recorded statements to Stiviano. However, there can be no doubt that Sterling knew he was improperly when he provided false testimony to the NBA and suborning perjury from Stiviano.
The only allegations of willful misconduct against Donald Sterling in the NBA's public summary of charges are his attempts to coverup his initial recorded statements. "Various provisions of the NBA Constitution were willfully violated when [the Clippers] destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement. . . ."
Any Attempt To Fight Termination In Court Is Doomed By Sterling's Cover-up
As I have previously written, Donald Sterling's initial misconduct was likely more than sufficient to lead to termination of his ownership of the Los Angeles Clippers, and that termination likely would have been upheld in court. But any remote chance that Sterling had of successfully defending himself disappeared when he was caught trying to obstruct the NBA's investigation. Even if an owner or reviewing court believed that Sterling's initial misconduct did not merit termination, the attempted cover-up provides more than a sufficient basis for the NBA to terminate his ownership.