Mr. Tokowitz refuses to cave

Unlike all the IT nancy boys who can’t resign fast enough when someone looks at them the wrong way, Donald Tokowitz has rightly told the NBA where it can stuff its fine and its attempt to steal his property. It’s interesting to see Michael McCann, SI’s sports lawyer, suddenly sounding considerably less confident concerning the NBA’s legal position, which he’d previously made sound almost unassailable:

The answer begins with perhaps Sterling’s best argument: the recording of his infamous, albeit private, remarks to V. Stiviano was likely unlawful under California law, and the NBA is attempting to throw him out based on the recording. If the NBA was suing Sterling in a court of law, the recording would likely be deemed inadmissible under rules of evidence. But, as Sterling wisely acknowledges, the NBA’s internal system of justice doesn’t follow courtroom rules of evidence. The NBA constitution makes this clear, and Sterling has agreed to follow that the league’s rules.

Sterling attempts to counter this argument by claiming that the NBA cannot contract around substantive due process protections under California law. One of those protections, Sterling argues, is the right to privacy, and Sterling cites several cases where the right is treated as paramount. Sterling therefore contends that even if the NBA can, as a matter of procedure, rely on evidence that would be inadmissible in court, the league can’t, as a matter of due process, violate his right to privacy.

Expect the NBA to counter with several arguments. First, Sterling’s answer does not cite a case where a privacy right was used to reverse the decision of a private association. While the absence of a clear precedent does not nullify Sterling’s claim, the NBA would argue it weakens Sterling’s contention. Second, the NBA would likely insist that California law does not apply. The NBA’s constitution repeatedly references New York law as the state law governing league matters. And unlike California, a two-party starte where both parties must consent to a recording, New York is a one-party state whereby it is lawful to record another person so long as one party consents. From that lens, the NBA can maintain the privacy right under California law does not apply.

It’s also fascinating to hear everyone claiming that the NBA’s internal system of justice somehow trumps state and federal law just because the owners agreed to it. I mean, we all know that no judge has ever overturned a prenuptial agreement or a business contract, right?

I suspect the league will have a very hard time claiming it had to act for fear of damage that never actually happened. Silver would have been smarter to let the players boycott first, then step in, as there would be actual damage to which he could point. But, since it’s entirely theoretical now, Tokowitz can point to the full stadiums and TV ratings and very credibly argue that no harm has been done by his continued ownership of the team.

And once the lawyers start citing every racist and sexist statement ever made by anyone connected to the NBA, many of which will be much worse than what Tokowitz said, the league is going to have a tough time arguing its actions were not prejudiced and arbitrary. Especially if the lawyers can dig up any evidence of a preexisting discussions concerning how to get rid of the Clippers owner.

Of course, all of this could just be a bargaining chip meant to drive the purchase price up. If the price is $2 billion+, we’ll know it worked. But I hope the old bastard means it and does fight to the bloody end. The thieves in the NBA head office deserve it.