The season finale of ABC’s fiery hit drama Scandal was last week, so we thought. But on Friday night TMZ.com gave new NBA Commissioner Adam Silver an “Olivia Pope” sized controversy, coupled with a synchronized public outcry. TMZ.com released an alleged conversation between L.A. Clippers owner Donald Sterling and his former girlfriend V. Stiviano. According to the recording, which can be heard on the gossip website and other media outlets, Mr. Sterling scolded a female friend, presumably Ms. Stiviano, to avoid being seen in public with black people.
More specifically, according to the New York Times, in the audio recording, a person identified by TMZ.com as Mr. Sterling can be heard saying he was angry that Ms. Stiviano had posted a picture on her Instagram account of herself and Earvin “Magic” Johnson. “It bothers me a lot that you want to broadcast that you’re associating with black people,” Mr. Sterling is alleged to have said.
Later in the recording, referring to her Instagram postings, the person says that “you don’t have to have yourself with, walking with black people … [D]on’t put him on an Instagram for the world to have to see so they have to call me. And don’t bring him to my games.” “Him” refers to Magic Johnson who says he and his wife won’t be attending any L.A. Clippers games as long as Mr. Sterling is the owner.
The level of outrage is too high for normal crisis management techniques. A scandal of this magnitude requires something analogous to law and order. During a press conference Saturday evening Commissioner Silver believes “all members of the NBA family should be afforded due process …” (Emphasis added).
Essentially, the Constitution demands that when the state or federal government acts in a manner that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard. That interest must be a pretty important legitimate claim of entitlement.
While the NBA is not a state or federal government entity, owning the L.A. Clippers is certainly an important property interest. Procedurally, Mr. Sterling has been put on notice, now he will get an opportunity to be heard. That will involve determining whether the TMZ.com recording alleged to be Mr. Sterling making racist comments really is Mr. Sterling (authentification).
The NBA’s investigation will also look at the context of the conversation between Mr. Sterling and Ms. Stiviano. Context is especially important here given reports that Mr. Sterling’s wife of 50 years sued Ms. Stiviano last month, asking for the return of cash, property, cars and other items that Mr. Sterling had given Ms. Stiviano. That makes her a defendant in a lawsuit brought by the Sterling family — and pretty significant.
- You might be wondering how it is that Mrs. Sterling gets to sue a former girlfriend of Mr. Sterling for cash, property, cars and other items that Mr. Sterling had given Ms. Stiviano. California is a community property state. All property acquired during the marriage through earnings of either spouse belongs to the “community,” the marital economic community of the husband and wife.
- Each spouse has a half community interest in the property. Community property laws in California also prohibit “gift-giving” of community property without the other spouse’s permission. It is safe to assume, based on the filing of a lawsuit, that Mr. Sterling did not gain permission to give Ms. Stiviano gifts that belonged to the community. This is all based on the assumption that the Sterling’s don’t have a pre-nuptial agreement and are domiciled in California.
While millions would like to see Mr. Sterling sanctioned and banished from the NBA right now, the “due process” that Commissioner Silver speaks of demands fundamental fairness. What does that look like? Fairness can, mean “notice”as mentioned above, an “opportunity” to be heard at a meaningful time in a meaningful manner, or a “ruling” supported by substantial credible evidence, just to name a few. The more important the individual’s property right, more “process” must be afforded.
Fundamental fairness in the due process context takes time, but in this case it won’t be a long time. Commissioner Silver, during his press conference, emphasizes that the investigation will be “wrapped up in the next few days.” That’s fundamental fairness fast and furious … something we don’t often see in our criminal justice system.
Kimberly worked as a broadcaster from high school until her first year of law school. She’s a recent law school graduate from California Western School of Law; passionate about news, legal journalism, economic crime, and new technology. Kimberly lives in Southern CA, but is an east coast native. In her spare time, Kimberly loves going to live concerts and hanging out in Santa Monica.