Sunday, April 27, 2014

What's next for NBA in Donald Sterling case from a legal standpoint?

Racist Donald Sterling

A recording purportedly of Los Angeles Clippers owner Donald Sterling making racist remarks about Magic Johnson and African-Americans, including those who attend Clippers games, has been made public by TMZ. The remarks purportedly occurred during a recent argument between Sterling and his girlfriend, V. Stiviano. The NBA is investigating. Below I break down how the NBA's investigation may play out and potential legal ramifications for Sterling, the NBA and Clippers players.

Step 1 for NBA: Confirming the authenticity of the recording
The league's first step is to confirm that the recording is in fact of Sterling and was not doctored in any way. This is an important step because the league has a fiduciary duty to conduct its investigations fairly and consistent with internal rules of procedure. If Sterling were to later sue the NBA, the league would want to establish that it responded responsibly to the allegations before taking any corrective action. In a statement released to TMZ, Clippers president Clippers president Andy Roeser raises the possibility the recording may have been altered and emphasizes Stiviano "is the defendant in a lawsuit brought by the Sterling family alleging that she embezzled more than $1.8 million..."
Confirming the authenticity of the recording could prove difficult. The original recording is presumably in the possession of TMZ. The NBA, as a private business, has no subpoena power to force TMZ or any other entity to turn it over. TMZ may be reluctant to share the original recording, especially if it was obtained on the condition that it would not be shared. TMZ may also be reluctant to share the recording because the recording itself could be unlawful.
Under California penal law, it is a crime to intentionally record a confidential conversation without the consent of the person or persons being recorded. This type of eavesdropping also empowers victims of the unlawful recording to sue for money damages. TMZ's own exposure to liability is far less than the person or persons who made the recording. TMZ is a media company with broad First Amendment rights, especially on matters that are newsworthy. Still, media companies can be sued for publication of private facts, and Sterling, an attorney by trade, could consider legal action.

Without possession of the original recording, the NBA would attempt to confirm the authenticity of the version of the recording that has been made available on A voice recognition specialist who can compare Sterling's voice with that of the male on the recording would likely be used. The NBA would also want audio specialists to ensure there are no unusual breaks or pauses in the recording that would suggest the placement of words had been altered.

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