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Ham: Is Don Sterling A Canary In The NBA Gold Mine?

Clippers owner Donald Sterling, second from left. (Ronald Martinez/Getty Images)

Clippers owner Donald Sterling, second from left. (Ronald Martinez/Getty Images)

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By Eldon Ham-
670 The Score legal analyst

(CBS) Today’s scheduled press conference by Adam Silver will be a threshold moment for the rookie NBA commissioner, especially since his last TV appearance was so painfully uninspired.

At issue is the volatile Don Sterling racism controversy, which has the potential to get out of hand in a hurry. But Silver has already made one spectacular blunder on national television during his last address on the same topic. Aside from looking uneasy and nervous — which will be forgotten with a good substantive effort today — he blurted out a giant legal hook for Sterling to hang his hat on to potentially clog up the works in court.

The NBA Constitution offers an arbitration clause, lots of room for penalties and maneuvering and the distinct advantage of providing a modicum of fairness — but no due process. Yet Silver went on national television Saturday night and, not once but twice, announced that Sterling would actually be afforded due process.

Has Silver lost his senses? Couldn’t he have just said “fair” or “appropriate”? Sterling, who is savvy, street smart, litigious and wealthy — all of which spells “bully” — now has the ammo for his lawyers to feast on, maybe for a year or more, making an issue of the impending certain lack of due process. The way to battle wealthy bullies in court is to stay on the straight and narrow, and Silver already jumped the tracks — let’s hope he can collect himself now.

Silver is a lawyer and should know better. The big advantage to the NBA and similar privately owned sports leagues is that they sidestep due process for a much lesser standard called “fundamental fairness.” The difference is a big deal. If Silver has to afford actual due process, the NBA will lose this fight. And although that point could be a long-term loser for Sterling himself, it does give Sterling a short-term issue to argue in court, delaying or maybe even skirting the effect of the arbitration clause, using it to bolster his likely claim that the recorded phone call in question is dubious to begin with. It’s a losing point unless there is more, but the unnecessary due process blunder could be the ticket.

The ultimate solution here is to get Sterling out of the NBA. Of all businesses in the world, the last one that could even pretend to endure such intolerable racist attitudes is  the NBA, so visibly built on and dependent upon African-Americans for its success. And discipline, although perhaps appropriate, is not the answer.

What good is it to fine a bigot? The bigot will still be a bigot. Suspending him for a year or more would be better, but it will not solve the real problem, although it might pressure him to sell out to someone like Magic Johnson or a hedge fund billionaire. Taking draft picks away could help, but that also hurts the players and the fans. The NBA simply can’t have this guy in the league anymore. And it can’t be whitewashed by transferring the team to Sterling’s estranged — whatever that means — wife.

A sham solution is not going to bring back sponsors, make players feel good, keep Doc Rivers with the Clippers or bring fans back next year. This wasn’t a momentary slip; this was a diatribe statement corroborating decades of objectionable racist attitudes. It begs for a real solution.

Let’s hope Silver didn’t get the commissioner’s job because he was the least objectionable vanilla guy in the wings. The NBA had better hope he’s a street-smart barracuda. We may find out this afternoon.

Eldon Ham is the legal analyst for WSCR sports radio and an adjunct professor of Sports, Law & Society at IIT/Chicago-Kent College of Law.