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NBA vs. Donald Sterling: The Court of Public Opinion Or A Court of Law? (Forbes.com) May 19, 2014

Posted by daviddavenport in Op/Eds.

The case of the NBA vs. Donald Sterling illustrates how powerful the court of public opinion has become and how wide is its disconnection from a court of law.  The latest is that basketball star LeBron James and some of his fellow players say they may boycott next season if Donald Sterling’s ownership of the Los Angeles Clippers isn’t resolved and removed in the mere months before then.  In their view this a civil rights case that has already been opened and shut in the court of public opinion and a court of law had better well keep up the pace or the fans will suffer.

Of course the court of public opinion does not worry itself over legal niceties such as whether Mr. Sterling’s private statement to a friend should be legally actionable, or whether his privacy was violated in releasing the taped conversations.  Constitutional matters such as the guarantee of free speech under the First Amendment are not relevant once the bandwagon of public opinion starts to roll.  To what degree should a man’s private statements to a friend bear on his business?  And never mind that business litigation involving a property worth as much as $1 billion would normally take years to resolve—if the court of public opinion has already spoken, a court of law should be able to mop up the details in short order.

As a legal matter—and rest assured that’s what taking away an owner’s franchise is—this is not a civil rights case but a question of property rights.  The legal case, as opposed to the public opinion outcry, will be about the terms of the contract between Mr. Sterling as owner and the National Basketball Association, whether Sterling violated that business agreement by his words, and whether being forced to give up his franchise is an appropriate penalty under the terms of the contract.  And the latest from the Sterling side is that, not surprisingly, he has hired a top business lawyer and is refusing to pay the fine assessed by the NBA Commissioner.  Legal game on.

I suppose one way to look at the two cases—one in the court of public opinion and one  in a court of law—is that one is the air war, one the ground war; one is the marketing war and the other is the contractual war.  But I think what the players, and many others who have taken to the airwaves, are missing is that both are appropriate and necessary in our democratic republic.  Mr. Sterling’s statements triggered offense and an outcry, and even a useful conversation, about racism in our society and the players were absolutely right to respond.  But the other shoe takes longer to drop and it is equally necessary—removing a man’s ownership of a piece of property, the Los Angeles Clippers, and the court where that occurs, a court of law, is a ground war of time and patience.

In the larger picture, the framers of our system of government greatly feared that factions would form that, in the passion of the moment, would dominate questions of policy and politics and roll over the rights of others.  This is precisely what is occurring today in our legal system.  When it was learned that the CEO of Mozilla Firefox had donated money to the “wrong side” of California ballot proposition 8 in 2008, he was essentially run out of office.   No matter that the majority of Californians who voted on the matter took the view he supported, or that the President of the United States himself was on that side of the question only a few years ago, we can’t let a man be CEO of a public company if he once held those views.  The court of public opinion had spoken and the CEO didn’t even make it to the court of law.

Even Donald Sterling deserves his day in court, not only in the court of public opinion on civil rights and offensive speech, but also in a court of law on questions of contract and property rights.  Let’s hope there is sufficient rationality and moderation left in our republic to allow that to take place.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/05/19/nba-vs-donald-sterling-the-court-of-public-opinion-or-a-court-of-law-2/

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