Donald Sterling, dementia, and his fight to keep the Clippers

The practice of law is largely  about telling the best story.

The difference between a jury deciding that a murder was committed in cold blood versus spontaneously as a crime of passion often has little to do with who is the better arguer and much to do with whether the prosecution or the defense crafted the most convincing narrative retelling of past events.

More from Los Angeles Clippers

• Did Russell Westbrook play role in James Harden’s Clippers interest?
• 3 potential James Harden suitors not named the Clippers
• The new NBA flopping rules explained
• 5 players Sixers could acquire in Harden deal to stay competitive
• NBA rumors: One Damian Lillard suitor could drop out in favor of another star

Donald Sterling is a lot of things.

He has a decorated history of being a vile, repugnant racist—as evidenced by housing discrimination lawsuits, workplace discrimination claims, celebrating Black History Month in March instead of February, forbidding his close acquaintances from appearing in Instagram photos with black people, and asserting that Magic Johnson does not do much at all to help the black community. What Chuck Norris is to 1980’s action movies, Donald Sterling is to abject racism.

Aside from being a vociferous bigot, Sterling is also one of the worst owners in the history of professional sports. Bob Ryan of the Boston Globe cataloged some of Sterling’s biggest on-the-court debacles as owner of the Los Angeles Clippers:

"It is impossible to overstate the astonishing ineptitude of the Clippers franchise since Sterling bought the team prior to the 1981-82 season. Consider that in 33 years of Sterling stewardship the Clippers have■  lost 50 or more games 22 times.■  lost 60 or more games eight times.■  lost 70 games once.This does not include the shortened 1998-99 season, when they were 9-41, clearly en route to another 60-loss campaign, or — who knows? — maybe even 70.They also have won, to this moment, 19 playoff games. That’s games, not series. The Lakers during that same span have played in 15 Finals, winning 10, with 251 playoff victories."

…Yikes. To use another film metaphor, what Christian Bale circa The Machinist was to body building, Donald Sterling is to NBA success.

Unfortunately for Sterling, not only is he a racist and a loser, but he and his camp are also awful storytellers.

In light of Donald Sterling’s record of racism—namely, the V. Stiviano audio recordings and his subsequent interview with Anderson Cooper on CNN—NBA Commissioner Adam Silver along with the other National Basketball Association franchise owners are in the process of forcing Sterling to sell the Los Angeles Clippers pursuant largely to Article 13(d) of the NBA Constitution, which provides in relevant part:

"The Membership of a Member or the interest of any Owner may be terminated by a vote of three fourths (3/4) of the Board of Governors if the Member or Owner shall . . . Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely. [emphasis added]"

Donald Sterling’s counsel, an antitrust litigator named Maxwell Blecher*, has already hinted at his supposed defense strategy against the NBA at large. Specifically, Mr. Blecher is purportedly going to argue that Sterling did not violate the NBA Constitution and that his client’s due process rights have been violated by the NBA. Fellow attorney and writer for Basketball Insiders Nate Duncan has already written at length regarding the inherent problems with such a two-pronged defense.  The CliffsNotes version? Donald Sterling is likely going to stall, spend a lot of money litigating, and eventually still lose his team.

*As an aside, it is curious that Sterling retained Mr. Blecher for this matter. Antitrust is the law of unfair competition—think monopolies  and price fixing. While virtually any lawyer with Mr. Blecher’s experience could competently represent Sterling in this de facto contracts case, retaining an antitrust attorney in this instance is the equivalent of a polluting corporation being sued by the Environmental Protection Agency paying a divorce lawyer to defend them.

And herein lies the complication with Donald Sterling’s legal strategy: it is simply awful storytelling. The NBA has charged Sterling with a pattern of racism so offensive that it adversely affects the NBA as a business, and Sterling’s response—his defense, or his story—is that sure, maybe he was a little racist, but the NBA can’t take away his team for him being a bigot. Ponder that for a second.

Sterling and his attorney Maxwell Blecher seem to be attempting an archetypal loophole defense. Yeah I killed that guy, but I had a right to do so. Yes your honor, I took $5,000,000 from Plaintiff without his direct permission, but it wasn’t technically illegal. Why yes Commissioner Silver, I may have said things that were construed as racist remarks, but the NBA Constitution does not allow me to lose the team over such remarks.**

Live Feed

Clipperholics

**Even though it does, pursuant to Article 13(d), so long as those remarks adversely affected the league. Something tells me a reasonable, prudent person would find sponsors pulling their sponsorships and players threatening a collective boycott each constitute an adverse affect to the NBA in violation of 13(d).

To be clear, Donald Sterling is almost assuredly going to be forced to sell his team. But what could he have done in hindsight to likely save his ownership? The answer: play the demented elderly man card and invoke California Conservatorship law.

Quiz time. What’s the better story for Donald Sterling?

Option A: Vocal billionaire with a history of accusations of racism that were either settled or proverbially swept under the rug is caught making a vehemently racist rant and then doubles down with an equally racist, disturbing interview on CNN;

or

Option B: Sick octogenarian showing clear signs of rapidly on-setting dementia makes series of admittedly racist but equally incomprehensible, incoherent remarks and is immediately deemed to be too ill to be the face of the Los Angeles Clippers.

Option B, right? And it is not even close! It is easy for the NBA and the public at large to get behind forcing an old, awful racist to sell his team for around $1.5 billion. But it would be a different narrative altogether if the story was about an old man with mental illness being stripped of his 30+ year investment at the literal height of its success due to some unfortunate comments that may or may not have been illegally taped in the privacy of his own home while he was undiagnosed and unmedicated.

If Donald Sterling was deemed to be demented, would the country still be so quick to take his team away? Maybe. Maybe not. But regardless, it would be a more sympathetic story for him to be telling.

There have always been rumors that Donald Sterling was not “all there.” Clippers season ticket holder and Grantland Editor-in-Chief Bill Simmons has written at length about Sterling’s…corpse-like presence at games:

"My friend Tollin offered to split my tickets with me. We stuck around for the next season, right as Griffin and DeAndre Jordan were creating the embryonic stages of “Lob City.” We were in Section 101 by then, near the Clippers bench, with Sterling sullenly sitting across from us. His legs always straddled the center stripe at midcourt, like he was telling himself, I AM DEAD CENTER! I AM EXACTLY DEAD CENTER! He dressed like a potbellied grim reaper. His colorless skin always made me wonder if he spent his days sleeping in a coffin. Before games, he would hurriedly arrange the seating for everyone in his extended party, ordering them into various Section 111 seats and pointing around like a drill sergeant. From there, he’d stand in front of his seat and greet everyone around him. Eventually, he’d sit down and fold his arms and never, ever, ever, ever move. He’d just sit there, his arms folded across his massive stomach. I ran out of ways to makeWeekend at Bernie’s jokes about him by 2011."

Heralded NBA gambler Haralabos Voulgaris used to frequently sit courtside near Donald Sterling and has frequently tweeted about Sterling’s apparent lack of mental capacity. One such tweet that was short, sweet, and to the point:

Even Shelly Sterling, Donald Sterling’s wife of nearly 60-years, went on the record during an interview on the “Today ” show with regard to her husband’s mental health. “I really think personally he has dementia…” Shelly said.

If Donald Sterling is indeed suffering from some sort of diminished mental capacity, the second the V. Stiviano story broke, he and his inner circle should have played the mental health card.

In law, a Conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances. Shelly Sterling, with or without Donald Sterling’s blessing, and with or without the behest of a family attorney, should have immediately initiated the Conservatorship process—a process that can often be completed less that a week’s time due to the court’s fear that the conservatee will incidentally and rapidly squander away money and legacy.

A carefully scripted apology should have immediately followed the Conservatorship proceedings. Mr. Sterling—standing alongside Shelly, his attorney, his conservator, and his treating doctor—should have apologized, explained his diminished capacity, and prayed for forgiveness. He likely would have received it, perhaps in the form of a hefty fine and suspension and nothing more.

But instead, Donald Sterling doubled and perhaps even tripled down on the “I did nothing wrong and you can’t take away my team” card. He compounded general bigotry, particularized racism, and a sprinkling of diminished capacity with—well—more general bigotry, particularized racism, and sprinklings of diminished capacity. Perhaps this was the best outcome.

I don’t for a second intend for Donald Sterling to be labeled into a martyr due to some amateur psychology and alleged mental illness diagnoses from individuals whose mental health backgrounds can best be described as “once hooked up with a psych major at a frat party.” Sterling is and has been an awful human being, and by virtually all accounts he is now getting what he deserves—minus the eventual billion dollar payday for selling the Clippers, less capital gains tax ramifications.

Meanwhile, Donald Sterling and members of his camp will almost assuredly be left wondering what might have been had they just told a better story.