Seven even years ago Donald Sterling was forced to sell the Los Angeles Clippers after audio of racist remarks to his girlfriend, V. Stiviano, were made public. In the audio you can hear Sterling upset with his girlfriend for “publicizing [on her instagram] that she associates with Black people” and pleading with her to no longer “bring Black people to my games”.
The leaked audio created a firestorm throughout the league. After a contentious battle involving Sterling, Sterling’s wife Shelly, NBA commissioner Adam Silver, and attorneys on all sides; eventually Donald Sterling was banned from the NBA and forced to sell the Clippers to Microsoft CEO Steve Ballmer.
Now the NBA finds themselves in a similar uncomfortable situation involving Phoenix Suns’ owner Robert Sarver.
Two weeks ago ESPN reporter Baxter Holmes released a story that details allegations of sexual harassment, racism, and misogyny in the Phoenix Suns organization since Sarver became the owner in 2004.[1] The length of the piece (over 7,000 words) speaks to the number of allegations against Sarver and his staff.
Some of the major allegations include using racial slurs in front of a former Phoenix Suns head coach, bragging to employees that his wife performs oral sex, and mockingly asking a player if he shaved his pubic region because the player did not have hair on his legs. The story describes Sarver behaving in ways you could only attribute to an immature middle schooler. Nevertheless, Sarver is a 60-year-old man who is the figurehead of an NBA franchise.
In a league that is filled with predominantly Black players, the NBA is constantly looking to increase their number of Black head coaches. In 2013, Sarver took a step that was likely appreciated by the league at the time when he hired a Black head coach in Lindsey Hunter. For his reasoning behind the hire, Sarver reportedly told another staffer, “These [N-Words] need a [N-Word] and someone that could speak their language”.
To say the allegations against Sarver are disturbing would be an understatement. Sarver, through an attorney, has denied the allegations against him including using racial slurs in the workplace.
So what comes next?
On the heels of the ESPN story, the NBA has announced they will hire the outside law firm Wachtell Lipton to launch an independent investigation into Sarver’s allegations.[2] This process could take months and Sarver’s fate in the league ultimately depends on the outcome.
There’s one major difference between the situations involving Robert Sarver and Donald Sterling: with Sarver there is no proverbial “smoking gun”. While the allegations are deplorable, as of now that’s all they are – allegations. Some sources in the ESPN story were willing to go on record and attach their name such as former Suns head coach Earl Watson, but many remained anonymous. However with Sterling, his time as owner of the Clippers was over the second TMZ got their hands on the infamous audio tape and released it for the world to hear.
There’s still a lot that must be uncovered for Sarver to meet the same fate as Sterling. He will likely have a sufficient legal team fighting this every step of the way. But his wife, Penny Sanders, seemingly ignored all advice from anyone who has ever opened a law school textbook when she sent text messages to former Suns employees condemning them for their role in the ESPN story after it was published.[3] If Sarver wants to keep his team, step one should be monitoring his wife’s phone activities to assure no more retaliatory text messages are sent.
If this independent investigation discovers truth behind these allegations, the NBA will attempt to remove Sarver just as they did Sterling. But how would the league go about doing that?
The NBA could rely on the public pressure and outrage against Sarver being so extreme that he willingly waves the white flag and voluntarily sells the Suns. The league’s hope would be Sarver feels backed into a corner to the point that he wants this process to end as quickly and quietly as possible.
But if Sarver drags this process out creating a legal minefield, then the league will have to take matters into their own hands. They could employ a similar approach taken against Sterling when he was “banned from all team activities for life” by commissioner Adam Silver. This measure strips the enjoyment of being an NBA owner and inviting all of your wealthy friends into your luxury box to sip champagne.
Sarver could very easily take this all as a challenge and respond, “over my dead body”. That’s where matters could get complicated.
Under Articles 13 and 14 of the NBA Constitution and By-Laws (dated 2012, there may be an updated version not publicly available), if an owner is found in violation of the aforementioned document, they can be removed by a three-fourths vote of the remaining owners in the league. In Article 35A one of the reasons cited for discipline of an owner is “guilty of conduct prejudicial or detrimental to the Association.”[4] Conduct detrimental – hence the name of this blog site.
It’s important to note the human element in all of this. It may seem like a no-brainer for the other owners to cut ties with Sarver and remove this headache from the league. But the men casting the vote to decide Sarver’s fate are in the position to own an NBA team for a reason. They are all acute businessmen constantly trying to protect their own franchise and investments. Accordingly, they never want to set a low precedent for an owner to be removed because they may have skeletons in their own closet. They realize they could be the next ones on the chopping block.
In 2014 Mark Cuban, the owner of the Dallas Mavericks, was adamantly against removing Donald Sterling as the owner of the Clippers, characterizing the move as a “slippery slope”.[5] Just four years later in 2018 the Dallas Mavericks were under investigation for a hostile workplace centered around sexual harassment.[6] During this investigation there was never any true momentum for Cuban to be removed as owner of the team.
If Sarver is going down, he could attempt to bring other owners down with him. He could plead that he isn’t the only owner acting in a horrific fashion and this is just par for the course. Therefore, he’s being severely punished for conduct that only warrants a slap on the wrist.
There’s still a long way to go before Sarver faces the steep punishment of being forced to sell the Suns. But if it gets to that point, we must ask if this would really be a punishment at all? In 2004 Robert Sarver purchased the Phoenix Suns for $400 million. Currently, the Suns are valued at $1.7 billion.
If a forced sale occurs, Sarver is set to make a large profit despite these unsettling allegations. There will be more to this story in the coming months.
Matt Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/.
[1] Baxter Holmes, Allegations of racism and misogyny within the Phoenix Suns: Inside Robert Sarver's 17-year tenure as owner, ESPN (last visited Nov. 14, 2021) https://www.espn.com/nba/story/_/id/32440987/phoenix-suns-robert-sarver-allegations-racism-misogyny.
[2] Baxter Holmes, NBA launches investigation into Phoenix Suns owner Robert Sarver over racism, sexism charges, ESPN (last visited Nov. 14, 2021) https://www.espn.com/nba/story/_/id/32551930/nba-launches-investigation-phoenix-suns-owner-robert-sarver-racism-sexism-charges.
[3] Joseph Salvador, Report: Robert Sarver's Wife Sent Former Suns Employees Messages Amid NBA Investigation, Sports Illuastrated (last visited Nov. 14, 2021) https://www.si.com/nba/2021/11/09/penny-sarver-messages-former-suns-employees-investigation.
[4] Michael Hiltzik, Donald Sterling and the NBA: Your guide to the looming legal morass, Los Angeles Times (last visited Nov. 14, 2021) https://www.latimes.com/business/hiltzik/la-fi-mh-donald-sterling-20140502-column.html.
[5] Tim MacMohan, Cuban not in favor of booting Sterling, ESPN (last visited Nov. 14, 2021) https://www.espn.com/nba/story/_/id/10854381/mark-cuban-dallas-mavericks-rails-donald-sterling-not-favor-kicking-owner.
[6] John Wertheim, Exclusive: Inside the Corrosive Workplace Culture of the Dallas Mavericks, Sports Illustrated (last visited Nov. 14, 2021) https://www.si.com/nba/2018/02/21/dallas-mavericks-sexual-misconduct-investigation-mark-cuban-response.
