Should embattled Los Angeles Clippers owner Donald Sterling choose to fight the penalties levied against him by the NBA for racist remarks, it could open a Pandora's Box on a number of legal fronts, legal analyst Michelle Suskauer says.
On Tuesday, National Basketball Association Commissioner Adam Silver banned Sterling for life, fined him $2.5 million and called for the league's owners to force a sale of his team over the owner's "deeply offensive and harmful" racist comments.
Over the weekend, celebrity website TMZ.com released an audio recording of Sterling criticizing his girlfriend for associating with "black people."
Suskauer told J.D. Hayworth, John Bachman and Morgan Thompson on "America's Forum" on Newsmax TV that should the notoriously litigious Sterling choose to, he could have a bona fide case against his girlfriend.
"California law requires both parties, it's a two-party state, to be aware and give consent to having the conversation recorded," Suskauer explained. "Federal law, it's just one party, so it could be the person who's making the recording. So, that's very different.
"It's a question as to whether or not Sterling knew or gave his consent to be recorded. So, actually, his girlfriend could potentially be facing both civil and criminal liability as a result," she said Wednesday.
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Suskauer added that the nature of the line of questioning on the tape would seem to support Sterling if he were to say he did not consent to the recording.
"We're not excusing the language, we're not excusing the comments," Suskauer said, "but it truly does sound like a setup, which would then really play into the fact that he did not give his consent to be taped. How is that going to affect him later on in terms of penalties that he's facing?"
The strongest of those penalties would be a forced sale of the Los Angeles Clippers, which Sterling bought in 1981 for $12.5 million. According to a report in Sports Illustrated
, if he sold the team today, it would be worth as much as $1 billion.
At that price, between federal and state capital gains taxes, Sterling would pay an approximately 33 percent tax rate on the difference between what he paid for the team and what he sold it for. That amounts to a tax bill of $329 million.
If financial incentive were not enough for Sterling to challenge a forced sale, Suskauer questioned whether the NBA, citing the best interests of the league, could compel him to sell the team for remarks that are essentially protected by the First Amendment.
"They're saying this is not in our best interest," Suskauer said of the NBA. "This is what we call a catchall. This, basically, is everything that you could throw in that is not going to be applied by any specific. It's going to be a question of is free speech something that [can be penalized].
"Certainly the speech that he used was incredibly detrimental," she said. "Everybody ran away in terms of money. Money is the name of the game, and it's also perception. It is an infringement of his free-speech rights. He can say whatever he wants, it's just a question of what is the ramifications that comes down to it as a result of that."
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