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Why Donald Sterling changed his mind AGAIN

Donald Sterling has changed his mind yet again and will pursue his $1 billion lawsuit to block the sale of the Los Angeles Clippers.

Last week, Sterling's attorneys announced that Sterling would drop his lawsuit and walk away with his share of the $2 billion that Steve Ballmer has agreed to pay for the Clippers. On June 4, Donald Sterling said, "Everything is just the way it should be, really. It may have worked out differently, but it's good. It's all good." One week later, things are far from "all good" between Sterling and the NBA.

What changed?

Los Angeles Clippers owner Donald Sterling attends the NBA playoff game between the Clippers and the Golden State Warriors, April 21, 2014 at Staples Center in Los Angeles.
Robyn Beck | AFP | Getty Images
Los Angeles Clippers owner Donald Sterling attends the NBA playoff game between the Clippers and the Golden State Warriors, April 21, 2014 at Staples Center in Los Angeles.

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It appears that Sterling was under the mistaken impression that the NBA would rescind the lifetime ban and $2.5 million fine that Commissioner Adam Silver imposed on April 29. When Commissioner Silver announced at his State of the NBA press conference that Donald Sterling's ban and fine would not be lifted, Sterling decided to go back to war.

Sterling's lawsuit had little chance of success when it was filed, and even less chance now. In his five-count complaint, Sterling alleged that the NBA breached its contracts with Sterling, violated federal anti-trust law and violated California law by disciplining him and attempting to terminate his ownership of the Clippers because the NBA based all of its actions upon his illegally recorded conversation with V. Stiviano. The NBA was likely to prevail on these claims because the NBA followed the process clearly laid out in the NBA's constitution to ban Sterling and terminate the franchise. The courts will enforce the NBA's actions as a private arbitration, except under very narrow circumstances that do not appear to apply here.

Read MoreSterling will die before NBA suit is settled: O'Leary

Shelly Sterling, Donald Sterling's estranged wife, took three steps that decimated any prospect that Donald Sterling might have had to prevent the sale of the team:

1. She had Donald Sterling declared "mentally incapacitated" to continue as a co-trustee of the Sterling Family Trust. With Donald Sterling removed as co-trustee, Shelly Sterling was the sole trustee of the Sterling Family Trust and had full authority to sell the team.

2. She agreed to sell the Clippers to Steve Ballmer for $2 billion, which ended the need for the NBA to conduct its termination hearing on June 3.

3. She agreed, on her own behalf and the on behalf of the Sterling Family Trust, to indemnify the NBA for any costs or damages from Donald Sterling's lawsuit. As Commissioner Silver aptly put it, Donald Sterling was now essentially suing himself.

Now that Donald Sterling is pursuing his lawsuit, the next step will be for the court to resolve who speaks for the Sterling Family Trust, which owns the Clippers. In his lawsuit, Donald Sterling claims to still be co-trustee of the Sterling Family Trust and he brought suit on behalf of himself and the Sterling Family Trust. Shelly Sterling, on the other hand, contends that she is the sole trustee of the Sterling Family Trust. The Sterling Family Trust documents have not been publicly disclosed to date, but they almost certainly set forth the criteria for the removal of a trustee on the grounds of mental incapacity.

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Donald Sterling's ability to continue his legal fight against the sale of the Clippers depends upon getting a court to overturn his ouster as a co-trustee of the Sterling Family Trust. If Donald Sterling can get that determination reversed, he would be able to pursue his long-shot litigation against the NBA to stop the sale of the Clippers. If he cannot, then the court likely would immediately dismiss his attempts to stop the sale of the team because Donald Sterling would not have "standing."

Even if Donald Sterling does not get restored to the Sterling Family Trust, he would still be entitled to pursue his litigation against the NBA to overturn his lifetime ban and $2.5 million fine. The court, however, likely will confirm the NBA's decision as an exercise of its discretion under the NBA Constitution and dismiss Donald Sterling's litigation on the merits.

Commentary by Mitchell Epner, an attorney specializing in white-collar crime, sports and entertainment law and intellectual property. He's also a former Assistant United States Attorney in the District of New Jersey. Follow him on Twitter @mitchellepner.

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