Why Donald Sterling isn't going away

Dan Eaton, partner at Seltzer Caplan McMahon Vitek and professor at San Diego State University

The comic strip "Mallard Fillmore" recently featured the main character watching news and the TV reporter says, "This just in: L.A. Clippers owner Donald Sterling hasn't said anything new today — but we can still hope."

Well, this week, Mr. Sterling did speak. He said he wasn't going to accept the sale of his team after all, that the lawsuit challenging the sale and the NBA punishment was still on.

Why won't he just go away?

Donald Sterling
Getty Images

Here are some of the reasons that have been kicking around. I have ranked them from the truly absurd to the most likely:

His lawyers are seeking a big payday. Uh, no. Sorry, I'm filing this one under "truly absurd." Mr. Sterling's lawyers undoubtedly are following the direction of their strong-willed client after explaining to him the pro's and con's of proceeding.  California's rules of ethics prohibit an attorney from initiating or continuing a lawsuit that no reasonable attorney would consider meritorious. The federal rules impose sanctions personally on lawyers who waste the resources of their opponents and the court.  At least some of the claims that Mr. Sterling is asserting in his billion-dollar lawsuit are plausible — not strong, but plausible. As the client, Mr. Sterling gets to decide whether to pursue them.  

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It's about the money.  Filing this one under "not likely" — at least, not in the sense that Mr. Sterling wants or expects Steve Ballmer to pay more than $2 billion for the Clippers. It also wouldn't make sense, if money alone were the motive, for Mr. Sterling to maintain a lawsuit seeking $1 billion when he could receive roughly that amount by allowing the sale to proceed. Might the decision to fight have something to do with the $2.5 million fine that Commissioner Adam Silver imposed?  Yes, but only in the sense of the principle that fine represents.

It's about getting revenge on his wife. That's a possible, partial motive, but still not the most probable primary one. Under the terms of the trust under which the couple owns the team, the couple would share equally in the proceeds of the sale. But under the announced terms of the sale, Shelley Sterling also would get two floor seats to all Clippers home games and three championship rings should the Clippers ever win the whole thing. Mr. Sterling, banned from the NBA for life, would get none of those perks. It is understandable why he would not want his wife to get them either.  

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The announced settlement also has a provision requiring that the trust pay for the NBA to defend itself in any lawsuit Mr. Sterling may bring and to pay any damages should Mr. Sterling prevail. It may be that Mr. Sterling effectively would be suing himself. It may also be that Mr. Sterling could have a court assess any payments the trust would have to make to the NBA under the deal to Mrs. Sterling's share of the trust.  The uncertainty of this, though, makes revenge a less likely motive for the lawsuit than it otherwise might be.

It's about fairness. When motives that are absurd, implausible, or unlikely are set aside, the only motive that makes sense is fairness. It is clear from Mr. Sterling's letter that he believes he has been treated extremely unfairly by his former companion, by the media, and, especially, by the NBA. To that one can safely add, especially in light of the Times story, by his wife.    

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It is not uncommon for clients with means to devote resources to legal fights on principle that substantially exceed the money at stake. Last year, a prominent businessman took insider trading charges brought by the SEC to trial and won. The charge was that the businessman had used inside information to avoid a loss of $750,000. It was estimated he spent about twice that to defense himself. In an interview with a CNBC reporter published last year, the businessman was asked why he spent so much to fight over so little. He said: "Because I hate to be bullied. I love this country ... I have the resources to fight. I felt compelled to take up that fight."  The businessman was Dallas Mavericks owner Mark Cuban.  

Fairness matters. Mr. Sterling's contention that he was treated unfairly or unlawfully is debatable. His insistence that a fight for fairness cannot be measured by the dollars at stake alone is not.   

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers.  He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.