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Wednesday, May 28, 2014
More on Sterling's defense

Mike and Jimmy both mentioned that Sterling had filed his written defense to the NBA's proceedings to oust him from the league; here is the full brief. A couple additional things of note.

Sterling's arguments are steeped in statutory interpretation, including some issues I previously noted. He insists that the $ 2.5 million fine is impermissible because the NBA is relying on the wrong provision. Article 24(l) is not in play, since it applies only if no other penalty is fixed for a given rule, but Article 35A(c), which prohibits speech detrimental or prejudicial to the best interests of the league, does provide for a fine of no more than $ 1 million. He also argues against the NBA's use of Article 13(d) as the basis for the forced sale--the NBA cannot use that as a catch-all provision to capture violations of all other rule or agreement, since Article 13(a) already serves as a catch-all by prohibiting willful violations of any provision of the Constitution and By-Laws, resolutions, or agreements. Presumably the NBA relied on 13(d) to get around the willfulness requirement; Sterling's point is the league cannot do that.

Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California's penal code, which prohibits recording confidential communications without consent and excludes evidence obtained through unconsented-to recordings "in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.

The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under California law. On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature (so under ejusdem generis, that catch-all should be read to cover only similarly public proceedings). It also makes sense that the criminal code would regulate evidence in public rather than private proceedings. On the other hand, what sorts of public proceedings exist that are not judicial, administrative, or legislative? Perhaps the catch-all refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. Even so, however, does that capture the entirely private and internal proceedings the NBA is using here?

Moreover, the answer to that question may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons or entities may choose to use the lawfully obtained recordings.


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