As always, before reading this post please review my disclaimer by following the above link or by clicking on this link. As always, legal principles discussed may apply only to the Commonwealth of Virginia.
Introduction
Last week, my blog took a very serious turn, so this week, I've decided to do my fifth Legal FAQ (Part IV can be found here), and to lighten the mood a bit by tackling some "celebrity" issues, instead of ones you are more likely to face in your day to day life.
How can the NBA legally force Donald Sterling to sell his team?
I've gotten this one a lot - Donald Sterling is a private business owner, who legitimately owns his own business, specifically, the Los Angeles Clippers. How can another group of people just force him to sell? Well, the answer does not lie in any general legal principles, but rather one of contract law. Before you can buy an NBA team, you must agree to sign on to a contract with the NBA itself setting various rules and regulations. This is the case because the prior owner will have signed that same contract, and part of that contract requires someone selling a team to require the person buying the team to sign the contract. At the very beginning, when a team is first formed, that team's owner must sign the contract in order for the team to be allowed to play in the NBA - and the owner will want to sign that contract, because otherwise he has a basketball team with no league to play in.
So, the whole thing relates to the contract Sterling signed with the NBA when he bought the Clippers. It is what allows the NBA to, in some cases, force an owner to sell a team. This is because owning an NBA team is a very unique situation in the United States, and as a result, it is one of the circumstances where a contract can be enforced with a specific performance order.
Now, you might be thinking, ok, then it seems open and shut that the NBA can force Sterling to sell, so why does he say he's going to fight? What ground does he have to stand on? Well, the contract is not "at will." In other words, the NBA cannot force an owner to sell the team just because the NBA doesn't like the guy. Rather the contract lays out in detail the situations in which an NBA owner can be forced to sell. The fight is whether or not any of those sections apply to this situation. Specifically, the contract allows the NBA to force a sale when the owner has done something that "damages the league." Mr. Sterling argues, however, that comments made in private, not meant for public consumption, cannot qualify as such a violation. In other words, Mr. Sterling is arguing that there is an intent component to the contract provision, while the NBA argues there is not. I would suggest this case is not clear cut in any sense, but I give a slight edge to the NBA.
Didn't A&E violate Phil Robertson's Free Speech rights when it suspended his show for comments he made in another forum?
No. Let me just get that out of the way first. This is a question I get far outside of just Phil Robertson, however. It can be applied just as much to Don Imus, Paula Deen, Martin Bashir and Bill Maher, all of whom have been fired over some stupid thing they've said or another. The question usually goes "we're supposed to have freedom of speech in this country, yet this happened" and then turns into a rant about "political correctness" run amok.
Let me be clear - you have absolutely every right to say whatever you want (obviously with some exceptions when it comes to threats of violence, for example) and not be punished for it in any way by the government. The First Amendment does not however, prevent you from suffering the consequences of your poor choice of words from the general public or your private employer. If your boss thinks your comments have harmed the company, you can be fired, period. The Bill of Rights protects you from the government, not private entities. In fact, the only part of the entire Constitution that, on its own, protects people from other people is the Thirteenth Amendment, which bans all slavery in the country. That's it. Every other right the Constitution gives you is a protection from the government, not from other people.
Isn't it terrible that the hoax lawsuit against Johnny Manziel actually got into court?
In case you haven't heard, a lawsuit was filed against Johnny Manziel in Florida accusing him of sexual harassment. A quick read of the lawsuit made quite clear, however, that the lawsuit was most likely a complete hoax - something that appears to have later been confirmed. The reaction, however, was frustrating to me as an attorney. People were outraged that the court had accepted the lawsuit, that it had been "dignified" by a case number and a date stamp. This outrage is misplaced.
Clerks of court are not lawyers, they are not learned in the law, they are not legally allowed to make legal determinations. As a result, clerks do not have a right to turn away lawsuits unless they don't meet specific filing requirements - for example, the filing fee is not paid. A clerk absolutely cannot analyze the lawsuit itself to see if it is valid. Only a judge can dismiss a lawsuit.
I would suggest changing this practice would be very dangerous. Our country has a long, unpleasant history of depriving certain people of access to our courts. It would be far too easy for a renegade clerk's office to go down that path if given the power to decline lawsuits. I already see too many cases where a clerk, not quite understanding a pro se party, has turned away a case that should not have been turned away. Giving clerks the power to do this on the merits would be far too dangerous. If our Fourteenth Amendment right to Due Process is to mean anything, it should at least mean that anyone can get in front of a judge. If they really are wasting the court's time, we have ways to make them pay for it.
Isn't it terrible that Vincent Sheheen (candidate for South Carolina Governor) helped get murderers and child rapists off the hook by being their defense lawyer?
In case you haven't heard, the Republican Governor's Association has run a series of ads in South Carolina attacking Democratic Gubernatorial candidate Vincent Sheheen for work he did as a defense attorney. Regardless of your political affiliation, this should scare you. The Sixth Amendment right to counsel is a core component of our rights. It is what stands between an unsophisticated accused and an all-powerful state. It is, in some cases, the only protection that a falsely accused person has against their charges. Attacking a defense lawyer for doing his job is about as low as you can sink.
Unfortunately, this kind of attack is not new, and I have seen it carried out by members of both parties. I would like to ask the people who actually vote on this logic what their preference would be - that defendants have no lawyer at all? Would they really want a world where all attorneys decide not to defend people accused of bad things, so that if they, themselves, were accused, they would have nowhere to turn?
Our legal system relies on attorneys being willing to represent even the worst of the worst. That is the only way we can make sure that the truly innocent are protected too. This is a core, fundamental belief of our nation - whether it comes from the image of Atticus Finch defending an accused rapist in To Kill a Mockingbird, or the decision of John Adams, one of our founding fathers, to represent the British soldiers accused of perpetrating the Boston Massacre.
I would note that Nikki Haley, the Republican candidate for Governor in South Carolina, has not run such ads herself, but she has not condemned them either. I would hope that she does. In the meantime, I would hope everyone is wary of such attacks and really thinks about what the implications of such attacks truly are.
Conclusion
And that concludes today's FAQ. I hope you have found it at least somewhat entertaining. As always, if you have questions you would like me to address on the blog, feel free to ask the lawyer.
No comments:
Post a Comment