May 28, 2014, 12:57 PM EST
Sports Illustrated legal expert Michael McCann, appearing on the Dan Patrick Show, explains how he would proceed if he were representing Sterling:
I would seek an injunction prior to June 3rd. I think that’s something to watch out for, that before June 3rd – next Tuesday – it wouldn’t surprise me if Donald Sterling seeks an injunction from a judge that, temporarily at least, stops the NBA from ousting him.
And he would probably seek it in a California court, because his answer cites California privacy law as a leading rationale for the NBA being unable to use a recording that was unlawfully taken and then using it against him.
So, I think that is one step. If his lawyers don’t seek an injunction prior to June 3rd, watch for them to seek it immediately after the vote, preventing the NBA from carrying out the order.
Now, he may not get an injunction. An injunction is considered an extraordinary form of relief.
But that’s one step. If that fails, file a lawsuit.
So what standard must Sterling meet to have a temporary injunction granted? Saint Louis University School of Law:
“traditional” test for determining whether to grant a provisional injunction: 1) likelihood of success on the merits; 2) irreparable harm (which encompasses proof of the inadequacy of the legal remedy as well as proof that the plaintiff urgently needs pre-trial injunctive relief); 3) whether the balance of hardships tips in the plaintiff’s favor; and 4) whether the requested injunction would serve the public interest.
Getting a temporary injunction to keep the Clippers would be a very tough case for Sterling.
He’s unlikely to succeed on the merits, given his signing of contracts with the NBA approving of this process. Though he could argue owning an NBA team is such a unique privilege it can’t be replaced by financial compensation, there is probably a dollar amount that covers any harm he’s suffered. The NBA – facing player and sponsor protests – could also face hardships due to an injunction. And maybe – though I’m not sure a court could/would see it this way – a racist continuing to own such a high-profile business actually goes against the public interest.
Sterling must overcome all those arguments to get his injunction. I doubt it happens. Instead, the NBA will likely vote out Sterling and sell the Clippers.
Then, as McCann says, the league will probably face a lengthy lawsuit from Sterling over damages.
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