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My response to a post at EPJ:
“The second lesson that should be taken away from this
episode of "He's a racist" is that that there really is nothing wrong
with a person wanting to hang around with a group he feels comfortable with and
there is nothing wrong with a person having such a conversation with his
girlfriend. Nothing.”
Assuming the recording is accurate….
There may be nothing wrong with it, other than stupidity.
Donald Sterling makes his living in an industry that employs
blacks. He sells TV rights to providers
whose audience is also composed of blacks.
He sells tickets to many black fans.
He (and Robert Wenzel) might be technically correct on every
point, but the market will decide how they feel about this. There is no doubt that such comments will
come with a backlash to both Sterling and the league – boycotts, pressure via
public media, etc. It may not be
technically right, but in this world it is real and in every world such a
non-violent backlash would be just (and certainly no violation of the NAP in
the backlash).
“He is not violating the non-aggression principle.”
Correct, he isn’t.
But that doesn’t make this smart.
It doesn’t mean he will (or even should) avoid consequences.
The thick libertarians have a point – but not the one they
are trying to make. What many of them
are after (the “I-love-everybody” society) must be recognized, just not within
the framework of the NAP. The NAP, after
all, does not provide a complete framework for life.
We still live in this world; ideas and statements (and
actions) have consequences. These
consequences must be considered if one wants to survive in this world.
Let’s not go all PC on this.
PC is another gray line; where each of us draws the line is subjective
and personal, for example: There is nothing wrong with a photographer not
wanting to take wedding pictures of a lesbian couple; there is nothing wrong
with an anti-tax protestor not paying his taxes; there is nothing wrong with a
few armed men taking on the US government.
However, in all cases, the reality will more often than not
be anything but fair. Each of us must
daily decide where we draw lines; each of us realizes that those lines have
consequences – on both sides. This is
reality. How many willingly want to
become the next Adam Kokesh, Irwin Schiff, or David Koresh? Because many choose not to means what,
exactly?
Fair very rarely wins in such circumstances. It is often written that we are in a battle
of ideas – until our ideas win, rarely if ever will the photographer, the tax
protestor, or the few armed men win. I write
nothing about where to draw your line – this choice is quite personal, as it
must be.
Finally, we cannot preclude the possibility that Sterling
has violated his voluntary agreement with the league. He owns a team within a league which has,
presumably, a code of conduct and bylaws for its owners. He is subject to disciplinary actions for
violating the code of conduct. I imagine
that both the determination of a violation and the punishment for that
violation leaves broad room for subjective judgment. Twenty-nine other owners will see to the fact
that the punishment is a broad and swift as possible.
And this will be in full accord with the NAP.
I almost concur with what you wrote except for the part where you feel bad for the guy when he make "anti-PC" statements. He has a right to be a jerk but he faces no right infringements when others don't want to associate with him for being a jerk. It reminds me of something similar from Cracked.com: "you're free to turn up to a job interview in a Spiderman costume but don't act surprised when you don't get a call the next day".
ReplyDeleteI am not sure from where you believe I felt sorry for him; as I wrote, his statement (again, assuming the recording is accurate and in context) was stupid. Whatever he gets will be because of the mess he made.
DeleteMy PC comment was toward those saying that any criticism of Sterling was merely, or at least significantly, due to bowing to PC. I believe the situation (and the issue of "PC") is much more nuanced than this.
In my view, you and many others are failing to see that l'Affaire Sterling is not purely a private matter or an issue limited to associational liberty.
DeleteSpecifically, I think that you are either ignoring or have not seriously considered all of the ramifications of the actions the NBA has now taken against Mr. Sterling. The commissioner has now banned Mr. Sterling from any further association with the league. The octogenarian owner is now prohibited from making any decisions regarding his team, including administrative and financial matters.
Okay, what if Mr. Sterling refuses to abide by the commissioner's edicts? How is the NBA going to enforce such edicts? How is the NBA going to prevent Mr. Sterling from entering facilities which he either leases or owns? Who is going to stop him from making hiring and firing decisions?
Of course, the NBA will seek assistance from Leviathan. Your property and mine and Robert Wenzel's and that of Ron Paul's will be confiscated so that the NBA can get what it wants.
One person's freedom of association ends the moment it steals another person's resources in order to enforce it.
There are issues to be concerned about, but the one you raise isn't one of them.
DeleteMr. Sterling's ownership of the team is subject to the bylaws and constitution of a private organization.
Why do you want to make it any more complicated?
That either Mr. Sterling or the NBA will ultimately make use of government courts to resolve this issue (after private arbitration, presumably written into the bylaws) does not negate the private nature of their agreement. It only calls into question that the courts are government owned.
You want to resolve the problem of government courts by advocating to ignore enforcement of private agreements. Curious.
Yes, Mr. Sterling's ownership of the Clippers is, to be sure, subject to the NBA's constitution and by-laws. To what extent the league's constitution and by-laws address or otherwise apply to some of the concrete propositions I raised above as well as others set forth below, we do not know.
DeleteAs a matter of fact, in my professional judgment, I doubt that the NBA's constitution or its by-laws speak to such issues as (1) the amount of notice (time) due an owner before any kind of disciplinary action is taken against him; (2) what type of notice shall suffice (telephone, fax, certified mail, smoke signals, etc; (3) that quantum of evidence necessary to find facts sufficient to impose discipline upon the owner - the burden of proof; (4) what rules of evidence shall apply in any type of hearing or proceeding; (5) whether the owner is entitled to a hearing at all; (6) whether the owner is entitled to cross examine witnesses; (7) whether the owner is entitled to counsel and other experts; (8) whether there is to be an impartial fact-finder in any hearing or proceeding; (9) whether certain owners may be disqualified from participating in any hearing / proceeding / vote for conflict of interest reasons or (10) appellate remedies.
You may be surprised to learn that even CBAs between large employers and unions often have dispute resolution provisions which consist of a paragraph or two. Invariably, the provisions in many CBAs are limited to a union member shall have the right to file a grievance and if the parties cannot resolve matters, then the case is to be resolved by arbitration. They do not set forth the procedures to be employed for the arbitration nor do they set forth the rules of evidence which shall apply in the arbitration.
If I have the ability to control the drafting of a contract, I lay out some pretty elaborate dispute resolution provisions. The same applies when I draft corporate by-laws. Most mom & pop and small entities typically do not want to spend the money on such things, but the ones that do appreciate how important it is to put in place just what you want and not some canned boilerplate.
Since I abhor the hearsay rules, I typically include a provision banning the use of any hearsay and information obtained surreptitiously (like an illegally taped phone call) as evidence in the arbitration proceedings. You can damn well be sure that the NBA by-laws do not even address such things.
You did not really respond to the concrete problems I posed in the first post. Do you really think that Mr. Sterling's ability to enter a practice facility which he owns is subject to the NBA's constitution or its by-laws? Even if they did, do you think that Mr. Sterling's individual right to access and use his real property would be trumped by the "group rights" of the NBA?
What about Mr. Sterling's individual right to attend games in an arena for which he has a valid lease? Do you think that the lease executed by and between the Clippers and AEG (the owner of Staples Center) specifies that AEG may physically prevent Mr. Sterling from entering the building in the event that the NBA decides to ban him?
To some extent, I am surprised that you are playing the ole you are making this more complicated than it is card because you strike me as very thoughtful. Enforcement is necessarily on the table and cannot be ignored.
“To what extent the league's constitution and by-laws address or otherwise apply to some of the concrete propositions I raised above as well as others set forth below, we do not know.”
DeleteI agree; I also am rather certain that Mr. Sterling has both the money and disposition to challenge this action to the extent he believes he was wronged. Ultimately an arbitrator or even the courts will make a judgment on this matter (sad as it is to consider that the courts might be politically moved as opposed to considering only the evidence / contracts / etc.).
“You may be surprised to learn that even CBAs between large employers and unions often have dispute resolution provisions which consist of a paragraph or two.”
I was reading your post with interest until I got to this line (above). Please don’t be condescending.
Apologize and I will read (and as appropriate, reply to) the rest of your post; otherwise don’t bother me on this topic.
I did not mean to be condescending at all. Perhaps I should have wrote, "only consist of a paragraph or two".
DeleteNonetheless, I apologize if I offended you. No offense was intended.
Thank you; perhaps I am oversensitive as the subject of contracts / arbitration / etc., is something that I am reasonably familiar with.
Delete“Do you really think that Mr. Sterling's ability to enter a practice facility which he owns is subject to the NBA's constitution or its by-laws?”
I do not know. However, it certainly is a possibility subject to contract.
“Even if they did, do you think that Mr. Sterling's individual right to access and use his real property would be trumped by the "group rights" of the NBA?”
I do not know. However, it certainly is a possibility subject to contract.
“What about Mr. Sterling's individual right to attend games in an arena for which he has a valid lease?”
I do not know. However, it certainly is a possibility subject to contract.
“Do you think that the lease executed by and between the Clippers and AEG (the owner of Staples Center) specifies that AEG may physically prevent Mr. Sterling from entering the building in the event that the NBA decides to ban him?”
It is irrelevant. AEG does not have to be party to the bylaws to make the bylaws binding to Sterling and the NBA.
“Enforcement is necessarily on the table and cannot be ignored.”
Enforcement is a separate subject. If your queries regard enforcement as opposed to the possibility that the bylaws give authority to the league to treat Sterling as it has, this is a different matter and one that I did not glean from your earlier comments.
As to enforcement, I imagine the NBA can have the Clippers organization station guards at all facilities.
“To some extent, I am surprised that you are playing the ole you are making this more complicated than it is card because you strike me as very thoughtful.”
For me the application of both libertarian principles and legal theory is quite simple. The process going forward, given the stakes involved and the litigious nature of Sterling, will likely be very complicated.
I will make very simple my point: whatever can and cannot be done in this relationship will be determined by the provisions in the by-laws. To the extent the bylaws must be interpreted (as I have no doubt they will, as I expect there is no language in the by-laws addressing a violation of being recorded without your knowledge saying things that some people don’t like), an arbitrator and potentially a court will decide.
I cannot imagine a more libertarian approach, except for the courts being government (but there is no choice in this in our time).
In the meantime, there will be various legal maneuvers to stop or stay this action, counter maneuvers to block such stays, etc. This will likely get very messy and bloody. And it will not be over soon (absent President Obama pulling a GM bondholder-type stunt, given the political nature of the subject matter).
After all of this, Sterling might still own the team.
Thank you for your reply. Also, thank you for accepting that I did not intend to offend you.
DeleteLike you, I read RW and I was just at his site. It would appear that you have read the analysis to which RW cited concerning the NBA's by-laws not providing a basis for the commissioner's actions. As the author opined, very tenuous.
The referenced EPJ piece:
Deletehttp://www.economicpolicyjournal.com/2014/05/nba-lacks-authority-to-force-donald.html
As I wrote there, this is going to be fun.
A couple of years ago, I took a job with a not-for-profit agency. Our orientation consisted primarily of being informed of the agency's racial and sexual harassment policy. The enforcement officer who conducted the session told us, "You check your First Amendment rights at the door."
ReplyDeleteWe could be fired for improper speech, right enough, but a further question arose. Such misconduct also consisted of such things as "gaping, leering and staring."
I subsequently asked the agency's enforcement officer, with whom I was on good terms, how the agency would handle a situation in which the gaper, leerer or starer hadn't meant to gape, leer or stare but the victim felt gaped, leered or stared at and felt harassed by it.
Probably depends on their relative influence and status within the agency was the reply. We pretty much know where we stand relative to our colleagues, what's acceptable and what isn't. There's no rule, no policy, just the ever-changing nexus of power relations within the organization.
I wonder if it's accurate to say that Mr. Sterling owns the Los Angeles Clippers, given that the NBA apparently has the right to force him to sell the franchise if 75% or more of the other franchise owners are in favor of it.
ReplyDeleteSeparate from government conditions regarding ownership / private property, it seems reasonable that an individual can agree to conditional ownership in various forms such as Sterling has apparently done here.
DeleteIf he wanted in the club of NBA team owners, he had to agree to certain terms. The value of the asset is based on the terms.
It sounds to me like you're basically talking about covenants. I don't consider covenants to be legitimately "tied to the land" - i.e. I don't think it's legitimate for an existing covenant to be inherited by a new owner by default. There'd have to be a clause in the covenant that stipulates that the current owner could only sell the property to someone else if the latter agrees to enter into a new covenant with the same terms. In other words, I see covenants as being agreements between/among people.
DeleteFurthermore, I think covenants would have to be considered separately from property ownership per se. I see an analogy here with non-compete agreements. Not too long ago, I took a job where a condition of employment was that I make a non-compete agreement with the owner of the company. While it was a condition of employment (i.e. I wouldn't be employed by the company otherwise), I didn't and don't consider it to have been an inherent aspect of my employment there, if only because it stayed in effect for some time after I stopped working there.