In a recent column, my good friend Richard Carnes made a mistake. So it seems my duty as a true friend is to correct it for him by gently raking him over these public coals. Waxing philosophical about the Donald Sterling imbroglio, Richard said that the NBA ownership cadre could “kick” Sterling out of the ownership for, among other things, “being Jewish if they wish.”
Richard, no, no, no; they couldn’t.
Boot the belligerent brat because he has bad hair? Maybe. Drop lead weights in his Fruit of the Loom tighty whities because his breath stinks of racial prejudice? Now at least we’re getting warm. But, simply because he’s a small-minded bigot with a potty mouth and a shocking lack of “filters,” the ownership group could not — and would not dare — hand Sterling his walking papers simply because he’s Jewish (or whatever else moves his earthly soul).
Plus, nearly half of the NBA owners are Jewish. Just sayin’. That aside, allow me to explain and to “suppose” just a bit.
The supposition first: I presume — but do not know with any certainty — that the NBA ownership agreement contains something like a “morals clause.” This is not uncommon in certain kinds of contracts. What a “morals clause” provides is that if the contractee does something to bring ill repute upon the party with whom he or she has contracted, then the clause may be invoked to terminate the contract. Now, it is my belief that such a clause, while it may hold up in certain circumstances, is unlikely to prevail in separating Donald Sterling from his billion dollar golden goose.
That notwithstanding ...
The first law of contract is this: Presuming one is of sound mind and under no legal incapacity or constraint, one can contract to do nearly anything one desires provided that the “thing” intended to be done is legal. I cannot, for example, enter into an enforceable agreement to transport illicit drugs or take a hit on Minnie Mouse. Basically, one can do what one wants and can enter into an agreement — whether good or bad — with one or a number of other persons for nearly any lawful purpose.
Sterling, twerp that he has shown himself to be, had and has the right to have entered into an agreement with the NBA ownership clique. And he had and has the right to agree to a “morals clause” or its equivalent should one, in fact, exist.
But … that ownership agreement cannot provide for discrimination on the basis of religion or on any other protected class.
Under Federal anti-discrimination law, a protected class is a characteristic of a person which cannot be targeted for discrimination. The following characteristics are considered “protected classes” under Federal law:
• Race (Civil Rights Act of 1964)
• Color (Civil Rights Act of 1964)
• Religion (Civil Rights Act of 1964)
• National origin (Civil Rights Act of 1964)
• Age (40 and older) (Age Discrimination in Employment Act of 1967)
• Sex (Equal Pay Act of 1963 and Civil Rights Act of 1964)
• Pregnancy (Pregnancy Discrimination Act)
• Citizenship (Immigration Reform and Control Act)
• Familial status (Civil Rights Act of 1968 Title VIII)
• Disability status (Vocational Rehabilitation and Other Rehabilitation Services of 1973 and Americans with Disabilities Act of 1990)
• Veteran status (Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act)
• Genetic information (Genetic Information Nondiscrimination Act)
And so, under Federal anti-discrimination laws, the ownership group may not kick out our Donald simply because of to whom he prays. Neither, their collective wealth be damned, may they include in their cabalistic creeds or contract terms that flaunt, moon or otherwise disrespect Federal law.
Richard, buddy, it’s golfing season, so this one is your mulligan. Richard, you simply got this one wrong. Poor Richard.
Rohn K. Robbins is a licensed attorney who practices of counsel in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. He can be reached at 970-926-4461 and Robbins@SLBLaw.com.