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Univ. of South Carolina School of Law

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Thursday, May 1, 2014

Donald Sterling and the Rules of Evidence

There have been tons of articles written about whether Donald Sterling, the owner of the NBA's Los Angeles Clippers, will appeal the lifetime ban imposed on him. One interesting aspect of this imbroglio is that it has led to a close reading of the NBA Constitution. And it turns out that the NBA Constitution allows us to consider an important aspect of evidence law.

Sterling's ban was imposed under Article 14 of the NBA Constitution, which covers the "Procedure for Termination." Subsection M of that Article provides that

(m) Following an opportunity for the affected party to submit evidence and be heard, all actions duly taken by the Commissioner pursuant to this Article 24 or pursuant to any other Article or Section of the Constitution and By-Laws, which are not specifically referable to the Board of Governors, shall be final, binding and conclusive, as an award in arbitration, and enforceable in a court of competent jurisdiction in accordance with the laws of the State of New York. In connection with all actions, hearings, or investigations taken or conducted by the Commissioner pursuant to this Article 24, (i) strict rules of evidence shall not apply, and all relevant and material evidence submitted may be received and considered, and (ii) the Commissioner shall have the right to require testimony and the production of documents and other evidence from any Member, Owner, or Referee, any employee of any Member or Owner, and/or any employee of the Association, and any person or Entity not complying with the requirements of the Commissioner shall be subject to such penalty as the Commissioner may assess. (emphasis added).

So, strict rules of evidence don't apply, meaning that hearsay, character evidence, etc. could be admitted against Sterling as long as it is relevant and material. But here's the thing: The use of the phrase "relevant and material" is redundant because all relevant evidence is material. According to Federal Rule of Evidence 401,

Evidence is relevant if:  

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and  

(b) the fact is of consequence in determining the action.

Rule 401(a) means that evidence must be "probative" to be relevant, and Rule  401(b) means that evidence must be "material" to be relevant.

For instance, assume that Dan is charged with murdering Vince and the prosecution has photos of Dan having an affair with Alice. If the affair had nothing to do with the murder (which was based on a bar fight), the evidence would be probative because it would make it more probable that Dan was having an affair, but it wouldn't be material because that fact would not be of consequence in determining the action.

On the other hand, assume that the medical examiner determined that Vince died after being shot by someone using a 44 Magnum. If the prosecutor wanted to introduce evidence that a 357 Magnum was recovered from Dan's house during execution of a search warrant, this evidence would be material because Dan's possession of a revolver is of consequence in determining the action. But the evidence wouldn't be probative because the type of revolver recovered is different from the type of revolver used in the shooting, meaning that it doesn't make the material fact any more or less probable.

What all of this means, then, is that the NBA Constitution is redundant. But where does this leave Sterling? I guess te question for Sterling is "relevant to what?" Are racist comments, extramarital affairs, slumlord behavior, etc. relevant to...NBA ownership? Representing the NBA? Advertising? I think that the answer too all of these questions is likely "yes."

-CM

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Comments

For instance, assume that Dan is charged with murdering Vince and the prosecution has photos of Dan having an affair with Alice. If the affair had nothing to do with the murder (which was based on a bar fight), the evidence would be probative because it would make it more probable that Dan was having an affair, but it wouldn't be material because that fact would not be of consequence in determining the action.

This does not make sense. It is not probative relative to the question of whether he committed the murder. It has no effect on the probability he committed murder so it's not probative in the legal sense.

Posted by: Jennifer Johnson | May 1, 2014 4:04:43 PM

I think we're basically saying the same thing. It's probative of some fact, but that fact is not a material fact; therefore, the evidence is irrelevant.

Posted by: Colin Miller | May 2, 2014 5:22:06 AM

Fair enough. Plea deal accepted.

Posted by: jsquared | May 2, 2014 3:43:06 PM

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