business & professional Donald Sterling: Racial & Legal Issues Obesity? Heartburn? Hernia? 0 Let's talk about it. Michigan Institute forEl% Laparoscopic Surgery WI Scott Laker, MD 248-255-4380 WWW.MICHIGANSURGERY.COM wason eason S Vo 'pens so aLute J NaagFArt. \o\c\LIeS&Viri 1 Ane1 Sat 8E4 (64 c4 -• ,• cyn arae 2c c ivel s Featuring a variety of garden accessories along with our exciting Antiques & Vintage offerings. Doug Supinger, mgr WASHTENAW FARM COUNCIL GROUNDS 5055 Ann Arbor-Saline Rd. Ann Arbor, MI 48103 f : 37-875-0808 or salinemarket@gmail.coffl Julie Hites, Featured in Judy Condon's March and June issues "Along The Garden Path" & "All About Country", will be autographing in the central Garden space in Bldg. B. O July 19&20 Aug. 16&17 - VINTAGE FAIR * Sept. 20&21 - PLAIN & SIMPLE 4, Nov. 16 0 Dec. 7 1025,10 38 June 12 • 2014 JN ver the last several weeks, we've endured the Donald Sterling story. To me, the affair is frus- trating as a Jew and a reminder that our nation still struggles with racism. Let's be honest; we all know individu- als who in private are guilty of making inappropriate racially pathetic state- ments. As a people, we have aligned our- selves with those that fight for civil rights and liberty — and abhor fascism and racial bias. We do this collectively and are united in that pursuit as a people. Nonetheless, the Sterling episode should be a lesson to all — that until we do in private what we maintain to be right in public, we will not root out and end the distrust that permeates racial divides. Fortunately, our children have been raised in an era of greater acceptance and less ignorance. Let's hope the Donald Sterlings will fade out as they reach their makers. As a lawyer, however, I find fascinating non-racial legal issues presented by the Sterling case. Does Shelly Sterling have the right to succeed Donald as trustee of their trust and sell the team to Steve Ballmer? Is the NBA acting within its rights in forcing a sale of the team and imposing a $2.5 million fine? While the media blitz and many commentators are satisfied to say "yes" to both questions based on the abhorrent conduct of Donald Sterling, the outcome of legal issues is not a mat- ter of race. The common estate plan involves a revocable living trust to provide for the distribution of assets outside of probate following death and to identify a suc- cessor to act for you while living if you are incapacitated. When you create the trust, you name yourself as trustee — as the person who makes decisions con- trolling your life while living. You also then name a successor to act upon your death or to take charge if you become incapacitated. Typically, we name a spouse as the successor, just as Donald named Shelly. Most trusts contain rather standard lan- guage that the successor trustee steps in upon the opinion of two physicians that you are incapacitated. The reported sale of the Clippers is predicated on Shelly Sterling's posi- tion that she gained the authority to contract on the trust's behalf (the trust owns the team) because Donald has been declared incapacitated. The story cannot end so quickly. In cases where there is a dispute as to capacity, Sterling, as the grantor of Donald Sterling the trust, can certainly challenge the successor's claim that he is incapacitated. The NBA's claim against Sterling to force him to sell the team and fine him $2.5 million is also at issue. The NBA constitution and bylaws are the documents that define the rights of the league, the players and the owners in cases of miscon- duct. When the Sterling story first broke, I was annoyed by the national legal pundits opining as to the NBA's rights when none of them had the benefit of reading the key documents, which now are public. A review indicates the NBA may have stepped beyond its rights by relying on a provision of its constitu- tion that does not apply. The $2.5 mil- lion fine and forced sale of the franchise imposed by the NBA relies on the catch- all language of Article 24(1) that applies "where a situation arises that is not cov- ered in the constitution and bylaws:' The problem, however, is that Article 35(c) specifically covers statements by the owner, which means that Article 24(1) would not apply to the racist statements made by Donald. If so, the maximum fine under Article 35(b) is $1 million and indefmite suspension rather than a lifetime ban and forced sale of the franchise as the remedy. Donald Sterling is an old man, cut from a racist era. For him, he can't put Prince Albert back in the can. Perhaps others can learn from him — and shed their long-rooted demons. The right and wrong of his legal issues, however, are a different story. That story, however, will not be told because Sterling is competent and smart enough to take advantage of Ballmer's willingness to pay $2 billion for a $500 million franchise. We know who the racist is — but who's the fool? ❑ Ken Gross is an attorney with Thav Gross and host of the Financial Crisis Talk Center show that airs weekly at 9 a.m. Saturdays on WDFN 1130 AM, "The Fan" and 11 a.m. Sundays on MyTV20.