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Will Mark Cuban Sue The Clippers If DeAndre Jordan Changes His Mind?

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DeAndre Jordan is heading to the Dallas Mavericks.  At least that is what everyone, including Mavericks owner Mark Cuban was led to believe.  The 6'11 center chose the Mavericks and an estimated 4-year, $81 million contract over returning to the Clippers.  However, the Clippers have not stopped recruiting Jordan and have now put on a full-court press, with ESPN Senior Writer Marc Stein reporting that Clippers president Doc Rivers and owner Steve Ballmer are scheduled to meet with Jordan today in Houston in an effort to persuade him to not sign with the Mavericks.  It may be a move that is against the NBA's unwritten rules.  Is it also a cause for legal concern?

Actual contracts detailing the terms of any agreements between free agents and NBA teams cannot be completed until the conclusion of the NBA's free agent moratorium period, which lasts from July 1 - July 8.  Teams can negotiate with free agents during the moratorium period, but cannot put anything in writing.  However, commitments are made, and the deal between Jordan and the Mavericks may be placed in such a category.

The fact that Ballmer and Rivers are purportedly meeting with Jordan is significant.  This is the owner and president of an NBA team, aware that a player has essentially come to terms with a competitor, making a final push to bring Jordan back to Los Angeles.  It is very different from a player unilaterally changing his mind or even being swayed to go back on his decision based on the persuasion of a former teammate.  Here, the owner and president of an NBA franchise is purportedly behind the pitch.

Since there is technically no contract in place, it likely precludes Cuban from filing a claim against the Clippers for tortious interference with a contractual relationship.  However, may Cuban, an owner who is unafraid to make a bold statement, find another cause of action worth pursuing?  His brother, Brian Cuban, provides some insight.

In the 2001 Supreme Court of Texas case of  Wal-Mart Stores , Inc. v. Sturges, the cause of action for tortious interference with prospective business relations was fleshed out by the court, which admitted the difficulty of establishing elements for that particular tort.  The court stated that in order to recover for tortious interference with prospective business relations, a plaintiff must show that the defendant's conduct was independently tortious or wrongful.  It explained this concept by way of example.

[A] plaintiff may recover for tortious interference from a defendant who makes fraudulent statements about the plaintiff to a third person without proving that the third person was actually defrauded. If, on the other hand, the defendant's statements are not intended to deceive . . . then they are not actionable. Likewise, a plaintiff may recover for tortious interference from a defendant who threatens a person with physical harm if he does business with the plaintiff. The plaintiff need prove only that the defendant's conduct toward the prospective customer would constitute assault. Also, a plaintiff could recover for tortious interference by showing an illegal boycott, although a plaintiff could not recover against a defendant whose persuasion of others not to deal with the plaintiff was lawful. Conduct that is merely “sharp” or unfair is not actionable and cannot be the basis for an action for tortious interference with prospective relations, and we disapprove of cases that suggest the contrary. These examples are not exhaustive, but they illustrate what conduct can constitute tortious interference with prospective relations."

If Cuban decides to take legal action against the Clippers and/or its executives, he would have to prove that the actions of the team's executives amounted to something more than simply competing for Jordan .  Neither the Mavericks nor the Clippers were entitled to sign Jordan during the moratorium period, but did competition turn to interference once Jordan committed to the Mavericks?

If the Clippers' conduct is deemed mere competition, then the unfairness of losing Jordan would not be actionable.  However, if Cuban could prove something above and beyond mere negotiations, then he may have a claim.  Cuban would not necessarily be required to demonstrate that a contract would have certainly been made with Jordan but for the interference; he would be obligated to at least show that the contract was reasonable probable -- a burden Cuban should be able to satisfy.

Expect there to be some fireworks if Jordan decides to change his mind and sign with the Clippers.  Despite the fact that it may not be appropriately regulated by the NBA, it could be an issue that Cuban decides to bring to court.

Darren Heitner is a lawyer and the Founder of South Florida-based HEITNER LEGAL, P.L.L.C., which has a focus on Sports Law and Entertainment Law.