Unless the recording was doctored, which it appears not to have been, and if the voice really does belong to Sterling, which it appears to, then Mr. Sterling is indeed an ignorant, shameful bigot.
So what should Silver do? What can he do?
There are some factors at play here to keep in mind: (a) Sterling has a history of racist comments and even racist behavior, (b) his girlfriend is a defendant in a lawsuit alleging embezzlement of almost $2 million from the Sterling family, and (c) the recording was made and publicized illegally. [ref]
The fact that the recording was made illegally, without Sterling's knowledge or consent, by a person with a vendetta, has to consider heavily in the case. Sterling didn't make the comments at a news conference. He didn't write and publish a book with his views. He didn't put them on his public blog. He wasn't speaking to a reporter. He was having a conversation with an intimate associate in a private setting.
If tried in a court of law the recording wouldn't be allowed into evidence.
But the court of public opinion, into which the infamous recording has been irrevocably introduced, has no rules of evidence — and Sterling has no way to retract or "strike" his own self-indicting "testimony" of his bigotry from the record. It's out there, and there ain't nothing Donald Sterling can do about it.
What about in the NBA's "court" — not the basketball court, but the front office disciplinary court?
There are people, influential people, demanding all sorts of punishments. Some demand huge fines and a very long suspension. Others think the NBA should allow all Clippers players to become free agents. Others think the NBA should force Sterling to sell his interest in the Clippers.
Sterling's comments were outrageous, and embarrassing to the NBA. But they weren't public comments. Sterling has a reasonable expectation to privacy, even to be able to say idiotic things in private settings. I am sure there are very few people alive who haven't said things in private that they would never want publicized.
But Sterling's racist comments did become public. And Sterling has had similar racism problems in the past. So, if the NBA finds that the recording is legitimate — that it is Sterling speaking, and that the recording wasn't doctored — then the NBA should take action, but only such action as existing rules permit, and that precedence supports.
For the rule of law must be respected above any other consideration.
From what little I do know about the NBA's rules, and about prior punishments, the most the NBA can do is suspend Sterling for a relatively short period of time (i.e. bar him from attending public events for perhaps a year) and levy a reasonable fine (something like $1 million — reasonable for Sterling, not for common folk like you and I).
For the NBA to do more than that would not only violate the rule of law, but, given the circumstances of the case, would also violate Sterling's First Amendment rights, and give him both motive and grounds to take legal action against the NBA.
Mark Cuban, the outspoken and often politically incorrect (that's a good thing) owner of the Dallas Mavericks NBA franchise, intelligently weighed in on the topic.
"In no uncertain terms am I supporting what Donald Sterling said, or his position," Cuban said. "He's obviously racist, he's obviously bigoted. And in this day and age when you're in the public eye, you've got to be damn careful — if that's your position and that's unfortunately where you're at — you better be damn careful what you say, even in the privacy of your own home. But regardless of your background, regardless of the history they have, if we're taking something somebody said in their home and we're trying to turn it into something that leads to you being forced to divest property in any way, shape or form, that's not the United States of America. I don't want to be part of that." [ref]
Cuban is absolutely 100 percent correct.
What other recourse is there?
There is the Constitution, the First Amendment and the liberty those grant. That's right. The same principles that protect Sterling from excessive punishment by the NBA, expose him to public punishment.
The media and individuals that are (rightfully) offended by Sterling's comments, and who (understandably) won't accept his apologies, can continue to speak out against him.
Basketball fans can boycott. They can stop going to Clippers games. They can stop watching them on TV. They can stop buying Clippers merchandise.
Businesses can refuse to do business with the Clippers organization.
Regular employees of the Clippers organization can band together and go on strike, or quit their jobs and go elsewhere.
The players on the Clippers can also strike. They can demand to be traded. They can refuse to renew their contracts when the time comes, become free agents, and go play with another team. Free-agents from other teams and new draftees can refuse to sign with the Clippers.
When enough of the above happens, the value of the Clippers franchise will plummet. That's how Sterling can be punished, and even be forced to sell, without violating the rule of law and other fundamental principles of liberty.