Sports Law Blog
All things legal relating
to the sports world...
Thursday, October 04, 2007
Two More Thoughts on the Thomas Verdict
Following on my post about the Isiah Thomas verdict, an update and some more thoughts.
Phil Taylor of SI.com (who is very good, even if he is no Michael McCann) criticizes Stern for doing nothing in the wake of the verdict, especially in light of Stern's otherwise strict approach to player conduct. According to Taylor, Stern has stated in the past that NBA policy "is not to deal with civil matters." Two problems with this attitude, in light of the NBA's record and approach to other legal matters involving league personnel.
First, this view misapprehends the nature of modern civil litigation, especially civil rights litigation. Private litigation has become a (the?) significant method of enforcing federal policy prohibiting gender discrimination in employment. Since the government does not have the resources or energy to pursue every instance of unlawful employment discrimination, anti-discrimination laws, by design, depend on private civil enforcement. Injured persons, acting as "private attorneys general," use private civil litigation to enforce federal law against wrongdoers, and in doing so, serve and further the public interest in seeking to ensure societal equality. The jury found that Thomas and MSG violated federal and state law, violations that routinely are exposed and remedied through civil rather than criminal litigation.
Second, this view ignores that there are civil matters and then there are civil matters. This cannot be treated the same as a civil suit arising from off-the-court conduct, such as a car accident or a contract dispute with the guy Thomas hired to renovate his house. If Thomas were found liable for failing to pay his contractor, and even ordered to pay substantial damages, no NBA response is appropriate. But this lawsuit arises out of Thomas' role as the president and coach of an NBA team, and goes precisely to how Thomas performs his NBA-related functions. That is a question with which the league should be concerned, again regardless of whether it is civil or criminal. One could argue, I suppose, that Thomas and/or Dolan could be a good team executives, good at what they do, business-wise, even if they treat their employees poorly. But that does not work when we go beyond mere poor treatment and into unlawful treatment.
Or consider the question this way: Should the league be more concerned with players' off-court criminal misconduct that has nothing to do with the league (other than the effect on "image") than with a team executive's civil misconduct arising from the way that executive performs his league duties?
Or this way: Suppose a white team executive fired his Black head coach because of the coach's race and explicitly used racial slurs in doing it and the coach prevails on a race discrimination claim, recovering major compensatory and punitive damages. Would Stern really do nothing to the executive because it is a "civil matter"? And what is the difference from what happened here? Is it a matter of coach as opposed to a non-basketball executive?
I do not typically view things through prisms of race and/or gender. And I try not to be cynical. But there is an overwhelming temptation to view Stern's non-response here through that prism, at least at a visceral level.
Stern has been all about "cleaning up" the league's image--instituting the dress code, cracking down on player violence and the perception of "thuggery," imposing age limits--to make the league more appealing and acceptable to the corporate interests that drive it. And since those corporate interests are not going to be comfortable with a league that looks too Black/Gangster/Street/Thug/Urban/Hip-Hop/Whatever-you-want-to-call-it, the league acts. On the other hand, statistical and anecdotal evidence indicates (does not prove, just indicates) that corporations are far more comfortable with and tolerant of sexually hostile work environments, so the league does not see the need to act. Put differently, corporate interests are (it is feared) going to run from a league where players in sideway baseball caps make it rain and get into fights at strip clubs; they are not going to be as scared off by a league in which team executives mistreat female employees.
Might that explain (somewhat) why Stern has rushed to strike at all sorts of player misconduct, but is sitting back here? Cynical, I know. But the thought crossed my mind.