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Sunday, May 18, 2014
My response to Steve Edwards of NewsBusters

On NewsBusters, Steve Edwards of the Media Research Center takes aim at my recent Sports Illustrated article on Donald Sterling titled "Power and Process." He is complimentary of the piece until he reaches the last paragraph.  You can read more in "Sports Illustrated’s McCann Lumps Pro-Traditional Marriage Supporters With Actual Criminals."

I'm not sure how to contact Mr. Edwards, so I figured I would just post my email here and hope he reads it.

* * *

Dear Mr. Edwards,

I am e-mailing you because you or others on your behalf have contacted me repeatedly on Twitter. While I appreciate that you read my article on Donald Sterling in Sports Illustrated and your complimentary points about it, I believe your criticism about my reference to Rich Devos' position on marriage is not supported and I also find the title of your post to be badly misleading.  Let me explain. 

Mr. DeVos is protected by the U.S. Constitution (and state constitutions) to advocate any viewpoint he wants about marriage.  His view is not--and should never be--criminal.  His view, however, may like other views by owners on various topics breach a contractual obligation owed to the NBA.  This is the same reason why Donald Sterling is in trouble with the NBA.  Every NBA owner has signed a franchise agreement and a joint venture agreement which contain a covenant that states owners cannot "take positions that may have materially adverse effects on the league."  The NBA commissioner is entitled to interpret this language, and the NBA's Board of Governors can use this language to terminate ownership in a team.  Mr. Sterling and Mr. DeVos, for that matter, agreed to this language by contract.   To be clear: an owner can express a constitutionally protected view, including one based on his moral or religious beliefs, but still run afoul of a contractual obligation owed to the NBA. 

Also, the five examples provided in the article have one thing in common, and it is not -- as your post suggests -- a link to criminal conduct.  Here are the five examples:
  • Donald Sterling: stated controversial comments that have caused the NBA economic damage, and in Commissioner Silver's view have had a materially adverse effect on the league.
  • Rich DeVos: advocated a controversial position on marriage that arguably runs counter to the NBA's views about this topic. 
  • Jim Crane: reportedly settled civil lawsuits concerning discrimination.
  • Jimmy Haslam: is under investigation for fraud.  He has not been charged with a crime, let alone convicted of one.
  • Mark Cuban: was a defendant in a civil lawsuit filed by the SEC and he won the lawsuit.  The lawsuit generated some controversy for the NBA.
Please note that none of these examples references an "actual criminal"--let alone, as your post's title wrongly asserts, "actual criminals."  The closest to an "actual criminal" is Haslam, who again, has not been charged with a crime and thus has not been convicted.  He therefore is not a "criminal."  The other four examples reference individuals who have generated controversy but have obviously not broken any criminal laws.  I think you owe your readers a correction.

Along those lines, the article does not raise moral questions about positions.  It is a legal article about how the NBA might enforce a contractual covenant about positions that arguably have a materially adverse effect on the NBA.  I think you would agree that Mr. Devos' position on marriage is controversial.  I recognize that you may support his position, but I also believe that you recognize it is a controversial position.  To date, there is no reason to believe Devos position has had a materially adverse effect on the league.  However, whether that is true in 5 or 10 years, is unclear.  It will be up to the NBA to judge.

Thank you for reading this e-mail.  You have my permission to quote this email, but on that condition that if you do, you post it in its entirety.

Best regards,
Michael McCann


UPDATE: NewsBusters has edited its headline to backtrack. It now reads: "Sports Illustrated's McCann Lumps Pro-Traditional Marriage Supporters With Those of Actual Questionable Conduct."

Blogger Jimmy Golen -- 5/19/2014 5:42 PM  

Yes, Jiimmy, I did change it. As I stated in my update, "Mr. McCann makes a valid point about none of the other people mentioned in the article actually being criminals, and the title has been changed to reflect it."

Anonymous Steve Edwards -- 5/20/2014 12:39 AM  

Mike, you may be the nicest law professor around. I would have advised you against trying to engage with demagoguery.

Blogger Howard Wasserman -- 5/20/2014 2:28 PM  

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