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Thursday, October 4, 2007
Howard Wasserman Sticks it to the League


The sports lawyer Howard Wasserman, whom I linked to yesterday, has been thinking about it further, and is now more certain than ever that the league is wrong to hide behind the "it's a civil case" argument. On the Sports Law Blog he writes:

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"?