THE NBA, DONALD STERLING, AND TERMINATION FOR CAUSE

The verdict is in. Donald Sterling was naughty. He held some rather unpalatable opinions, voiced them, and instantly acquired fifteen minutes of infamy for all the wrong reasons.

In one magnificent poof, the NBA and the Court of Public Opinion heard his case, and found him wanting. As the NBA’s god du jour wrote his judgment on the walls of every viable television screen in America with a flourish of his magisterial finger, tongues started wagging; some with approval, some with castigation, and some with nothing useful to add. In that singular poof, the money spigot turned on full blast, gushing legal tender down someone’s drain. The spigot will flow for years to come.

There are winners and losers.

The winners include the media, who have yet another reason to sell sensationalism; the NBA, who may, in time, rid itself of a distasteful owner; and the general public, who will have countless hours of entertaining new discussion, ranting and raving to enjoy.

The losers include Donald Sterling, who has to live with Donald Sterling; the NBA, who has to deal with Donald Sterling; and the general public, who will endure countless hours hearing about Donald Sterling.

The more immediate question is whether a lawyer’s blog about the fracas has anything new to offer.

Donald Sterling’s words are more than private thoughts made public. They form the legal fodder for important questions as to the scope and extent of moral turpitude in the context of private contracts. They open the door to consideration of the meaning of the term “for cause”. If, Sterling’s words and thoughts came from the mouth of a corporate manager or director, given a contract that required “cause” for termination, would they be sufficient to constitute “cause”? Would cause exist if the manager or director held such views, but kept them to himself? If not, where is the fine line between bigoted beliefs and bigoted words?

The Washington Supreme Court defined ‘just cause’ in employment cases as “… a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for ‘just cause’ is one which is not for any arbitrary, capricious, or illegal reason and which is based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.” Baldwin v. Sisters of Providence, 112 Wn.2d 127, 139, 769 P.2d 298 (1989).

The Court subsequently ruled that “…‘[j]ust cause’ is a term of art in labor law…. Whether there is just cause for discipline entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty.” Civil Serv. Comm’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 173, 969 P.2d 474 (1999). See also Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 140 Wn.App. 516, 519–20, 165 P.3d 1266 (2007) (laying out seven factors typically considered in determining whether just cause exists).

In Sterling’s case, the conduct was measured against the terms of an NBA Constitution that gave broad powers to the Commissioner to effect discipline “upon any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association”. 1 The application of “procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty” was irrelevant to the decision. It was an opinion call issued by one vested with authority to render the opinion. Tough luck, Donald. Life ain’t fair.

But would the outcome of a similar case in Court rise to the level of just cause in the case of the corporate manager or director? That is a harder call.

In the context of employment, the Civil Rights Act prohibits discrimination based on race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment. Holding or expressing a private discriminatory thought or belief outside of the workplace that does not result in discriminatory conduct inside the workplace would arguably be protected.

The Constitution prohibited Congress from making laws abridging the freedom of speech. So-called “hate speech” that posed an imminent danger of unlawful action, where the speaker intended to incite unlawful action, remains outside the law. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Justice Scalia wrote that: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey…”.

Donald Sterling’s words cannot, in any event, rise to the level of hate speech intended to incite unlawful action.

But as society loosens its grip on constitutionally protected rights, to the extent that a corporate manager or director’s identical private words create a climate of prejudice that may in turn foster the commission of hate crimes, a court could easily rule that just cause exists for termination.

1 Constitution of the National Basketball Association, Article 35A(d).

Copyright © 2014 Gregory D. Lucas

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