Breaking down Thomas trial (cont'd)
Posted: Monday September 24, 2007 8:31PM; Updated: Tuesday October 2, 2007 12:35PM
Stern might also feel that Thomas has already received a break in the punishment department. To the surprise of some, Thomas avoided any punishment for his involvement in the December 2006 brawl involving the Knicks and the Denver Nuggets. While Carmelo Anthony, Nate Robinson and J.R. Smith, along with other players, received hefty fines and suspensions, Thomas avoided rebuke. He did so despite reportedly admonishing Anthony before the brawl began to not drive to the basket or else face the consequences. If those reports are true (and Thomas denies them), Stern would likely have been justified in sanctioning Thomas. But he did not. Should Thomas lose his case, I suspect Stern won't be forgiving.
Additionally, there is clear precedent for Stern to punish NBA executives, including owners, general managers, and coaches, and particularly in the form of fines. In recent years, Stern has repeatedly fined Dallas Mavericks owner Mark Cuban, usually for his outspokenness (or candor, depending on how you look at it). Seattle SuperSonics co-owner Aubrey McClendon has also drawn Stern's ire. Stern fined McClendon $250,000 last month for saying that his ownership group did not purchase the team with the intention of keeping it in Seattle.
Stern could argue that Thomas -- if he is found liable -- engaged in behavior far worse than any of the trouble-making team executives mentioned above. Indeed, sexual harassment, particularly given the context of current NBA concerns, may warrant an unprecedented punishment.
As a final point, consider the possible relevance of league sanctions of NBA players who were held criminally liable for sexual misbehavior. Back in 2001, Ruben Patterson pled guilty to attempted rape and received a five-game suspension from the NBA. One year later, DeShawn Stevenson pled no contest to having sexual relations with a minor and received a three-game suspension. Although those players violated criminal laws, which Thomas has not been alleged to have done, the NBA's treatment of them may reveal an established league intolerance for sexually-related harms.
Let's now consider the opposite view: even if Thomas is found liable, the NBA may decline to punish him.
The best argument for the NBA to not punish a liable Thomas comes from Milstein, who illuminates the limitations of civil liability: "It would not be prudent for any sports league to suspend, fine, or in any way punish a person affiliated with a league who loses a civil case or settles a civil complaint. There are too many variables which come into play in civil litigation, as opposed to criminal matters, the most important of which is the burden of preponderance of evidence, which amounts to more likely than not."
Indeed, while a criminal conviction requires a burden of proof beyond a reasonable doubt, civil liability only requires the much lower threshold of preponderance of evidence. Stern, a prominent litigator before being hired by the NBA in 1978 as in-house counsel, certainly understands and appreciates that distinction.
There may also be precedent for NBA front-office personnel having faced civil lawsuits, settling those claims out of court and thus out of public view, and not receiving punishment from Stern or from any of the preceding commissioners. Along those lines, in the six-decade-long history of the NBA, it seems plausible to believe that other front offices have run afoul of sexual harassment problems in ways that neither attracted public notice nor league sanction.
Furthermore, consider how while the NBA has a long track record of punishing players and executives who violate various rules, and punishing players who commit sexual crimes, there does not appear to be the same track record for punishing players or executives who are held civilly liable.
5) What if Thomas is found not liable for sexual harassment, might the NBA still punish him?
Stern might feel tempted to impose a punishment based solely on the controversy and bad press precipitated by the lawsuit.
But there are historical examples of NBA players and executives defeating allegations that they committed sexual harassment or even sexual assault and not receiving punishment from the NBA.
The most relevant example may be New Orleans Hornets (formerly of Charlotte) owner George Shinn escaping civil liability -- and NBA punishment -- for alleged sexual harassment. Shinn was accused of sexual harassment by a former female employee of the Hornets. The claim was litigated in a highly publicized trial, from which Shinn ultimately prevailed. He was not publicly sanctioned by the NBA and continues to own the franchise.
Kobe Bryant, charged with the crime of sexual assault, also escaped sanction by the NBA. Prosecutors ultimately dropped the charge, though Bryant did settle a civil lawsuit from the accuser. Like Shinn, he did not receive punishment from the NBA.
Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at email@example.com.
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