Caught AND recorded in the act

September 10, 2014 - by: David Kim 1 COMMENTS

E-mails, audio recordings, and video surveillance. This trifecta of evidentiary support was put front and center in two disturbing incidents from the sports world that made headlines in the past week.

Earlier this week, Atlanta Hawks controlling owner Bruce Levenson stepped down, stating his intention to sell the team, because of a 2012 e-mail that he had written and that was to (and eventually did) become public. In the e-mail, Levenson expresses his thoughts on attracting more white fans to the arena and marketing to white fans in general, including for example that there were “not enough affluent black fans to build a significant season ticket base” and that he wanted “some white cheerleaders” and “music familiar to a 40-year-old white guy.” Levenson, in stepping down, issued a statement apologizing for his e-mail and its “inflammatory nonsense.” Interestingly, Jason Whitlock, an African-American columnist for ESPN.com, and former NBA player Kareem Abdul-Jabbar have both written pieces that have defended Levenson and his e-mail, stating that the Hawks owner is not a racist, but a businessman asking reasonable questions about race and how to put customers in seats.

It has come to light that the existence of Levinson’s e-mail wasshutterstock_180735251 actually uncovered as a result of an investigation due to a separate incident. In June, Atlanta Hawks General Manager Danny Ferry had a conference call with the various owners of the organization, which was recorded so notes could be made for the partners unable to participate live. In discussing player personnel issues, Ferry allegedly was reading off a report generated by team sources when he spoke about then-free agent Luol Deng (now signed with the Miami Heat) and stated “he has a little African in him. Not in a bad way, but he’s like a guy who would have a nice store out front but sell you counterfeit stuff out in the back” and further describing Deng as a two-faced liar and cheat. As a result of Ferry’s comments, a minority owner of the Atlanta Hawks spearheaded an investigation that eventually also led to the discovery of Levenson’s e-mail. Ferry has issued an apology but has refused to step down as GM despite outside pressure to do so.

And finally, the biggest news in the sports world this week involves the video of now former Baltimore Ravens running back Ray Rice punching his then fiancé and now wife, in a hotel elevator in Atlantic City, NJ. Although the incident occurred in February, the graphic video of the action inside of the elevator was just made public this week by TMZ. Previously, the only video made available to the public (and allegedly to the NFL and the Ravens) was video from outside the elevator that showed Rice pulling his apparently unconscious fiancé from the elevator. Until TMZ’s release of the second video, Rice had been suspended by the NFL for only two games, an amount universally decried and that Commissioner Roger Goodell later admitted was an egregious mistake, prompting him to institute more stringent domestic violence penalties. With the release of the second video and amidst a firestorm of people outraged by its contents, Rice has now been released by the Ravens and suspended indefinitely by the NFL. So many questions remain unanswered. Did the NFL and/or the Ravens have access to and view this new video prior to Rice’s two-game suspension? Did they ask for access to it? And on and on. About the only thing everyone seems to know for sure is that this video depicts a horrific and heinous act.

One question being debated is why does it take the existence of this video for Rice’s punishment to be increased – shouldn’t he have been punished this severely no matter what? While the moral answer is most decidedly yes, the reality is that seeing something this horrific has a much more visceral reaction than hearing about it.

And these days, the ability to record audio and video is as easy as ever. It’s not just grainy surveillance video, either. Mobile phones and other portable devices can record video or capture audio of anyone the user wishes. It used to be that the common warning was to watch what you put down in an e-mail. E-mails are preserved, and what’s in writing could harm a company down the road, whether it be in connection with employee complaints, actual litigation, or labor issues, to name a few. Still true, but these days you have to watch what you do period, because of the concern that your actions and statements will be captured in audio or video recordings. That is especially true since most states, not all, permit you to record a conversation you are a party to without informing the other party they are being recorded.

E-mail still comprises a large portion of discovery with respect to employment-related matters, so of course you should continue to ensure that e-mail is used appropriately and professionally. More and more often, however, audio and video recordings also are being uncovered and produced in employment-related matters and often are the key evidentiary element in the case. Sometimes they are favorable to an employer’s defense. Sometimes they form the basis for plaintiffs’ claims. The key is understanding that this form of evidence exists and can be obtained and that it’s only going to increase in usage with the advent of better technology. So be wary. If , as they say, a picture is worth a thousand words, then a video is worth about a million of them.

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1 COMMENTS

1 Eric Bowen
13:14:14, 12/09/14

Is there a double standard here? We have long asked the question about how we can be more inclusive of “colored” people; is it now racist to ask how we can be more inclusive of “whites”? (I use quotes because we’re ALL colored, just in different shades.) Abdul-Jabbar has it nailed.

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