Donald Sterling: SMH

May 06, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I learned something last week. If you read a youngster’s text messages, you’ll notice shutterstock_104818202a complicated system of abbreviations, symbols, and symaphores that, when translated with your 7-year-old’s assistance, become more-or-less coherent English sentences. Anyway, I learned “SMH” means “shaking my head,” which is exactly what I do these days when I hear the words “Donald Sterling.”

Sterling made himself cannon fodder for anyone in sight, and our own Josh Sudbury ably tackled the issue last week. So why go back to the well? Quite simply, Mr. Sterling is the ol’ gift that keeps on giving.

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Clip[pers] his tongue!

April 28, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

This past week the biggest story in the NBA was not the excitement of the first round of the playoffs, but the comments L.A. Clippers owner Donald Sterling allegedly made to his girlfriend. In an audiotape released Friday by TMZ, a man (allegedly Sterling) is heard chastising his girlfriend for associating with black people and bringing them to his team’s games.  ThatsRacist Several authors and bloggers have already written about the deplorable worldview espoused by the man in the tape alleged to be Sterling so I won’t rehash the obvious. Indeed, the audio reveals personal views one might expect to be held by resisters of the civil rights movement, but not by that of the owner of an NBA franchise 50 years after the passage of Title VII. But a different lesson about our times can be learned from the incident, which concerns the prevalence of audio and video records in today’s world. In our technology-laden society, every smart phone doubles as a camera, tape recorder, video camera, word processor, etc. You name it, and your phone—and your employees’ phones—can probably do it, including secretly recording conversations between themselves and supervisors. On top of that, it takes almost zero technical savvy for someone to make a recording and post it to YouTube, Twitter, Facebook, or any number of social media sites instantaneously. The majority of states permit the secret recording of conversations so long as at least one party to the conversation consents to the recording. In those states, such an audio recording could wind up as evidence against the company in court or before a government agency. In the Clippers’ case, it’s the owner himself who is alleged to have made the statements. So, it’s obvious that his statements reflect directly on the organization. But would the result be any better if one of your mid-level supervisors was caught on tape making an off-color joke or sexually charged comment about another employee? The answer is simply no. In addition to the potential liability that may arise from such statements in a discrimination or harassment lawsuit, the company almost certainly would lose the verdict in the court of public opinion. All hope is not lost, however. Employers can minimize the potential for such occurrences by committing to provide anti-discrimination and anti-harassment training for their managers on at least an annual basis. You should also remain in contact with your workforce and get to know your managers. Many times, when a manager is caught on tape making these kinds of statements, it isn’t the first time. Being present in the workplace will help you identify potential bad apples as well as remind your employees to be on guard because their words and actions are being noticed. Finally, employers can adopt and enforce policies prohibiting employees from making secret records in the workplace. Such policies help foster open communications in the workplace and protect confidential or trade secret information. Employers, however, would be wise to consult with outside counsel before implementing or enforcing such a policy to ensure it doesn’t encroach on employee rights. In the hopefully unlikely event you have an employee who sympathizes with Mr. Sterling’s alleged views, nothing short of a muzzle may be appropriate.

Men don’t [take] leave

April 14, 2014 - by: David Kim 3 COMMENTS
David Kim

At least that’s what former NFL quarterback Boomer Esiason and radio talk show host Mike Francesa believe. Their critical shutterstock_88182934comments of New York Mets second baseman Daniel Murphy, particularly those made by Esiason, recently created a storm of controversy that extended beyond just the sports world. Murphy missed the first two games of the 2014 regular season to be with his wife for the birth of their first child. In fact, Major League Baseball’s collective bargaining agreement with the Players Union provides that players can take up to three days for paternity leave. This provision was put into the collective bargaining agreement (CBA) back in 2011, a sign that the players lobbied and negotiated for such leave. Despite this, and despite the fact that Murphy played 161 out of 162 games last year, Esiason and Francesa ripped into Murphy. read more…

Trash talk or abuse? NFL debates banning the N-word

March 16, 2014 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

In any other NFL offseason, with the hype over combine results all over the television and free agency in full swing, it’s likely many football fans might not notice the NFL Competition Committee meeting in the background. But this year, the committee is making news as it mulls over a controversial potential new rule that could result in individual players being penalized for using the N-word. The potential move is another effort by the NFL to clean up its image in the wake of scandals such as the Richie Incognito/Jonathan Martin scandal that surfaced during last season.shutterstock_10634185

The debate over the new rule has brought about opposition from at least a few current NFL players, such as Seattle cornerback Richard Sherman, who told Sports Illustrated’s Peter King that banning the N-word is “an atrocious idea,” adding that he feels its “almost racist” for the league to target only one word. Sherman stated that the N-word is present “in the locker room and on the field at all times” and that he hears it “almost every series out there on the field.” Free agent linebacker D’Qwell Jackson sees it a different way. According to King, Jackson told him he feels the rule would be great for the game, assuming the NFL could get it implemented, although he noted that enforcing the rule could prove difficult. As King’s article points out, the penalty’s stigma could be significantly more far-reaching than the yards assessed: read more…

Rah rah ree! Pay our salary!

January 24, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

If your Google search for “California cheerleaders illegal” led you here, our apologies for your initial disappointment. But, please, stay a while, because the recently filed class action lawsuit by the Raiderette cheerleaders against the NFL’s Oakland Raiders is instructive as to the types of issues that can lead to wage-and-hour litigation.  Do we have your rapt attention now?  Good, let’s delve.

According to the complaint filed this week in Alameda County, California, the Raiders are in violation of numerous California Labor Code provisions dealing with employer wage-and-hour requirements. The problems appear to originate in the Raiderette Agreement that the football club requires its cheerleaders to sign. According to the agreement, which states that each Raiderette is an at-will employee of the Raiders, a cheerleader earns $125 for every home game. That money allegedly isn’t paid, however, until January when the Raiders’ season is over. This is potentially problematic  for a number of reasons (not least of which is  that the Raiders’ season is generally de facto over in November). read more…

Say it ain’t so, A-Rod?

January 20, 2014 - by: David Kim 0 COMMENTS
David Kim

Back in August 2013, I wrote about the Biogenesis scandal that resulted in the suspension of 13 major and minor league baseball players, including a 211-game suspension for Alex Rodriguez. Well, thanks to A-Rod, this story has become the gift that keeps on giving.gummy bears

On January 11, 2014, Arbitrator Frederic R. Horowitz issued his decision with respect to A-Rod’s grievance challenging his suspension. While the Arbitrator reduced A-Rod’s suspension to 162 games, plus the postseason (the entirety of the 2014 season), the decision largely cuts against A-Rod and is viewed as a big win for MLB. While the decision itself would have remained confidential under the terms of the collective bargaining agreement between MLB and the MLB Players Association, it is now a matter of public record as a result of A-Rod’s latest Hail Mary, a federal lawsuit seeking to throw out the arbitrator’s award.

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Punter’s legal claims may be blocked

January 10, 2014 - by: Andy Tanick 3 COMMENTS
Andy Tanick

When they asked me to join the rotation of writers for Ford Harrison’s EntertainHR blog, I was a little nervous. After all, while we Minnesotans make headlines for things like our weather (the high temperature here last Monday was 13 degrees below zero) and electing professional wrestlers to high political office, we haven’t had a juicy HR story up here since Lou Grant paid Mary Richards less than her male colleague Murray because she didn’t have a family to support. And that was fictional. Then it happened, just as my deadline was fast approaching: the Deadspin.com headline, dateline Minneapolis. “I was an NFL Player until I Was Fired by Two Cowards and a Bigot.” Thank you, Chris Kluwe.  As both an employment law attorney and the newly crowned champion of my fantasy football league, I might just be qualified to write about this. For those who haven’t heard, Kluwe was the Minnesota Vikings’ punter for eight years, until the team released him in May 2013. In the fall of 2012, Kluwe had become a media sensation due to his outspoken opposition to a proposed amendment to the Minnesota Constitution that would have defined marriage as “only a union of one man and one woman.” Many observers gave Kluwe part of the credit for the eventual defeat of that proposed constitutional amendment, which would have prevented the Minnesota legislature from legalizing same-sex marriage. Just a few months later, the legislature–encouraged by the defeat of the proposed constitutional amendment–did just that.football Now, Kluwe claims the Vikings “fired” him because of the allegedly homophobic views of his Special Teams Coach (the “bigot”) and the alleged failure of his Head Coach and General Manager (the “two cowards”) to stand up to those views. To nobody’s surprise, he has also announced that he’s hired a lawyer. And pundits, fans, and observers everywhere are asking the same question: “Is Kluwe going to sue the Vikings?” While at first glance it certainly seems like Kluwe’s claims, if proven, would support some claim under federal or state law, it’s actually not all that clear. Let’s take a look at the most likely legal theories. Discrimination? Not really. Kluwe doesn’t claim that the Vikings cut him because he belongs to any protected class. He doesn’t profess to be gay himself–indeed, he has stated that he is not, and his wife would likely corroborate that. A more likely legal theory would be retaliation. State and federal discrimination laws prohibit employers from taking adverse action against an employee because the employee engaged in “protected activity.” Protected activity in this context means either opposing a practice believed to violate those same discrimination laws, or participating in an employment discrimination proceeding. Kluwe never did the latter, so he would have to prove the former: that the Vikings released him because he opposed a practice prohibited under state or federal discrimination laws. As Kluwe describes it himself, however, the Vikings replaced him because he supported marriage equality, not because he opposed anything prohibited by anti-discrimination laws. Certainly, by supporting same-sex marriage, Kluwe was implicitly opposing the state law that, at the time, banned such unions. But opposing an existing law that some believe to be discriminatory isn’t really the same as opposing a practice or act that is specifically forbidden by civil rights laws, e.g., employment discrimination, sexual harassment, failing to accommodate a disabled employee, etc. What about Kluwe’s right to free speech, you may ask. The Vikings couldn’t fire the man just for speaking his mind on a highly charged political issue, could they? Well, actually, yes, they could.  Despite what TV and radio pundits might think, the First Amendment’s guarantee of free speech doesn’t apply to private employers such as a football team. While the law protects some types of speech, such as organizing a union, most speech by private employees is not protected. Indeed, exercising their nonexistent right to “free speech” has been the downfall of many employees. Chris Kluwe, of course, was not a typical “at will” employee; as an NFL player, he belonged to a union, and it’s possible (albeit unlikely) that his union’s collective bargaining agreement protects players from being released due to their political statements. But even if that were the case, Kluwe would probably have to pursue his claim initially through a union grievance, not a lawsuit. Plaintiff’s employment lawyers, of course, are nothing if not creative, and win or lose, Kluwe’s case would provide his lawyer with a lot of irresistible free publicity. And many people would find it objectionable if the Vikings really did let Kluwe go because of his political views. But being a victim of an unfair employment practice, no matter how troubling, doesn’t necessarily translate into having an actionable legal claim. So while Chris Kluwe’s situation may have saved this new blogger from having to write about Minnesota weather for the time being, when it comes to legal action, Kluwe may be forced to … punt.

Work hard, play hard work harder

November 11, 2013 - by: David Kim 0 COMMENTS
David Kim

As discussed in our previous blog post, the Richie Incognito-Jonathan Martin scandal has dominated the sports and national headlines. Lost somewhat in the midst of an Incognito-Martin-centric sports news cycle were the recent health scares of Denver Broncos coach John Fox and Houston Texans coach Gary Kubiak during week 9 of the NFL season. Fox, whose Broncos were on a bye week, experienced symptoms, including feeling light-headed, while golfing, and ended up having an aortic heart valve replacement procedure just days later. Kubiak, during the halftime of the Texans’ Sunday Night Football matchup with the Indianapolis Colts, collapsed on the field and was taken to a nearby hospital due to what doctors have described as a mini-stroke.

On the heels of these events, which occurred within 48 hours of each other, the health and work ethics of NFL coaches have come under scrutiny. Journalists, NFL analysts, and former players and coaches have discussed the need for the NFL to implement programs or procedures to create a healthier work environment for coaches. One former NFL player, Cris Collinsworth, has suggested the NFL implement a “7 to 7” rule, stating that teams should be forced to open its office doors at 7:00 a.m. and close them before 7:00 p.m. Others, including former head coach and NFL media analyst Brian Billick, state that the hours and pressure come with a job where you are judged on your performance week in and week out and that “we [coaches] do this to ourselves.”

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Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

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Workers’ compensation latest battleground for NFL

September 27, 2013 - by: David Kim 0 COMMENTS
David Kim

When is $765 million a bargain? Apparently, when you’re the National Football League. By now most people know that the NFL agreed to pay $765 million last month to settle a lawsuit brought by more than 4,500 players and their families, who alleged that the league concealed what it knew about the dangers of concussion-related brain injuries. Attorneys for the plaintiffs point to the fact that immediate care is needed for retired players with severe neurological disorders, such as ALS, Parkinson’s and Alzheimer’s disease, many who would never receive remuneration during their lifetime should the case be litigated over many years. In addition, there was a concern that individualized claims could become complex due to the fact that certain former players with short NFL careers played the vast majority of their football outside of the NFL (college, high school, etc.). This settlement ensures that thousands of retired players obtain compensation needed for current and future medical injuries and exams. While this is true, most agree that the NFL has to be ecstatic with this deal. With annual revenues hovering around $10 billion, the NFL is paying a mere fraction to avoid a potential finding of liability as well as a public relations nightmare. And if anything, Commission Roger Goodell has admitted that one of his primary objectives is “protecting the shield.” Instead of spending years defending allegations that the league knew concealed and misled players about the long-term dangers of concussions, the NFL can say this settlement not only helps retired players in need but also funds future baseline medical exams and research and education funds intended to take appropriate preventative measures. While the settlement’s details are still being analyzed and debated, including questions (and confusion) from some former players about who is or is not eligible under its terms, another fight is brewing between the NFL and its former players that has not quite received the same national attention. That is because the battleground is California. Just a few weeks ago, the California Senate passed a bill (which previously passed the California Assembly) that would preclude workers’ compensation claims by athletes from non-California teams, as well as athletes who played only a portion of their career with California teams. The bill is currently before California’s governor, who many expect will sign it into law. Who helped lobby and push this bill through? You guessed it. The NFL, along with the other five other professional sports leagues that the bill affects: MLB, NBA, WNBA, NHL, and MLS. California’s statute of limitations on workers’ compensation claims is much less restrictive than in other states, and California is one of the few states that cover “cumulative” injuries such as brain trauma incurred over a period of time. As a result, former athletes who played for visiting non-California-based teams have been making claims in California for years, especially former NFL players seeking compensation for repeated head trauma and related brain injuries, because they cannot do so anywhere else. Many of these claims are made by little-known athletes who enjoyed relatively short careers, earned the league minimum, or never even made it to the “big” leagues. On the one hand, this bill’s impact is arguably limited to professional sports. Teams and their insurers pay the costs of successful workers’ compensation claims, not taxpayers. In addition, insurance premiums are often determined on an industry-specific basis and therefore the claims activity of professional sports leagues don’t directly affect other industries. On the other hand, there are concerns that this measure could lead to future legislation depriving workers in other industries from filing claims in California, or to legislation in other states’ creating carve-outs for specific classes of workers. In addition, there is a belief that if players are prohibited from obtaining workers’ compensation in California, they will have to turn to Medicaid, Social Security, or other forms of government assistance, leaving the public to foot the bill. The reality is that oftentimes legislation begets legislation. We may think of “athletes” as those men and women on SportsCenter and TV commercials making millions of dollars and whose lives have no similarity to ours. However, the fact is an athlete’s injury is considered a workplace injury just as if he or she was injured on the job as a foreman, truck driver, or messenger. And just because the California bill applies only to athletes doesn’t mean the next piece of legislation won’t apply to you, your class of workers, or your state.

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