Monday, October 24, 2011

Life on Plantations & Could Gumbel's Comments About Stern Attract Legal Attention?

Recently, in his closing remarks on HBO’s “Real Sports”, host Bryant Gumbel compared Commissioner David Stern to a plantation owner or “overseer”:
If the NBA lockout is going to be resolved any time soon, it seems likely to be done in spite of David Stern, not because of him. I say that because the NBA's infamously egocentric commissioner seems more hellbent lately on demeaning the players than resolving his game’s labor impasse.

Stern’s version of what’s been going on behind closed doors has, of course, been disputed. But his efforts were typical of a commissioner who has always seemed eager to be viewed as some kind of modern plantation overseer, treating NBA men as if they were his boys. It’s part of Stern’s M.O. ... His moves are intended to do little more than show how he's the one keeping the hired hands in their place.
Stern did not comment. However, NBA Deputy Commissioner Adam Silver called Gumbel's comments "outrageous."

From a legal standpoint, the question that comes up is whether Gumbel’s statements could give rise to a claim for defamation.

What Is Defamation?

What is defamation? A defamatory statement is one that is likely to lower the reputation of a person in the eyes of reasonable people.

The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called “damages”) for harming your reputation.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).


A plantation “overseer” was responsible for plantation discipline. Slaves were punished for not working fast enough, for defying authority and for a number of other reasons. Punishment could include whippings, torture, mutilation, imprisonment, murder and being sold away from the plantation.

Life on plantations were obviously very difficult. The child mortality rate could be as high as 65% and malaria was rampant. Women were sexual abused. Unsanitary conditions, inadequate nutrition and unrelenting hard labor were commonplace and made slaves highly susceptible to disease.

Here's an excerpt from Slave Overseers:
In 1860 it was calculated that about 88 per cent of America's slave-owners owned twenty slaves or less. However, large landowners would usually own well over 100 slaves and relied heavily on overseers to run their plantations. These overseers were under considerable pressure from the plantation owners to maximize profits. They did this by bullying the slaves into increasing productivity. The punishments used against slaves judged to be under-performing included the use of the cart-whip. Not surprisingly the mortality-rate amongst the slaves was high. Studies have shown that over a four-year period, up to 30 per cent of the slave population in America died.
..."It was usual for men and women to work side by side on our plantation; and in many kinds of work, the women were compelled to do as much as the men. Captain William Helm employed an overseer, whose business it was to look after each slave in the field, and see that he performed his task. The overseer always went around with a whip, about nine feet long, made of the toughest kind of cowhide, the but-end of which was loaded with lead, and was about four or five inches in circumference, running to a point at the opposite extremity. This made a dreadful instrument of torture, and, when in the hands of a cruel overseer, it was truly fearful. With it, the skin of an ox or a horse could be cut through. Hence, it was no uncommon thing to see the poor slaves with their backs mangled in a most horrible manner."
The question then to ask in this: could any person honestly express that opinion on the proved facts? Gumbel created a negative association by invoking images of slavery, and in particular comparing Stern to a slave and plantation owner. The comparison is quite dramatic.

Further, and more importantly, it seems that his statement is difficult to justify and that arguably other people would not share it.

That being said, it would be surprising for Stern to take any action. He’s busy trying to fix the NBA.

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