Thursday, October 24, 2013

The Washington R-Word

by Max Faille
(Guest Contributor)

Max Faille is a law partner. He's a great lawyer and practices in the area of Aboriginal Law. 

Under the editing standards of this and most websites, and respectable publications across the English-speaking world, I would not be able to write that ugly racial slur to describe African-Americans, commonly referred to as the “n-word,” under any circumstances. Even if to denounce its use. Yet under those same standards I can readily use an equally ugly racial slur, directed at Aboriginal people: Redskin.

It’s used all the time, mostly to describe Washington’s NFL team, whose owner Dan Snyder insists will continue to be called that name, despite the fact that it is a racial slur. Despite the fact that a growing number of publications and sports writers have denounced it or decided that they will refuse to use it in their sports coverage: Bob Costas, Sports Illustrated’s “Monday Morning Quarterback” Peter King, Slate Magazine, USA Today Sports’ Christine Brennan… 

People will say that this is “political correctness” run amok.  It’s not.  Throwing out the term “political correctness” should not be a conversation-ending nuclear bomb that stops us from actually thinking about an issue. 

Look at it this way:  Tyler Bray is a third-string rookie quarterback with the Kansas City Chiefs, after being a standout at the University of Tennessee.  He also happens to be a tribal member of the Citizen Potawatomi Nation in Oklahoma.   If someone on the field were to call him a “redskin,” that person would almost certainly be disciplined by the league – fined, maybe suspended.  Rightly so.  Just as someone would be disciplined if they called an African-American player an “n-word” or “monkey” or some other equally despicable term.  These and other racial epithets have no place in any athletic contest that purports to be honourable.  This begs the question: how can a professional sports league tolerate having one of its franchises be called a name that if used on the field of play would result in disciplinary action by that same league?

Let’s be clear.  When the term “Redskins” was originally chosen in 1931, it was not intended as a slur.  Franchises obviously select names that they feel will honour their team, not disgrace them.  But times change.  The meaning we attach to words evolve.  There was a time when we used the word “coloured” or “negro” to describe African-Americans.  Martin Luther King Jr, in his famous “I Have a Dream” speech used the word “negro” eight times.  In baseball, we had the famous “negro leagues.”  But can we imagine a team today called the New York Negroes?  No.  Word meanings change.  Thinking and society evolve, hopefully for the better. 

One thing that has evolved, hopefully for the better, is that we no longer use skin-colour to define people.  “Coloured,” “negro,” “n-word” – these are all references to skin colour.  Even “black,” while still used, is falling out of use, in favour of “African-American.”  We don’t call Asian people “yellow” (at least, not anymore).  We aspire, in those soaring words of MLK, to judging people “not by the color of their skin but by the content of their character.”  We should do so in deeds and in words alike.

Words take on meaning, and it is meaning that matters.  Arguably, there is nothing inherently offensive about the “n-word.” They are letters on a page.  But it has come to be used as a vicious slur.  The same is true of “redskin,” or what I should actually refer to as the “r-word.”    It is offensive to millions of Native American/First Nation people.

True, other team names refer to peoples: Minnesota Vikings, Notre-Dame Fighting Irish, my beloved Montreal Canadiens...  But none of those are a race.  None refer to skin colour.  And, most importantly, none of those is an ethnic slur.  It’s not the Notre Dame Mics or the Montreal Peppers. 

There are other team names that refer to Aboriginal people: Blackhawks, Seminoles, Fighting Illini, etc.  The issue when it comes to those names is much more subtle.  Some are not a reference to race but to a Nation -- Seminoles, Illini – and are similar in that sense to Fighting Irish or Canadiens.  In many cases, appropriately, the teams have consulted with and obtained the consent of those Aboriginal Nations to use their name.  

We also have the Cleveland Indians, Atlanta Braves, Golden State Warriors, and the aforementioned Kansas City Chiefs.  Some Aboriginal people are not offended by those names, because unlike the “r-word” they are not racial slurs.  Others are offended and, in my opinion, they have a point.  Those names stem from and perpetuate a stereotype: the brave and/or bloodthirsty, noble savage warrior, dressed in loin cloth and feathers, ready to scalp the enemy.  Aboriginal people are not one-dimensional, mythological creatures. They are modern peoples, with proud histories, who occupy all walks of life: factory workers, truckers, doctors, lawyers, teachers, writers.  The use of these names as a sports team moniker is dehumanizing.  And it spawns behaviour that is profoundly disrespectful: fans appropriating sacred symbols of honour such as eagle feathers and headdresses, and converting them into costumes.  The Cleveland Indians logo – “Chief Wahoo” – is perhaps the most racist, stereotyped image of Aboriginal people you could possibly design.  We would never tolerate a similar depiction of any other race.

As a sports fan, I understand the resistance to change.  I’m a lifelong, passionate Montreal Canadiens fan.  If someone told me tomorrow our team name had to change, I’d be pretty upset.  And I would want to be convinced that there was a damn good reason.  But I’d like to think that the fact the name was a racist slur would be pretty much the best possible reason you could give me. 

And although at times it’s easy to forget, it’s just sports, and it’s just a name.  Is it really worth disrespecting millions of people across North America, who are already deeply marginalized?

People were upset in Baltimore when they lost the Colts; when they got a football team back, they wanted the name back too.  They didn’t.  But time, and two Superbowl championships, heal all wounds.

Ultimately, what is at stake is not so-called “political correctness.” It's whether owners, leagues, players and fans believe in upholding certain values that are at the heart of professional and amateur sports: honour and respect.  

Thursday, October 10, 2013

TSN Radio 1200 - Radio Clip - NFL Issue of the Day

I join Steve Lloyd and Jason York on TSN Radio 1200 to chat NFL documentary League of Denials and where things are generally.

Monday, October 7, 2013

Pujols: Copy of the Lawsuit

Click here to read a copy of Albert Pujols' defamation lawsuit against Jack Clark. The most shocking reveal in the Complaint - Albert's last name if Alcantara.

Friday, October 4, 2013

ARod Lawsuit - What's Going On

By Jacob Zelmanovitz
(Jacob is an attorney specializing in commercial litigation)

As you probably know by now, ARod, or Alexander Emanuael Rodriguez (middle names are fun!), has filed a lawsuit against Major League Baseball and Bud Selig in the Supreme Court of the State of New York.  Here’s some questions you may have about that lawsuit, as well as some answers.

Yay, a Supreme Court Case!  Wait, that was fast, aren’t there supposed to be appeals and other boring stuff first

This case is in the Supreme Court of the State of New York, but the actual top court in New York is called the Court of Appeals.  What is “Supreme” about this Supreme Court it is the top level trial court in the state.  Yes, that’s all counterintuitive, but knowledge of this arcana is part of how we lawyers justify ridiculous hourly fees.  So if you’re waiting to hear Justice Scalia wax poetically sarcastic about baseball, settle in, you’ve got quite the wait ahead.

Why is he suing now?  Why not before the arbitration started?

This is a great question.  The lawsuit was filed four days into the appeal to an arbitrator of ARod’s suspension, though it could in theory have been filed quite some time ago.  It is possible that the timing is a result of Rodriguez’s team being less than thrilled with how the arbitration has been going.  It is also possible that some of the grounds for the suit only came to light immediately before or during the arbitration proceeding.

How can ARod sue now if there’s already an arbitration proceeding?

This is not directly about whether or not Rodriguez used PEDs or was properly suspended, which is what Rodriguez’s appeal to the arbitrator is all about.  It’s about whether or not MLB acted improperly in its dealings with ARod and his alleged use of PEDs. 

Instead, the complaint lists two similar wrongs that ARod claims MLB and its commissioner have committed:  tortious interference with prospective business relationships and tortious interference with existing contracts.

Tortious interference?  Ugh, lawyers.  Plain English please.

ARod is alleging a witch hunt by MLB. Specifically, Rodriguez is claiming that MLB and Bud Selig interfered with his ability to get sponsorship deals (those are “the prospective business relationships”).  While it’s not always legally wrong to convince sponsors to drop an athlete for cheating, the claim here is that the way MLB and its commissioner did so was so improper that it is now liable for the damage it caused (in other words, “tortious”).  In his suit, Rodriguez claims that the defendants “willfully and maliciously” leaked details of its investigation against him to the media, knowing and intend for it to cause sponsors to drop him.  The fact that the disciplinary process is supposed to make such information confidential renders the leaks a tortious act, and therefore grounds for this lawsuit.

But it’s not just about leaks.  Rodriguez also claims that MLB and its commissioner acted improperly in other aspects of its disciplinary process, using dubious lawsuits to gain evidence in discovery, issuing improper subpoenas, and even intimidating and buying off witnesses who might have helped defend him in the disciplinary process.

So ARod claims that the suspension MLB is trying to impose is also a wrongful act, or tortious, in that the suspension was obtained through a malicious and unethical investigation, costing him sponsorship opportunities and his ability to fulfill his contract and play for the Yankees (that’s the “existing contract” he says was tortuously interfered with).

Why couldn’t he sue for something easy to understand, like libel or slander?

Because in a suit for libel and slander, truth is a defense.  So long as a defendant was telling the truth, such a lawsuit would ultimately fail.  In contrast, the fact that your leaks contained only true information is no defense to a tortious interference claim if you had previously agreed to keep that information confidential.

What happens next?

We wait.  It may be months before MLB responds to the suit.

How can MLB respond?

There are basically two responses that baseball can make.  One is to file an answer the complaint.  Such a document addresses each fact alleged in the complaint in one of three ways, by  (i) admitting that the particular alleged fact is true, (ii) denying that particular alleged fact is true, or (iii) stating that the defendants don’t know yet if it’s true or not.

The second, and perhaps more likely response, is a motion to dismiss the lawsuit.  Such a motion can be made for any number of reasons, including that under the CBA any dispute between Rodriguez and MLB must be heard by an arbitrator, and not taken to court.  That last one would be a shame if successful because arbitration is secret, while anything filed in this lawsuit is a matter of public record.

Copy of ARod's Lawsuit Against MLB

Click here to read ARod's lawsuit against Major League Baseball. Essentially, he's alleging that MLB engaged in improper conduct that has interfered with his earning potential. I'll have some comments up on this later today.

Wednesday, October 2, 2013

TSN Article - Legal Side of Fighting

Click here to read my TSN article on fighting in the NHL and the changing narrative.

TSN Radio With Mike Richards - We Talk Fighting

I join Mike Richards from TSN Toronto Radio to talk George Parros concussion and the fate of fighting in the game of hockey.