Some key questions in Isiah Thomas' sexual harassment trial, which resumed Monday after a four-day break:
1) Last September, the Equal Employment Opportunity Commission endorsed Browne Sanders' claims. Why didn't that resolve the dispute?
The short answer is that the EEOC did not and could not conduct a trial, and may not have provided Isiah Thomas or Madison Square Garden with adequate opportunities to refute Sanders' allegations. The long answer reflects the nature of the EEOC, which is a federal agency responsible for preventing discrimination in the workplace. As part of its mission, the agency conducts investigations into alleged instances of workplace discrimination. Under law, Sanders was required to present her claims to the EEOC as a prerequisite to civil litigation.
In response, the EEOC conducted a review of the available facts, and Spencer H. Lewis Jr., who directs the EEOC's New York office, issued a ruling. He identified evidence of a hostile work environment at MSG and also evidence that MSG officials failed to take the necessary steps to prevent or correct the sexual harassment. Though persuasive, his ruling did not constitute a verdict. The legal merits of Sanders' claims can only be determined in a court of law, which supplies the parties with opportunities to cross-examine witnesses and to demonstrate weaknesses or untruths in the opposing party's claims.
2) Why didn't Thomas and MSG settle with Sanders before the case became a public spectacle?
If the pre-trial litigation of this case proceeded normally, there probably were settlement discussions and likely efforts by trial Judge Gerard Lynch to encourage a settlement. As celebrated attorney Alan Milstein, who has litigated on behalf of Allen Iverson, Maurice Clarett, and Eddy Curry, tells SI.com, "I find it hard to believe that there were no attempts made by the judge to try to get the parties to settle."
At first glance, the absence of a settlement for Thomas and MSG officials can be questioned, as even if they ultimately defeat Sanders in court, the trial itself might inflict serious professional harm. The case has drawn massive media attention, much of it negative toward Thomas and MSG.
On the other hand, if Thomas and other MSG executives genuinely disbelieved Sanders' claims, they may have dismissed any form of settlement with her as unacceptable, irrespective of the negative publicity that would arise from contesting her claims. As Milstein observes, considering that Thomas and MSG are "deep pocketed" defendants, they likely possessed the resources to settle Sanders' claims. The fact that they did not may shed light on how they perceive the meritoriousness of her claims. Such skepticism, if well-founded, would allude to an important point about our legal system: If justice is the primary goal that we ascribe to courts, we do not want defendants capitulating to untrue or exaggerated claims merely out of fear of public relations consequences. Along those lines, salacious allegations are still only allegations until proven in court.
However we interpret the absence of settlement, the parties could still settle. Sometimes a week in court changes how a litigant views the weeks ahead and how he or she weighs the pros and cons of a settlement.
3) Under oath, Thomas opined that it would be worse for a "white man [to call] a black woman a bitch" than for an African-American male to do the same. How might that statement influence the trial?
Thomas apparently made the statement to insinuate that, because of values in the African-American community, at least as Thomas perceives them, Sanders should have been less offended by the misbehavior of African-American male employees than if white male employees had engaged in identical behavior.
This argument is weak and probably counter-productive. First, drawing racial distinctions between sexual harassers does not advance any legal theory relating to sexual harassment. The law does not forgive a sexual harasser because he believed that, given his race, ethnicity, or some other demographic quality, his victim should have been more understanding of his behavior. Instead, the law commands that, irrespective of race, ethnicity etc., a sexual harasser will not harass and will, perhaps, seek counseling or other treatment to correct his problem. Put more bluntly, the problem with sexual harassment isn't with the victim -- it's with the victimizer.
Second, the argument might offend nearly everyone. Principally, it runs the risk of stereotyping African-American males and females as somehow more accepting of intra-racial sexual harassment, a proposition that, I surmise, would offend most African-American males and females.
4) If Thomas is found liable for sexual harassment, will the NBA punish him?
If Thomas is found liable, there would be compelling reasons for the NBA to discipline him, but also compelling reasons to not discipline him.
Let's first consider the "pro-discipline him" argument. Without a doubt, commissioner David Stern would be outraged by any NBA executive who sexually harasses employees. An NBA executive not only works for a team; he represents the league and its underlying values.
Stern's outrage would only seem heightened by context: he has recently sought to enhance the NBA's image and particularly how fans and media regard the maturity of those affiliated with the league. That very desire, among others, motivated the league, with the consent of the NBPA, to issue a dress code and to collectively-bargain an elevated age requirement for the NBA draft. While the merits of those policies can certainly be debated, they likely placated a number of dissatisfied fans and media.
Recent events, however, suggest that the NBA needs to look beyond the locker room for sources of immaturity. Between the controversies surrounding this year's All-Star Game in Las Vegas, the Tim Donaghy gambling scandal, and now the Knicks' sexual harassment lawsuit, Stern is seemingly poised to implement heightened ethical requirements for league officials. A good place to start may be in NBA front offices and, if so, a liable Thomas would seem particularly vulnerable to a stiff sanction.
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.
