Diversity & Inclusion

You say gorilla, I say guerilla

Political correctness is a moving target in America today—President Donald Trump got elected in part because of his battle against it. But it remains alive and well in broadcast journalism, as ESPN tennis commentator Doug Adler learned earlier this year.    Businessman gagged

Adler was an All-American tennis player during his college days at the University of Southern California (USC). He was calling the Australian Open for ESPN last month when he referred to Venus Williams’ success in charging the net as “the guerilla effect,” according to him—or as “the gorilla effect,” according to outraged viewers who accused him of racism. Responding to a barrage of complaints, ESPN fired Adler the next day. Despite his forced apology for any misunderstanding, ESPN refused to reinstate him.

Public figures taking the fall for racist speech is nothing new. Thirty years ago, Dodgers Vice President Al Campanis was fired for saying on ABC’s Nightline that blacks don’t have “the necessities to be a field manager or general manager,” adding, “Why aren’t blacks good swimmers? Because they don’t have buoyancy.” Anchor Ted Koppel gave Campanis several opportunities to retract his statements, but he didn’t. A subsequent apology wasn’t enough to save his career.

Perceived racism has remained a charged topic ever since. Last year, basketball legend, player, and coach Phil Jackson commented on the entitled star treatment enjoyed by LeBron James, saying that James dictated team travel plans “because you, your mom and your posse want to spend an extra night in Cleveland.” James, among others, objected to the term “posse” as a racist allusion to a group of armed men, while Jackson responded with a link to a high-school scholarship organization called “The Posse Foundation” and two weeks later dismissed the brouhaha as “water under the bridge” since nobody was hurt.

What the deuce?!

Adler isn’t so sanguine about the accusation against him. He filed suit against ESPN in Los Angeles County Superior Court, claiming that he was wrongfully terminated and that his 15-year broadcasting career was trashed by the network’s joinder with “the Twitter universe of haters.” He said, “When I saw what it was doing to my reputation, I knew I’d have to fight for my name.” His lawyer called his firing a recklessly wrong call and “a cowardly move that ruined a good man’s career.”

Ordinarily, an employer is allowed to make a decision like the one ESPN did in the exercise of its good-faith business judgment. In this case, that concept could be tempered by terms of any contract limiting the grounds for termination, although no contract is mentioned in the court complaint. The filing could also be bolstered by the accusation of racism implicit in ESPN’s conduct (which can support claims of defamation and infliction of emotional distress).

Whenever I see a wounded broadcaster, I think of famous basketball commentator Marv Albert. Few remember that in 1997, the then-56-year-old Albert pleaded guilty to misdemeanor sexual assault stemming from his kinky habit of (literally) backbiting prostitutes. In return, prosecutors dropped forcible sodomy charges. Naturally, NBC fired him from the broadcasting booth.

For sheer incompatibility with a viewing audience, it seems hard to top Albert’s combination of unlawful sex trafficking, sexual abuse, and pure ickiness. End of his career? Not hardly. In 1999, NBC rehired him to block the then-fledgling Fox and TNT networks from grabbing him. Eighteen years later, he has just signed a new multiyear contract with TNT, and his nearly 50-year career is now often compared to that of the legendary Vin Scully.

So, was Adler’s sin the kiss of death like Campanis’ or a short hiccup like Albert’s? There is no rhyme or reason to the American audience—witness the five million YouTube hits garnered by PewDiePie and his virulently anti-Semitic hate speech. Yet in a court action for wrongful termination and damage to reputation, some standard for employer action must be applied. Is public outrage reason enough to fire an employee, even if it’s misplaced? Is the rule different in the entertainment world than elsewhere? This case might answer those questions.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco, California. He may be contacted at schickman@freelandlaw.com.