When $10 Million isn’t Enough…

Disturbing and heartbreaking. Those are the words NBA commissioner Adam Silver used to describe the just-released report on systemic misconduct in the Dallas Mavericks organization. Those words do not go far enough. I’d suggest inexcusable and unacceptable.

The report is the end result of a months-long investigation into allegations of rampant sexual harassment and mistreatment of women employed by the Mavericks. The allegations were first reported in a bombshell exposé in Sports Illustrated that described an alarming “lack of oversight and compassion within all levels of the business” which contributed to female employees feeling “vulnerable and devalued.”

The investigation, led by attorneys Anne Milgram of Lowenstein Sandler LLP and Evan Krutoy of Krutoy Law, P.C., essentially corroborated the Sports Illustrated piece (discussed earlier on this forum).  It should be noted that the investigation was commissioned by Mavericks owner Mark Cuban after the Sports Illustrated article was published; the NBA did not launch an independent investigation.  Instead, it assumed oversight of the Cuban-initiated investigation (and honestly, I would be curious to know what that oversight entailed).

Alarming doesn’t begin to cover the results of the Milgram-Krutoy report. To quote its introduction, “[t]he investigation ultimately included the review of misconduct spanning over twenty years.” Twenty years!  Investigators interviewed 215 current and former Mavericks employees and sifted through more than 1.6 million documents to reach their conclusions.  The full report is available to read here.  I would encourage everyone to read it themselves because I cannot, in the space afforded to one blog post, detail all of the disturbing and toxic behaviors cited in the report.

In short, the report focused on misconduct committed by three members of the Mavericks organization: longtime CEO Terdema Ussery; Chris Hyde, an Account Executive in the ticket sales department; and Earl Sneed, a beat writer for the Mavericks website.

The Milgram-Krutoy report found that Ussery:

  • Engaged in improper workplace conduct toward fifteen current and former employees
  • This improper conduct included inappropriate comments, unwanted touching, and forcible kissing.
  • Thirteen instances of inappropriate conduct occurred under Mark Cuban’s tenure as owner of the Mavericks; two occurred prior to Cuban’s purchase of the team.
  • There were no reports of misconduct in Ussery’s HR file; Milgram and Krutoy concluded this was because employees felt filing a complaint would be futile given Ussery’s rank in the organization and close relationship with Human Resource Director, Buddy Pittman.

The Milgram-Krutoy Report found that Hyde:

  • Viewed pornography on his office computer. This continued even after Mark Cuban sent him an email warning him that he would be fired if he continued viewing offensive material on his work computer.
  • Made unwanted sexual advances toward female employees.
  • Took new ticket sale employees on tours of the arena that “often included an unauthorized visit to [his] apartment”.
  • Had a used condom fall out of his pant leg and onto the office floor. The condom was seen by several employees.
  • During a conversation about a recent mass shooting, he told a female employee and a male employee that they would be first he would take out if he were ever going to “take someone out[.]”
  • In 2014—after exactly fourteen years with the Mavericks—Hyde was fired after his direct supervisor sent an email to Pittman stating that Hyde had acted inappropriately toward a new female account executive.

Some of the most shocking parts of the Milgram-Krutoy report focused on team reporter Earl Sneed.  Sneed was hired on a per-story basis in 2009 after he personally reached out to Mark Cuban.  He became a full-time employee in 2010.  The Milgram-Krutoy report found that Sneed:

  • Physically assaulted his then-fiancée in 2011. The then-fiancée suffered a broken wrist.  In 2012, Sneed pleaded guilty to two misdemeanors and was sentenced to probation, ordered to pay a fine, enter a domestic violence treatment program, and perform community service.  Sneed told investigators that he pleaded guilty to resolve the case without a trial and avoid negative publicity.  The investigative team did not find that claim credible.
  • A now-former Mavericks employee who was involved in a relationship with Sneed reported that Sneed assaulted her in 2014. She told investigators that Sneed pulled her out of a car, pinned her down, and pressed her face hard enough to cause bruising. The bruising was pronounced enough that the former employee’s manager noticed it and reported the assault to Pittman.  Sneed denied hitting the former employee but admitted to pushing her.  The Milgram-Krutoy investigation concluded that the former employee left the organization because she feared for her safety around Sneed.
  • Sneed was fired after the Sports Illustrated article was released.

For all of these, the Milgram-Krutoy report cites distinct lapses in judgment by executives within the Mavericks organization.  As stated above, in Ussery’s case, there were real concerns that complaints would fall on deaf ears. For Hyde, the report states that “the Mavericks leadership team bears responsibility for allowing Hyde to remain employed with the organization for as long as he was, despite his inappropriate and problematic behavior.” Referencing Cuban specifically—the report calls him out for “failing to adequately address the discrete and troubling incidents that were brought to his attention.” In addition, the report cites the team’s handling of Sneed as further evidence of “[a] lack of effective management within the organization”. Milgram and Krutoy also called Cuban’s decision to not fire Sneed after his second incident of domestic violence  “a significant error in judgment.”

Despite this, the Mavericks were, essentially, allowed to pick their own punishment.  Cuban pledged to make a (tax deductible) $10 million donation to various women’s groups (which for someone with a $3.9 billion net worth is roughly equivalent to what I spend on pre-prepared food at Wegmans every week). In addition, the NBA is requiring the Mavericks bolster their sexual assault and harassment training, report to the league any instances of employee misconduct and give quarterly reports about how they’re implementing report’s recommendations.

The Mavericks situation raises interesting questions of how far up the chain responsibility can—and should—lie.  It’s unclear from the NBA’s statement what league rules the NBA consulted while looking into potential punishment for Cuban and the Mavericks.  The most appropriate option under the NBA Constitution might be Article 24(I), the “Best Interest of the Association” clause.  This clause states [via Deadspin]:

“The Commissioner shall, wherever there is a rule for which no penalty is specifically fixed for violation thereof, have the authority to fix such penalty as in the Commissioner’s judgment shall be in the best interests of the Association. Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association. The penalty that may be assessed under the preceding two sentences may include, without limitation, a fine, suspension, and/or the forfeiture or assignment of draft choices. No monetary penalty fixed under this provision shall exceed $2,500,000.”

NBA Commissioner Adam Silver defended his decision to not levy a steeper punishment, or even suspension, on Cuban, citing the fact that there are no past examples where owners have been suspended for “someone else’s misconduct[.]” Silver also seems to fear that more punitive measures are a slippery slope, stating,  “If owners, shareholders, even a CEO — and Mark was not the CEO in this case — are going to be held accountable for the misconduct of others within their organizations, what’s the standard that I’m going to be setting going forward and how many suspensions therefore am I talking about?”

But is it all “someone else’s misconduct”? While it is undisputed that Mark Cuban did not engage in the harassing and abusive behavior described in the report, when should the failure to properly oversee your organization count as misconduct? Should it?  Is this sending a message to owners that the more hands off they are the better?

Cuban maintained throughout the investigation that he did not know about the misconduct occurring within his organization.  On September 19, shortly after the results of the investigation were released, he spoke with ESPN’s Rachel Nichols about the findings.  The majority of his answers were some version of I didn’t know. You can watch the interview here or read a transcript of it here. In the interview, Cuban repeatedly emphasized how disengaged he was with the non-basketball side of the organization. The Milgram-Krutoy report confirms this, finding that Cuban was rarely in the Mavericks business office and was not aware of Ussery’s behavior. But the Milgram-Krutoy report also confirms that Cuban was made aware of some of Hyde’s misconduct. It also confirms that he was aware of the assault charges against Sneed—even offering to pay for a lawyer for Sneed. Which leads many to wonder—as Nichols asked in her interview with Cuban—how such a successful businessman who is actively involved with the basketball side of the team could be so disengaged and blind to what was happening on the business side of his organization.

It’s not clear if any lawsuits have been filed connected to the harassment endured by Mavericks employees. Title VII of the Civil Rights Act of 1964 outlaws sexual discrimination in the workplace—including sexual harassment. An employer can be held liable for harassment by a supervisor, if that harassment “results in a negative employment action such as termination, failure to promote or hire, and loss of wages.”  The statute of limitations for filing a complaint in these claims, according to the EEOC, is generally 180 days from the time the time the harassment occurs.

One thing Cuban does know is that the buck stops with him.  He told Nichols, “I can give you lots of reasons [for why he was not aware of what was happening within his organization], but they don’t matter. It was my responsibility, and I have to be accountable for it.”  The NBA agrees with this sentiment.  In its press release about the Maverick’s “punishment,” Commissioner Silver said, “as Mark has acknowledged, he is ultimately responsible for the culture and conduct of his employees.” How responsibility and consequences line up is still unclear.

The most infamous example of the NBA taking action against an owner was when Commissioner Silver forced Donald Sterling to sell the Los Angeles Clippers after a recording of Sterling making racist comments was made public.  In his interview with Nichols, Cuban admitted that selling the team was never discussed with the Commissioner. Honestly, that would have been an extreme option—but there are other options. Under Article 24(I) of the NBA Constitution, the league is empowered to take away draft picks.  Why not do that? Show teams that misconduct in the organization impacts all parts of the organization.

When Donald Sterling was forced out of the NBA, rapper Jay-Z criticized Silver’s handling of the situation, arguing that the Commissioner’s swift punishment was simply sweeping a larger conversation about racism in the NBA under the table.  The same can be argued here.  The headlines make it look like the NBA is taking action and should be patted on the back; they have a remorseful owner who is now paying millions to charities that will help women. Yet the facts show an organization that turned a blind eye to harassment and abuses of power that caused at least two women to leave their jobs and forced many more to endure working in an environment where they felt at risk and undervalued.  Some would argue that the NBA has a history of wanting to brush sexual harassment claims aside.

In a commentary on Silver, written for the 2015 Time 100, former NBA great Kareem Abdul-Jabbar wrote that one of Silver’s goals was giving fans great games and great role models.  It’s difficult to see how this event will help ensure that legacy.

 

Photo Courtesy: Jerome Miron, USA TODAY Sports

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