Sports Illustrated's McCann Lumps Pro-Traditional Marriage Supporters With Those of Actual Questionable Conduct

Being a die-hard sports fan, I've subscribed to Sports Illustrated off and on over the years. Currently, my subscription serves a dual purpose, in that it helps my kids' school out since I get it as part of their fundraiser. When I first started reading it, it was always about sports.  However, as time as gone on, I have had to plug my nose while reading at times, as it has gotten deeper and deeper into leftist social advocacy  (which is not surprising at all considering it is owned by Time Warner), just like ESPN. A classic example is the 2007 issue that went into hysterics on the topic of global warming (as documented by the late Noel Sheppard), and another is the swipe they took at God and football in 2013.

Currently, you have to be living under a rock to not know that Donald Sterling, the owner of the L.A. Clippers, was recorded making racist comments about blacks and Hispanics, and those recordings were leaked to the media.  Combined with his background of being hit with federal lawsuits for racial discriminiation in housing at properties he owns, it was pretty apparent that Sterling is very racist in his attitudes towards minorities. Once these recording were made public, Adam Silver, the new NBA commissioner, being under incredible pressure from media, players, and sponsors, acted swiftly, and four days after the recordings were released, banned Sterling from the NBA for life and fined him $2.5 million. Compared to the NBA's typical slower-than-molasses-in-January speed in dealing with any issue, this was an amazingly swift action.

Into this fray steps Michael McCann of Sports Illustrated, a writer with a legal background who specializes in sports law.  He pens a column in the May 12th issue of SI titled "Power and Process" with the summary of "In the court of public opinion, Clippers owner Donald Sterling is getting what he deserves - but the NBA's punishment will face harsher scrutiny within the legal system." Considering the source, I was skeptcial when I first started reading the article, but as I read through it, I was impressed, because it differs from the common narrative.  The basic gist is that  Silver caved in to public opinion and gave everyone what they want (Sterling's head on a platter), but from a strictly legal standpoint, his response might not stand up to scrutiny.

Even in the unlikely event that the NBA can establish that Sterling intended to skirt the league's bylaws, it is not clear that such an extraordinary penalty is justified. Sterling wasn't convicted of a crime and doesn't stand accused of failing to meet his financial commitments. He wasn't charged, arrested, or indicted. He wasn't investigated by the police or FBI. He can't even be sued for his remarks. One might expect that the first time in the league's 68-year history that an owner is on the verge of expulsion would involve some kind of unlawful conduct. Ironically, any unalwful conduct in the Sterling scandal would have been committed by others against him.

Silver assers Sterling's troubled history can help to justify his ouster. Should it? Until last week, the NBA had practiced a hear-no-evil, see-no-evil approach to Sterling's prior bad acts and broken promises. For decades he happily pocketed league TV money while refusing to put a competetive product on the floor. Worse yet, the NBA ignored accusations of racism in a real estate case brought by the U.S. Department of Justice and in a lawsuit by former general manager Elign Baylor. Silver stressed that the league could not act in those instances because the cases were either settled or won by Sterling. But now Sterling faces banishment for words that can't even give rise to a lawsuit?

Good questions. From there, McCann goes on to discuss other sports owners who have had issues of less than stellar and criminal conduct raised, but have not been punished. In the second to last paragraph, however, McCann goes too far:

Despite his infamy, Sterling isn't the only sports owner to exhibit questionable viewpoints and conduct. A company controlled by Astros owner Jim Crane, for example, has reportedly paid millions to settle discrimination claims. Crane has been accused of warning managers, "Once you hire blacks, you can never fire them." Browns owner Jimmy Haslam, who owns a nationwide string of truck stops, is under federal investigation for fraud. The DeVos family owns the Magic, and senior chairman Rich DeVos openly criticizes marriage equality - despite the NBA's anti-discrimination goals - while Maverick's owner Mark Cuban was sued (unsuccessfully) by the Securities and Exchange commission.

Did you get that? Rich DeVos of the Magic is to be lumped in with Haslam and Crane, who actually committed crimes that went to court.  And what is DeVos's sin?  Did he defraud someone? Did he prevent someone from getting housing based on their race? Is he under investigation for anything at all? No. His sin was simply to speak up for the standard of marriage that has been the standard of civilization for centuries. And, as would be expected, there are already many  demonstrations of liberal "tolerance" out there for DeVos not toeing the party line.

McCann had a great column going, and was making some great legal points, but just couldn't make it all the way through without having to remind Christians that they should not be allowed to even own a business (or at a minimum just keep their thoughts to themselves) if they don't bow down and worship at the altar of gay marriage. From a logic standpoint, McCann's hypocrisy is that he doesn't even apply his own standard, used throughout the article, to DeVos. Sterling has done nothing wrong from a legal standpoint, yet he is being treated as if he did. DeVos has done nothing other than voice an opinion - and has yet to be accused or charged with any type of discriminatory business practice against gays - and yet McCann lumps him with those who have committed crimes. Unless, of course, he intends to imply that merely having opinions against gay marriage and having the temerity to express them are actual crimes, too.

Welcome to the reality of today's Thought Police, masquerading as media.

UPDATE: Mr. McCann saw my post and has written a response - repeated here in its entirety - at his Sports Law Blog:

Dear Mr. Edwards

I am e-mailing you because you or others on your behalf have contacted me repeatedly on Twitter. While I appreciate that you read my article on Donald Sterling in Sports Illustrated and your complimentary points about it, I believe your criticism about my reference to Rich Devos' position on marriage is not supported and I also find the title of your post to be badly misleading.  Let me explain.  

Mr. DeVos is protected by the U.S. Constitution (and state constitutions) to advocate any viewpoint he wants about marriage.  His view is not--and should never be--criminal.  His view, however, may like other views by owners on various topics breach a contractual obligation owed to the NBA.  This is the same reason why Donald Sterling is in trouble with the NBA.  Every NBA owner has signed a franchise agreement and a joint venture agreement which contain a covenant that states owners cannot "take positions that may have materially adverse effects on the league."  The NBA commissioner is entitled to interpret this language, and the NBA's Board of Governors can use this language to terminate ownership in a team.  Mr. Sterling and Mr. DeVos, for that matter, agreed to this language by contract.   To be clear: an owner can express a constitutionally protected view, including one based on his moral or religious beliefs, but still run afoul of a contractual obligation owed to the NBA.  

Also, the five examples provided in the article have one thing in common, and it is not -- as your post suggests -- a link to criminal conduct.  Here are the five examples:

  • Donald Sterling: stated controversial comments that have caused the NBA economic damage, and in Commissioner Silver's view have had a materially adverse effect on the league.
  • Rich DeVos: advocated a controversial position on marriage that arguably runs counter to the NBA's views about this topic. 
  • Jim Crane: reportedly settled civil lawsuits concerning discrimination.
  • Jimmy Haslam: is under investigation for fraud.  He has not been charged with a crime, let alone convicted of one.
  • Mark Cuban: was a defendant in a civil lawsuit filed by the SEC and he won the lawsuit.  The lawsuit generated some controversy for the NBA.

Please note that none of these examples references an "actual criminal"--let alone, as your post's title wrongly asserts, "actual criminals."  The closest to an "actual criminal" is Haslam, who again, has not been charged with a crime and thus has not been convicted.  He therefore is not a "criminal."  The other four examples reference individuals who have generated controversy but have obviously not broken any criminal laws.  I think you owe your readers a correction.

Along those lines, the article does not raise moral questions about positions.  It is a legal article about how the NBA might enforce a contractual covenant about positions that arguably have a materially adverse effect on the NBA.  I think you would agree that Mr. Devos' position on marriage is controversial.  I recognize that you may support his position, but I also believe that you recognize it is a controversial position.  To date, there is no reason to believe Devos position has had a materially adverse effect on the league.  However, whether that is true in 5 or 10 years, is unclear.  It will be up to the NBA to judge.

Thank you for reading this e-mail.  You have my permission to quote this email, but on that condition that if you do, you post it in its entirety.

Best regards,
Michael McCann

Mr. McCann makes a valid point about none of the other people mentioned in the article actually being criminals, and the title has been changed to reflect it. However, there are still a couple of issues to take with his response and the initial column.

As any regular NewsBusters reader knows, media bias - and bias in general - comes in many different forms, ranging from overt to more subtle. There are a couple of places in the column that use the more subtle type of bias in regards to Mr. DeVos and his position. The first is the different words to describe Mr. DeVos's position: in the original article, the word (as noted by commenter Mother124) "questionable" is used to describe the viewpoints and actions of the group, but in Mr. McCann's response above, he chooses to use the word "controversial". Without getting into specific dictionary definitions, it is safe to say there is a difference between the two words. Controversial implies that there are strong differences of opinion on the subject, while questionable implies that there is something wrong with the subject - viewpoints on marriage in this case - at its base, not just what people think about it. The implication is then that there is something wrong with Mr DeVos's viewpoint at its core.

On a side note, it's rather interesting - and sad - to note that not with just Mr. McCann, but in society as a whole, merely having a viewpoint of one-man-one-woman marriage is now considered controversial.

The second issue is with the loaded term "marriage equality". In the debate about gay marriage, you will just about always see that term used by gay marriage proponents as a means of redefining the debate to make it sound more favorable to them, as if anyone who disagrees is somehow against equality for everyone; you will never see it used by those who support the traditional definition of marriage of one man and one woman. That debate has been written and spoken about in many places, and as our concern here is about media bias, it's not something I will get into at this point. Suffice it to say that the use of that term in the column makes it pretty clear on which side of the issue Mr. McCann is on, in spite of his claim above that the article does not raise moral questions about positions is simply a legal article.

I'm sure there are those who will say that I am splitting hairs when it comes to word definitions and terms here, but very small things like that can have a huge impact on how the content is read and perceived, and it this case, those small things make a large difference.