Friday, January 28, 2011

Jason Bailey/Ducks Lawsuit: Montreal Radio Clip, Sun Media Article, A Copy of the Complaint and Looking at the Case

Jason Bailey's lawsuit against the Ducks, its minor league affiliate and coaches, wherein he alleges anti-Semitism, is getting a lot of attention. This is because we really haven't seen anything like this before. The case has been reported on TMZ, CNN, FOX and NBC to name a few. It was also a featured story on BBC, where hockey isn't exactly big.

Here are links to my on-air radio discussion with Tony Marinaro from the Team 990 in Montreal. We talk about Jason Bailey's lawsuit and where it's likely headed.

Here is a link to Bailey's Complaint as filed in Orange County, California. It sets out his claim:

Below is a link to my interview with Chris Stevenson from Sun Media (Ottawa Sun/Toronto Sun/ We talk about the significance of this case and how it may lend itself to an examination of the issue of tolerance in sports and culture. This is particularly relevant as we approach the one year anniversary of the passing of Brendan Burke.

As for the case, Bailey has alleged discrimination, harassment, retaliation, intentional infliction of emotional distress and wrongful dismissal.

The first three relate to human rights violations as captured by California's Fair Employment and Housing Act. For example, in the Brett Favre lawsuit filed by the massage therapists, it was alleged that they were the victim of discrimination, harassment and retaliation as per New York State and municipal human rights laws. In order to make out his case, Bailey will need to establish that the coaches indeed made the statements that were alleged and that it resulted in his being discriminated against and losing playing time. In part, this one has potential for Bailey.

Wrongful dismissal may be tough to show. It could be argued by the Ducks that Bailey was not good enough and that's why he was cut. Happens all the time, they would argue. Bailey will argue that he was cut as a result of his religious beliefs. As well, he could argue that as a result of discrimination and retaliation, he never got his chance.

So when it comes to wrongful dismissal and retaliation, which is where the substantial money is in this case, Bailey will need to show a causal link between the conduct of the coaches and his not being given his chance. The Ducks will say that Bailey wasn't cut because he was Jewish; he was cut because he wasn't good enough. So for Bailey, making out the key component of his claim presents challenges.

Here are his minor league stats, which on their face, are not terribly compelling:

Unless we learn more information, intentional infliction of emotional distress may be tough to establish. The statements need to be outrageous and extreme. It's conduct that goes beyond all reasonable bounds of decency, and when a reasonable person hears it, he or she needs to respond with something like "That's outrageous!!!". Courts have repeatedly concluded that insults and indignities fall short of that test. So while the alleged statements are clearly distasteful, they are unlikely to support this particular claim.

One more thing. It is alleged that the Ducks made the 2 coaches apologize in writing to Bailey and these apologies are reproduced in the Complaint. These apologies by themselves will not be considered an admission. However, if they can be shown to be true they will be given some weight. However, the apologies don't equal guilty. As well, the Ducks will say that we had a system in place to deal with these types of incidents, the apologies were made, and on that basis, you should let us off the hook.

I would expect the NHL would apply some pressure on the Ducks to get this case settled (and the Ducks may also want this settled). From a PR standpoint, this case is less than ideal for the NHL, and with everything else on its plates, including a handful of struggling franchises, it may be happy to dispose of this case in the short term - whatever the merits. 

I suspect that even if the case settles, it will remain part of the conversation for some time.

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