Useless Conjecture Part 2

I feel compelled to offer another post on the Portland litigation email.  Now, I was accused of writing "useless conjecture" when I last posted on this subject, so I want to warn everybody right up front.  It's a blog.  Useless conjecture is pretty much all I got.  It's what I do.  If you are on this site expecting something (a) useful or (b) provable (conjecture being opinion for which one has no proof), boy are you in the wrong place.  You might try Wikipedia.

As I was writing about it Friday night, and then talking about it on Phoenix Stan's podcast Saturday morning, I kept finding myself saying, "I'm not a lawyer, but...."   So it occurred to me - maybe I should ask a lawyer if this threat of litigation really is as legally tenuous as it seems to me. So this post offers some insights from a legal professional - hey, maybe it's not completely useless after all!

I called Dr. Tim Perrin, Vice Dean of the Pepperdine University School of Law, to discuss the situation.  Now, Perrin's a big NBA fan, but as it happens he had been at a conference on Friday and had missed the whole kerfuffle.  He was hearing about it all the first time from me, so I got his first reaction to the story.

In the email, the Blazers laid out two different potential avenues of litigation against any team signing Darius Miles "for the purpose of adversely impacting the Portland Trail Blazers Salary Cap and tax positions."  The first involves a violation of "fiduciary duty as an NBA joint venturer."  The second avenue involves "tortuously interfering with the Portland Trail Blazers' contract rights and perspective economic opportunities."

As I mentioned, Perrin was hearing about these issues for the first time.  And frankly, his first reaction was to chuckle.  

The "tortuous interference" case was the one he was expecting.  Unfortunately for the Blazers, Perrin didn't see how there is any interference in the Blazers' contract rights in this situation.  The Blazers no longer have a contract with Darius Miles - he has been waived.  Clearly there's no contractual interference in another team signing Miles.  That leaves interference in perspective economic opportunities, which Perrin felt would be an impossible case to make, over and above the fact that it would be impossible to prove motive of the signing team.

He found the "fiduciary duty" angle at least novel and creative.  He was not expecting that one.  Perrin explained that in joint ventures, individuals have to hold their partners' interests on par with or above their own interests.  As such, a move by a partner in the NBA joint venture meant expressly to hurt the prospects of another partner could indeed be construed as running afoul of both the spirit and the letter of the laws governing joint ventures.

Having said that, Perrin pointed out that professional sports leagues are unlike other joint ventures, and have always had special legal circumstances surrounding them.  Given the fact that competitiion among the partners is part and parcel of the NBA, he felt that it was highly unlikely that any judge would apply a generic joint venture definition to this case, and would instead recognize the competitive nature of the league.  And of course, once again, the biggest obstacle to this or any case would be proving the motivation of the signing team. 

So what then, was Portland thinking when they sent these emails?  It seems to me, they probably weren't.  Not very clearly at any rate.  But, Perrin pointed out that IF they discovered, after the fact, that a team had signed Miles solely to "adversely impact" them and they wished to pursue litigation at that time, their case would be stronger with this email in place.  Essentially, if someone did it, but had never been told not to do it, the case is weakened.  So to bolster a potential future litigation, which presumably  even they knew was a longshot, they put the paper trail in place, just in case.

Another theory I've seen bandied about is the 'Paul Allen's Deep Pockets' theory.  It seemed like a long shot to me that anyone would actually be scared off by this threat - but is it possilble that other teams would look at this email and at Paul Allen's billions and say "What if they really would go to court over this?  Is Darius Miles worth that hassle?" - and back away.

In the end, the tactic has been a PR disaster for the Blazers, and if had any effect on Miles contract prospects, it was likely the opposite of what they intended.  The Grizzlies, who signed and released Miles once already, re-signed him as soon as he cleared waivers, and maybe they would have done so with or without the email.  But Marc Stein's Weekend Dime surmised that the email GUARANTEED that Memphis would sign him, as Michael Heisley is "not the kind of guy who's going to be bullied" according to one GM.

Hopefully this episode will be over soon.  The Grizzlies play tonight, Friday and next Monday during this 10 day contract for Miles.  If he plays in at least two of those three games, we can stop watching Memphis box scores and add some money back on to Portland's books.  Of course, we could still see some litigation from the Blazers, or possibly even punitive action from the league or the Players's Association against Portland.  But hopefully after Miles has played in a couple of games, this strange incident will just fade into the background.

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