Hawks looking for a new GM

[sturt]

Don't bet on that being in his contract.  The interesting thing would be that he would even have a good defense to that.  None of this would have cast a shadow on the franchise if our owner hadn't taken this to the media in a way designed to create the maximum negative impact for the team.  Thus, he would have a colorable argument that the only damage here is damage that was deliberately self-inflicted by Hawks ownership as part of a political power play within the ASG.

 

The problem for him, imho, is that the new owner is not to blame for what the old owner did, and yet the new owner is the one that has to deal with the problem for which Ferry's words were ground-zero.

 

And, it wouldn't be the first time I've assumed too much, but I would be stunned and amazed to learn that a high profile NBA exec's contract doesn't include very broad boilerplate language that covers the organization if that exec ends up getting caught with a prostitute or saying something like blacks are just genetically better athletes.

Edited June 11, 2015 by sturt

[bird_dirt]

He's high. So is @bird_dirt for his suggestion (albeit jokingly).

Hahahhahahahaha!

There's a good chance of figuring out if I've been drinking by checking the timestamp of my post - i.e. if it is after 5pm EST or not.

Edited June 11, 2015 by bird_dirt

[Guest]

The problem for him, imho, is that the new owner is not to blame for what the old owner did, and yet the new owner is the one that has to deal with the problem for which Ferry's words were ground-zero.

And, it wouldn't be the first time I've assumed too much, but I would be stunned and amazed to learn that a high profile NBA exec's contract doesn't include very broad boilerplate language that covers the organization if that exec ends up getting caught with a prostitute or saying something like blacks are just genetically better athletes.

Remember, that DF's original punishment from the Hawks was a fine only after the investigation was concluded. DF took his leave voluntarily. Edited June 11, 2015 by JayBirdHawk

[AHF]

That's polar opposite from my understanding of what is typical. Sounds like you were floored as well. Employers have exceptional latitude in firing as a rule. And of course, this isn't just a boilerplate employer-employee thing--one has reason to suspect that the GM's attorneys and the franchise's attorneys custom-assembled whatever it is that would be under the microscope here.

 

I admit it's an assumption on my part that there is distinct language that states unequivocally that any behavior that disgraces the franchise in any way is cause for firing. If that's erroneous on my part, okay, but that would seem to be the crux of the question here.

 

You are thinking about employment at will.  99% of people in a non-union environment are employed at will.  That is very different from an employment contract with a provision that provides for certain severance or guaranteed compensation in the absence of conduct amounting to "cause."

[AHF]

The problem for him, imho, is that the new owner is not to blame for what the old owner did, and yet the new owner is the one that has to deal with the problem for which Ferry's words were ground-zero.

 

And, it wouldn't be the first time I've assumed too much, but I would be stunned and amazed to learn that a high profile NBA exec's contract doesn't include very broad boilerplate language that covers the organization if that exec ends up getting caught with a prostitute or saying something like blacks are just genetically better athletes.

 

The prostitute example might be easier since that is illegal.  The issue here is that he read a report containing an ethnically offensive statement in a private meeting.  It would be stronger for a cause argument if he read the report in public, if Deng was bringing a claim, etc.  The statement might also have less sting if you read the full context wherein Ferry recommends the Hawks offer him a contract that matches the top offer he received from any other team.

[sturt]

You are thinking about employment at will.  99% of people in a non-union environment are employed at will.  That is very different from an employment contract with a provision that provides for certain severance or guaranteed compensation in the absence of conduct amounting to "cause."

 

With regard to employment contract... I, um, think I said as much, didn't I? I thought I did.

 

And, with regard to the assumption that there is "a provision that provides for certain severance or guaranteed compensation in the absence of conduct amounting to cause"... first, we agree on the assumption that that provision exists, but again, the crux of the question remains: How broad or narrow is the language?

 

You could be right. Or, I could be. (Seems I'm the only one allowing for the latter possibility, though, fwiw.)

[sturt]

The prostitute example might be easier since that is illegal.  The issue here is that he read a report containing an ethnically offensive statement in a private meeting.  It would be stronger for a cause argument if he read the report in public, if Deng was bringing a claim, etc.  The statement might also have less sting if you read the full context wherein Ferry recommends the Hawks offer him a contract that matches the top offer he received from any other team.

 

I think you miss my point here.

 

I'm not suggesting that the incident where it concerns interest in Deng itself in a silo is or isn't cause (... for the record, I don't actually think it is).

 

The issue in my view contractually is how the incident reflected on the organization. By acknowledging his part in it, the new owner (though perhaps not the soon-to-be-former owner) would seem to have ground to say, regardless of the means through which it became public (which again the new owner had no control over), this is the face of the franchise at that time making a black mark on the organization, and that, if the contract language provides the broad language I have imagined it would, then the contract provides for the ownership to dismiss him.

[AHF]

With regard to employment contract... I, um, think I said as much, didn't I? I thought I did.

 

And, with regard to the assumption that there is "a provision that provides for certain severance or guaranteed compensation in the absence of conduct amounting to cause"... first, we agree on the assumption that that provision exists, but again, the crux of the question remains: How broad or narrow is the language?

 

You could be right. Or, I could be. (Seems I'm the only one allowing for the latter possibility, though, fwiw.)

 

I'll certainly allow for the possibility that it defines "cause" as including this incident or even going as far as defining cause to include "rooting for Duke because they are a bunch of d-bags."  A contract can say anything.  I'm just telling you what is the standard practice from someone who has written contracts with for cause termination clauses, counseled employers on these and litigated these.

 

It would not be standard practice to have a broad "out" clause for the employer.  These types of agreement are typically intended to provide security to the executive and the cause provisions are pretty narrow.  On top of that, Ferry would have some good facts on his side if he wanted to fight a termination for cause, not the least of which is that he was already punished for the incident by the employer and satisfied the terms of the punished in total.

Edited June 11, 2015 by AHF

[AHF]

I think you miss my point here.

 

I'm not suggesting that the incident where it concerns interest in Deng itself in a silo is or isn't cause (... for the record, I don't actually think it is).

 

The issue in my view contractually is how the incident reflected on the organization. By acknowledging his part in it, the new owner (though perhaps not the soon-to-be-former owner) would seem to have ground to say, regardless of the means through which it became public (which again the new owner had no control over), this is the face of the franchise at that time making a black mark on the organization, and that, if the contract language provides the broad language I have imagined it would, then the contract provides for the ownership to dismiss him.

 

It would be very off-market to have wide ranging flexibilty to wipe out his otherwise guaranteed compensation or severance.  As above, the contract could say anything so I'd say it is possible but very unlikely if you assume the Hawks did something.  In the real world, most of the time an exec who is in the position of being terminated for possible cause agrees on a settlement with the employer and everyone walks away as quietly as possible.  

[sturt]

I'll certainly allow for the possibility that it defines "cause" as including this incident or even going as far as defining cause to include "rooting for Duke because they are a bunch of d-bags."  A contract can say anything.  I'm just telling you what is the standard practice from someone who has written contracts with for cause termination clauses, counseled employers on these and litigated these.

 

It would not be standard practice to have a broad "out" clause for the employer.  These types of agreement are typically intended to provide security to the executive and the cause provisions are pretty narrow.  On top of that, Ferry would have some good facts on his side if he wanted to fight a termination for cause, not the least of which is that he was already punished for the incident by the employer and satisfied the terms of the punished in total.

 

Again, I'm not an attorney, but I've been in a position to have to help write contracts, and to read and understand what's being set forth. I don't do it every day, but for someone who isn't an attorney, I've certainly had my share of exposure.

 

But I do respect that you bring experience to the discussion that I don't. I respect your explanation of what would be standard practice. I respect that you say a contract can say anything and that it could define cause as including this incident.

 

In fact, I don't know how broad "broad" is in how you think of it, but I assert it probably shouldn't surprise anyone if the contract for the most visible boss of the franchise indicated that cause includes any incident that comes to light that embarrasses the franchise... pre-Campanis, maybe not... but post-Campanis, it's hard to imagine it wouldn't be.

 

And to your last point... first, as far as I know, none of the actual details of Koonin's penalty have ever been revealed, so we don't actually know if the penalty has been completed. But more saliently... I'm asking your legal opinion... can the new owner decide that the decision under the previous owner was insufficient by their standards? That is, just because the previous owner didn't decide to exercise the ultimate penalty does that mean that the new owner--only now officially the employer of the disgraced employee--cannot do so now?

[AHF]

In fact, I don't know how broad "broad" is in how you think of it, but I assert it probably shouldn't surprise anyone if the contract for the most visible boss of the franchise indicated that cause includes any incident that comes to light that embarrasses the franchise... pre-Campanis, maybe not... but post-Campanis, it's hard to imagine it wouldn't be.

 

And to your last point... first, as far as I know, none of the actual details of Koonin's penalty have ever been revealed, so we don't actually know if the penalty has been completed. But more saliently... I'm asking your legal opinion... can the new owner decide that the decision under the previous owner was insufficient by their standards? That is, just because the previous owner didn't decide to exercise the ultimate penalty does that mean that the new owner--only now officially the employer of the disgraced employee--cannot do so now?

 

I think you should be surprised if it goes that broad.  In terms of Ferry's penalty, it was made public and he satisfied it.  To the last point, I don't know whether the new owners will have standing to take a totally different stance on penalty for something done when the old ownership was in place.  There generally is a waiver when a company doesn't move promptly and it will be tough to argue that what he did was so extreme as to rise to cause when outside counsel advised against termination and the owners collectively decided against termination.  

 

One of the unique aspects of this if it went into litigation under the theory that the public embarrassment to the franchise warrants cause is that the person who deliberately made it public is going to part of the new ownership group and would be asserting the fact that it is public as a means of invalidating the obligation to Ferry.  It would be tough for Gearon to make this a public issue and then turn around and claim that the fact it went public now should relieve him and the other owners of paying Ferry.

 

Bottomline:  It is tough to argue that it is so egregious as to warrant cause under a normal "cause" definition when the Commissioner of the NBA publicly states that he doesn't think the situation warrants termination.

 

"The discipline of a team employee is typically determined by the team, and in this case the Hawks hired a prestigious Atlanta law firm to investigate the circumstances of Danny Ferry's clearly inappropriate and unacceptable remarks," Silver said. "In my view, those comments, taken alone, do not merit his losing his job.

 

"It's a question of context ... These words, in this context, understanding the full story here, the existence of the scouting report, the fact that he was looking at the scouting report as a reference when he was making these remarks, what I'm saying is – and frankly my opinion — is that this is a team decision in terms of what the appropriate discipline is for their employee. But if I'm being asked my view, I'm saying that, based on what I know about the circumstances, I don't think it's a terminable offense."

Edited June 11, 2015 by AHF

[sturt]

1. I'm lost. You say the penalty was made public, but a number of keyword searches online later, I still cannot find anywhere any details of whatever penalty Koonin imposed on Ferry. Help me out?

 

2. I continue to wonder why the counsel acquired by the soon-to-be-previous owner has any bearing on how the new owner should act. Perhaps if the new owner acquired counsel that indicated it to them. But I'm not sure why there would be anything binding on the new owner when, arguably, the previous counsel comes from someone for whom they hold no respect and would not have chosen to pursue. The Commissioner's opinion, on the other hand? You may have a point there. That does seem compelling.

 

3. Your point about Gearon is certainly intriguing at one level, but then again, since there is a majority owner and an ownership group does sometimes knit together people who may or may not actually see eye-to-eye (no one knows that better than we), I have to think Gearon's part in it all would be regarded as a tangent... interesting, but nonetheless peripheral to a court's decision.

 

Thanks for the civil discussion about it all. Getting back to where this started, I concede that you've accomplished what you set out to accomplish--there is, at least, some reason to think that Ferry could benefit from not resigning yet.

[AHF]

1. I'm lost. You say the penalty was made public, but a number of keyword searches online later, I still cannot find anywhere any details of whatever penalty Koonin imposed on Ferry. Help me out?

 

2. I continue to wonder why the counsel acquired by the soon-to-be-previous owner has any bearing on how the new owner should act. Perhaps if the new owner acquired counsel that indicated it to them. But I'm not sure why there would be anything binding on the new owner when, arguably, the previous counsel comes from someone for whom they hold no respect and would not have chosen to pursue. The Commissioner's opinion, on the other hand? You may have a point there. That does seem compelling.

 

3. Your point about Gearon is certainly intriguing at one level, but then again, since there is a majority owner and an ownership group does sometimes knit together people who may or may not actually see eye-to-eye (no one knows that better than we), I have to think Gearon's part in it all would be regarded as a tangent... interesting, but nonetheless peripheral to a court's decision.

 

Thanks for the civil discussion about it all. Getting back to where this started, I concede that you've accomplished what you set out to accomplish--there is, at least, some reason to think that Ferry could benefit from not resigning yet.

 

1. That is my misstatement.  I meant the recommended punishment.

 

2.  The advice given to the current owner Gearon and other former owners is relevant because it shows what advice the owners actually received on this.  It is also relevant because it shows what highly people steeped in this area of the law believed was an appropriate reaction.  Remember, the burden of proof will be on the owners to justify cause so anything that goes to show that what Ferry did was not so serious as to require termination will undercut the argument that a refusal to pay him is not a breach of contract.  If the issue is unclear, Ferry wins.  The argument will be along the lines of "how can this be so clear when the owners' own counsel said termination wasn't appropriate, the owners themselves decided termination wasn't appropriate and the commissioner of the NBA said termination wasn't appropriate?"

 

3.  Gearon's role in this won't be a tangent at all.  If they choose to litigate Ferry you can believe that it will be up front and close.  Ferry's counsel will be arguing that the real reason for all this was that Gearon was upset at being ousted by Levenson as the primary voice in the ownership group and he blew up and trumped up this whole scenario as a power play.  You can believe that everything he did behind the scenes to leak this and make sure it damaged the team as much as possible will be coming out under oath.  Ferry's attorneys will be arguing that he did something wrong but not something that warranted termination and that Gearon was pushing for termination for the same reason he never wanted Ferry there - because he wanted to be the one pulling the strings and Ferry was put in that position instead of him.  If a jury buys that explanation, it obviously doesn't rise to cause.  It will be embarrassing for the team and Gearon which is yet another reason they are unlikely to want to see this in litigation (and why Ferry himself will be inclined to settle it as well since he won't want this dragging out -- but you can be sure he won't walk away from $15M).

[Guest]

Actually, no @AHF. With respect to 1 you were right:

http://hawksquawk.net/community/topic/398099-peachtree-hoops-steve-koonin-danny-ferry-is-the-gm-of-the-hawks-today/

Koonin went on 92.9 The Game to discuss the Danny Ferry situation that you can listen to here: http://atlanta.cbslocal.com/2014/09/09/atlanta-hawks-ceo-steve-koonin-people-are-wounded-we-have-to-earn-peoples-trust/

Atlanta Hawks CEO and co-owner Steve Koonin stopped in to discuss the Bruce Levenson and Danny Ferry emails and comments with Rick Kamla. 92-9 The Game is the official home of the Atlanta Hawks Radio Network.

An email has surfaced, obtained by WSB-TV, showing that at least one of the owners of the Hawks wanted Ferry fired after Ferry read aloud a racially charged segment of a scouting report described free agent target Luol Deng “he has a little African in him, not in a bad way, but he’s a guy who would have a nice store out front, but sell you counterfeit stuff out of the back.”

Ferry says he was, “repeating comments that were gathered from numerous sources during background conversations and scouting about different players. Those words do not reflect my views, or words that I would use to describe an individual and I certainly regret it. I apologize to those I offended and to Luol, who I reached out to Monday morning,”

Koonin says that he “exceeded the punishment recommended by the law firm” hired to investigate this. This law firm consists of one of the top civil rights lawyers in the country. This leads us to believe that the law firm obviously did not recommend that Ferry be fired.

Koonin says that “People are wounded. People are hurting. We have to earn people’s trust.” He continues, “Please don’t hold this against our players, they are hurting too.” Koonin says he has spoken to the players and he let them speak honestly and openly.

Kamla says “That is a great man right there. That is a great man we just had in here. Atlanta Hawks fans you should be proud to have that man at the helm.”

Use some logic. Koonin exceeded the punishment suggested by the law firm. So the investigation did not suggest Ferry to be fired, unless for some reason you think there is some other penalty that Koonin could levy which exceeds firing but does not imply being fired...soooo....well. It's a pretty damning bit of evidence that the standing of the Hawks to fire Danny because of the events is non-existent.

Now, there may be other ways to fire Danny that involves some convoluted reasoning. But if the argument is around the Danny Ferry incident, well that just cannot happen as far as I am reading this.

[AHF]

Actually, no @AHF. With respect to 1 you were right:

http://hawksquawk.net/community/topic/398099-peachtree-hoops-steve-koonin-danny-ferry-is-the-gm-of-the-hawks-today/

Koonin went on 92.9 The Game to discuss the Danny Ferry situation that you can listen to here: http://atlanta.cbslocal.com/2014/09/09/atlanta-hawks-ceo-steve-koonin-people-are-wounded-we-have-to-earn-peoples-trust/

Use some logic. Koonin exceeded the punishment suggested by the law firm. So the investigation did not suggest Ferry to be fired, unless for some reason you think there is some other penalty that Koonin could levy which exceeds firing but does not imply being fired...soooo....well. It's a pretty damning bit of evidence that the standing of the Hawks to fire Danny because of the events is non-existent.

Now, there may be other ways to fire Danny that involves some convoluted reasoning. But if the argument is around the Danny Ferry incident, well that just cannot happen as far as I am reading this.

 

That doesn't describe what the punish was for sure which I why I said I had misstated it when I mentioned that the punishment had been publicly disclosed.

 

sturt's argument is that the damage to the reputation of the team during the time period when the old ownership punished Ferry and all the damage and negative attention since then should give them the right to terminate him for cause now even if the original punishment was less.  I think that is a hard argument to make and unlikely to be one that the contract supports.

[Dakin]

Dominique needs to be given a nice retirement package, and shown the door if he has this much of a problem with the man that has finally made us relevant again. ESPECIALLY IF THIS IS ABOUT A STATUE!!

 

can you imagine the ego that it must take to be offended by someone blocking a statue being made?  Dominique is the best Hawk ever, but he loves himself even more than I love him.

[Guest]

That doesn't describe what the punish was for sure which I why I said I had misstated it when I mentioned that the punishment had been publicly disclosed.

sturt's argument is that the damage to the reputation of the team during the time period when the old ownership punished Ferry and all the damage and negative attention since then should give them the right to terminate him for cause now even if the original punishment was less. I think that is a hard argument to make and unlikely to be one that the contract supports.

Use some logic to back out the publicly disclosed punishment. You don't need to know exactly what it was for the purpose of the argument as far as I am reading this argument.

[AHF]

Use some logic to back out the publicly disclosed punishment. You don't need to know exactly what it was for the purpose of the argument as far as I am reading this argument.

Agreed. I just overstated it.

[Diesel]

Not trying to break up the on-going argument...but I wanted to put this out there:

 

1.  Say No to Chris Gant.

 

 

2.  I think the Ferry issue may be bigger than we have alluded to.  I recall clearly that there was a Hawks Team meeting about Ferry and many of the guys felt "betrayed"... I don't know if that's the right word but they didn't feel comfortable.  The real question that should be at hand is not about Ferry's relationship with the fans (we have had asshole GMs before and Ferry was one) but how do the players feel about Ferry.  The players will be our best FA drawers.  If they have a problem with management, then we can forget about bringing in really good free agents.  Even if they do not have a little African in them.   At this point, Nique is an afterthought.  If I'm the new owners, I'm putting a lot of trust in Koonin.  This dude knows what he's doing. 

[Guest]

2.  I think the Ferry issue may be bigger than we have alluded to.  I recall clearly that there was a Hawks Team meeting about Ferry and many of the guys felt "betrayed"... I don't know if that's the right word but they didn't feel comfortable.  The real question that should be at hand is not about Ferry's relationship with the fans (we have had asshole GMs before and Ferry was one) but how do the players feel about Ferry.  The players will be our best FA drawers.  If they have a problem with management, then we can forget about bringing in really good free agents.  Even if they do not have a little African in them.   At this point, Nique is an afterthought.  If I'm the new owners, I'm putting a lot of trust in Koonin.  This dude knows what he's doing.

You just made that up.