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When providing commentary during the 2017 Australian Open, did ESPN tennis analyst Doug Adler call superstar Venus Williams a “gorilla” or was he commenting on her “guerrilla” style of play? Some fans heard the former and the perceived racial slur went viral on social media. Adler insisted he said the latter and served ESPN with a wrongful termination lawsuit after an uproar caused the network to take him off the air.
But in a summary judgment motion filed last week, ESPN argues that regardless of whether Adler said “gorilla” or “guerrilla,” his legal claims are meritless.
“ESPN had no contractual obligation to put Adler on the air; its contractual obligation was to pay him for seven days of possible work,” states ESPN’s motion. “ESPN did pay Adler; he received 100% of his daily rate for all seven days of the coverage of the 2017 Australian Open, including days he did not work. ESPN was under no contractual obligation to retain Adler for a future announcing assignment.”
ESPN says its match commentators work on a freelance basis and points to Adler’s deposition for his acknowledgement he had no assurance of working a particular number of matches. The sports broadcaster also argues there can be no implied contract theory from the gig relationship and ridicules a claim it boils down as meaning, “I thought they were going to be using me all the time” because “they had been using my services since 2008.”
Adler has apologized for his comment even though he thinks it was misunderstood. He’s not happy with ESPN.
“They didn’t have good cause and I didn’t do anything wrong,” Adler told NBC’s Today show last August. “They killed me, they made me unemployable. They ended my career, they killed my reputation, my good name. What else was I supposed to do?”
“No ’cause’ was needed,” responds ESPN in court. “[B]ut even if cause were required, Adler’s controversial comment supplied it. It is unnecessary to decide whether Adler meant ‘gorilla’ or ‘guerrilla’; even crediting Adler’s spin, he chose his words poorly and provoked a public outcry that ESPN had to take steps to quell, to stem criticism of Adler and ESPN itself and return the focus to the competition on the court.”
ESPN tells the judge it has exercised reasonable business judgment. The intent of what he meant was not as important as the effect on listeners and the aftermath, it adds.
“Adler’s craft was his words,” writes ESPN’s lawyer Raymond Bertrand at Paul Hastings. “He agrees he was responsible for using language that clearly described the activity on the court, and that he was ultimately responsible for his on-air comments. Yet Adler used a homonym susceptible to two meanings, one of which, he admits, was a racist epithet. An announcer is responsible for offending the audience, regardless of the announcer’s intent.”
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