It feels like a decade ago, but it was actually just last January that ESPN tennis analyst Doug Adler was relieved of his Australian Open duties after referring to Venus Williams as either a “gorilla” or a “guerilla,” depending on who you believe.
Shortly after, Adler announced plans to sue ESPN, a case that has finally reached the courts. And in initial filings, ESPN is not holding back.
“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.”
ESPN also argued that it makes no difference what Adler said, and that it was his responsibility to use language that is both descriptive and entertaining while also devoid of potential controversy:
“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.”
What’s interesting is that standard might seem to force ESPN to hold everyone who slips up equally accountable. Although in this case they apparently paid out Adler’s contract, so it feels like they’re probably fine from a legal perspective.