As the dust settles around HBO’s airing of the recent Real Sports episode exploring the Chivas USA discrimination lawsuit, a number of questions remain, not the least of which is: “What did we learn about the lawsuit?” The short answer is that we did not learn much at all about the lawsuit, the likelihood that Dan Calichman and Teddy Chronopoulos will be successful on their discrimination claims, or that Chivas USA acted improperly under the law. At least, we did not learn much more than was already available in the public domain.
Calichman and Chronopoulos filed their discrimination lawsuit against Chivas USA and its affiliates on May 28. Calichman and Chronopoulos—both former youth coaches with Chivas USA—alleged that Chivas USA terminated their employment because they were not of Mexican or Latino descent. More specifically, Calichman and Chronopoulos claimed that after Chivas USA’s new sole owner, Jorge Vergara, imported Chivas de Guadalajara’s practices of “systematically refus[ing] to field any non-Mexican individuals,” and “[r]ather than based their employment decisions solely on considerations of merit or skill—as do all other MLS franchises—Chivas USA management unlawfully makes personnel decisions on the basis of ethnicity and national origin.” The plaintiffs brought 7 state law claims alleging discrimination and harassment based on national origin, ethnicity, and race; failure to prevent discrimination and harassment; retaliation; wrongful termination in violation of public policy; and intentional and negligent infliction of emotional distress.
The filing of the lawsuit sparked initial astonishment and condemnation, with a significant amount of focus on Chivas USA’s representation (or poor representation) of MLS. To be fair, Chivas USA has not been the flagship team in the league or even in Los Angeles, for that matter. If the plaintiffs can prove their allegations, Chivas USA’s actions would be a scathing and unfortunate affront to MLS’s strategy of inclusion and integration.
Alleging facts in a complaint and proving those factual allegations, however, are two very distinct actions. Practically speaking under the California civil procedure code, a party can allege whatever facts they wish to in a complaint–assuming among other things that, after a reasonable inquiry under the circumstances, the factual allegations in the complaint are supported by evidence or are likely to be supported by evidence after the plaintiffs have a reasonable opportunity to investigate and conduct discovery.
Calichman and Chronopoulos may eventually introduce as evidence their own testimony, select pieces of which were relayed during the Real Sports broadcast. Their statements during the broadcast were not earth-shattering and mirrored much of what had been alleged in their May 28 complaint. But, notwithstanding Francisco “Paco” Palencia’s less-than-collected performance responding to Real Sports’ questions, Chivas USA has not yet had an opportunity to challenge the veracity of Calichman’s and Chronopoulos’s statements in court or by legal means. In other words, the Real Sports broadcast reiterated, in television format, the allegations made in the initial complaint.
The day after the broadcast, Chivas USA issued a press release noting the one-sidedness of the report: “[W]e are disappointed by the intent of some individuals who have chosen to use our diversity to define our club as a racist and discriminatory environment by reporting an incomplete and one-sided story in order to damage the image of Chivas USA and the hard working individuals who are part of our community.” Although HBO afforded Chivas USA the opportunity to respond to the allegations, Chivas USA was under no obligation to specifically address the employment discrimination claims and, in fact, was wise to reserve its legal challenges to the lawsuit to the courtroom.
The broadcast also reported that Chivas USA was systematically expelling from the team non-Mexican and non-Latino players, including a former youth player with Chivas USA who was allegedly forced out of the Chivas USA youth system because he was not of Mexican or Latino descent. Whether that alleged discrimination has any impact on the employment discrimination claims by Calichman and Chronopoulos is unclear. For example, the youth player was not an employee of Chivas USA and the more general practice of excluding youth players would not necessarily form the basis for employment discrimination claims (even if it may suggest that the organization has discriminated on the basis of nationality or ethnicity in the past).
Assuming that the parties move forward with discovery, the facts and circumstances underlying Calichman’s and Chronopoulos’s complaint will become clearer. At that stage, the costs of proceeding with the litigation (which may be substantial in terms of money and public relations) will be balanced against the value of reaching a settlement agreement.
The Real Sports broadcast was informative for those unfamiliar with the Chivas USA lawsuit, but it offered little to flesh out Calichman’s and Chronopoulos’s claims. The majority of the information that will directly impact the likelihood of success on those claims is already publicly available. Chivas USA’s failure to respond directly (or to the satisfaction of viewers) may be problematic for its public relations efforts, but was probably wise in light of the ongoing litigation: Chivas USA elected not to make on-the-fly statements about the litigation to avoid having those statements deconstructed and used against them during the litigation.
If Calichman and Chronopoulos can establish their employment discrimination claims, Chivas USA will be forced to pay damages and provide other remedies. To date both plaintiffs have stated that they have not found comparable employment, and that is troubling. Equally troubling is the impact that such a conclusion will have on a club that is already struggling to pull fans into the stadium and to compete on the field. The question remains whether MLS will or can act to address the allegations, and how it would do so to meaningfully resolve the issues.*
* None of the material contained herein is offered, nor should it be construed, as legal advice. You should not act or rely upon information contained in the above material without specifically seeking professional legal advice.