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Chivas USA responds to HBO’s Real Sports’ report on discriminatory practices

Jul 24, 2013, 7:10 PM EDT

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We got a taste on Monday, but once the segment on HBO’s Real Sports aired last night, there was a newly palpable buzz surrounding discrimination allegations made against Chivas USA. For people who’ve followed the situation since Jorge Vergara assumed control of the club, there wasn’t any new information, but watching a news magazine like Inside Sports pick at the morsels we’ve been rolling around for months, you knew the controversy was going to hit a new level. There’s just something about a reporter like Soledad O’Brien interviewing the likes of James Riley, Dan Calichman and Teddy Chronopoulous (ex-coaches who have filed suit against the club), and a mother whose child was turned away from the club’s youth program that gives the story that extra weight.

Perhaps that’s why Chivas USA has decided to respond, with a release posted to the club’s web site earlier today. Here’s the English version, though as you’ll infer from a reading, the Spanish one better represents the club’s feelings on last night’s report:

One of the biggest strengths we have at Chivas USA is the talented and dedicated employees that make up our community, in which diversity prevails by having different nationalities, cultures and beliefs. Chivas USA is formed by employees from Argentina, Canada, China, Colombia, Costa Rica, Ecuador, El Salvador, Egypt, Ireland, Japan, Mexico, the Netherlands, the Philippines, Spain, and the United States. We aim to work in an environment reigned by harmony, regardless of skin color, language, and beliefs, which is also the base to one of our greatest strengths, as it allows multiple ideas to flow and complement each other.

Therefore, we 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.

At Chivas USA we are all part of the same Red-and-White colors and ideology, which strives for both personal and professional fulfillment on and off the field.

We absolutely reject any form of discrimination and racism.

“Our true nationality is mankind.” H. G. Wells

As strange as this story is, adding a high school yearbook quote to the end of an official (and quite serious) press release makes the whole thing so much more bizarre. When Chivas are in court defending themselves against Calichman and Chronopoulous’s suit, are they going to offer Wells’ platitude as a defense of their actions? And at this point, would we be shocked if they did?

Beyond Chivas USA, who are obviously making this bed for themselves, last night’s report was a black eye for Major League Soccer, who declined to speak to HBO but did offer them a statement. As O’Brien stood in a production studio, reading the league’s words in front of a televised league logo, you felt the helpless, hapless situation MLS has allowed itself to embrace. And with Vergara offering up the likes of Francisco “Paco” Palencia as last night’s sacrificial lamb, who knows how many times club officials (and by extention, the single-entity league) are going to be made to look foolish as they try to defend a concept which runs so contrary to North American sports culture, if not law.

Given the scope of Major League Soccer in the broader landscape, this still has the potential to blow over. Ten minutes on subscription cable isn’t going to define this issue. However, if Chivas USA continues to flounder, make mistakes, and doesn’t somehow correct course, HBO’s work will be linked to over and over again by people who need examples of Vergara’s misdeeds.

The information may not have been new, but now it’s all synthesized in one place, the story told coherently by a respected journalist. ‘Thorn in the side’ could be an understatement.

  1. tariencole - Jul 24, 2013 at 9:29 PM

    Chivas has been a black eye to MLS for too long already. It was a failed experiment, and does not bode well for the similar entity that is to be ManCity/NYC. This is just what ‘should’ be the last straw. They need to be moved, rebranded, and ‘encouraged’ to find new ownership, not associated with another club.

    • jdfsquared - Jul 25, 2013 at 8:39 AM

      Totally agree. Especially on the rebranding and ownership issues. However, I believe it’s not so much that the owners are associated with another club, as that those owners have made some awful, awful decisions. First, branding the MLS version as a ‘version’ of the other club has been insulting from the start. Then this blatantly racist hiring practice of focussing on players and coaches of Mexican decent. That’s just stupid, and frankly I’m surprised MLS hasn’t put an immediate and public stop to that practice and the insinuation that it exists.

  2. takethelongview - Jul 24, 2013 at 11:13 PM

    The one significant f-law in O’Brien’s presentation of the story: no attempt to explain what the law requires. She just relies on the idea that the audience “knows” that making job decisions on a racial basis is both unfair AND illegal. The unfairness part came through quite nicely, pulling all the emotional strings. I’m not so sure she brought clarity to the specific legal issues.

    In particular, most viewers probably assume federal law will govern this case. But both federal AND state law apply. Federal law provides a minimum, but states can go beyond those minimums. A diverse state like California has laws that make it much easier for a worker to win a case like this than if federal law alone governed the case.

    In California, the Court isn’t going to care about the roster of diversity that Chivas trumpets in this press release. They are going to ask whether the plaintiffs suffered an adverse job action on account of ethnicity or national origin. The employees’ termination satisfies the first part. If it goes to Court at all, the argument will be over the second. I don’t think it will go to Court though. Asking your employees to fill out a form that inquires about employees’ origin is the kind of thing that makes judges actually say, “Granted!” when the plaintiffs’ lawyers ask for a summary judgment. (i.e., no reason to argue the case because the facts speak for themselves.)

    Oh, and one more thing…damages in a case like this are usually fairly small, limited to actual damages. If plaintiffs landed a higher paying job after losing this one (it does happen that way sometimes), their award would be minimal indeed. If it’s a lower-paying job, they are entitled to the difference. Again, not very much.

    But California law explicitly punishes employers who retaliate against employees who make a discrimination claim. Here, the employees make a grievance with human relations and are terminated a few days later. Distance in time is one of the factors evaluated to determine retaliation. The timing here does not appear to favor Chivas USA. If the Court determines the reasons given for that termination are a pretext and that termination is, in fact, a retaliation, then the defendants will be entitled to punitive damages ON TOP OF their actual damages. And my guess is a high-visibility enterprise like a professional sports team would be made an example of…and the award here would be near the higher end permitted by law.

    So look for this case to settle. First, it is likely cheaper for Chivas USA to pay these guys than to pay the lawyers if the case drags on, even if Chivas thinks it can win. (By the way, if an employer loses a civil rights case, it gets to pay the lawyers fees for BOTH itself and the plaintiffs…another pricey factor to consider.) Second, the possibility of punitive damages increases the risk involved if the case goes to trial. Good business sense will dictate settling before trial; and based on the superficial amount of information currently available….good legal sense would seem to agree.

    • takethelongview - Jul 24, 2013 at 11:39 PM

      For the life of me, I can’t figure out why Michael McCann, who writes excellent columns at cnnsi.com on sport/law issues, has not struck upon this case. He is normally on legal issues when they first break and sometimes ahead of the curve. Even if we grant that the Aaron Hernandez mess is currently a bigger story, this matter has been percolating as a concrete issue since the lawsuit was filed months ago; and as a predictable issue since Vergaras first made those remarks upon taking full control of the team over a year ago. Maybe west coast legal issues don’t draw notice across the Mississippi River?

      So, Steve, still have friends at cnnsi.com? Goose them into asking McCann to tackle the topic. (Or goose your own employers into getting this website their own law writer.) This case really deserves some analysis from someone who writes on sports law all the time. Or, perhaps even more appropriate, someone who writes on employment law.

      (Note: I am not aware of job discrimination case like this intersecting with professional sports. If it did go to trial, it would be interesting to see how the uniqueness of pro sports played out in a court room likely to be indifferent to those qualities. By that I mean, the court will ask 1) did the plaintiff suffer an adverse job action; 2) was that adverse job action related to an impermissible factor like national origin. Answering those questions will have nothing to do with sports.)

  3. reformed2012 - Jul 25, 2013 at 12:16 AM

    Senator Rand Paul said, private business should have the right to discriminate to improve efficiency and performance.

    Case closed.

    • wfjackson3 - Jul 25, 2013 at 12:51 AM

      First, Rand Paul is certifiably nuts and he isn’t a good resource for much. Sometimes it works out in our favor as a country, but you can’t count on it. Second, that’s all well and good, but that doesn’t appear to have been the motivation, so I am not sure how it is relevant at all.

      • reformed2012 - Jul 25, 2013 at 1:02 AM

        Let’s put this another way.

        Is Chivas USA being supported by any U.S. federal government grant or any state or local subsidies? If not, we shouldn’t worry about its business practice. We can support another team elsewhere.

      • wfjackson3 - Jul 26, 2013 at 12:25 PM

        Let’s travel back to the days of Jim Crow laws in the south. What you are advocating is like saying, well if you want to vote, you can move to somewhere that doesn’t try to discriminate against you. I understand your point, but I am sorry, it isn’t a reasonable stance in a country that pledges equality to it’s citizens.

      • tariencole - Jul 25, 2013 at 5:36 PM

        Rand wasn’t using RACE as the factor in that. Which should have been clued in when he noted efficiency and performance. He was speaking to issues where age, gender and such make obvious differences in productivity. The point being ‘discrimination’ in that sense isn’t punitive, it’s based on the needs of the company. He’s trying to empty a pejorative of the negative stereotype for the purpose of impact. I think it could’ve been said better. But hey, he wins elections, I don’t get asked to run. :P

        Chivas has no grounds to say a Mexican soccer coach is better than an Irish one. So there’s no way Rand’s statement has ‘any’ applicability. That’s aside from the fact he’s talking in ideals, not law.

      • wfjackson3 - Jul 26, 2013 at 12:29 PM

        That makes sense. Good clarification. However, age is at best sometimes indicative of performance problems. It is almost never a useful predictor of performance. The same goes for those other demographics. Hence, I think it’s a stance that serves no real purpose except to muddy the waters.

      • tariencole - Jul 26, 2013 at 7:15 PM

        I wasn’t saying I agree. Though there are professions where age might indicate mobility issues which could be seen as ‘discriminatory’ in today’s climate. But it’s a discussion worth having, even if I don’t agree with the way Rand discusses it there. As opposed to say the way he discusses Drone Strikes, which I agree w/ entirely. ;P

    • phredicles - Jul 25, 2013 at 9:16 PM

      Senator Rand Paul’s mouth f@rts don’t carry any force of law.

  4. talgrath - Jul 25, 2013 at 5:14 PM

    The hole just keeps getting deeper and Chivas just keeps digging. Please MLS, fix this before it gets any worse.

  5. adiaz9201 - Jul 26, 2013 at 9:10 AM

    Rebrand this franchise, if you put the name in front that starts with LA they would do much better in attendance, it would feel much better as a rivalry between the Galaxy. This Chivas name is stupid and offensive to MLS the franchise doesnt even feel american, feels more like a minor league to Chivas Mexico. New ownership please!!

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