T.J. Simers discrimination trial: At last, the “ethical breach”!
October 26, 2015
T.J. Simers, a well-known former sports columnist for the Los Angeles Times, is suing the Times for age and disability discrimination and is seeking $18 million. We’re providing regular coverage and analysis of the jury trial, which is expected to last about another week. For the background on what the case is all about, go here. For the testimony of Mr. Simers’ psychiatrist, go here. For a roundup of all of the first three weeks’ trial testimony (pretty interesting), go here and here. For last week’s developments, go here.
Last week, I mentioned that I still didn’t really understand what “ethical breach” Mr. Simers had allegedly committed, and I threw out a request for help from someone (anyone?) with a media background.
Boy, did I ever get my wish.
Someone who has been following my blog posts on the trial called me this week and shared a lot of information. The individual asked to remain anonymous, and I’m going to respect that. I will say that this is someone who has a significant interest in the case. Opposing anonymous sources are welcome, too. :-)
The LA Times Ethics Guidelines
The Times Ethics Guidelines is posted on the internet, and it was obviously written by news people and not lawyers because you can understand it. (NOTE: I’m linking to the 2011 version because the 2015 current version was not published until after Mr. Simers was long gone.)
Generally, newsroom people are not allowed to endorse political candidates and have to make disclosures whenever they are covering someone they have an “interest” in. For example, if I were assigned to cover a scandal that involved my mother, I would be expected to disclose to my editors that my mother was involved so that they could decide whether that would affect my ability to tell it like it is. (Not that my mom would ever be involved in a scandal.)
Too cozy with Mattel?
Mr. Simers is known as an active supporter of the Mattel Children’s Hospital at UCLA. Nothing wrong with that, but his advocacy reportedly caused some hard feelings among other worthy hospitals in LA, and there have been instances in which Mr. Simers allegedly provided positive news coverage of athletes and even entire sports in exchange for donations to the hospital.
For example, Mr. Simers wasn’t into stock car racing. But in 2006, he wrote a light-hearted column in which he agreed to “consider” the sport if the California Speedway donated $500 to the Mattel Children’s Hospital. He agreed to “like” stock car racing if the Speedway donated $1,000. I’m not saying “alleged” because it’s all in this column.
(According to the column, the offer was made to Mr. Simers by the president of the California Speedway, not vice versa.)
Now, if I were Mr. Simers, I’d say, “Yeah, but this was nine years ago, and seven years before I was demoted, and the Times could have refused to run my column. Since they let the column run, couldn’t that lead me to reasonably believe that this was not an ethical violation?” Fair point. Let’s move on.
The Michael Tollin connection
Mr. Tollin is one of the founding partners of Mandalay Sports Entertainment, the company that produced Mr. Simers’ video starring Mr. Simers, his daughter, and former LA Laker Dwight Howard. (More on the video below.)
According to my source, Mr. Simers had a longstanding relationship with Mr. Tollin and was pitching his own sitcom script to Mandalay through Mr. Tollin. Mr. Simers allegedly did not disclose this relationship to the Times.
(Law360 has reported that Mr. Simers allegedly told the Times there was “no script,” even though the HR Director found it in his email account. Mr. Tollin agreed with Mr. Simers in testimony on Wednesday of this week, and said that Mr. Simers did not lie to Times management. According to Mr. Tollin’s testimony, “All we had was some general conversations and a loose treatment that was nowhere close to being presentable. I don’t think it was marketable or sellable, and I think it would have required a lot of, in the industry we say, heavy lifting.” Reading between the lines, this sounds to me like there was a script, or at least an outline – just not a very good one. So I’m going to proceed as if Mr. Simers was actively trying to sell a sitcom “concept” to Mr. Tollin. If so, then that should still trigger his ethical and conflict-of-interest disclosure obligations.)
In 2012, Mr. Simers did a column on Norwegian Olympic gold-medal skater Johann Olav Koss, who had been the subject of a well-received ESPN documentary entitled “Right To Play.” According to Mr. Simers, a “friend asks me to do him a favor and meet the skater,” and “I could not afford to blow him off.” The column about the skater and the documentary was very warm and fuzzy.
My source told me that the unnamed “friend” whom Mr. Simers “could not afford to blow off” was Mr. Tollin, who also happened to be an executive producer of “Right To Play.”
Not that Mr. Koss’s story is not inspiring — it is — but if Mr. Simers was pitching his own sitcom “concept” to Mr. Tollin while covering a documentary that Mr. Tollin had asked him to cover and for which Mr. Tollin was executive producer, resulting in a very warm and fuzzy column from the normally “acerbic” Mr. Simers — then that’s not cool unless Mr. Simers had disclosed beforehand that his unnamed “friend” was Mr. Tollin and the significance of that. And his relationship with Mr. Tollin probably should have been disclosed in the column, too, for the benefit of his readers.
Which brings us back to . . .
Remember this? “Howard vs. Housewife”? Here it is again, so you don’t have to go back through my old posts:
According to Law360‘s reports of the trial, Mr. Simers testified that he told his sports editor at the time that he was going to do this video with Mr. Howard and that his editor thought it was fine.
But the editor reportedly testified at trial that he did not know the video was being produced by Mandalay Sports Entertainment, of which Michael Tollin, the guy to whom Mr. Simers was selling his sitcom concept, was a founding partner.
In an article about the “viral” video, Mr. Tollin was quoted as saying that the video created “buzz” for the proposed sitcom and for Mandalay.
My source explained that it was fine, and even expected, for Times columnists and reporters to pitch and sell scripts for TV shows and movies, as well as try to get book deals. After all, they are writers. But what isn’t fine is to cover — as a reporter or columnist — the person (or entity) to whom you’re trying to sell your projects. Because if you do, you may not be objective — you may be unduly “warm and fuzzy,” or you might even agree to “advertise” for him.
This is why you need to provide full disclosure to your editors beforehand. That, the source said, is where Mr. Simers went wrong.
And, testimony from the Times has been that after publication of the video and Mr. Simers’ column about it, he not only “failed to disclose” but actually lied, by denying that he’d had dealings with Mr. Tollin or that he was selling a script, even though the HR Director had already found both in his email account.
(In light of Mr. Tollin’s testimony this week that there was indeed no “script,” I wonder if the Times kept a copy. In any event, as far as Mr. Simers’ ethical obligations to the Times, I’m not sure it makes much difference whether it was a finished script, a first draft of a script, and outline of a script, or just a “concept.” The point is, he’s trying to sell something to Mr. Tollin while also covering Mr. Tollin or Mr. Tollin’s projects.)
One last thing – you know that bet that Dwight Howard lost by shooting free throws with his left hand? Guess who Mr. Howard had to pay? Mattel Children’s Hospital at UCLA.
And now, for your entertainment . . . Shattered Glass.
If you’ve made it this far, then bless you! And we have one other tidbit about the trial that may be neither here nor there but sure is bizarre. I got this information from the source, and also saw it in a web posting that came out right after my blog post last Friday.
It turns out that Stephen Glass, who was fired from The New Republic in 2003 for making stuff up, is working for the law firm that represents Mr. Simers and has been attending the trial. I believe Mr. Glass is the fourth person from the left in this photo on the firm’s website. Here is Mr. Glass’s web page.
They made a very good movie about Mr. Glass and his fabrications in 2003. You may recall that he enrolled in law school after he left TNR, got his degree, and then couldn’t get admitted to the practice of law because of what happened at TNR. (He withdrew his application in New York after it appeared that he would be rejected, and then applied in California. After Mr. Glass won a few victories in California, followed by appeals by the State Bar, the state Supreme Court finally rejected his application for admission once and for all, finding that there was insufficient evidence that he had really changed his ways.)
He is now director of special projects for Carpenter, Zuckerman, Rowley of Beverly Hills, the personal injury firm that represents Mr. Simers. His primary duty is prepping clients to testify in court.
*You can’t make this stuff up. I say this so often, I’ve decided it deserves an acronym.
My deepest appreciation to the person who called me this week. And, as always, thanks again to Daniel Siegal of Law360 for the continuing trial coverage.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.