Published on August 6th, 2010 | by Michael J Smith7
Can NASCAR Pressure News Companies To Fire Writers?
After writing my article, Frequently Asked Questions About NASCAR’s Fines, I was contacted regarding the question, “What’s next, fining the media?” and was told to look into a couple of cases where NASCAR allegedly got writers fired. I was pointed in the direction of two writers in particular.
One NASCAR.com (which is owned by Turner Sports and Entertainment Digital, not NASCAR itself) writer was covering a dust-up between a crew chief and a driver back in 2005. Seeking comment for a follow-up story, the reporter contacted the crew chief. The crew chief wasn’t pleased with the attention story was getting, and called it a lie. He also said he would contact NASCAR, presumably to complain about the story.
The reporter was later fired for violating the company’s email policy. Many contend, however, that issue with the crew chief was the reason for the firing.
The other writer worked for a media outlet that was purchased by an entity owned by International Speedway Corporation, a company founded by NASCAR founder Bill France Sr. The writer was vocal in his criticisms of the sport – this was also back in 2005 – and was let go for reasons that don’t appear to be publicized. Many contend, however, that he was fired due to his criticisms and the company’s NASCAR-affiliated ownership.
I can’t say with any certainty whether or not those firings were due to NASCAR pressure, no matter how much it appears like that is the case. But, let’s say, for the sake of this article, they were. Is it illegal?
Simply put, no, it’s not illegal. CBS News featured an AP article discussing what recourse private-sector employees have if they feel they’ve been wrongfully terminated. Charles Craver, of George Washington Law School, said, “Private-sector employees don’t have rights.” They can be terminated for any legal reason (assuming there is no employment contract expressing otherwise). Illegal reasons include whistleblowing and discrimination (race, age, sex, disability, etc.)
To win a wrongful termination suit for an illegal reason, the burden of proof is on the plaintiff, and you need hard evidence to prove that the firing was wrongful. In these two cases, there is nothing to indicate that the firings were illegal, which probably explains why no suits were filed.
In the case I used in my other article, Korb v. Raytheon, Korb’s firing did not violate public policy because he was not fired for speaking out on issues in which his employer had no interest, financial or otherwise. In his case, Korb spoke out against issues in which Raytheon had substantial interest; his comments came at Raytheon’s expense. And, in the case of these two writers, both of their employers have substantial interest in NASCAR.
Despite not doing anything particularly egregious, the reporter in the first case – assuming that the firing was due to the complaint – is unlikely to win a suit based on Korb. In Korb, two Navy officials, an official from the Senate Armed Services Committee, and Air Force officials complained, resulting in his termination. That’s not much different than a crew chief complaining to NASCAR officials, who then complain to the media company. So, it is unlikely that NASCAR’s pressure – if it existed — to fire the writer would change the outcome in a suit.
In the second case, when ISC purchased the media company, it could conceivably be assumed that the writers were no longer independent journalists. Under the new ownership, it can be assumed – without making a claim as to whether it is right or wrong – that they are now spokesmen for the sport, even if the ties to NASCAR were not direct.
From a business perspective, what sense would it make for an organization to buy a media company if the goal wasn’t to shape the product (the news) into what they wanted? At the very least, the media company would protect NASCAR’s interests. And, as far as I know, that’s not illegal.
Note: Without going into too much detail, the way media companies are owned and operated, it’s virtually impossible for any media outlet to be 100% free of any bias, as most that are independent still rely on advertising. Do you think an advertiser would continue to pay a company in which its employees (writers) continually badmouth its products and/or services?
If that’s the case – that the writers became spokesmen for the sport – then being critical of the sport is speaking against their employer’s interests. NASCAR has a financial stake in not letting that happen. And, with the media company now being owned by a NASCAR-affiliated entity (plus the changing focus of the company – from news organization to NASCAR-owned organization), it could be argued that the reporter is no longer effective at being a NASCAR spokesman, which means the employer has the right to fire the employee because there is no public policy preventing an ineffective, at-will employee from being discharged.
This doesn’t mean that the reporter in the second case is not entitled to his opinion; he certainly is. But, he can’t criticize NASCAR at NASCAR’s expense, much like the court ruled in Korb. And, by being an employee for a NASCAR-affiliated entity, his comments came at NASCAR’s expense.
I’m not indicating one way or another whether or not the termination of these two writers is right or wrong, or that NASCAR’s pressure had anything to do with the firings.
While I do think that journalists should have the right to express their opinions, I also realize that it is an employer’s right to punish its employees if they speak out against its interests. And, it isn’t illegal to do so.
If a journalist is employed by a company owned by NASCAR, it shouldn’t be surprising if they are reprimanded for being critical of the sport. If an employee is critical of their employer, they can and should expect repercussions. Companies are well within their rights to punish those who work for them and speak out against their interests.
I said in my earlier article, drivers are agents for the sport, journalists are not. But, there is a caveat: when journalists work for an organization that is directly affiliated with NASCAR, they are agents for the sport, and are probably going to be treated as such. Again, I’m not arguing whether this is right or wrong; it’s just the way it is.
The Huffinton Post features a slideshow of instances where employees were fired for criticizing their employers or customers via social media.