Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Donald Rosenberg’s lawsuit against the Cleveland Orchestra goes to trial, but stupidity is not an actionable offense.
Back in 2008 I wrote about Donald Rosenberg’s lawsuit against the Plain Dealer, the Cleveland Orchestra, its conductor Franz Welser-Möst, and members of both organizations. Rosenberg alleges that the defendants engaged in a conspiracy to remove him as the Plain Dealer’s music critic. As the Plain Dealer reports, the trial of Rosenberg’s claims began this week. Apparently, Rosenberg has amended his complaint since he originally filed the lawsuit to add an age discrimination claim:
Rosenberg’s complaint against the newspaper is that his reassignment was an act of age discrimination and that the paper retaliated against him for filing the lawsuit by preventing him from even mentioning the orchestra in the course of his reporting.
My guess is that the age discrimination claim against the newspaper was added because there was no breach of contract that resulted from the newspaper’s reassignment of Rosenberg to a different beat. He might not have liked it, and, indeed, the move might have been monumentally stupid, but there is no legal right to recover damages for being treated stupidly. I really don’t see the connection, though, between the age discrimination claim and what Rosenberg alleges the newspaper did wrong in caving to pressure from the Cleveland Orchestra, which did not like Rosenberg’s scathing reviews of the orchestra under Welser-Möst’s direction. If they reassigned him because of the complaints, how does that constitute a reassignment based on Rosenberg’s age (57)?
As to the claims against Welser-Möst, the Cleveland Orchestra, and other Orchestra employees, I will assume that Rosenberg’s lawyer is telling the truth when he explained to the jury in his opening statement that the Orchestra “had waged a campaign to get Rosenberg removed from the orchestra beat, that the Plain Dealer “caved into that pressure,” and that the “case about powerful and influential people in the community trying to manipulate the news.”
Which confirms that — in the words of Baltimore Sun classical music critic Tim Smith, as reported in the Cleveland Scene — the Plain Dealer and the Cleveland Orchestra look “ridiculous” in their ham-handed efforts to influence the public’s opinion of the Orchestra:
“It looks ridiculous,” [Smith] says of the fracas. “You wouldn’t dream of doing this to your political commentator because he attacks the mayor week in and week out, or your local sports team. Who hasn’t been in a town with a sports columnist who is constantly knocking the hell out of the coach of the football team? And who then would take him off that beat?”
As Smith wrote in 2008, both the Plain Dealer and the Orchestra have had their credibility irrevocably damaged:
In the end, it may not matter too much who led the charge, who exerted influence, who gave in to pressure or doubt. The damage has been done. Zach Lewis, who has been told he will now cover the Cleveland Orchestra for the paper, is a good guy and good writer placed in an impossible situation. If he says positive things about Welser-Most, some people will think he’s just doing that to keep his job. If he says negative things, some people will think he’s under Don’s influence and will have to be replaced, too. As I said before, the Cleveland Orchestra and the Plain Dealer are worse off, not better off, as a result of this controversy. Music and journalism have taken a painful hit.
But if you could sue someone for doing something monumentally stupid that damaged their credibility and that you didn’t like, Northeast Ohio would have filed a class action lawsuit last week against LeBron James. As I stated above, I don’t see what legal duty the Plain Dealer violated in reassigning Rosenberg. And as long as what the Orchestra’s employees said about Rosenberg was truthful or a matter of opinion, there is no legal claim against them either. As the Orchestra’s lawyer put it to the jury:
“Don Rosenberg had a mighty bully pulpit to print whatever he thought of Franz Welser-Most and [the defendants] were only using the pulpit available to them” by contacting newspaper editors to complain about Rosenberg’s coverage of the orchestra.
Finally, even if Rosenberg can establish that employees of the Orchestra lied about him, he needs to prove that he has suffered damages — that is, he must establish that he has suffered some loss that can be compensated with money. He hasn’t lost any income as a result of his reassignment by the Plain Dealer. And, indeed, his prominence as a music critic — should he wish to engage in music criticism in places other than the Plain Dealer — only seems to have been increased.
July 16th, 2010 at 8:05 am
If Lebron James conspired with two other players to engineer their free agency so that all three could join a team at the same time and if this had the intended or negligent result that the Cavaliers were damaged in their ability to timely recruit other top players and if this constituted a deliberate manipulation of the NBA’s purpose to promote competitiveness between its teams and especially if, in the process and because he had more than average power to control the games, LeBron had the incentive to lose a playoff game he could have won, a law suit is not far behind!
As for Rosenberg, he was plainly demoted without any proof or even allegation that he had not acted professionally or that his reviews were based on anything other than his solid experience as a top five orchestra critic and his critical reviews were frequently verified by other prominent critics. Losing such a world famous position connected to a world famous orchestra clearly damaged his reputation and maintaining his salary was crucial if the Plain Dealer wanted to manage its culpability. IF it is proven that Rosenberg had some unprofessional agenda which he carried out in his reviews, that will be a much different case than we are seeing so far.
You seem to be saying that if the paper demoted Terry Pluto to the religion pages and forbade him ever to speak about sports he would not be damaged either.
July 16th, 2010 at 8:37 am
Interestingly enough, years ago the PD did fire Pluto and no small part of it was because he wouldn’t toe the company line on Art Modell. And unless there’s something in Pluto’s contract that prevents the Plain Dealer from “demoting” him to the religion pages (where, incidentally, he regularly writes), I would say, yes, there’s no damage that I can perceive. He can quit and go write on sports at another newspaper. Rosenberg can quit and go write on music at another newspaper. There’s nothing that obigates the PD to employ him as a music critic.
Moreover, I can’t see that his reputation has suffered were he to go to write on music at another newspaper.
I’m not saying what the PD did doesn’t stink to high heaven, and I’m not saying the PD hasn’t sacrificed whatever little integrity it has with respect to reporting on “establishment” Cleveland, but I don’t see how the Plain Dealer has breached any legal duty it owned to Rosenberg. It wasn’t obligated to keep him as a music critic.
Nor can I see how it is that Rosenberg has been damaged in any way that permits legal recovery. If you’re reassigned at work, you have no breach of contract claim unless that reassignment violates your contract. That doesn’t mean you haven’t been damaged by the reassignment. It does mean you can’t sue to recover money for that damage.
July 16th, 2010 at 8:41 am
As to the scenario you described with respect to LeBron James — yes, there’d be a breach of contract there, but it would be a lawsuit by the Cleveland Cavaliers because he violated terms of his contract with them. There likely too would be a violation of the collective bargaining agreement between the players’ union and the league. So the team and the league would have legal grounds for recovery. The fans would not, however — they don’t collectively or individually have a contract with James, and there’s no legal basis otherwise for that lawsuit.
My point is that the PD was not contractually forbidden from reassigning Rosenberg.
July 16th, 2010 at 9:39 am
When you say Rosenberg can get a good job at another paper, I do think you overlook the international prestige of being the Cleveland Orchestra’s resident music reviewer with all of the travel and respect it brings. I doubt Rosenberg would ever have been a prominent reviewer for Gramophone Magazine if not for the Orchestra post.
Whether Rosenberg actually wins at this point is almost immaterial. While supporting the legal position of the defendants, even you are comfortable calling them profoundly stupid and the depositions are a goldmine of foolish behavior. Rosenberg already wrote one good book about the Cleveland Orchestra and it was an unvarnished and necessary history. His “damage award” may well come from the story he writes about this debacle.
July 16th, 2010 at 10:57 am
You’re right. His damage “award” should come from means other than the legal process. Again, I’m not suggesting I think what the PD and the Orchestra did was right. All I’m saying is that I don’t see a legitimate basis for legal remedy for what they did.
I tend not to buy into the criticism that we’re an overly litigious society, but it is true that people are too ready to think every wrong is a legal wrong. I just don’t see how reassigning Rosenberg is a breach of contract, I don’t see any connection between the motives he alleges (gratifying the Orchestra) and his age discrimination claim, and, as long as they didn’t lie about him, I don’t see any legal wrong on the part of the Orchestra complaining that Rosenberg was doing a poor job. I wish the Plain Dealer would reassign Kevin O’Brien, and I can’t see why my saying so would give him a right to sue me if the PD did so.
July 16th, 2010 at 8:31 pm
This is about more than Rosenberg being reassigned. It’s about collusion and conspiracy between the managements of the Cleveland Orchestra and the Plain Dealer. The newspaper has exhibited their lack of independence, critical for any field where critiques and commentary are expected to be void of conflicts of interest.
July 16th, 2010 at 9:17 pm
Where in Rosenberg’s contract does it say that the PD cannot listen to and even act on the desires of the Orchestra?
Sorry, but there’s no contractual or legal standard that the PD violated even if it did act at the Orchestra’s behest. As I’ve said again and again in connection with this matter, the PD’s actions may undermine the credibility of its coverage, but that doesn’t give Rosenberg any legal right to recover damages (even if he had suffered damages).
If, on the other hand, his contract stated that he had to be employed as a music critic who reviews the Orchestra and could only be removed from that job for cause, the PD would have to prove it had some reasonable performance-based reason for removing him. BUT THERE’S NO SUCH REQUIREMENT IN HIS CONTRACT! And all the screaming in the world that you don’t want publications to act that way doesn’t mean they have to. It certainly doesn’t mean that they’ve breached a contract or acted unlawfully when they transfer a journalist from one beat to another.
And if you don’t agree, could you point me to any law that prevents the PD from acting at the behest of the Orchestra? You can call that “conspiracy” or “collusion,” but the label you attach to it doesn’t by itself give Rosenberg a right to a legal remedy.
July 17th, 2010 at 10:05 am
Even if it is lawful for a business to conspire with a newspaper to suppress the reporting of facts and criticisms of the business by firing the reporter, it certainly deserves to see the light of day when it happens.
“Reassigning” in this case is just a polite word for “constructive dismissal” considering the huge difference between the lofty prestige of being the Cleveland Orchestra official critic compared to beat reporting on the local fine arts scene.
If instead of bringing an action, Rosenberg had chosen to expose the behavior revealed by the depositions by giving speeches or writing for an alternative publication or a blog, he would almost certainly have been fired for that. Furthermore, he would not have had the “discovery” the case has produced to help him. It would be dismissed as “sour grapes” and you can be sure people would say “put your money where your mouth is–sue the paper.”
If the case rests on such feeble legal grounds, it should have been dismissed as frivolous long ago.
July 17th, 2010 at 11:55 am
What’s “constructive dismissal”? If I’m reassigned by my employer in ways my contract permits but I don’t like, I can’t recover damages from from that employer.
And how do you know whether Rosenberg would have been fired if he’d done what you suggest he might have? If he had done those things and firing or reassigning him as a result were a breach of his contract, he could sued and recovered damages. If firing him or reassigning him weren’t a breach, though, he couldn’t.
I think the case probably should have been dismissed long ago, but often courts would rather see how discovery and trial goes if they are at all concerned that there might have been a legal wrong. And, as I’ve written, if Orchestra employees defamed Rosenberg (that is, lied about him) and the reassignment resulted from that defamation, the Orchestra might well be liable. (I still don’t see why the PD would be.)
But just because you and Rosenberg hate that the PD might have done something to gratify the Orchestra doesn’t mean they did anything that gives Rosenberg a right to damages.
Suppose your employer reassigned you because something you were doing was pissing off someone important to your employer. And suppose that reassignment were not a breach of your contract. Do you think you could sue?
Why is the PD any different?
Do you suppose Fox News is liable to an employee they reassigned at the behest of the Bush White House if that reassignment weren’t a breach of that employee’s contract?
We’ll see, I suppose, what happens as a result of the trial.
July 17th, 2010 at 1:53 pm
It is not claimed in this case, but “constructive dismissal” can be actionable when a person’s level of responsibility has been seriously reduced, or the duties required of the plaintiff have been made substantially different from those for which the plaintiff had contracted and/or the employer is responsible for objective conduct which constitutes a fundamental change in employment.
Each of those situations applies to Rosenberg even if his contract did not specify the Orchestra position.
It may be the case can not be won as claimed (and the more extensive claims were modified to keep it out of Federal court) but there can be little doubt that a parallel goal was also to get at the facts, under oath, of how it all came about. It is hard to imagine any way to do that other than to file the case.
July 17th, 2010 at 2:39 pm
You’re right — all the contractual claims were dropped. So it appears that there was no breach of contract resulting from his dismissal. And while his lawyer claimed they were dropped to keep the case out of federal court, that explanation is simply unbelievable. Contract claims (and defamation claims) are state law claims and would not be a basis for the case ending up in federal court. The claim that remains — age discrimination — can be brought under federal law. I would guess his lawyer put one over on the reporter who bought the explanation for dropping those claims because the lawyer didn’t want to admit that the reason they were dropped is that there’s no evidence to support them.
And how could Rosenberg’s re-assignment be age discrimination if it was at the behest of the Orchestra because of the Orchestra’s dislike of Rosenberg’s reviews?
I didn’t suggest that Rosenberg should be sanctioned for filing a frivolous lawsuit. I’m saying that unless the Orchestra lied about him I don’t see any legal basis for him to win.
But, as I said also, we shall see . . .
July 28th, 2010 at 9:09 am
[...] governing body of the Cleveland Orchestra. I expressed a lot of my views on what I perceive to be the weaknesses of Rosenberg’s case a couple of weeks ago. What I have read so far has not changed my [...]
August 6th, 2010 at 8:29 am
Late comment. No one will see it. Who cares?
Someone said the PD acted “at the orchestra’s behest.” I believe it and that’s what prompts my comment. This is the “crime”, if only metaphorically so. It’s a crime against art and a crime against the orchestra as an artistic institution, which should be relying on it’s skills in the concert hall to sustain its reputation and not backroom strongarm tactics by an administrative goon squad and hack lawyers.
W-M didn’t deliver in the concert hall; Rosenberg reported it: Simple as that. If the depositions that were drawn are public records and if they eventually get published maybe the facial egg can be spread more broadly.
August 6th, 2010 at 9:28 am
Well, a metaphorical crime does not give Rosenberg a legal right to recovery.
And let’s suppose the Orchestra had legitimate gripes with Rosenberg’s criticism — are they forbidden from expressing those gripes?
You can think what you will about the PD’s integrity. You’re naive if you think media outlets don’t and won’t and shouldn’t listen to the subjects they cover. Readers can judge those outlets as they will.
But from my point of view with respect to Rosenberg’s legal claims, none of those points of view gives him a right to damages.
August 6th, 2010 at 9:54 am
I wasn’t arguing Rosenberg’s right to damages and didn’t say that. I assumed classifying the crime as a “metaphorical” one would be read as a concession that it wasn’t actionable. My point was precisely that this is not the “point” From my perspective even the PD’s deplorable response is not the point. The focus should be, rather, on the orchestra’s maneuverings. If Rosenberg chose the court action as a vehicle for bringing this to light so be it. Publicize, publicize!
One added point: Certainly the orchestra would have the right to express “gripes”. But I thought I caught a whiff the other day — in a report of a deposition — of more of a game plan to get Mr. Rosenberg. Well I suppose they have a right to do that too, but it stinks. They hire their second choice (Salonen was their first), act like he’s the second coming, and then then give him basically a lifetime contract. So Rosenberg calls them out. And that was strike three — on ROSENBERG??
August 6th, 2010 at 10:03 am
Lee — I think we largely agree, though I’m not sure I’m too keen on lawsuits by individuals to publicize matters. Isn’t that what journalists at other places ought to be doing? And I don’t know if it’s strike three on Rosenberg. He’s still got a job, he’s still writing, and, honestly, it seems his reputation as a music critic has skyrocketed. True, he can’t be the PD’s music critic anymore, but he had no enforceable right to that position.
August 6th, 2010 at 11:17 am
Mr. Friedman — First, I appreciate the good faith exchange. I imagined I was just venting on a dead thread.
My own thought on the court as a forum for this issue is that it might force disclosures — in the form of whatever depositions might be mandated — that even a good reporter might not be able to flush out. But I have no legal background and I think I picked up even this idea from another forum on the subject.
Also, I have no idea if this is really Rosenberg’s motivation. I believe he is primarily concerned with the attack on his professionalism. He genuinely felt that Welser Most was not performing up to the standards of the job (and, importantly, explained why at some length in a special PD article) and he was not carrying out some personal vendetta. This is quite plausible to me because I feel the same way.
Purely as an aside, Welser-Most certainly has great talent, but I suspect that he simply has no deep INTEREST in the strictly orchestral literature. At least he doesn’t show the same involvement in the performance of it that he does in the choral and operatic repertoire. And if that is so, it represents a very bad fit with the leadership position of an elite orchestra.
In any event, if Rosenberg is seeking only 50K, as I have heard, he is certainly not in it for the money. Surely he will be left in the hole in legal fees even if he wins his case.
February 10th, 2012 at 5:20 pm
Found your web blog through Google. You already know I am subscribing to your feed.