With the Toronto Raptors beating the Milwaukee Bucks in the NBA Eastern Conference Finals, we were reminded of a case involving three former Bucks players including Hall-of-Famer Gary Payton.
The case provides insight into when an employer may be found vicariously liable for an employee’s off duty tortious conduct.
In Cimpean v Payton, the plaintiffs alleged that three Bucks players assaulted the plaintiffs outside of an adult entertainment lounge at 2:20 a.m. on April 11, 2003. The plaintiffs sued the three players, the Bucks, and the NBA. The plaintiffs claimed that the Bucks and the NBA were vicariously liable for the players’ alleged actions because clauses in the players’ contracts required the players to conduct themselves off the court according to the “highest standard of honesty, citizenship, and sportsmanship”. Additionally, the NBA constitution granted the NBA Commissioner the power to suspend or impose a fine on players who in the Commissioner’s opinion were “guilty of conduct that does not conform to the standards of morality or fair play.”
The Bucks and the NBA brought a motion to strike the plaintiffs’ statement of claim for failure to disclose a reasonable cause of action in accordance with Rule 21.01 of the Rules of Civil Procedure. The motions judge found that the allegations of vicarious liability of the Bucks and the NBA constituted a reasonable cause of action and the motion was dismissed.
The motions judge determined that by contracting for good behaviour off the court, the Bucks had made their players’ off-court conduct part of the team’s business concern. On this basis, the motions judge found that the Bucks could be found vicariously liable for their players’ off-court conduct.
As to the NBA’s vicarious liability, the motions judge noted that in the business of basketball the reputations of its players are closely related to the NBA’s bottom line. The motions judge found that the NBA’s ability to sanction a player either through a suspension or a fine meant that the NBA could exercise control over a player’s off-court conduct and that the NBA could be found vicariously liable for that conduct.
The Bucks and the NBA then sought leave to appeal the motions judge’s decision and leave was granted. The court found that there was a serious question as to whether the alleged conduct had the required connection to the business of the Bucks or the NBA. The court determined that the Divisional Court should hear their appeal of the dismissed motion.
It is not public how the action was ultimately resolved. The three players who had been criminally charged with assault were acquitted in 2007.
The takeaway from the case is if an employer makes an employee’s off-duty conduct part of its business, a court may find that employer liable for that employee’s off-duty conduct.