Did LeBron James illegally interfere with a contract to adapt a book about hockey players into a movie?
That depends in part on whether a “documentary” counts as a “motion picture” or “other audiovisual adaptation.”
From the vantage point of former NBPA executive director Billy Hunter, the answer is decidedly yes.
Hunter, who led the NBPA from 1996 to 2013 and served as a U.S. Attorney under President Jimmy Carter, sued James and 10 other defendants on Sept. 4 for tortious interference and other claims. The complaint, filed in a New York trial court by attorneys from Davidoff Hutcher & Citron, seeks at least $10 million in damages as well as repayment of fees, commissions and revenues.
Hunter v. James centers on Hunter’s right to option Black Ice: The Lost History of the Colored Hockey League of the Maritimes, 1895- 1925 into a movie.
Written by brothers George and Darril Fosty, Black Ice was first published in 2004. It details how the Colored Hockey League thrived “in an era where many believed blacks could not endure cold” and “possessed ankles too weak to effectively skate.” The book also asserts “white teams and hockey officials” partook in intellectual property theft. “Influenced by the black league,” they allegedly “copied elements of the black style or sought to take self-credit for black hockey innovations.”
Hunter was interested in Black Ice to further his “passion of pursuing social and racial justice.” He sought to produce a movie that would bring the book’s “heartening story to the masses and make it part of the cultural zeitgeist.”
As his complaint tells it, Hunter paid the authors $10,000 for a two-year exclusive period, from 2019 to 2021. The contract stated that if Hunter exercised the option for $250,000, he would gain the exclusive right to produce a motion picture or other audiovisual adaptation. Hunter paid an additional $5,000 to extend the period to 2022 and (he says) exercised the option within the allowable time. The authors, who are among the 11 defendants, allegedly “accepted” the $250,000 “without objection.”
But James, Drake, Maverick Carter and their business partners had other ideas for the book, at least as Hunter tells it.
They identified Black Ice as an intriguing project and pursued it. Hunter says he participated in a Zoom call in which he was offered an opportunity to sell his option. He says he rejected the overture “unequivocally,” expressed “that this was a passion project” and made clear he had “no interest in selling.”
Uninterrupted Canada, which James and Carter founded, and its partners nonetheless struck a deal with the Fosty brothers to produce a documentary film titled Black Ice. The film premiered on Sept. 10 at the Toronto International Film Festival, where it was pitched this way:
“This incisive, urgent documentary examines the role of Black players in Canadian hockey, from pre-NHL contributions to the game to the struggles against racism that continue to this day. Directed by Oscar nominee Hubert Davis (Hardwood) and executive produced by LeBron James, Drake, and Maverick Carter, Black Ice is a sobering survey of systemic marginalization within one of the world’s most beloved team sports.”
Hunter maintains the brothers willfully breached their contract and engaged in bad faith dealing. And “despite knowledge of [Hunter’s] agreement,” the complaint charges, James and partners “decided that they were going to produce the Accused Work regardless of Plaintiff’s rights.” Hunter says they “intentionally and improperly procured a breach of the Agreement by the Authors.”
In the weeks ahead, the defendants will answer Hunter’s complaint and seek its dismissal. Their options include asserting facts that conflict with those offered by Hunter, including those related to payments and deadlines. They could also argue that a documentary film is neither a “motion picture” nor an “audiovisual adaptation” as those terms are intended to be understood in the contract. Anticipating that very defense, Hunter’s complaint belittles it as “absurd” and indicative of “bad faith.”
Courts have reviewed varying definitions of documentary films and frequently described them as types of movies or motion pictures. Consider Psenicska v. Twentieth Century Fox Film Corp., where a driving school instructor sued over his appearance in Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. In exchange for $500, the instructor signed a contract to appear in what was billed as a “documentary about the integration of foreign people into the American way of life.” With the instructor as the passenger, Borat, played by actor Sacha Baron Cohen, drove “irresponsibly and erratically.” Borat/Cohen also “engaged in conversations with strangers” and uttered “derogatory and offensive remarks about sexual intercourse” and various minority groups.
The instructor sued, saying he was misled into believing his appearance would be in a documentary film, which, drawing from dictionary definitions, he termed a “factual record or report.” He was instead filmed in a comedic film in which he and other unwitting people weren’t in on the joke. A judge from the SDNY found the purported distinction unpersuasive, reasoning that Borat drew from encounters with real people—“albeit,” the judge acknowledged, from “a fictional character’s journey across America.”
Alternatively, James and the other defendants could stress that historical facts aren’t subject to legal protection and maintain Black Ice draws from history.
In Novak v. Warner Brothers, the U.S. Court of Appeals for the Ninth Circuit held against filmmakers who produced a documentary on the aftermath of a 1970 plane crash involving Marshall University’s football team. The documentary producers argued Warner Brothers’ We Are Marshall, a dramatic film starring Matthew McConaughey, constituted copyright infringement and breach of contract. The Ninth Circuit disagreed, finding that two films weren’t substantially similar—other than their use of the same historical facts, which aren’t “owned” by anyone. This defense is potentially applicable to Black Ice, though Hunter could note that courts have protected copying in the expression of ideas. He could insist a documentary film titled Black Ice and a movie-optioned book also titled Black Ice are far too similar.
The related legal doctrine of fair use, which entails permissible copying, could also emerge as a theme. Although Hunter’s case doesn’t contain copyright claims, the defendants could maintain they have a right to draw from subject matter covered by Hunter’s contract. They could insist its use in a documentary context is transformative—especially through incorporation of interviews and other content—and different than how it would appear in a dramatic film. In that same light, the defendants could note that Hunter purchased a movie option in 2019 despite the Fostys having already produced and directed what is described as a “short documentary” on the book more than a decade earlier.
James, Drake and Carter could also object to the allegation they induced the Fostys to breach their contract with Hunter. While they (allegedly) paid the pair through business partners, they could insist they aren’t responsible for the performance of a contract in which they aren’t parties.
The case could settle at any point, though if not, James and Hunter might eventually face off in court.