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VAUGHN v. AMERICAN BASKETBALL ASSN.

September 28, 1976

David VAUGHN, Jr., Plaintiff,
v.
AMERICAN BASKETBALL ASSOCIATION and New Virginia Squires, Defendants, and New York Nets et al., Additional Defendants



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 David Vaughn, Jr., a professional basketball player sues his former employer, the New Virginia Squires Basketball Club, and the American Basketball Association (ABA) and other member clubs of the ABA, for breach of an employment contract and for injury to reputation. Damages are claimed for amounts due prior to the Squires' termination of the contract, as well as amounts claimed under the contract subsequent to the termination, and for additional damages resulting from injury to Vaughn's reputation as a basketball player. Jurisdiction arises under 28 U.S.C. § 1332, and venue in this district appears proper under 28 U.S.C. § 1391. *fn1"

 The defendant Virginia Squires, joined by the ABA (of which it is a member) has moved for a transfer of this case to the Eastern District of Virginia under 28 U.S.C. § 1404(a).

 On August 12, 1974, plaintiff signed a six-year, $ 1.2 million contract with the Virginia Squires. The contract specifies that the "governing law" shall be that of Virginia. Pursuant to negotiations by his agent in New York plaintiff also received a letter from the Commission of the ABA purporting to bind the ABA and its member clubs to an "unconditional guarantee" of the Squires' contractual obligations upon notice of default. *fn2"

 In July, 1975 plaintiff was arrested in the Eastern District of Virginia and charged with indecent behavior. The following day he was arrested for failing to pay for some gasoline, after a police chase in which Vaughn's car injured an occupant of a third automobile. At the end of this chase plaintiff was wounded by police gunfire. These incidents were reported with considerable zeal in the Virginia newspapers. *fn3" Criminal proceedings ensued which culminated in plaintiff's conviction on what have been described by Virginia's Attorney General's Office as "technical" automobile offenses including damage to city property, reckless driving, disregard of a red light, and assault. *fn4"

 Although plaintiff was admitted to training camp in September, 1975, *fn5" Virginia Squires' general partner, by letter dated February 16, 1976, *fn6" notified Vaughn that his contract was terminated due to his violation of para. 3(d), which provides that the player shall:

 
"(d) Always be fully and neatly attired in public and at all times (on and off the basketball court) conduct himself in accordance with the highest standards of morality, honesty, fair play and sportsmanship and will not do anything which shall be detrimental or prejudicial to the CLUB, the ASSOCIATION or of professional sports or which shall subject any thereof to ridicule or contempt."

 The major issue to be decided, therefore, is whether plaintiff's behavior in July, 1975, amounted to a breach of the above paragraph sufficient to justify the club in terminating his employment. Bearing this in mind, we turn to the criteria we must apply in ruling on a discretionary motion for transfer under § 1404(a).

 This section permits the presumption in favor of plaintiff's choice of forum to be overcome, even though venue is proper in the initial district, where the convenience of the witnesses and parties and the interests of justice suggest that another forum would be more appropriate for resolution of the case, as long as the transferee forum is one in which original venue would also have been proper. 28 U.S.C. § 1404(a). This cause could originally have been brought in Virginia. *fn7" A consideration of the further statutory criteria indicate that Virginia would indeed be a more appropriate forum for the trial of this action, and that the balance of convenience markedly outweighs plaintiff's initial choice.

 The convenience of the witnesses tips the scale decisively towards Virginia as a more appropriate forum. Working from the opposing affidavits on this motion, the situation of the potential witnesses is as follows: Three eyewitnesses to events at the gasoline station, to be called by the defendants, reside in Virginia and are not subject to subpoena in New York. The victim of the automobile accident is similarly a Virginia resident, as are the three police officers involved in the chase and arrest. Plaintiff's argument that their testimony is irrelevant since the factual incidents "merged" in the convictions is unpersuasive; the language of para. 3(d) of the contract -- which governs the dispute -- seems to set a standard of behavior and attire for the player unrelated either to actual convictions or criminal liability, and we have been cited to no Virginia case construing similar contractual provisions differently. *fn8" Thus, the testimony of these witnesses seems "key" on the issue of whether plaintiff's behavior was "in accordance with the highest standards of morality, honesty . . ." or was "detrimental or prejudicial to the Club . . . ." There is no allegation that any of these witnesses would even be willing to come to New York for trial. Although it is the nature of the witness' testimony rather than their numbers which is important, Keller-Dorian Colorfilm Corp. v. Eastman Kodak, Co., 88 F. Supp. 863, 866 (S.D.N.Y. 1949); Goodman v. Southern Ry. Co., 99 F. Supp. 852, 854 (S.D.N.Y. 1951); Schneider v. Sears, 265 F. Supp. 257, 263 (S.D.N.Y. 1967), the testimony of at least some of these seven witnesses in person seems essential to a determination of the issue presented. *fn9"

 In addition to these seven eyewitnesses, defendant indicates that the Attorney General of Virginia and the psychiatrist who examined Vaughn just after the July incidents may be called as witnesses. Plaintiff's counsel claims in his affidavit (without indicating the basis for his belief) that the psychiatrist would come to New York, as would three of the four named teammates or coaches of plaintiff whom defendant wishes to call. At least two of the three willing to come to New York reside in Virginia at this time. Even those witnesses willing to come to New York for trial can be more accessible in the event of unforeseen delays or postponements if the trial is had in Virginia, and will be inconvenienced less.

 A fair summary shows that of witnesses whose testimony seems relevant and desirable, only one of plaintiff's proposed witnesses resides in New York, whereas at least ten of defendant's witnesses live in Virginia and none of them are in New York. Especially in light of the Virginia location of certain key eyewitnesses, the balance of convenience of the witnesses (as well as the costs of obtaining their testimony and the availability of compulsory process) favors Virginia as a forum. Cf. A. C. Samford, Inc. v. United States, 226 F. Supp. 72 (M.D.Ga. 1963).

 Plaintiff argues nonetheless that an evaluation of the "convenience of the parties" would favor the Southern ...


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