A Massachusetts judge has rejected Aerosmith drummer and founding member Joey Kramer’s request to order the band to let him play at an awards gala in Los Angeles and Sunday’s Grammy Awards show.
Kramer had requested an injunction requiring the band, which formed in Boston in 1970, to allow him to play the two gigs. Plymouth Superior Court Judge Mark Gildea, in a decision Wednesday, said that Kramer had not played with Aerosmith in six months and added that there was a lack of available rehearsal time before the performances.
Kramer failed to show that his fellow bandmate’s conduct “breaches the covenant of good faith and fair dealing” implied in a band agreement that allows for a member who is “temporarily incapacitated” to be replaced, according to the decision.
"Kramer has not shown a realistic alternative course of action sufficient to protect the band’s business interests,’’ Gildea said in the decision.
Kramer, in a Wednesday statement, said he was disappointed by the judge’s ruling.
“I can hold my head high knowing that I did the right thing — to fight for my right to celebrate the band’s success that I have dedicated the better part of my life to helping build,” he said.
An attorney for the band declined to comment on the judge’s ruling.
Kramer on Friday filed an explosive lawsuit in Plymouth Superior Court alleging that his bandmates are freezing him out of their 50th anniversary activities, including a highly anticipated set at the Grammy Awards.
The suit named five Aerosmith corporations as defendants and alleged that Kramer’s fellow rockers have forced him to audition to get his slot back in violation of their contractual agreements.
The 16-page civil complaint said Kramer suffered “minor injuries” last spring that kept him offstage during the band’s “long and lucrative” Las Vegas residency. When Kramer, of Magnolia, Texas, decided he wanted to rejoin the band for the fall leg of the residency, the group subjected him to an indignity, according to the filing.
They initially wanted him to record solo sessions demonstrating he could play at an appropriate level, and after he banged those out, they said through their lawyer that he had to show he could play as well as his replacement and in a “technically correct” manner, the complaint said.
Then came the crescendo.
“On January 15, 2020, and for the first time in the band’s 50-year course of conduct, the Other Members voted to prohibit Mr. Kramer from joining the band for the once-in-a-lifetime events of MusiCares [pre-Grammy event] and the 2020 Grammy Awards," as well as another upcoming residency, the suit said. “This was ... the first time in a nearly 50-year course of dealing that a member of the band was subject to a vote as to his right to returning to play with Aerosmith."
The band fired back Tuesday in a statement to TMZ.
“We would be doing a disservice to Joey, to ourselves and to our fans to have him play without adequate time to prepare and rehearse," Aerosmith told the gossip site. "Compounding this, he chose to file a lawsuit on the Friday night of the holiday weekend preceding the Grammys with total disregard for what is our limited window to prepare to perform these important events.”
The statement continued, according to TMZ, “Given his decisions he is unfortunately unable to perform but of course we have invited him to be with us for both the Grammys and our MusiCares honor. We are bonded together by much more than our time on stage.”
They’re also bonded by contracts laying out grounds for termination, as well as the process by which a band member can get back in the saddle after a temporary absence, and what’s transpired is a breach of those agreements, according to Kramer’s suit.
“There are no provisions in the Contracts requiring a Member to take any action to ‘prove’ or otherwise demonstrate his ability to perform” after a period of temporary disability ends, the complaint said. " ... For the past 50 years, and for the 30 years since the Contracts were signed, each time a member suffered a temporary injury or illness, or underwent treatment for addiction and substance abuse, the Defendants allowed the Member to return to playing and performing ... without having to audition or demonstrate any level of fitness for the job, and without a vote of any kind."
On Wednesday, the band’s corporations filed a blistering nine-page response in court, asserting that Kramer has been absent from the band for six months and would need weeks of rehearsal before drumming with his pals again on the big stage.
“Mr. Kramer claims he is ready to return to the stage and the rigors of being the drummer of Aerosmith, but the other members of the band know he is not,” the response filing said. “[In] truth, however, Mr. Kramer’s physical and mental capacity have admittedly diminished over the past several months.”
The judge’s decision on Wednesday said that Kramer was in a rehabilitation facility in November and December of last year but “left against the recommendation of his addiction counselor.”
The defendants maintained that Kramer in September 2019 said he was ready to record music in a private studio but then pulled out because he was " ‘not mentally ready,’ " and he indicated the following month that he still couldn’t record.
“Aerosmith will perform in front of millions of fans during the Grammy Events,” the band’s lawyers wrote. “If Mr. Kramer’s performance is deficient (as his bandmates of 50 years fear it will be in the circumstances) the financial and reputational harm to the band (including Mr. Kramer) could be significant."
The filing said Kramer could cancel at the last minute if the court ordered the band to let him play at the Grammys.
“When the Court weighs Mr. Kramer’s hurt feelings resulting from not being allowed to play at the Grammys against the significant reputational and financial harm to Aerosmith, it is clear the equities favor maintaining the status quo with John Douglas as the drummer," the defense filing said.
The band’s lawyers also took issue with Kramer’s assertion that he has the contractual language on his side, writing that the relevant agreement clearly states that the decision to allow a band member to rejoin the group after an absence “is the exclusive prerogative of the employer (the Corporation).”
Kramer was seeking an injunction ordering the band to let him perform at the Grammy-related events and participate in rehearsals, as well as such "other relief as the Court deems proper,” his complaint said.