First Amendment

Breaking Down The Defamation Claim In Bernie Fine v. ESPN

The following article was written by Benjamin Haynes, Esq.

Nov 15, 2011; Syracuse, NY, USA; during the first half at the Carrier Dome.  Credit: Richard Mackson-US PRESSWIRE
Nov 15, 2011; Syracuse, NY, USA; during the first half at the Carrier Dome. Credit: Richard Mackson-US PRESSWIRE

Former Syracuse University Basketball Assistant Coach, Bernie Fine, was fired on November 27, 2011. This firing occurred in the midst of an allegation that Fine had sexually abused former Syracuse ball boys. Initially, on November 17, 2011, Bobby Davis and Michael Lang came forward and accused Bernie of sexually abusing them while they were teenagers. Further, Bobby had alleged that this abuse had been continuous. However, Bernie could not be prosecuted for Davis and Lang’s claims, due to the fact that these claims fell outside the statute of limitations.

Ten days after Bobby and Michael came forward with their allegations, twenty-three year old Zachary Tomaselli accused Bernie of molesting him as well, this molestation allegedly occurring in 2002. Tomaselli’s claim fell within the federal statute of limitations, and therefore a federal investigation ensued. Nearly a year later, federal authorities dropped their investigation based on a finding that there was not enough evidence to support a claim of molestation in the Tomaselli case. While Bernie was cleared of the charge of molesting Tomaselli, the Davis and Lang charges were never decided on their merits, but on a procedural rule of the federal court system (statute of limitations). Bernie’s reputation is undoubtedly tarnished forever and he is now seeking some redemption.

Bernie Fine is in the process of filing a lawsuit against ESPN for defamation. Bernie has indicated that he will be seeking “undefined damages”, according to Defamation has the following five elements, which must be proven in order for a plaintiff to succeed. They are: (1) publication; (2) falsity; (3) the actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory. See Restatement (Second) of Torts §§ 558B, 580A–580B.

Bernie is a public figure and therefore the standard for proving defamation is “actual malice”, which is a much more difficult standard to prove as compared to the negligence standard applied to a private person. The factors that Bernie will have a hard time establishing are factors two and three. That is, falsity of the statements by ESPN, and that ESPN acted with knowledge or reckless disregard as to the falsity on a matter concerning a public official.


The fact that the Tomaselli case was dropped, based on not having enough evidence against Bernie, is not sufficient to meet the burden of falsity required in a cause of action based on defamation. In fact, as stated above, the Davis and Lang allegations were not dropped because of a lack of evidence to establish their credibility, but these allegations were dropped because of a procedural issue based on the length of time between the alleged sexual abuse and the coming forth of the allegations. Therefore, there has been nothing established that states that these allegations, from Davis and Lang, are false at all. Bernie will have the burden of proving such claims are false.

Truth is an absolute defense to a defamation claim. In fact, the majority of courts hold that if the defendant proves that his statements were true, it does not matter if his purpose was to hurt the plaintiff, or even that he did not personally believe his statements to be true at the time he made them. However, since both the Davis and Lang claims were not pursued based on the statute of limitations, proving that Bernie did sexually abuse Davis and Lang will be very difficult. But the burden will not be on ESPN to prove truth. This burden is Bernie’s, and he will have to prove the falsity of the alleged defamation.

Actual Malice- Knowledge or Reckless Disregard.

While Davis and Lang were the people who alleged sexual abuse, ESPN reported the allegation and therefore ESPN’s activities would be labeled as a “republication” for purposes of a defamation lawsuit. Bernie would have to prove either that ESPN knew that the statements by Davis and Lang were false, or that ESPN recklessly disregarded the truth of the situation. Meaning, ESPN did not investigate into the actual substance of the statements by both Davis and Lang. Even if Bernie can somehow prove that ESPN was “out to get him”, it will not be enough to establish actual malice. “An intention to portray a public figure in a negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice necessary to establish defamation unless the publisher intended to inflict harm through knowing or reckless falsehood.” Don King Productions, Inc. v. Walt Disney Co., 40 So.3d 40, 35 Fla. L. Weekly D1447, 38 Media L. Rep. 2516 (Fla. 4th DCA 2010). This is generally the most difficult factor for public figure plaintiffs to prove in a defamation case, and it will be no different as applied to this case.

Further, 1st amendment rights come into play when dealing with defamation lawsuits. Here, Bernie is suing ESPN. ESPN is a sports news provider and is highly regarded in both the news and sports arenas. Courts have continuously given news stations a broad spectrum for reporting various events based on free press. “We recognize that the constitutional free press and free speech guarantees at stake in this area of law are absolute preconditions to a free society and deserve the most vigilant and wide-ranging protection.” See e.g., United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1937).

Therefore, Bernie will have a tough time winning on his defamation claim. Both the falsity and actual malice factors will be extremely difficult for Bernie to prove in a court of law. Those two factors, added with the broad rights given to free press, make this an extremely burdensome case for any plaintiff to win.

One reply on “Breaking Down The Defamation Claim In Bernie Fine v. ESPN”

Comments are closed.