Defamation actions can be the most emotionally driven court cases, where one party charges another for communicating (either orally or through written means) a false statement of fact that results in reputational harm. These cases can also be some of the toughest for plaintiffs to prevail on after paying their filing fees, and at times extremely lucrative when the evidence plays in the plaintiffs’ favor. Here, we look at what could occur should a high profile sports battle be waged in a court of law, with the focus on an alleged defamatory statement.
Eric Smith says he was falsely identified as the Cleveland Browns fan who threw his beer on Tennessee Titans player Logan Ryan during the Browns home opener on September 8, and now he is filed a lawsuit seeking relief.
On October 14, Smith and wife Antinuch Naowarat filed a Complaint in the Court of Common Pleas of Cuyahoga County, Ohio seeking damages based on causes of action of negligence, defamation, negligent infliction of emotional distress, false light and loss of consortium. The Browns, First Energy Stadium and National Football League Security are included as defendants in the action.
In a decision handed down this past Wednesday, a California Court of Appeals ruled that Asfaw Teferi, a soccer executive for a team in the Ethiopian Sports Federation in North America (“ESFNA”), was not a public figure for the purposes of his defamation lawsuit. This opinion could have implications for other sports executives in non-major leagues moving forward.
Teferi has been involved with the ESFNA since 1985, when the soccer team that he played for at the time, the Los Angeles Stars, joined the league. In 1995, Teferi was appointed to the role of team president of the L.A. Stars, and soon after began serving a role on the ESFNA board. At a board meeting on January 19, 2003, after a dispute involving a relocation of the ESFNA tournament, sixteen of the twenty-five teams represented voted “no confidence” with regards to Teferi, who subsequently resigned. Teferi did maintain his role as secretary to the board for six months after.
In 2005, Teferi was once again elected as president of the L.A. Stars. In response, the president of the ESFNA emailed the L.A. Stars to inform them that the board had “overwhelmingly voted to impeach” Teferi in 2003 and that he was banned from coming back to the ESFNA board. ESFNA’s executive committee soon after voted to give the committee the power to amend the minutes of the January 2003 meeting to better reflect what happened at the time.
Teferi filed a defamation claim against ESFNA and the president based on the statements that were made asserting that he had been impeached in 2003. The trial court ruled in his favor, awarding him damages totaling $100,000. On appeal, the California court made two intriguing findings.
First, the court found that Teferi was not a public figure for the purposes of the defamation lawsuit because he was not involved in a clear “public controversy.” As a result, he did not have to satisfy the more onerous “actual malice” test required for public figures to prove defamation, but instead prove only that the defendants “failed to use reasonable care” in determining whether the statements they made were truthful.
Secondly, the court found that the trial court should have instructed the jury in regards to the defendants “common interest privilege” defense. Section 47(c) of the California Civil Code establishes that certain communications between persons regarding a matter of common interests are privileged so long as the statements are made “without malice.” In a final twist, the court found this error harmless, since the trial court jury already found “actual malice” under the public figure test, even though that test was wrongfully administered to a private figure.
While this opinion certainly seems a bit anomalous, it could have implications for sports executives elsewhere, but only for those in non-major league sports. The court’s logic almost certainly will not be extended to any official or executive of a major sports franchise, as a significant portion of the opinion rested on the fact that there was little media coverage of the ESFNA dispute. Those executives will thus still face the daunting task of proving “actual malice” should they ever find themselves in court asserting a defamation claim.
On Tuesday, Ryan Zimmerman of the Washington Nationals and Ryan Howard of the Philadelphia Phillies filed separate suits in federal court against Al Jazeera America for libel. These claims stem from the television network’s recent documentary that linked, among others, the two baseball players to performance-enhancing drugs (PEDs). Both suits were filed by the law firm Quinn Emanuel in the District Court of Washington, D.C.
The main source used by Al Jazeera for the documentary was a pharmacy student by the name of Charles Sly. Mr. Sly has since distanced himself from the statements published by Al Jazeera by issuing a full recantation. In a video published a few weeks ago, Mr. Sly stated that he was secretly recorded without his knowledge or consent, and that “there is no truth to any statement of [his] that Al Jazeera plans to air.”
Unfortunately for the two baseball players, it will be difficult for them to win a libel suit even after Mr. Sly’s retraction. Since they are public figures, they will have to prove that the statements by Al Jazeera were made with “actual malice.” Such malice can be proven in two ways: first if it can be demonstrated that Al Jazeera published the report knowing it was false, or second if it can be shown that the report was published with reckless disregard as to its truth. The best evidence for the two athletes so far is that Mr. Sly recanted his statements before the documentary even aired. However, in such cases it is likely that the courts would require even more evidence before finding that the report was published with reckless disregard as to the truth. Even if they were successful on the merits, the two baseball players may also have difficulty proving actual damages of a significant amount.
Another player named in the documentary is future hall of fame quarterback Peyton Manning of the Denver Broncos. Al Jazeera America has recently clarified that the documentary only reports that Manning’s wife received PEDs from Mr. Sly, not that there was evidence of Manning taking said PEDs. Manning stated that he has considered the possibility of litigation, but so far has not filed any lawsuits. Al Jazeera recently claimed that they had a second source that is “credible, well-placed, [and] knowledgeable” for the report that Manning’s wife received shipments of PEDs, but refused to name said source.
At this stage, it appears Manning has chosen the better route from a PR perspective. The report by Al Jazeera has been met with skepticism by the media and public at large, and many have sided with Manning already after his public denial of the claims. With the lawsuits, however, Zimmerman and Howard have opened themselves up to future media exposure on the issue. Even if they have never taken PEDs, they should recognize that the more articles linking their names to such drugs, the harder it will be to distance themselves from them in the future. If their claims go to trial, they will be subject to increased scrutiny and likely be forced to testify as to their medical histories.
It is entirely possible, though not probable, that Howard and Zimmerman will be successful in their lawsuits and be granted some damages. As athletes and public figures, however, they should always remember to factor in the reputational repercussions when making decisions regarding litigation. Only time will tell whether Manning or the two baseball players have made the better decision.
Social media platforms such as Facebook, Instagram and Twitter have given individuals a voice and a way to express themselves. However, social media has also lead to the rise of causes of action connected to defamation.
Defamation is essentially based on an individual making a false statement that has been published and causes injury. Under Florida law, the elements needed to be proven in a defamation claim are:
- The defendant published a false statement;
- About the plaintiff;
- To a third party; and
- The falsity of the statement caused injury to the plaintiff
Defamation is usually categorized into separate causes of action of libel or slander. Libel is a published false statement in writing that causes harm to one’s reputation. Slander is the act of making a false statement through speech that similarly causes harm to one’s reputation.
Another wrinkle in defamation causes of action is defamation per se. According to the Restatement (Second) of Torts, defamation per se is defined as an instance wherein “one who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other” if the statement includes a reference to the plaintiff and,
- A criminal offense;
- A lithesome disease;
- Matter incompatible with his business, trade, profession, or office; or
- Serious sexual misconduct.
Many states have modified or even eliminated the ability to bring a per se action, but Florida remains a per se jurisdiction. According to the Florida Supreme Court, the types of damages that can be awarded in defamation causes of action are:
- General damages, which is compensation for past and future harm to one’s reputation and any mental or emotional anguish or humiliation.
- Special damages, which is compensation for economic loss caused by the defamation such as loss of wages.
- Nominal damages, which is a sum awarded in defamation per se causes of action containing no serious harm to one’s reputation
- Punitive or exemplary damages, which is additional sums meant to punish for willful or malicious actions.
Whether you are an individual or a business that has been defamed, Heitner Legal can discuss the options regarding your situation. Additionally, we can guide you through the process of bringing a defamation cause of action and restoring your reputation. Similarly, if you find yourself as an defendant in such a claim, Heitner Legal may be able to assist you in raising appropriate defenses.
The Free Dictionary by Farlex website, www.legal-dictionary.thefreedictionary.com
Bossory, Andrew, Defamation Per Se: Be Prepared to Plead (and Prove!) Actual Damages, American Bar Association Section of Litigation Business Torts & Unfair Competition (June 3, 2014), http://apps.americanbar.org/litigation/committees/businesstorts/articles/spring2014-0513-defamation-prepare-plead-prove-actual-damages.html.
Florida Supreme Court website, http://188.8.131.52/texis/search/?dropXSL=&pr=Florida+Supreme+Court&prox=page&rorder=1000&rprox=1000&rdfreq=500&rwfreq=500&rlead=1000&sufs=2&order=r&rdepth=0&query=defamation+damages
Take a scroll with me; visit ESPN.com and read the latest article regarding speculation about where LeBron James should play next, or about how Richard Sherman was part of the latest scuffle to take place at an NFL minicamp. Instead of reading the content of the articles, go straight to the comment section. Typically, the comments section is reserved for those able to express articulate opinions, either agreeing with what the writer had to say above or expressing reasons as to why the author was incorrect in his story. However, at some point, you’re sure to stumble upon comments that stray from the heart of the story and start to attack the character of its subjects. In the past, such comments have typically been ignored and tossed aside as immaterial statements of the so called “cyber bully.” In this day and age, where most website comment sections are routinely linked to a user’s Facebook page, any post by a reader is able to gain traction and stay atop the comment section based upon the number of “Likes” it has acquired from like-minded observers.
As a result, it is no longer uncommon to see a post on an article at the top of the comment section that is unflattering and unfairly judgmental. Have you ever wondered why such comments are not addressed by the host site, or better yet, how the host site is able to escape liability for such defamatory statements? The answer is quite simple: the Communications Decency Act.
The Communications Decency Act – 47 USC § 230(c)(1) – states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Therefore, any comment posted on a website istreated as the sole content and statement of the commentator, and the website is afforded immunity from the person who is the subject of the comments looking to seek action based upon the remarks. Some may say that it is the website’s responsibility to monitor the activity of its users, and therefore, the website operator should be subject to at least some responsibility for the statements found thereon. However, in the Internet age, where literally one billion people have a Facebook account, it is almost impossible for a website to continuously supervise statements posted on its site.
The Communications Decency Act’s grant of immunity is not without its limitations. If the author of the article, and not the commenter, is the source of the defamatory material, the author – and potentially his or her employer through vicarious liability – will not fall under this exception. Stated differently, if the website somehow “materially contributes” to the defamatory nature of the post placed by the commenter, the website will fall outside the grant of immunity. In order to determine whether a website has committed this act, and is therefore exempt from immunity, the Sixth Circuit has stated that “[A] material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.” Therefore, the website must either: (1) be the author of the statements at issue; (2) require users to post statements as a condition of using the site; or (3) expressly encourage the illegal or actionable statements in some form or fashion. If none of these circumstances are present, then the website is immune, and only the commenter can be held liable for his or her post.
The question then is, because the comment usually links to the person’s Facebook profile (or other social network account), how come there are not more stories about the person who is the focus of the defamatory statements using the person’s profile to seek action? That answer is also simple. Usually, the subject of the statements is an entertainer or athlete who does not have the time to scour the web looking for every defamatory statement that goes against his or her personal interest. Furthermore, in the event such athlete or entertainer is a star of such magnitude as LeBron James or Richard Sherman, it is undeniable that there is at least one person on every article with a negative opinion, and the cost of litigation could reach levels even their multi-million contracts could not afford. And finally, in what is most likely the most obvious answer, athletes and entertainers have much more important things to do than concern themselves with what some person on the opposite side of the country has to say about them. It’s easy enough not to care about someone’s irrelevant opinion when you can spend your time admiring the spoils of your victories; for example, have you seen this thing?!
 See Jones v. Dirty World, No. 13-5946 (6th Cir. 16, 2014).
There are two big problems with filing defamation lawsuits (obviously, without looking at the facts of the various potential cases): 1) Defamation lawsuits are very difficult to win, and 2) Even if the plaintiff gets a judgment in his/her favor, the damages awarded tend to be small. But there are always exceptions to the rule.
Recently, a jury awarded $13.78 million to the plaintiffs in a defamation action filed in Texas roughly 3 years ago. Under Texas law, the plaintiffs had to prove that there was a false statement made about them, published to a third party, without legal excuse, which damaged their reputation. The plaintiffs had been charged with sexual assault. Thereafter, individuals posting anonymously on a website’s discussion forum posted comments that the couple found to be defamatory in nature. That was the foundation for the lawsuit that the plaintiffs filed and for which they recently received a handsome judgment.
In all, 6 defendants were named in the lawsuit, all posting comments in anonymity on the website Topix.com. The anonymity veil was destroyed once the judge appointed to the case ordered Topix to release information that identified all of the once anonymous commentators. The people posting on the forum called the plaintiffs phrases such as “Child molesters,” “Rapists,” “Drug dealers,” and “Herpes infested.” Yet, the plaintiffs were found not guilty of the sexual assault accusation.
What kind of damage can those anonymous posts do to a couple’s reputation and credibility? The husband is a prominent attorney and the wife is the owner of a spa. The accusations on the forum destroyed their reputations and their businesses and certainly caused quite a deal of pain and suffering. And a jury agreed, awarding the couple the large $13.78 million in damages.
Sometimes plaintiffs do win defamation lawsuits. And sometimes, the damages are quite large.
Proving $800,000 worth of damage in any lawsuit is not an easy task. When it is a lawsuit primary based on supposed defamation, that task’s difficulty is multiplied many times over. In general, it is very tough to prove a defamatory act.
Recently, a radio staffer at one radio station sued another radio station (WNST) for defamation. The staffer claims that her professionalism was challenged through WNST blogs and its Twitter feed. The Complaint alleges that WNST made comments about the radio staffer engaging in inappropriate sexual relationships with professional athletes, published remarks about the staffer looking like a stripper, called her trashy, threatened violence, and questioned her qualifications as a journalist. Further, the Complaint alleges that an employee at WNST told members of the media that the radio staffer lied on her resume.
The $800,000 award requested consists of a request for $500,000 in compensatory damages and $300,000 in punitives. Read more “Defamation Claim Against Baltimore Radio Station”
While many women believe that a “diamond is forever,” what do judges think about Tweets made on the social networking site Twitter? Are statements made within Tweets stuck in a cache for eternity? Upon clicking “Tweet,” has it been published? Does it matter in a defamation case?
Last week, it was revealed that Bill Spooner, a referee in the National Basketball Association (N.B.A.) filed suit against Jon Krawczynski, a beat writer for the Associated Press, based on a Tweet made by Krawczynski during an N.B.A. match-up. The Tweet stated the following: Read more “Spooner v. Associated Press and Krawczynski”
Daniel Snyder, owner of the Washington Redskins, is filed a Complaint against Atalaya Capital Management LP and the newspaper it owns, Washington City Paper (WCP). One glaring issue that Snyder had with the WCP is that it used the picture shown to the right in one of its articles discussing Snyder back in November 2010. While WCP claims that the picture was a scribble, intended to associate Snyder with the devil, Snyder and his camp of attorneys see it in another light. They believe that the picture is inherently anti-Semitic, calling it “extremely insulting, offensive, and disturbing.”
Take a look at the original story published on November 19, 2010, which contains the disputed picture. While the author is certainly no fan of Snyder, is there any hint of an attack based on his religion? After a quick skim, I could not find anything that jumped out. Read more “Daniel Snyder v. Atalaya Capital Management LP”