Roughly 36 hours ago, Al Jazeera released an explosive investigative report called “The Dark Side”, allegedly linking Peyton Manning to Human Growth Hormone (HGH) use (full report). Since then, we have learned the following:
- The doctor who allegedly gave Manning HGH, Dr. Dale Guyer, denied the allegations.
- Charlie Sly – the “internist” who was secretly recorded by Al Jazeera saying that Dr. Guyer gave Manning HGH – recanted his allegations claiming that he was testing the undercover interviewer.
- Manning strongly denied the allegations and announced that he “probably will” sue Al Jazeera.
That is not to say that Al Jazeera’s allegations are baseless, but the veracity of the report has been called into question. Assuming that Manning does decide to sue Al Jazeera for defamation, he faces stiff odds of winning a defamation lawsuit as a “public figure.” The following analyzes some of the potential hurdles Manning may face if he decides to file suit.
Manning’s Burden: “Actual Malice”
Unlike some other countries that hold a publisher liable for every untrue defamatory statement, in the U.S., a person bringing a lawsuit must show that the publisher was at fault when they published an untrue statement.
For the average Joe, a negligent statement by a publisher will suffice as the basis for a lawsuit. However, star professional athletes, such as Manning, have been found to be “public figures” and are held to a much higher standard. Star athletes (similar to movie stars and the heads of major corporations) are considered “public figures” because they “invite attention and comment” into their lives, thus – at least according to the U.S. legal system – they are subject to less constitutional protection than a private non-public person.
[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””] Star professional athletes, such as Manning, have been found to be “public figures” and are held to a much higher standard. [/pullquote]
Given Manning’s superstar status as a player and the number of commercials that he has appeared in, there is no question that Manning is a “public figure” for the purposes of defamation law and thus held to the higher “actual malice” standard.
In the defamation context, actual malice is defined as (1) a statement made by a publisher that is knowingly false; or (2) a publisher acting with reckless disregard for the statement’s truth or falsity.
Proving that Al Jazeera Knew the HGH Allegations Were False
For Manning to show that Al Jazeera knowingly published false information, he must demonstrate that someone at Al Jazeera actually knew (not just should have known) at the time of publication that the HGH allegations were false and proceeded to publish the story anyway.
This is a difficult but not impossible proposition. For example, former professional wrestler and Governor of Minnesota Jesse “The Body” Ventura was able to prove actual malice and won a defamation lawsuit against Chris Kyle, former Navy Seal and author of the book American Sniper, the Autobiography of the Most Lethal Sniper in U.S. Military History (and later the basis for the movie American Sniper). In his book, Kyle claimed that Ventura made anti-America comments and that Kyle “punched out” Ventura in a California bar. Ventura was able to show, via his own testimony and by producing several witnesses, that Kyle never “punched him out” in a bar. The Court found that this alone was a sufficient basis for a jury to find actual malice.
Based on what we now know, there is a possibility that Manning could demonstrate that Al Jazeera had actual knowledge. In the documentary, Al Jazeera admits that Charlie Sly (the only known connection to Peyton Manning) called his statements “false and incorrect.” If Al Jazeera was relying exclusively on Sly’s interview, and knew that he recanted his comments prior to publishing the story, they may be found to have published knowingly false information.
On the other hand, Al Jazeera may also have additional sources of information, not yet revealed, that provided a basis for the accusations. For example, it has been reported that there are other “documents” linking Manning to HGH, however, none of these have been released to date.
If a lawsuit is filed, the parties will undertake pretrial discovery (including the exchange of all relevant documents and testimony of witnesses under oath), which should unearth whether Al Jazeera was relying solely on Sly’s recanted comments (and therefore it published knowingly false information) or whether it was relying on additional information.
Even if Manning cannot prove that Al Jazeera knew the HGH allegation were a lie and proceeded anyway, he still could prevail if he can demonstrate that Al Jazeera acted with reckless disregard for the truth.
Proving that Al Jazeera Acted with Reckless Disregard
Reckless disregard is arguably a more difficult standard to prove. Believe it or not, the following activities on their own by Al Jazeera likely would not constitute actual malice:
(1) ill will or intent to harm;
(2) extreme derivation from professional standards;
(3) publication of a story to increase circulation;
(4) failure to investigate facts;
(5) failure to contact a subject for comment;
(6) reliance on a single source; or,
(7) failure to correct or retract false statements after publication.
That is not to say that proving reckless disregard is impossible. In fact, courts have found that a combination of the above can add up to actual malice. How many and what combination of these factors amount to reckless disregard is taken on a case-by-case basis.
Here is one example: In a defamation lawsuit filed by former University of Georgia football coach Wally Butts (going way back) against a magazine, the U.S. Supreme Court found that the following facts, taken as a whole, demonstrated actual malice: ill will towards Butts; “sketchy” investigation techniques; the fact that the piece was not time sensitive; the source’s credibility issues; the journalists lack of expertise in sports reporting and failure to consult relevant experts; and, the fact that Butts gave notice of the falsity of the piece prior to publication.
Assuming for now that the HGH allegations are false, many of these same facts may be present in this case. At a minimum (subject to additional factual investigation), Al Jazeera may have engaged in questionable investigation techniques that relied on a single source that has since recanted his comments. In addition, Manning may be able to establish a number of other factors depending on how document discovery and depositions shake out.
Is this enough to show reckless disregard? This is a question for the court (and ultimately a jury). As noted above, if a lawsuit is filed, many more facts will be revealed during the discovery process, which should paint a clearer picture.
Before filing a lawsuit, here are a number of ancillary considerations that Manning must consider:
–The Mannings’ Privacy Interests: A Manning defamation lawsuit would put Peyton’s reputation at issue and open the door for the release of private information of Peyton and his family during the discovery phase of the lawsuit.
–The Truth as a Complete Defense: As part of his potential lawsuit, Manning would have to prove that the HGH allegations were false. If he were unable to do so (or if the allegations are in fact true) then Al Jazeera would not be liable.
–Time: A defamation lawsuit would take years to go to trial and in the meantime, the Mannings would be forced to spend money pursuing the lawsuit, sit for depositions and, as noted above, gather and produce private information. The time, expense, and stress of this process might not be worth it in their eyes.
–Other Means of Redemption: While defamation lawsuits (especially those involving actual malice) can result seven figure verdicts, a wealthy Plaintiff such as Manning is likely not pursuing the lawsuit for a potential payout. Instead, he is seeking to clear his name. If there were another potential avenue for doing so (for example, agreeing not to file a lawsuit if Al Jazeera retracts the allegations and issues an apology), he would likely pursue that option rather than filing.
Given these considerations (and others), the questions becomes whether Manning will follow through on his statement that he will “probably” file a lawsuit. If he does, it will likely be a closely followed, highly public event. Stay tuned.