Did you have to read that headline twice? When a colleague first tipped me off to the possibility, I did the same thing.
That may be because, after Al Jazeera’s December 26th release of the documentary “The Dark Side”, the media (including us) has been focused on a potential Manning defamation lawsuit against Al Jazeera (or ignoring the story altogether). There has been little, if any, mention of a defamation lawsuit going the other direction.
However, depending on how the cards fall, an equally important question exists: Will Al Jazeera and/or its reporters file a defamation lawsuit against the athletes calling them liars?
Does this sound crazy? It shouldn’t. In fact, we have recently seen this exact scenario play out in the sports world:
In the December 2007 Mitchell Report, Roger Clemens’ former trainer Brian McNamee’s alleged that he provided Clemens and Andy Pettitte with performance-enhancing drugs. Clemens – who to this day maintains his innocence – sued McNamee for defamation in Texas federal court. Clemens’ case was dismissed because the court found that it did not have jurisdiction over the statements that were made by McNamee in New York. Clemens appealed the decision but lost in a 2-1 ruling that confirmed the lower court’s ruling.
While Clemens’ suit was pending, McNamee fired back with a defamation suit of his own, claiming that Clemens had damaged his reputation by accusing him of being a liar and being mentally unstable. Unfortunately, we may never know the truth, as Clemens, who was insured by his homeowner’s insurance policy for defamation claims, settled the suit last March prior to trial (the terms of the settlement were not disclosed). However, the moral of this story is that a defamation lawsuit by the party accusing an athlete of PED use – after they have been called a liar – is possible. And this is not the only example.
We have recently seen this exact scenario play out in the sports world.
Similarly, Syracuse men’s basketball coach Jim Boeheim was hit with a defamation lawsuit for calling former ballboys liars after they accused former assistant coach Bernie Fine of sexual abuse in 2011. Here is what Boeheim said:
This is alleged to have occurred … what? Twenty years ago? Am I in the right neighborhood? It might be 26 years ago? So, we are supposed to what? Stop the presses 26 years later? For a false allegation? For what I absolutely believe is a false allegation? I know he’s lying about me seeing him in his hotel room. That’s a lie. If he’s going to tell one lie, I’m sure there’s a few more of them.
The Penn State thing came out and the kid behind this is trying to get money. He’s tried before. And now he’s trying again. If he gets this, he’s going to sue the university and Bernie. What do you think is going to happen at Penn State? You know how much money is going to be involved in civil suits? I’d say about $50 million. That’s what this is about. Money.
Similar to Clemens’ case, the Boeheim defamation lawsuit ended with an undisclosed out of court settlement. Syracuse later apologized on Boeheim’s behalf saying that “Boeheim regrets that he made those statements…”, and fired Fine.
While we cannot infer guilt from settlements, it is safe to say that both Clemens (or at least his insurers) and Boeheim feared the possibility some liability from calling other “liars”.
What Will It Take For Al Jazeera to Sue?
As the first step of any defamation lawsuit, Manning, Howard, and Zimmerman have all issued statements calling the Al Jazeera report a lie:
The allegation that I would do something like that is complete garbage and is totally made up. It never happened. Never. I really can’t believe somebody would put something like this on the air. Whoever said this is making stuff up.
Howard and Zimmerman’s (via their attorneys):
It’s inexcusable and irresponsible that Al Jazeera would provide a platform and broadcast outright lies about Mr. Howard and Mr. Zimmerman. The extraordinarily reckless claims made against our clients in this report are completely false and rely on a source who has already recanted his claims.
The next determination is whether those statements are false. In order for a potential suit against the athletes to be anything more than frivolous, Al Jazeera must have some proof that their reports are not lies or have reason to believe that they will obtain proof through the discovery process of litigation. Remember, the truth (i.e Al Jazeera was lying) would be a complete defense for the athletes.
This is a good point for a deep breath and a disclaimer. We are not suggesting that Manning, Howard, or Zimmerman took PED or participated in any illegal or unethical conduct. This review is purely hypothetical and, as noted, takes for granted that Al Jazeera has evidence that its report was truthful.
It is unclear whether Al Jazeera reporters would be treated as “public figures” and, thus, subject to the higher burden of actual malice (consider here and here). But even if Al Jazeera reporters were forced to show actual malice, if (remember, big IF) the athletes were not being truthful and actually receiving PEDs, proving actual malice would not be that difficult. In order to show actual malice, Al Jazeera would have to show that the athlete’s knowingly made a false statement OR made with reckless disregard. Here, if one or more of the athletes were lying, they would satisfy this standard because they were knowingly making a false statement.
Thus, if it somehow comes out that one or more of Howard, Zimmerman, or Manning is lying, Al Jazeera and/or its reporters would have a strong defamation case.
What is certain is that the end of this story is not yet written.
As a practical matter, since Howard and Zimmerman have already sued Al Jazeera and two reporters, these parties could bring the counterclaims in the same lawsuit, or file a separate suit. Also of note for Howard and Zimmerman, since their attorney made the statement on their behalf, there might be an issue with Al Jazeera going after the athletes since they weren’t the one to actually make the statements.
With Al Jazeera is now claiming that they have at least a second source on at least Manning, don’t be shocked if the news organization or reporters fire back with a defamation lawsuit against any of these three athletes. Al Jazeera has taken a big public relations hit (although they may not mind the notoriety) since the release of “The Dark Side”, and a winning defamation suit would restore its credibility. What is certain is that the end of this story is not yet written. Stay tuned.