The Sports & Entertainment Law Playbook

Getting back to the defamation lawsuit Scottie Pippen filed last month in an Illinois federal court. By the way, I know it's still early, but so far I haven't received word that Pippen is suing me over my last post...

Before we get into Pippen's specific claims, let's briefly review the law of defamation. First of all, defamation is the broader classification of two kinds of intentional torts (a type of civil lawsuit) that arise out of the making of false and disparaging remarks about another. If the disparaging remark or statement is oral, then the claim is for slander, if written, then it's libel. Anytime someone sues for defamation they must prove four elements to win. Although there are a few narrow exceptions, the most difficult of these elements to prove is, invariably, damages—i.e. what financial harm did the person suffer as a result of the disparaging statement?

Additionally, when the person claiming defamation is a "public figure" (e.g. celebrity, public official, etc.), they must also prove that the individual who made the defamatory statement/publication knew that the it was false (or recklessness as to the statement's alleged falsity). This is sometimes called the actual malice doctrine, and it basically means that there isn't liability for negligently or accidentally making a statement that is false about a celebrity.

Scottie Pippen has alleged that the various media outlets defamed him by publishing ten or so articles that either allege or imply that he filed for bankruptcy in or around 2003 (complaint PDF file). Furthermore, Pippen's attorneys claim that these publications constitute defamation per se, which is one of the narrow exceptions I alluded to earlier with regard to proving damages. When a statement is considered defamation per se, then you don't have to prove your damages. But there's a catch. Historically, there are only four types of defamatory statements that are considered defamation per se:

(1) allegations that attack a person's professional competence

(2) accusations of criminal activity (which must usually allude to crimes of moral turpitude)

(3) allegations of unchastity

(4) allegations of a loathsome disease (e.g. leprosy, HIV/AIDS, other STDs)

What's missing from this list? For starters, I didn't see "being poor," which is the only thing that would apply in Scottie Pippen's case. So unless Pippen's attorneys can convince the court that they should add "being poor" to the short list of per se defamatory statements, his claim for defamation per se is dead in the water. 

Pippen has also sued CBS, NBC, and the others for negligence, and for false light. Based on the actual malice doctrine the negligence claim is unfounded. As to false light, this is probably the only claim that Pippen has made that has a chance to withstand a motion to dismiss. So what is false light?

False light is somewhat similar to defamation, but is actually an invasion of privacy. The primary difference between a defamatory statement and one that gives rise to a claim for false light is that the crux of the former is a false statement, whereas the latter doesn't necessarily have to be false—typically a false-light statement is one that is misleading in a way that would be highly offensive or embarrassing to a person of ordinary sensibilities.

Based on all this, I would expect the attorneys for each defendant to file motions to dismiss counts one and three of Pippen's complaint, and I would also expect them to prevail on these motions. Pippen's attorneys could amend count three of the complaint to include ordinary defamation (as opposed to defamation per se), but even if they do, they will then have to prove that Scottie suffered some financial harm as a result of the alleged defamatory statements. Damage to his reputation and so-called good name aren't enough.

One last observation about this case: Assuming that Pippen never filed for bankruptcy, how did so many news outlets get it wrong? It's possible that one just copied the other after the other, which may make sense for some of the smaller defendants, but it surprises me that editors at CBS Sports and CNBC would have been so careless.

Follow-up: Jury Awards Professors $5M in Defamation Suit Against West

No surprise here; West Publishing has filed a motion to set aside the jury's $5,000,000 verdict in the case brought against them by the two law professors whom West defamed by selling books bearing the professors' names, which contained out-of-date and erroneous statements of law. West claims that:

(1) There was no evidence to support the jury's finding of actual malice;

(2) There was no evidence that anyone understood that the book in question was defamatory to the professors; and

(3) The damages were excessive.

To my knowledge, the story is only available on www.law.com, which requires a subscription (and it ain't cheap). I have, however, attached a copy of West's motion here in pdf format: West's Memorandum of Law. West filed this motion with the trial court, which tolls the time during which West can file an appeal to the Third Circuit. (See Fed. R. App. P. 4(a)(4)(A)).

Obviously, I haven't read the transcript of the trial proceedings, but even so, it's difficult for me to believe that West will win. The reason being the legal standard that the trial court must apply to determine whether West's arguments have any merit:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1) (emphasis added).

Basically, this means that the trial court has to view all the evidence in a light most favorable to the other side (i.e. the professors), and can only set aside the jury's verdict if that evidence is legally insufficient to support the verdict. It does happen, but it's a very high standard nonetheless.

I'm not convinced, however, that the trial court won't reduce the jury's award, and I say this for a couple reasons: First, $5,000,000 is a hell of a lot of money—far more than these professors make in several years (if not their entire careers); and second, the amount is grossly disproportionate to the amount of money that West profited from the books in question.

If the court does reduce the award, it's likely that both sides will appeal, but what often happens is that before the case would be decided by the appellate court, the parties agree to settle the case. This type of settlement often benefits both sides because the plaintiffs—who probably aren't filthy rich, but by the looks of them, aren't getting any younger, and can probably use the money before Brett Favre makes it into the hall of fame and then un-retires—get some compensation much sooner than they would if they wait for all the appeals to play out. And it benefits the defendant because they don't have to spend even more money fighting the case, but at the same time, they get off without paying the professors the full amount owed.

The case of David Rudovsky & Leonard Sosnov v. West Publ'g, No. 2:09-cv-00727-JF is scheduled for a hearing on the motion(s) before U.S. District Judge John P. Fullam on February 10th (pdf of hearing notice).