Mark Edward Blankenship Jr.[1]
Just this month, Todd McNair, ex-USC assistant coach and current assistant coach for the Tampa Bay Buccaneers, was given a new trial for his defamation suit against the NCAA.[2] The suit initially started in 2011, the NCAA Division I Committee on Infractions issued a report in 2010 that concluded McNair “knew or should have known” that Reggie Bush was engaged in violations with a would-be agent while playing for USC, and McNair “provided false and misleading information to the enforcement staff.”[3] Whether they be coaches, athletes, analysts, or team/league executives, sports figures are no strangers when it comes to the subject of defamation. In fact, it has been that way for over half a century.
Historical Underpinnings of Defamation
In 1967, the Supreme Court took the case Curtis Publishing Co. v. Butts, which involved a magazine article by the Saturday Evening Post that accused former Georgia Bulldogs football coach Wally Butts and Alabama head coach Bear Bryant of fixing games.[4] This was a prominent defamation case regarding sports figures, since it occurred amidst two of the biggest libel cases during its time. The first one was New York Times v. Sullivan, which defined the actual malice standard for public figures as a statement that was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”[5] The second case was Gertz v. Robert Welch, Inc., which recognized individuals being either those who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes” or limited-purpose public figures who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”[6]
This Gertz standard has been used many times in determining the status of a sports figure.[7] For instance, in Chuy v. Philadelphia Eagles Football Club, a professional football player, who sued for defamation based on a published report that he had a debilitating disease, was considered a public figure.[8] In Gomez v. Murdoch, the court found the plaintiff, a professional jockey, to be a public figure for a limited purpose because he chose “to perform publicly in a sport which commands widespread interest, and regarding which the communications media regularly report.”[9] By contrast, in Warford v. Lexington Herald-Leader Co., former University of Kentucky basketball player and assistant coach for the University of Pittsburgh filed suit against the Lexington-Herald Leader for publishing an article alleging that he paid off a high school student in order to have him as a recruit for the university he represented.[10] The Court looked to Gertz, holding that Warford was a private figure, because his recruiting activities at a Division I NCAA school were not sufficient to accord public figure status.[11]
Online Defamation
Defamation on the Internet is still becoming a common occurrence as technology evolves, especially within the sports & entertainment industries. For instance, Brian Burke has dealt with two different lawsuits as manager for both the Vancouver Canucks and the Toronto Maple Leaves.[12] Just two years ago, famous college football coach Lou Holtz filed suit against the Daily Beast.[13] The filed complaint stated that Holtz was a resident of Orlando, Florida, who conducted business there and that Defendant’s publication caused harm to Plaintiff’s reputation, business, and occupation as a motivational speaker and sports analyst.[14] Not only was the Defendant’s publication accessible to those in Florida, but they also regularly use reporters in Florida, author and publish articles that are aimed at a Florida audience, and derived revenues from Florida-based advertising clients.[15] The lawsuit eventually settled this past year.[16] But imagine though that the defamatory online article was written by a newspaper in another state with few to zero subscribers in Florida, did not have offices in or solicit business in Florida, and the reporters for the newspaper never travelled to Florida and do not live, work, or have property there, although they may make phone calls to Florida to conduct interviews.[17]
Thus, in addition to determining
actual malice and one’s status as a private figure, public figure for all
purposes, or limited-purpose public figure, to issue of jurisdiction over the
Internet can arise.[18] Courts mainly use the
“effects test” introduced in the 1986 Supreme Court Case, Calder v. Jones.[19] In Calder, television star Shirley Jones filed a defamation suit in
California, her place of domicile, against the author and editor of the National Enquirer, which was
headquartered in Florida.[20] The Court found that not
only had the allegedly libelous story concerned the activities of Jones and was
centered in California, but the tabloid article was drawn from California
sources, and the brunt of the harm, in terms both of respondent’s emotional
distress and the injury to her professional reputation, was suffered in
California.[21]
Other courts have also used the Zippo
“sliding scale” test in online defamation cases which determines a website
operator’s contacts with a forum and the website’s level of commercial activity
and interactive ability.[22] However, there seems to
be some debate as to its relevancy,[23] and overall, an
inconsistent approach to personal jurisdiction and Internet-based contacts.[24]
[1] Mark Edward Blankenship Jr. is a J.D. Candidate at The University of Kentucky of Law (2019). He is Operations Manager for Volume 107 of the Kentucky Law Journal, and he is the Vice-President of the UK Sports & Entertainment Law Society. Prior to attending law school, he graduated magna cum laude at Georgia Southern University B.A. in Music.
[2] Kyle Bonagura, Ex-USC Assistant Todd McNair Granted New Trial in Lawsuit Vs. NCAA, ESPN (Jan. 16, 2019 7:15 PM EST), http://www.espn.com/college-football/story/_/id/25778783/former-usc-trojans-assistant-todd-mcnair-granted-new-trial-defamation-lawsuit-vs-ncaa; Sam Arslanian, Todd Mcnair Granted New Trial in Case Against NCAA, Dᴀɪʟʏ Tʀᴏᴊᴀɴ (Jan. 17, 2019), http://dailytrojan.com/2019/01/17/todd-mcnair-granted-new-trial-in-case-against-ncaa/.
[3] Bonagura, supra note 2; Arslanian, supra note 2.
[4] 388 U.S. 130 (1967).
[5] 376 U.S. 254, 280 (1964).
[6] 418 U.S. 323, 345, 351–52 (1976).
[7] Rex Sheild, The Uphill Legal Battle for Defamation Claims in Professional Sports, Sᴘᴏʀᴛs L. Bʟᴏɴᴅᴇ (Feb. 23, 2019), http://www.sportslawblondes.com/blog/2018/2/23/the-uphill-legal-battle-for-defamation-claims-in-professional-sports.
[8] 431 F. Supp. 254 (E.D. Pa. 1977).
[9] 193 N.J. Super. 595, 475 A.2d 622, 625 (N.J. Super. 1984).
[10] 789 S.W.2d 758 (Ky. 1990).
[11] Id. at 771.
[12] Steven Skura, What Brian Burke’s Defamation Lawsuit Means For Social Networks, Hᴜғғ Pᴏsᴛ, https://www.huffingtonpost.ca/steven-skurka/defamation-on-social-media_b_3358558.html (last updated July 30, 2018 05:12 EDT); Matthew Lee, Defamation, Celebrities, and the Internet, Hᴀʀᴠ. J. Sᴘᴏʀᴛs & Eɴᴛ. L. Oɴʟɪɴᴇ Dɪɢ. (Mar. 27, 2014), http://harvardjsel.com/2014/04/defamation-internet/; Ashley Packard, Dɪɢɪᴛᴀʟ Mᴇᴅɪᴀ Lᴀᴡ 116 (Wiley-Blackwell, 2d ed. 2013) (stating that Burke sued the New York Post “for publishing a column that suggested he had challenged his players to harm a member of an opposing team in a hockey game.”); Burke v. NYP Holdings, Inc., 2005 BCSC 1287 (Can.).
[13] Margot Cleveland, Why Lou Holtz Is Suing The Daily Beast, Wᴀsʜ. Exᴀᴍɪɴᴇʀ (Dec. 14, 2017 11:03 AM), https://www.washingtonexaminer.com/why-lou-holtz-is-suing-the-daily-beast.
[14] Complaint & Demand for Jury Trial at 5–7, Holtz v. The Daily Beast, No. 6:17-cv-02136-GAP-TBS (M.D. Fla. Dec. 13, 2017).
[15] Id. at 5–6.
[16] Clay Townsend, Business Trial Group Resolves Defamation Lawsuit Brought by Lou Holtz, Mᴏʀɢᴀɴ & Mᴏʀɢᴀɴ Bᴜs. Tʀɪᴀʟ Gʀᴏᴜᴘ (May 21, 2018), https://www.businesstrialgroup.com/news/lou-holtz-defamation-settlement/.
[17] Cf. Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) (held that no targeting occurred). But cf. Goldhaber v. Kohlenberg, 395 N.J. Super. 380,387 (App. Div. 2007) (holding that defendant, a resident of California, did in fact target the plaintiff in New Jersey).
[18] See supra note 17, and accompanying text. See generally Burke v. NYP Holdings, Inc., 2005 BCSC 1287 (Can.).
[19] 465 U.S. 783, 788–89 (1984); see Griffis v. Luban, 646 N.W.2d 527, 532–37; Packard, supra note 12, at 109–10.
[20] Calder, 465 U.S. at 784–86.
[21] Id. at 789–90.
[22] Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997); see also Packard, supra note 12, at 108–09; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002).
[23] See Kent A. Lambert, Is Zippo Getting Zapped?, Am. Bar. Assoc. Litig. News (Aug. 12, 2011), http://apps.americanbar.org/litigation/litigationnews/top_stories/081211-internet-jurisdiction-florida-zippo.html; Mark Sableman, Will the Zippo Sliding Scale for Internet Jurisdiction Slide Into Oblivion?, Lᴇxᴏʟᴏɢʏ (Jan. 12, 2016), https://www.lexology.com/library/detail.aspx?g=b168f621-ddfb-4991-b141-07126b75eb62.
[24] Scott T. Jansen, Comment, Oh, What a Tangled Web … the Continuing Evolution of Personal Jurisdiction Derived from Internet-Based Contacts, 71 Mo. L. Rev. 177, 183–85 (2006) (characterizing the application of the Calder “effects” test and the Zippo test in the federal circuit courts as “neither . . . entirely inconsistent nor exactly uniform”); Sarah Ludington, Aiming at the Wrong Target: The “Audience Targeting” Test for Personal Jurisdiction in Internet Defamation Cases, 73 Oʜɪᴏ Sᴛ. L.J. 541, 558–59 (2012).
