A lot is going on between sports media personalities and the law. Awful Announcing decided to talk to an expert. Dan Lust is a sports attorney and law professor at New York Law School and Fordham University School of Law. He also co-hosts the Conduct Detrimental podcast with fellow lawyer Daniel Wallach.
We caught up with Lust to understand more about some recent defamation lawsuits. The most noteworthy is Brett Favre’s against Pat McAfee, Shannon Sharpe, and Mississippi state auditor Shad White. Favre was allegedly involved in a Mississippi welfare scandal. The Hall of Fame quarterback had denied knowledge of the misspent welfare funds.
Awful Announcing: What was your initial reaction to the Favre lawsuits?
Dan Lust: “I was not necessarily surprised to see a lawsuit against the Mississippi state auditor. But I was genuinely surprised to see two members of the sports media sued, and they happen to be two high-profile individuals. And those lawsuits came right before the Super Bowl. I was surprised at the timing and two of the three litigants.”
Can Favre win versus McAfee and Sharpe?
“In normal defamation cases, the standard is to show that the statement made was false and that it harmed someone’s reputation in a financial matter. That’s the standard for normal individuals. When it comes to comments about a public figure, there’s a heightened standard of what we refer to as actual malice. That heightened standard is created because people understand public figures are newsworthy, and they don’t want to quell free speech when it pertains to public figures. So, they want to have a heightened bar for a public figure to sue someone.
“The main thing for McAfee and Sharpe’s purpose is this defense of actual malice. Favre will have to show that not just that the statement was false but essentially that McAfee and Sharpe… that they knew that the statement was false but said it anyway or they just recklessly proceeded without knowing if it was true or false. That’s a very high burden.”
Is there a difference between the McAfee and Sharpe cases?
“The Favre news story had been out there for several months. I think it hit kind of a fever pitch right around September. That’s when the comments are attributed to Sharpe. But with respect to McAfee, his comments were in November and late December. He’ll argue that ‘Hey, I was just relying on others’ reporting that had been out there for months. What did I say that was different than what anybody else said the months prior?’ So, a little bit different arguments. Of the three, McAfee seems to have the most layers of insulation.”
Here are the @PatMcAfeeShow comments that Brett Favre claims are defamatory.
— Dan Lust, Esq. 🎙 (@SportsLawLust) February 11, 2023
Not only does Favre have to show Pat acted with “actual malice“ (essentially that he knowingly lied), he also must show Pat was stating FACTS and not just his OPINION.
I’ll put Pat as a -500 favorite. pic.twitter.com/7oWZMo5O2q
Could this be an intimidation tactic to get an apology?
“If you don’t think you can win the case but shift the narrative, maybe that’s what is happening. Some people read the headlines and don’t follow up and read anything else. Maybe some will see that Favre sued McAfee and Sharpe. They see that it was filed the week of the Super Bowl. For them, that will be enough.
I don’t know the exact number, but 90 percent of cases don’t ever get to trial. They are resolved in some shape or form. Sometimes they are resolved by someone issuing a retraction, an apology. In McAfee and Sharpe’s complaints, there was a request to issue a retraction and, according to the complaint, when those retraction requests were not met, that’s when they followed through with the lawsuit. Perhaps there were other retraction letters that might have been sent to people not named McAfee and Sharpe, and those people adhered to the retraction and did it. We have no idea.”
What’s your take on Michael Irvin’s lawsuit against Marriott?
“We didn’t see this interaction allegedly with the Marriott employee on video. … There are a lot of facts we don’t know. But for all intents and purposes, it’s the same concept. Defamation doesn’t have to be something in a newspaper, on Twitter, or on a TV program. It can be any statement that is published to any other individual that harms your reputation in some shape or form. So it’s a different type of case, but it’s still dealing with a public figure. And it’s still dealing with someone claiming some form of reputational harm.”
What did you think of Patrick Reed’s lawsuit against Golf Channel?
“Patrick Reed is alleging that fans have been shouting certain things at him as proximately caused by the Golf Channel’s coverage. People are yelling at him that he’s a cheater, that he’s digging the ball out, and that he’s a liar. But in a defamation case, you have to show that the Golf Channel’s coverage, that their comments, proximately caused something to happen. Reed in the history of his career has had cheating allegations that have nothing to do with the Golf Channel’s coverage. To say that fans are calling him a cheater because of the Gold Channel’s coverage seems to be a stretch.”
https://www.youtube.com/watch?v=0_iHhUGtwpE&ab_channel=AthleteDistrict
Reed has sued or threatened to sue numerous people. Have you found anything strange in the suits?
“There’s a paragraph in (the September) complaint that speaks to specific utterances from the crowd that are alleged to have been caused by the Golf Channel’s coverage. A couple are far-fetched, to say the least. There is one that I bring up to any sports law class that I teach: ‘Why don’t you introduce your children to their grandparents you ungrateful b****?!’
My question: How is that quote possibly caused by the Golf Channel’s coverage? Did the lawyers forget to delete this one or do they have some creative argument?”
Is there a recent example of a successful outcome to a defamation lawsuit?
“The Doug Gottlieb lawsuit was a case where Casey Close, a baseball agent, filed against Gottlieb. Gottlieb was seemingly the only individual who reported that Freddie Freeman switched from the Atlanta Braves to the L.A. Dodgers because Close didn’t relay an offer. When Close filed a lawsuit, Gottlieb quickly filed a retraction and an apology. So, sometimes that happens. For all we know, Gottlieb might have had a good case but wasn’t willing to litigate it.”
