ENTERTAINMENT & MEDIA LITIGATION: FORMER UCLA BASKETBALL PLAYER REEVES NELSON SUES SPORTS ILLUSTRATED FOR DEFAMATION
LAWSUIT TARGETS ARTICLE WRITTEN BY PULITZER PRIZE WINNING AUTHOR
Former UCLA men's basketball player, Reeves Nelson, has filed a lawsuit for defamation against Sports Illustrated resulting from SI's March 2012 article entitled, Special Report: Not The UCLA Way. The scathing article, written by Pulitzer Prize winning author George Dohrmann (more on him later), portrayed the UCLA men's basketball team as dysfunctional and out of control, placing much of the blame on Nelson's conduct. The revelations added salt to the open wound of a UCLA hoops season that saw the Bruins finish in the middle of a weak Pacific 12 conference and miss the NCAA tournament for the second time in three seasons.
Those who know me know that I am a rabid UCLA sports fan, particularly as to the UCLA men's basketball team. I have had season tickets for over 20 years, follow the team in road games around the country and am a donor to UCLA Athletics. I am in all sense of the word a UCLA basketball "booster."
During the 2011-12 season, UCLA men's basketball fell far short of expectations -- suffering embarrassing losses to "lesser" basketball programs, losing by double digits to top teams and failing to earn a postseason bid which most of us consider to be UCLA's birthright. Plus, UCLA fans had to endure the indignity of having to attend most "home" games at the Los Angeles Sports Arena, an arena which cross-town rival USC abandoned years ago, while the Bruins' home arena, Pauley Pavilion, underwent major renovations. Beaten on the court and essentially homeless, the UCLA basketball team then had to face SI's blistering and embarrassing accusations just days before one of the worst seasons in UCLA basketball history was about to end.
Unlike most subjects on this blog, the SI "expose" and Nelson's alleged conduct within the team detailed in that article was (and is) intensely personal. Nevertheless, as an attorney with substantial experience in defending the media as well as representing plaintiffs in defamation claims, I could not pass on the opportunity to comment on Nelson's defamation lawsuit. After the jump, you can read Nelson's complaint, and evidence he submits at the outset of his lawsuit, as well as my views on his claims.
NELSON'S ALLEGATIONSAny analysis of a defamation claim starts with the allegations about the offending article in the complaint. You can read Nelson's complaint (without exhibits) here. Although not entirely about him, SI's report is littered with "facts" about Nelson and his conduct which supposedly disrupted the team and injured others. Nelson's complaint alleges that the SI article singled him out as the "'one player [who] intentionally injured teammates but received no punishment,' someone who 'often reacted to hard fouls or calls against him in practice by committing violent acts against teammates' and someone who 'stalk[ed] his targets, even running across the court, away from a play, to hit someone.'" The complaint also alleges that, according to the SI article, "Plaintiff Nelson’s psychotic behavior 'undermin[ed] team discipline and morale' and 'quickly sabotag[ed] a storied program led by one of the nation' s most respected coaches.'"
As Nelson's complaint points out, the SI article refers to specific incidents to support the general conclusions about Nelson's supposed "psychotic behavior." These incidents can be grouped into three general categories. First, Nelson supposedly intentionally trying to injure teammates during practice and generally "losing it" which caused disruption within the team. Second, UCLA men's basketball coach Ben Howland supposedly giving Nelson (and Josh Smith) preferential treatment by tolerating misbehavior during practice. Finally, and in perhaps the most memorable visual created by the article, Nelson allegedly retaliated against teammate, Tyler Honeycutt, by urinating on Honeycutt's bed and clothes. These core allegations are the basis of Nelson's claims.
Simply put, defamation lawsuits seek redress for supposed damages to a plaintiff's reputation and prospects. Obviously, Nelson's complaint paints a positive picture of his professional basketball aspirations and the damage to those aspirations (and Nelson's reputation) as a result of the article. Whether such matters can be proven is another matter. In the lawsuit, Nelson seeks damages "at the minimal amount of $10,000,000."
ABOUT THE WRITER AND PUBLISHERThe proliferation of social media and blogs -- like this one -- as well as speed of information in the internet age has not been kind to traditional, principled journalism. Concepts like journalistic ethics and principles of journalism that used to guide reporters and journalists seem anachronistic today where the need for speed overrides everything else. As a result, and not surprisingly, rumor or innuendo often becomes reported as "fact." Mistakes are often tolerated because, when discovered, retractions and apologies are issued to "fix" the problem.
Enter George Dohrmann.
By all appearances, Dohrmann is an experienced, principled journalist. He won the Pulitzer Prize in 2000 for his work at the St. Paul (Minn.) Pioneer Press for a series in which he exposed academic fraud within the University of Minnesota basketball team. Dohrmann now reports for Sports Illustrated, part of Time Warner group of media companies that includes Time magazine and CNN. Obviously, these are legitimate news organizations. Organizations that you would expect would comport with traditional journalistic standards in publishing their articles. So you have an experienced Pultizer Prize winning writer and a reputable publication -- all accused of defaming a player who was kicked off the UCLA basketball team. Which of those parties would you bet on?
THE FIRST AMENDMENT POSES A SIGNIFICANT HURDLE FOR DEFAMATION PLAINTIFFS
For both traditional media like the Time Warner publications and bloggers and other new media, the First Amendment affords great protection and significant legal hurdles for any defamation plaintiff. Such plaintiffs (like Nelson) face a difficult burden of proof to prevail on their claims. When that person is a "public figure" (again, like Nelson), the barriers posed by the First Amendment are even more formidable. The full extent of those barriers, and the nuances among the various legal doctrines encompassing those barriers, would fill a law treatise -- and is beyond the scope of my blog post. I'll briefly summarize the major issues Nelson will face in his case.
The most significant hurdle for a public figure like Nelson is the requirement that he prove "actual malice." That means that a public figure plaintiff must show that the defendant either knew that the statements were false or "recklessly disregarded the truth or falsity" of those statements. Seldom is there direct evidence of actual malice. Accordingly, proof that a writer "knew" that his writing was false or was "reckless" about the truth or falsity of his statements usually requires circumstantial evidence.
The United States Court of Appeals for the Ninth Circuit has observed that it "has yet to see a defendant who admits to entertaining serious doubt about the authenticity of an article it published. . . ." Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1253 (9th Cir.1997). The many ways circumstantial evidence is legally interpreted would again fill a law treatise. However, among the methods recognized by the United States Supreme Court to prove circumstantially that a reporter was "reckless" regarding the truth of his story is proof that the reporter failed to investigate contradictory evidence. Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) ("it is likely that the newspaper's inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [a source's] charges"). A federal court in Los Angeles (in a case where I represented the plaintiff) denied the summary judgment motion of the publisher of Consumer Reports because the evidence raised a factual issue of whether "defendant knowingly disregarded information within its possession" which would have put the truth of the publication in doubt. Isuzu Motors Ltd. v. Consumers Union of U.S., 66 F. Supp. 2d 1117, 1125-26 (1999). (Obviously, I have simplified the legal analysis here to summarize Nelson's probable main argument to prove actual malice.)
In addition, defamation plaintiffs like Nelson are likely to face an early challenge to their case under anti-SLAPP statutes. These statutes concerning "Strategic Lawsuits Against Public Participation" require plaintiffs to present admissible evidence of defamation at the outset of the case when the claims arise out of activity protected by the First Amendment. If the plaintiff fails to carry the burden to prove his case, the lawsuit is dismissed, and the defendant will be awarded his attorneys' fees.
THE EVIDENCE OF ACTUAL MALICE
Nelson's lawsuit takes the unusual tactic of submitting evidence purporting to prove his allegations with his complaint. Nelson filed declarations of 18 current and former teammates on the UCLA men's basketball team. Each of the declarations attempts to prove that many of the facts about Nelson reported in the SI article are false. You can read the declarations for yourself here.
Two players (Alex Schrempf and Blake Arnet) declared that they spoke with Dohrmann. Both told Dohrmann that his facts were wrong. Schrempf also declared that he specifically told Dohrmann that Nelson did not intentionally hurt him as Dohrmann eventually wrote in the article.
The other 16 players who signed declarations did not speak with Dohrmann. Many of them claimed that they were unaware of any effort by Dohrmann or SI to contact them. All denied that Nelson disrupted practice or targeted players as portrayed in the SI article.
In addition, some of the alleged "targets" or "victims" of Nelson's conduct are among the players who signed declarations. All deny that Nelson targeted them or intentionally hurt them in any way. Josh Smith, a second player who supposedly received preferential treatment from Coach Howland, denies that he and Nelson received "favorable" treatment. Finally, and probably most importantly, Honeycutt specifically denies that Nelson urinated on his bed or clothes.
Of course, these declarations were drafted by Nelson's lawyers. You would expect such declarations to be helpful to Nelson's contentions in his lawsuit.
ANALYZING NELSON'S PROSPECTS
One side note: the cost of pursuing a defamation case is significant. Thus, such cases are sometimes filed to create an initial media frenzy that is favorable to the plaintiff. When that initial publicity dies down, the case is quietly dropped or settled -- having done the job of generating some rehabilitating publicity. So it will be interesting to see if Nelson is serious about pursuing his lawsuit or whether it was filed simply to generate publicity.
The First Amendment skews the playing field in defamation lawsuits heavily in favor of the defendant. In this post, I have only scratched the surface of the many legal issues Nelson faces in his lawsuit. For example, even if Nelson proves that the article was "defamatory" and that the facts were false, Nelson must show that he was damaged by the article. At the time of its publication, Nelson's negative conduct with the team had already been widely reported and he had already been kicked off the team. Nelson's professional basketball prospects and skills were also widely questioned, notwithstanding Nelson's sometime stellar statistical output on the court. (As depicted above, Nelson ironically was SI's cover boy for its college basketball preview edition for the west coast.) Finally, the First Amendment will even protect a reporter's mistaken reporting -- so long as the reporter had no reason to doubt that his publication was false. So it should suffice to say that odds makers would make defendants like SI heavy favorites in this kind of contest.
That said, Nelson appears to have a legitimate shot at surviving at least the initial motions to dismiss his case. The 18 player declarations suggest that Dohrmann ignored information that contradicted his article -- particularly from Schrempf. The declarations also suggest that Dohrmann and SI failed to contact other "victims" to verify the information from Dohrmann's other sources. Honeycutt's denial that Nelson ever urinated on his clothes and bed is significant. Dohrmann apparently tried to contact Honeycutt for the article (Honeycutt's agent supposedly declined that invitation for comment). Thus, Dohrmann will be challenged on whether he did enough to verify his information -- that Nelson urinated on Honeycutt's clothes and bed -- or whether Dohrmann simply reported what someone told him. If Dohrmann had more than one source who was in a position to have personal knowledge of that incident, but who either misled Dohrmann or was legitimately mistaken about it, then Dohrmann's reporting (while wrong) may still be protected.
I would give Nelson a fair chance at surviving the initial motions attacking his case -- the motion to dismiss and any motion under the anti-SLAPP statute. If he presses on with it, Nelson's lawsuit should proceed to the discovery phase. That doesn't mean that Nelson will win his case. Discovery in this case will critical to see if Nelson can muster enough evidence to get to a trial. The player declarations are simply a first step -- a good first step -- in garnering such evidence. Those players will be subjected to depositions, and whether the details beyond what is contained in their declarations (drafted by Nelson's attorneys) will continue to support Nelson's claims remains to be seen.
If Nelson's lawsuit can survive summary judgment, then all bets are off. Predicting the result of a jury trial in any given case has spawned an industry onto itself. This uncertainty is what generally causes most cases to settle. However, the chances of Nelson winning the $10,000,000 he seeks in his complaint are slim.
The only clear conclusion at this early stage of the lawsuit is that, if Nelson pursues this case beyond the initial publicity he is generating from it, lots of time and money will be spent before the case is won or lost. If my prediction is correct -- and Nelson survives the initial motions in the case -- the case will take more than a year before a trial is likely -- even longer, if interim appeals are taken from the decision on the anti-SLAPP motion.
In the meantime, current and former players and staff on the UCLA men's basketball team will be reliving Nelson's career at UCLA in depositions -- and probably in the press. Frankly, that's an era of UCLA basketball that fans (and probably the team) would rather forget.