Libel, Slander and Defamation: The Patriot Way
By: Will Harrigan
This is an academic paper exploring the New England Patriots deflate-gate scandal in the NFL. Over the course of the last three months some members of the media have potentially defamed certain players and coaches within the organization.
The sports industry has continually been a major facet of media coverage. Independent sports organizations like the NFL, MLB, NBA, and NHL among others, have grown into big business’ pulling in millions of dollars each year from media coverage (Vogel, 2011). Although straight news about sports games is still prevalent, sports media coverage over the years has turned into an industry of opinions, speculation and criticism.
On January 18, 2015, which was a cold rainy night in Foxboro, MA., the New England Patriots defeated the Indianapolis Colts 45–7 in the AFC Championship Game. The stage was set for a matchup against the Seattle Seahawks in the Superbowl two weeks later. That night all eyes were focused on the great play of quarterback Tom Brady and the Patriots defense. But the next day, the focus shifted. Bob Kravitz, an Indianapolis columnist, broke the story that the NFL was investigating whether the Patriots used deflated footballs against the Colts. It was believed that someone within the Patriots organization purposely and knowingly deflated the balls below the eligible PSI levels set forth by the NFL. The deflated footballs allegedly gave Patriots quarterback Tom Brady, a better grip of the football during the rainy game. The investigations name, “Deflate-gate,” used to remind people of Richard Nixon’s Watergate scandal (Cullen, 2015).
Tom Brady: “I feel like I’ve always played within the rules. I would never do anything to break the rules,” (NY Daily News, 2015).
Many analysts, journalists and fans of NFL football and have already deemed the Patriots Superbowl win as tainted thanks in large part to the media’s influence by casting a negative light on the organization.
The report blew up and it wasn’t long before all major media outlets were covering the story. However, it quickly evolved from straight news to stories of speculations and accusations deeming the organization “cheaters”. The extent to which some broadcasters, journalists and others went were pure examples of potential libel, slander and overall defamation, which in turn has tarnished the reputations of players, coaches and all those associated with the New England Patriots organization. Despite the fact that no concrete facts have been found in the case, some members of the media have jumped to erroneous conclusions on the deflate-gate investigation. Three months removed from the game vs. the Colts, we have yet to find out if the Patriots did in fact cheat. Many analysts, journalists and fans of the NFL have already deemed the Patriots Superbowl win as tainted thanks in large part to the media’s influence by casting a negative light on the organization.
ESPN First Take is a weekday morning sports talk show, joined by regular contributors and guests. In this video, former football player Jerome Bettis and two analysts, Stephen A. Smith and Skip Bayless, give their opinions on whether the Patriots are cheaters. Bettis calls them “convicted felons” because of the Spygate scandal that concluded in 2007. However Smith disagrees completely. Bayless on the other hand lies in the middle:
Just recently, the Patriots visited the White House to be honored by President Obama for winning the Superbowl. At the event, President Obama joked that “I usually tell jokes at these events, but I was worried 11 of 12 of them would fall flat,” (Fabian, 2015). His joke referred to the allegations that 11 out its 12 footballs were deflated during the AFC Championship game. Although Obama’s jab was followed by laughs by the players and coaches, the deflate-gate scandal will forever follow the team and taint their victory even though it’s unsubstantiated.
What is libel?
Under the U.S. Constitution, the First Amendment grants media the “freedom of the press.” Although the interpretation of that clause is subjective, one thing we do know is that libel law is meant to protect an individual’s reputation. “In order to win a libel suit the plaintiff — the person/party initiating the lawsuit — is awarded damages, three objectives are served: 1. The plaintiff is compensated for his or her reputation and other losses. 2. The defendant is punished. 3. The defendant and others are discouraged from committing the same kind of libelous conduct in the future,” (Trager, 2010). Author Martin Newell describes the importance of maintaining a man’s reputation. He says, “A man’s reputation is the estimate in which others hold him; not the good opinion which he has of himself,” (Newell, 1914).
When dealing with public figures in a lawsuit, the plaintiff must prove actual malice, meaning that the information published was knowingly inaccurate and that there was reckless disregard for whether it was true or false. Negligence on the other hand is the minimal level of fault a plaintiff must prove. Because public figures are more subject to criticism based on their positions in society, they must prove actual malice rather than negligence. Non-public figures must prove negligence in a libel case. Yet for the sake of the deflate-gate investigation, the New England Patriots are held to an actual malice standard since their players, coaches and owners can all be labeled as public figures, and because of the organization’s status in our society. However, in the case of an organization being defamed like in the deflate-gate case, the term group libel is applicable since it is referring to one or more individuals. However, there are many examples from the media coverage that could allow certain coaches and players to file an individual lawsuit.
Examples
One example of group libel, which Coty Coons from the University of Northern Alabama points out in his essay on “Libel and Defamation in Sports,” is a case involving the Rutgers University women’s basketball team. After beating the University of Tennessee in the NCAA championship game, the following day radio host Don Imus called the Rutgers players, “Tough girls with tattoos, as well as nappy-headed hoes.” His comments were viewed as racist and sexist prompting the NAACP and women’s rights group to get involved. According to Lara Setrakian, a columnist for ABC news, Kia Vaughn, the star center for the Rutgers Women’s Basketball team, filed a lawsuit against Imus for libel, slander and defamation. Setrakian added that “The lawsuit [against Imus] claims that the use of the slanderous terms was intentional and motivated by greed and financial gain, and that Imus violated the players’ civil rights,” (Setrakian, 2007). CBS immediately cancelled his show and was fired from the network. CBS eventually reached a settlement with Imus’s $40 million contract . Imus has since returned to radio but his career continues to be surrounded by controversies involving celebrities, politicians and athletes.
As it pertains to deflate-gate, one example of possible defamation was from Jackie MacMullan, a sports reporter for ESPN Boston. Just days after the deflate-gate story leaked, she wrote an article potentially defaming Patriots coach Bill Belichick. In her article, MacMullan points out that there is “No concrete evidence,” but her article has multiple phrases labeling the coach as a cheater as if he is guilty. MacMullan said, “He [Belichick] has forever forfeited the benefit of the doubt when it comes to his own integrity.” She went on to say, “Why can’t the coach trust his players’ talents and his own intellect and lean on the excellence of the organization he has so painstakingly built into a sustainable football juggernaut?”(MacMullan, 2015). Further, MacMullan said, “He [Belichick] thinks he is bigger than the game.” The statements said throughout the article could be considered defamatory and false. Is it enough evidence for the plaintiff to seek damages? Maybe. Regardless, it is safe to say that this kind of banter has surrounded those within the organization since the Colts game. However, many other journalists and broadcasters can potentially be accused of this as well.
Another example of potential defamation comes from a Hall of Fame quarterback and FOX analyst, Troy Aikman. Aikman said,
“My guess it was his [Brady] request, it was the way he [Brady] preferred to throw with them and that’s why it was done. It’s obvious that Tom Brady had something to do with this,” (CBS Connecticut).
The issue here and in other instances is that there is no definitive proof that the NFL has released to suggest the Patriots are guilty. Hence why it is potentially defamatory.
Aikman uses his own personal experience to make his point in this video:
Quarterback Tom Brady and coach Bill Belichick both had press conferences concerning the deflate-gate scandal on the week leading up to the Superbowl. Both of them admitted innocence and claimed that they had no knowledge of the situation. Coach Belichick even revealed the test of a study done within the organization concerning PSI levels in the footballs, and if the weather had an effect on the footballs (Maske, 2015). However, many members of the media still called Brady and Belichick liars. There is a difference between having an opinion and posting or saying something publicly that is inaccurate, false and defamatory. Cathal Kelly, of the Toronto Globe called Belichick, “The most honest liar in American popular culture,” and went on to say he “perfected cheating,” (Kelly, 2015).
Although there are more than enough stories and videos of analysts and broadcasters defaming the Patriots, proving actual malice in the court of law is a tough thing to do especially with the media under the protection of the First Amendment. This is no more evident than in New York Times v. Sullivan, a landmark case regarding libel law. In March 1960, the New York Times ran an ad describing police misconduct including violent and illegal methods against civil rights marches. Some of the statements made were inaccurate, and L.B. Sullivan, the then police commissioner of Montgomery, Alabama, filed a libel claim against the newspaper. Howard M. Wasserman of Northwestern Law says that, “All of this occurred in state court during the heart of the civil rights movement, when a northern newspaper and four African-American civil rights leaders might expect to face procedural and systemic disadvantages in asserting their First Amendment liberties,” (Wasserman, 2013). Sullivan was deemed to be a public official and a public figure and was held to a higher standard than a private individual. In a 9–0 decision, the Supreme Court ruled in favor of the New York Times saying that the newspaper not checking its advertisement did not rise to being “reckless disregard.” This ruling proved to further enhance the meaning of freedom of the press as it gave them more leeway and breathing room.
However, there have been many successful libel cases in which the plaintiff has been able to prove actual malice. One case involved actress Cameron Diaz. A British newspaper had reported she was having an affair with her friend Shane Nickerson. Diaz sued saying that the article caused damages to both of their relationships. Diaz was awarded an undisclosed sum and a formal apology from the paper. Another example is of actress Keira Knightley. The Daily Mail accused her of having an eating disorder and having been responsible for the death of a young lady with anorexia. She was awarded several thousand dollars, which she used to donate to charity (Ciccatelli, 2014). Just recently, libel cases have been filed by NHL Star Eric Lindros and from current NFL player Ray McDonald.
Lawsuits against journalists are unavoidable, but it is up to the journalist to abide by the law and be ethical. Coty Coons from the University of Northern Alabama says that from a journalist’s perspective, “Libel and defamation lawsuits could be easily avoided if reporters, famous sports stars, and athletes alike would simply avoid irresponsibility, negligence, and blatant disregard for the truth by correctly and carefully citing their sources, as well as thinking before they speak to prevent defamatory and untrue malicious comments from occurring,” (Coons, 2012).
Conclusion
Over three months removed from the game against the Colts, the NFL has yet to issue any information on the deflate-gate scandal. In the meantime, reporters and broadcasters alike have publically defamed the organization and certain players and coaches within it. The result has led many to believe that the Patriots Superbowl win is tainted. News reporting is an integral part of media, but sometimes members of the media have crossed the line by jumping to conclusions, falsely accusing and inaccurately reporting, which has led to many journalists and major news station being involved in lawsuits. It’s a situation no one wants to endure whether you are the plaintiff or the defendant. Regardless of the potential forms of defamation, the Patriots are Superbowl 49 champions. Something nobody can take away from them.
This work done by Will Harrigan, is licensed under a Creative Commons Attribution 4.0 International License.
References
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