The defamation lawsuit by former Philadelphia Phillies first baseman Ryan Howard and Washington Nationals first baseman Ryan Zimmerman against Al-Jazeera over their controversial documentary survived another motion to dismiss earlier this month. Zimmerman, et al., v. Al-Jazeera America, et al., 2016 WL 66950 (D.D.C.).
The ongoing lawsuit stems from an Al-Jazeera America undercover expose that aired in late 2015 — “The Dark Side: Secrets of Sports Dopers.” The documentary featured recordings of Charles Sly, a former pharmacy intern at The Guyer Institute of Molecular Medicine in Indianapolis, who claimed he supplied Howard and Zimmerman with a performance-enhancing drug banned by Major League Baseball.
A few weeks before the film aired, Sly recanted his statements and declared on video that there was no truth “to any statement of mine that Al-Jazeera plans to air.” Despite the retraction, the documentary was publicized and aired.
The film implicated a number of well-known athletes, including Howard and Zimmerman, and five NFL players, most notably, Peyton Manning. Howard and Zimmerman filed suit shortly thereafter. Both Zimmerman and Howard have been cleared by Major League Baseball of any wrongdoing.
Manning has not filed suit, but adamantly denied the allegations. He told ABC News the film was a “freaking joke” and at first said he was so angry he may consider filing a defamation suit as well. Although Manning more recently told USA Today he has no plans to sue, he could be waiting to see whether Howard and Zimmerman are successful in their suit.
Manning and the other implicated athletes have an interest in Howard and Zimmerman prevailing, if only to further delegitimize the report.
After this controversy, reports indicated that the Qatari-owned news network would be shut down, but the network survives, and now, so do the claims by Zimmerman and Howard.
Despite Al-Jazeera’s arguments for dismissal based on First Amendment protections, the U.S. District Court for the District of Columbia found Sly’s statements clearly referenced the athletes and a reasonable viewer could interpret the film to be an endorsement of Sly’s claims. This is the second motion to dismiss that has been denied by the district court.
Zimmerman and Howard are not the first athletes to file defamation claims related to allegations of drug use, but these cases are difficult to win due to First Amendment laws and even strong claims usually settle out of court due to the sensitive nature of the subject matter and public personas of the parties involved.
Overcoming First Amendment hurdles is difficult due to the stature of the athletes. Public figures with libel and defamation claims must establish actual malice (knowledge of falsity or reckless disregard for the truth) in the false reporting of a news story for a claim to be successful. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).
Actual malice is generally hard to prove and is usually a close question of fact. Scandals like this are often uncovered in large part by investigative reporting, which, by its nature, often relies on questionable sources and whistleblowers who may be pressured or incentivized to make such statements, or to take back claims after they are published.
As such, a duty to investigate arises where a publisher has obvious reasons to doubt the veracity of its informant. See e.g., McFarlane v. Ben Menashe, 1995 WL 799503 (D.D.C. 1995).
The duty to investigate is not limited to media outlets. In 2009, Manny Pacquiao sued Floyd Mayweather and Oscar de la Hoya alleging defamation in connection with their purported statements that he had used drugs, including steroids and human growth hormone. Pacquiao v. Mayweather, et al., 803 F.Supp.2d 1208 (D. Nev. 2012).
The court found in favor of Pacquiao and found he established actual malice because actual malice may be found where the defendant entertained serious doubts as to the truth of the statement, but stated it anyway. Wynn v. Smith, 16 P.3d 424 (Nev. 2001).
The court said the defendants could not have known whether or not Pacquiao had actually taken drugs. The jury awarded Pacquiao more than $113,000.
In order to succeed on a defamation claim, a plaintiff must also prove that the statements made were actually false. One of the most well-known defamation plaintiffs in the sports world, Lance Armstrong, sued reporters, his bike mechanic, insurance companies and others in an effort to suppress evidence of his doping.
In 2004, he sued David Walsh and Pierre Ballester, authors of “L.A. Confidential — The Secrets of Lance Armstrong.” He also sued The Sunday Times after they ran a preview of the book. Armstrong v. Times Newspapers Ltd [2006] EWHC 1614 (QB).
Armstrong ultimately withdrew the defamation suits before he had to testify under oath. Later, after admitting to doping, he compensated the newspaper as well.
In this case, in denying Al-Jazeera’s motion to dismiss, Judge Ketanji Brown Jackson remarked that though the plaintiffs are public figures, they may be able to overcome the daunting First Amendment standard because, as she states: “Al-Jazeera and [reporter Deborah] Davies entertained serious doubts as to Sly’s claims and failed to investigate these claims adequately, which, together, suffice to support a plausible finding of actual malice.”
The players may be able to show that Al-Jazeera and co-defendant, Davies, acted with actual malice in broadcasting the report given that Sly publicly rescinded his statements weeks before the documentary aired.
Additionally, counsel for Howard and Zimmerman informed the defendants before the broadcast that the documentary’s doping allegations had no merit. Al-Jazeera aired the film anyway, and the defense has, and will continue to argue that the network did not reasonably investigate the accuracy of Sly’s assertions.
The fact that Howard’s and Zimmerman’s case has survived the pleadings stage suggests that their claims have merit. It will be worth monitoring whether the defendants choose to continue to fight the case, or whether they now choose to consider settlement.
Because Zimmerman and Howard have at least preliminarily overcome the First Amendment hurdle, if the case is resolved out of court, expect the monetary settlement to be substantial.