RADIO
Every year there are legal issues centered around the sports arena. Recently, we have had the Deshaun Watson saga and the issues in Washington with Dan Snyder. However, most of the public are not aware of the intricacies that these issues are decided on. That is where I come in. I am a practicing attorney in New York/New Jersey with a background in criminal defense, contractual disputes, and labor/employment law, and I cannot get enough of the intersection between sports and law.
The hottest legal issue in discussion right now is the Brett Favre defamation lawsuit against former athletes/media personalities Pat McAfee and Shannon Sharpe, so walk with me as I break down the allegations and discuss why I think Brett Favre has made a huge mistake.
Retired Hall of Fame NFL superstar Brett Favre, known better as the "Gunslinger," has filed a defamation lawsuit against Mississippi State Auditor Shad White, and two former NFL Players turned media sensations, Shannon Sharpe and Pat McAfee. The lawsuit stems from accusations against Favre that he was complicit in stealing millions of dollars from the Mississippi State's welfare fund in order to finance a new volleyball gym at his alma mater, the University of Southern Mississippi. At the time of the alleged misuse of funds, Favre's daughter was on the women's volleyball team for the University.
How We Got Here
A report in Mississippi Today revealed text messages that show the former Governor of Mississippi Phil Bryant attempted to get Favre funding for his Volleyball Stadium and that public funds could be used to do so. Bryant reached out to the non-profit Mississippi Community Education Center's Director, Nancy New, to see how they can help Favre obtain public funding since the non-profit was an avenue for spending public money.
The text messages obtained show that Bryant, Favre, New, and others worked together to divert at least $5 million of the state’s welfare funds to build the new volleyball stadium. The following text message exchange is what led to the public outcry that Favre was involved in defrauding the low-income residents of Mississippi:
From Mississippi Today
Favre appears concerned that the media might find out that the funding came from the State's welfare fund, but New quickly puts his worries at ease by stating that the use of where the welfare funds go is never publicized.
Currently, Favre is being sued by the State for his role in the misappropriation of the welfare funds, and his most recent motion to dismiss the lawsuit against him has been denied. Despite being sued by the Mississippi Department of Human Services, what followed was weeks of allegations and public shaming of Favre for his alleged role in the fraudulent use of welfare funds, including reports on the situation by FOX Sports' Shannon Sharpe and SiriusXM Radio host Pat McAfee.
Favre continues to maintain his innocence, and part of that is his attempt to clear his name through this lawsuit. However, Favre faces an uphill battle, and in my opinion, his decision to sue Sharpe and McAfee can only backfire.
Favre's Lawsuit Against Sharpe and McAfee
Favre's defamation lawsuit is one of the hardest legal causes of action to prove. Defamation is a false statement that is published or communicated to a third party and the false statement injures reputation of the Plaintiff (Favre). Defamation includes both libel (written/published statements) and slander (spoken statements).
According to the Complaint, Sharpe is being sued for saying “Brett Favre is taking from the underserved”; “He [Favre] stole money from people that really needed that money”; and “you’ve got to be a sorry mofo to steal from the lowest of the low.”
McAfee is being sued for saying “Every time his [Favre’s] name gets brought up, we have to mention that he tied the hands of the poor people and took money right out of their pockets" and "He [Favre] is certainly in the middle of stealing from poor people in Mississippi right now.”
The problem for Favre is that he is not just any ordinary person -- he is a public figure in the eyes of the law, and for defamation claims, that singular fact turns the potential success of his case from unlikely to practically impossible.
What Brett Favre Must Show To Prove He Was Defamed
In order for a claim of defamation to be successful, Favre must prove that 1) a false statement was issued and purported to be fact; 2) publication or communication of that statement to a third person; 3) the Defendant knew the statement was false or acted "negligently" in failing to ascertain whether the statement was true or false before making it; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.
However, this standard is even stricter for public figures. Since Favre is unquestionably a public figure, he must also show that the statements were made with "actual malice."
This means that Favre has to show that the Defendants made the false statements "with knowledge that it was false or with "reckless disregard" of whether it was false or not." In short, a private Plaintiff only needs to show that the false statement was made negligently, whereas the requirement of actual malice requires the public figure Plaintiff to show that the false statement was issued intentionally or recklessly.
It also matters that Favre is a public figure because he must prove actual malice by "clear and convincing evidence" a stricter standard than the typical "preponderance of the evidence" (more likely than not) standard of civil court. The reason for the heightened actual malice standard with public figures is because Courts understand that public figures are newsworthy, and they don’t want to subjugate the right to free speech when it relates to news about public figures.
Sharpe And McAfee's Defenses to Defamation
Now that Sharpe and McAfee have been sued, let's take a look at the defenses they can plead to exonerate themselves from liability to Favre.
Truth: Truth is an absolute defense to defamation. Put another way, it does not matter how harmful, vulgar, or damaging a published/communicated statement is, as long as it is true there is no defamation. Most courts will also not find defamation if the alleged defamatory statements were substantially true with minor inaccuracies.
Neutral Report Privilege: The neutral report privilege protects media organizations when reporting on important public issues, including those who re-publish allegations concerning public figures, even if the allegations were unverified. Courts have held that the whole purpose of this privilege is to allow the media to inform the public of important issues and let it judge which side is true. Put another way, it is not the reporter's job to investigate allegations of a matter of public interest before reporting on the issue itself. This defense is also referred to as "adding to the chorus," essentially that McAfee and Sharpe were just reiterating what the plethora of other news/media outlets were reporting on, thus, they can not be solely liable for Favre's damages if the statements are indeed false.
Wire Service Defense: The wire service defense applies to media republishing news from a reputable news source, assuming the details are true. The defense only applies if the media did not "materially alter" the information from the reputable news source.
Opinion: McAfee and Sharpe are not liable for their opinions. Defamatory statement are false statements offered as fact, therefore a person's opinion cannot be defamatory. The key to the opinion defense is that the alleged defamatory statements can not be readily proven true or false. McAfee and Sharpe would argue that it was their opinion based on all the reporting that Favre had committed the alleged offenses and they had no way of proving if it was true or false on their own.
Fair Report Privilege: The fair report privilege protects defendants from defamation liability if they relied upon a official public document or statement by a public official for the allegedly false information. States can decide for themselves which sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials, especially those made in their official capacity.
There are other defamation defenses that are not applicable to this situation, so I will not bother discussing them here.
Why This Lawsuit Can Only Backfire
Now that we know the law of defamation, what Favre must prove to win, and the available defenses to McAfee and Sharpe, let's take a look at why this lawsuit can only backfire on Favre.
Favre Unlikely To Win
Brett Favre faces a tremendous uphill battle in trying to prove that McAfee and Sharpe knew or should have known that the statements they made about Favre were in fact false. First, he must prove that the statements were false.
This essentially requires him to show exactly where the money came from for the volleyball facility, what his role was in the process, and to prove that every transaction and every payment made was legal. He will also have to explain the text messages with Nancy New and explain why he would be concerned if the public found out where the money was coming from if it was all legal.
Next, he will have to prove that McAfee and Sharpe knew or should have known that the statements they made were false. This appears to be an impossibility as McAfee and Sharpe are not close members of Favre's inner circle, and the statements they made were based on the numerous media outlets that were reporting the same allegations. Some of these media outlets include but are not limited to ESPN, CNN, The New York Times, NBC, ABC, CBS, FOX, and the Associated Press.
It is a complete mystery how Favre could go about proving McAfee and Sharpe knew the information being reported on by all of these reputable news outlets were false. Thus, even if he can prove that the statement are, in fact, false, he will not be able to meet the actual malice standard required for an actionable defamation claim of a public figure.
Consequences That Come From Filing This Lawsuit
Brett Favre has made his role in the Mississippi welfare scandal the sole focus of this litigation. All McAfee and Sharpe's attorneys have to show is that there is substantial truth to the statements each one made. They will investigate every report made on the incident, they will subpoena text message and email records from Favre, Nancy New, former Governor Bryant, other public officials involved, and anyone else that may have relevant information. Rest assured, they will leave no stone unturned -- and any hopes that Favre had of this issue being swept under the rug have been effectively extinguished.
Filing this lawsuit has also made his daughter a potential witness in this case as it is likely he spoke to her about the new volleyball facility in one way or another. As a result, she will be subject to a deposition by the defense, her text messages and email communications will have to be produced, and she will likely be called as a witness to testify against her father. Her story had better match up with his. Some states have a parent-child evidentiary privilege similar to the commonly understood spousal privilege, but Mississippi is not one of those states.
Favre himself will also be subject to all of the tactics of pre-trial discovery. He’ll be deposed and asked to give sworn testimony about the scandal, and he would risk perjury charges by denying the allegations if it turns out that some or all of it is true.
Favre will also be required to produce documents, including texts and emails, that could theoretically could lead to additional lawsuits or charges depending on what is revealed. All of his previous business dealings will examined with a fine toothed comb. Even if we assume that the defense comes up empty after pre-trial discovery, they still have at least four valid defenses to avoid liability.
Defendants' Arguments
The neutral report privilege and the wire service defense would certainly apply to this case as the statements made by McAfee and Sharpe came after numerous reputable news sources were reporting on Favre's misuse of government funds and their statements merely echoed the same details. Equally applicable is the fair report privilege since these allegations against Favre are alleged by the Mississippi State government in the lawsuit that the Mississippi Department of Human Services has filed against Favre and others for the misappropriation of public funds (public government document).
The text messages revealed by the media also involve the former Governor of Mississippi (government official) reaching out to the non-profit Mississippi Community Education Center's Director to see how they can help Favre obtain public funding (statements made in his official capacity as Governor).
Lastly, the most damning statements against Favre and his misuse of welfare funds came from the third Defendant in this lawsuit, Mississippi State Auditor White (public official), who made reports to the media in his official capacity that Favre knew that he was receiving money from this non-profit which was funded by taxpayer dollars, that the funding for that was a sham, and that Favre knew that the money was flowing through a nonprofit which was designed to serve poor folks. If all else fails, McAfee and Sharpe have a valid defense of good faith opinion based on the wide spread reporting of Favre's improper conduct.
Brett Favre could have tried to prove his innocence through defending the lawsuit against him by the Mississippi Department of Human Services. However, he poorly chose the route that is going to turn his life and the lives of those closest to him around, that could potentially expose him to further charges and allegations of improper conduct, and that has an incredibly low probability of success. It's a bold strategy, let's see if it works out for him (it won't).
