The Napping Fan’s Defamation Lawsuit is a Swing and a Miss

I attempted to craft a catchy lede to this post regarding the lawsuit filed by the Yankee fan who fell asleep during the game, but I realized that any sentence I crafted would fall woefully short of the elegant synopsis provided in Andrew Rector’s Complaint (submitted without any corrections):

On or about April 13, 2014, the plaintiff was at the rivalry game between the Boston Red Sox and the New York Yankee.  It is well known that rivalry between the New York Yankees and Boston Red Sox is always the biggest in all of sport.  For decades millions of people all over the world turn out or tune in to watch these games.  Plaintiff accordingly was at the game.

In the course of watching the game plaintiff napped and this opened unending verbal crusade against the napping plaintiff.

ESPN Cameras focused on the plaintiff, Announcers like Dan Shulman and John Kruck unleashed avalanche of disparaging words against the person of and concerning the plaintiff.  These words, include but not limited to “stupor, fatty, unintelligent, stupid” knowing and intending the same to be heard and listened to by millions of people all over the world, including people that know the plaintiff in person or interacted with the plaintiff.

The Complaint alleges further that “these vituperative utterances against the plaintiff” were repeated on MLB’s website and that plaintiff was accused of being “someone of a confused state of mind, disgusted disgruntled, unintelligent, and probably intellectually bankrupt.”

Plaintiff Andrew Rector names Major League Baseball Advanced Media, ESPN New York, New York Yankees, Dan Shulman, and John Kruk as defendants in the lawsuit, which was filed in the Bronx County Supreme Court, and brings causes of action for defamation and intentional infliction of emotional distress.  Plaintiff ultimately seeks damages in excess of 10 million dollars.

The full eight-page complaint can be accessed here and is certainly worth a read.

So, the question is whether this lawsuit has any merit.  The short answer is “no.”

First of all, the defamation claim has been improperly pleaded.   Under New York law, to properly state a claim for defamation, “the particular words complained of must be set forth in the complaint.”  This requirement is strictly enforced and the exact words must be quoted verbatim.  Any qualification in the pleading renders the complaint defective.  In Rector’s complaint, he fails to set forth the exact words upon which his defamation claim is based.

Second, Rector’s claim for defamation fails because he cannot satisfy the elements of such a claim, which are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and must cause special harm.

Here is a clip of the alleged defamatory comments:

As one can plainly hear, no such “false statements” were published by ESPN’s announcers John Kruk and Dan Schulman, which would conclusively refute the allegations.  There are other potential defenses, including the fact that any statement is an opinion or substantially true.

Additionally, the fine print on every Yankee ticket states, “By using this ticket, the bearer agrees that . . . the Yankees, the other participating club, and each of their respective agents and licensees shall have the unrestricted right and license to use the bearer’s likeness in any broadcast, telecast, or photograph taken in connection with the game or other transmission or reproduction, in whole or in part, of the game.”  In other words, there is an argument that, by virtue of simply using his ticket to the game, the named defendants had authority to show the plaintiff on camera.

Rector’s claim for negligent infliction of emotional distress also appears to be a losing proposition.  Two of the necessary elements to such a claim include “extreme and outrageous conduct” and “an intent to cause, or disregard of a substantial probability of causing, severe emotional distress.”  The aforementioned clip does not show any evidence of “extreme and outrageous conduct” on the part of the announcers.

While the Complaint is not articulate, at its heart, this lawsuit appears to be focused on the user comments left on ESPN’s and MLB’s websites in response to the video or the picture of Rector sleeping at the game.  For example, Plaintiff lists the following as false statements that were made about him:

  • Plaintiff is an unintelligent and stupid individual.
  • Plaintiff is not worthy to be a fan of the New York Yankees.
  • Plaintiff is a fatty cow that needs two seats at all times and represents a symbol of failure.
  • Plaintiff is a confused and disgusted and socially bankrupt individual.
  • Plaintiff is a confused individual that neither understands nor knows anything about the history and the meaning of the rivalry between the Red Sox and the New York Yankees.
  • Plaintiff is so stupid that he cannot differentiate between his house and a public place by snoozing throughout the fourth inning of the Yankees game.

Clearly, Kruk and Schulman, while poking a little fun at Plaintiff, never came close to using such language.  A review of the articles and MLB’s YouTube posting shows that these comments were left by people after watching the clip.

While some of these user comments may be harsh, Rector simply does not have any recourse against ESPN, the Yankees, or Major League Baseball for third-party comments left on their websites.  The Communications Decency Act (47 U.S.C. § 230) is a federal law which protects the owners of websites from liability – such as defamation – when user-submitted content is published on its website.  For example, if I post an article on my blog and in response a reader posts a comment containing defamatory language, the Communications Decency Act prohibits someone from bringing a lawsuit against me for the content created by the third-party reader.  In suing MLB and ESPN, Plaintiff is clearly attempting to hold these entities liable for user-generated comments, which is prohibited under the Communications Decency Act.

Mr. Rector’s lawsuit is certainly a novel one and perhaps under a different fact pattern (i.e., if the announcers actually provided false statements) or with a better-prepared Complaint, the lawsuit may at the very least survive a motion to dismiss.  As currently articulated, however, the Complaint does not appear to be supportable under the law.

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It should be noted that defamation lawsuits involving sports teams or athletes are not necessarily unusual (see Albert Pujols vs. Jack Clark, Jonathan Vilma vs. Roger Goodell, Brian McNamee vs. Roger Clemens, etc.).  Often, these lawsuits are filed for tactical purposes and are ultimately dropped or dismissed.  Nonetheless, there have been some very unique defamation lawsuits over the years.

  • In 1982, umpire Dallas Parks sued George Steinbrenner after he criticized Parks and claimed that he “had it in for the Yankees” in a press release.  The lawsuit was eventually dismissed because “the press release in every respect falls within the orbit of an expression of pure opinion which is constitutionally protected.
  • In 1991, umpire Gary Darling sued Reds manager Lou Piniella for defamation after Lou Piniella stated in a post-game interview that “I feel Darling has a bias against this ball club”; “He should be professional enough – if he doesn’t like us for whatever reason – to at least call a good game”; “As far as I’m concerned, he’s not a good umpire, he is biased”; and “[He] deliberately makes bad calls against the Cincinnati Reds.”   The lawsuit survived a motion to dismiss and the case settled for an undisclosed amount and an apology from Lou Piniella:  “I have high regard for Gary Darling’s integrity and deeply regret comments that may have maligned his character in any way. . . .  I may not agree with each and every call, but that does not alter the fact that the major league umpires are essentially simply the best.”
  • In 2006, the daughter of Cool Papa Bell brought a defamation lawsuit against Topps because the back of his baseball card stated that Bell “earned his nickname after falling asleep before a game.”   The defamation claim was voluntarily dismissed and the remaining claims were settled.
  • In 2010, a female woman who Bob Uecker was forced to obtain a restraining order against sued him for defamation when he referred to her as a “stalker.”  The lawsuit was dismissed.
  • In 2011, NBA referee Bill Spooner sued the Associate Press and its reporter Jon Krawcynski for defamation after Krawcynski tweeted that Spooner told Timberwolves head coach Kurt Rambis that “he’d get it back” after a bad call.  This lawsuit settled for $20,000 and the removal of the allegedly defamatory tweet.
  • In 2013, Ryan Braun‘s former friend sued him for defamation after allegedly helping Braun successfully defend his original suspension for a positive steroid test.  This lawsuit was ultimately dismissed by the Court.