DENVER - APRIL 19: (L-R) Officials Ken Mauer, Bill Spooner and Leon Wood discuss a call during action between the Utah Jazz and the Denver Nuggets in Game Two of the NBA Western Conference Quarterfinals at the Pepsi Center on April 19, 2010 in Denver, Colorado. The Jazz defeated the Nuggets 114-111 to even the series at 1-1. NOTE TO USER: User expressly acknowledges and agrees that, by downloading and/or using this Photograph, user is consenting to the terms and conditions of the Getty Images License Agreement. (Photo by Doug Pensinger/Getty Images)
If you commonly peruse the sidebars of ESPN, you may have come across this particular story:
NBA Referee Bill Spooner Sues Wolves Writer | ESPN
In short form, here is the case:
- NBA veteran official Bill Spooner was refereeing a game between the Rockets and Timberwolves.
- Wolves coach Kurt Rambis felt that Spooner made a bad call.
- Spooner said he would review the call at halftime.
- Rambis asked how he would get the two points back.
- Here is where things get muddy. The answer, which was heard and then Tweeted by Wolves beat writer Jon Krawczynski, is that:
"Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. that's NBA officiating folks." - Krawczynski Twitter feed
- Since then, Spooner has taken to the best of my knowledge an unprecedented step to sue Krawczynski over his Twitter comments. Spooner's claim is that he never answered Rambis' question.
(Note: I have not seen the actual lawsuit, so this analysis is pure conjecture based on basic understanding of the intentional tort of defamation.)
Most of the reporting I've seen so far focuses on the implications of: a) the damage to the league for having a ref seemingly being caught in a "make-up call"; and b) what it might mean for reporters who use Twitter. I'd like to take a different look and examine the crux of the claim, which the story describes as "defamation."
What is defamation?
Defamation: The act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.
Based on this legal definition, it might seem on the surface that this act is indeed what Krawczynski did. However, the details of defamation (and specifically in this case - "libel") are more specific, and are dependent on the state in which the suit is filed. Generally speaking, the five elements to the intentional tort of defamation are:
- The accusation is false;
- The target (plaintiff) was directly or indirectly identified;
- The accusation is published to a 3rd person;
- The accusation damages the reputation of the plaintiff;
- The accusation was done intentionally to harm the plaintiff, or with with wanton disregard to the facts.
note - these elements may very from state to state, but most will reflect them in some form.
If this is a straight defamation lawsuit, then the burden of proof is on the plaintiff, Spooner. This means that Spooner must prove by preponderance of the evidence (just a tick past 50% in his favor) that each element of defamation is satisfied. If Spooner cannot do this, then the suit fails.
Let us go through each element:
- The accusation is false. The crux of this element is the claim that Krawczynski has made - that Spooner did in fact say that the call would get made up later. While I'm sure that there were others nearby who heard the exchange, only two people can know for sure - Spooner and Rambis.
- The plaintiff was identified. This element is easily satisfied because Krawczynski used Spooner's name in the tweet.
- The statement is published to a 3rd person. This element means that the defendant cannot simply say the accusation back to the plaintiff; it must be published in some form to another party. Here, a number of people have noted that initially, the tweet had only been retweeted 14 times. The number of times is irrelevant; we'd like to think that the more times it was repeated, the more damaging it is. However, from this element's standpoint, the number could have been as small as one and the element would be satisfied.
- The statement was done intentionally to harm or done with wanton disregard to the facts. For this element to be true, Spooner must be able to prove that Krawczynski was either a) intentionally trying to harm Spooner, or b) Krawczynski made the statement in a reckless disregard for what he knew to be true. In order to prove one of these, Spooner would a) have to go through Krawczynski's published work to see if there is a pattern of him targeting Spooner (targeting the refs in general would likely fail to satisfy the requirement) or b) know that Krawczynski knew what the exchange was between Spooner and Rambis, and chose to publish false statements anyway.
- The accusation damages the reputation of the plaintiff. This element will be tricky to prove, because Spooner would have to demonstrate how exactly his reputation has suffered since the event. In this case, the number of tweets might actually play a role. If nobody saw the tweet, then it would be more difficult to prove that Spooner's reputation was somehow affected. Damages can also take the form of harm that can be monetized. This component might have some merit if Spooner can demonstrate that he suddenly was given less games to work, or there was an increase in prank calls or harmful threats and he felt the need to relocate, add a security system to his home, or something of that nature.
Now, based on this analysis, it would seem that Spooner is going to have a difficult time proving each of the elements. Also, Krawczynski has a few defenses in his favor:
- Truth. If the tweet about the exchange is true, then no defamation could have taken place.
- Statements made in good faith or a reasonable belief that they were true. For this defense to work, Krawczynski would have to show that he was in close enough proximity to hear the exchange, and that what he heard or what he interpreted to perceive is within the realm of possibility. If you have followed the NBA for any length of time, then you've seen a make-up call. While it may be rare for a ref to volunteer it as a solution, it does not change the perception that the calls happen frequently. Krawczynski as a beat reporter knows this, so for him to see something that fits within that paradigm and then to comment on it would likely be strong enough to be considered in good faith or in a reasonable belief that his statement was true.
Each of these legal defenses would seem to fall in Krawczynski's favor. Not only does he have the elements of defamation on his side, he also has sound defenses. There is, however, one more wrinkle:
Defamation Per Se
In defamation per se, the allegations against the defendant are so egregious that they are presumed to cause harm to the plaintiff. A published statement can rise to this level of egregiousness if, among other things, the statement was directed toward a person's professional character or standing. Also, the burden of proof shifts from the plaintiff to the defendant.
If Spooner filed his suit in a district that supports defamation per se, his job just got a lot easier because:
- The statement was an indictment of both Spooner's competence as well as the referee profession.
- He would no longer have to prove harm because harm is now presumed.
- Instead of Spooner having to prove that Krawczynski's statement was false, now Krawczynski would have to prove that the statement he heard was true.
So what does this all mean?
At this point it is hard to say, because we have not actually seen the contents of the lawsuit so we don't know how Spooner is supporting each of the elements of defamation. Based on the analysis above though, I think prima facie that if the claim is just defamation, then Spooner is going to have a difficult time winning. If it is defamation per se, Spooner has a better chance, but still winning is unlikely as long as Krawczynski can demonstrate he acted in good faith.
I think the bigger picture is the optics of the situation, how it makes the league look, and how it makes the reporting profession protect its own. I would look for this suit to get dismissed, but not after both the league and the Associated Press do a review of their practices.
/poke
Wake up. Class dismissed.
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