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:
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.
- 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.
- 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.
- 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.
- 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.