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NBA Referees and Defamation Per Se: the Burden Shifts

By J.A. Sherman
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Jonathan Daniel

In our previous analysis of the civil suit filed by NBA referee Bill Spooner against Associated Press and its reporter Jon Krawczynski, we examined the elements of the intentional tort of defamation.

NBA Referees and Defamation; A Burden in the League's Hands?

Based on a cursory glance at what had been reported by ESPN, it seemed that Spooner would not have a strong case, since it would have been difficult to prove some of the elements. However, a copy of the civil suit is now available for perusal.

Spooner v Associated Press and Jon Krawczynski

(It is only 9 pages; don't be afraid to dig in)

On page one of the complaint, you can see that the specific type of tort is named:

Plaintiff seeks to recover damages for defamation per se to his professional and business reputation...

This is the wrinkle which I mentioned at the bottom of the previous post on this matter. To review:

Under the normal tort of defamation, the accuser (plaintiff) must prove by preponderance of the evidence (a tick above 50%) that:

  1. The accusation is false;
  2. The target (plaintiff) was directly or indirectly identified;
  3. The accusation is published to a 3rd person;
  4. The accusation damages the reputation of the plaintiff;
  5. The accusation was done intentionally to harm the plaintiff, or with with wanton disregard to the facts.

As we examined yesterday, I think it would be difficult for Spooner to demonstrate that each has been satisfied, with #4 and #5 being particularly troublesome. I also think most of the media has taken this same position, possibly taking a signal from the NBA itself, since the league has officially stated that it will not be participating in the lawsuit.

This is a common example of reporting that I have seen.

However...

Spooner is not suing under the tort of defamation. He is suing under the tort of "defamation per se," and the two ARE different.  Defamation per se is different in that it considers some statements so egregious that it is assumed to cause harm to the plaintiff's reputation. Statements are considered defamatory per se if they falsely assert such things as:

  1. Criminal offense (such as murder);
  2. A terrible disease (such as AIDS);
  3. Serious sexual misconduct (such as rape);
  4. Professional and business reputation.
This last category is the one Spooner is suing under, as the quote at the top asserts. By looking through the complaint, we can see how he is going to appeal to the cause of action (jump to page 7 in the complaint):
  1. The accusation must be false: Spooner contends the statement made by the AP reporter Krawczynski was and is false in material fact. Spooner is saying he never said Rambis, having lost two points unfairly, would "get it back."
  2. The accusation must state the plaintiff by name. The tweet clearly identified Spooner by name and title, and only concerned Spooner.
  3. The accusation must be published to a 3rd party. The statement was published via the Internet on Twitter, so it reached a multitude of 3rd parties.
  4. The accusation must be published without privilege. Privileges are granted to people such as reporters to enable they have the freedom to be society's watchdogs. Privileges include such categories as statements of opinion, reliance on public documents, and statements about public officials. Spooner contends that Krawczynski's statement does not fall within any of those privileges, and so he is not protected.
  5. The accusation harms the Plaintiff's professional or business reputation. Spooner contends that Krawczynski's tweet rises to the level of defamation per se because Spooner's professional reputation as an NBA referee has been and remains disparaged.
As you can see, the necessary elements have changed. Spooner no longer has to demonstrate actual harm (although he does mention it in the complaint) because harm is presumed  by the fact that the false statement was made about his profession.

Furthermore, in most jurisdictions, the burden of proof for defamation falls on the Plaintiff. In other words, it would be up to Spooner to prove that Krawczynski's statement was clearly FALSE. However, when the tort changes to defamation per se, the Defendant now must prove that the statement was TRUE. You can see how this shift, if the court were to allow it, changes the game entirely. It would be extremely difficult for either Spooner or Krawczynski to prove that his position is correct; it's a case of "he said, he said." The difference though is that, under defamation, if Spooner cannot prove his position, he loses. Under defamation per se, if Krawczynski cannot prove his position, Spooner wins.

Does Krawczynski still have a defense?

Krawczynski will still have the assortment of affirmative defenses available, and the strongest of which is still that he made his tweet made in good faith or the reasonable belief that his tweet was true. That belief is that Krawczynski was pretty sure, if not positive, that he heard Spooner say he'd give a make-up call, and that he didn't tweet the comment to intentionally hurt Spooner. In other words, Krawczynski as a reporter for the AP had a duty to report the truth as he perceived it to the best of his ability, and he met this duty of care.

If this suit eventually reaches court, my guess would be that it is on this element of duty of good faith or reasonable belief that the decision will turn. We can reasonably infer that Spooner is attempting to preempt Krawczynski's duty of care defense when Spooner states in the complaint that the false statement was necessarily, "derogatory of Plaintiff's integrity and honesty." In other words, Krawczynski had a duty of care to report what he heard accurately, and he did not meet that duty. Ergo, his defense should fail.

The fly in the ointment: Spooner states in his complaint that the accusation in the tweet should not be considered in a vacuum, but in light of the infamous Tim Donaghy scandal. I believe what Spooner is attempting to do is actually raise the level of duty of care that Krawczynski must meet. I'm totally going into conjecture mode here, but I'm guessing that:
  1. Because the Donaghy scandal impugned many of the referees who have never done anything unethical (of course implying that a blown call is not on its face unethical), that reporters' published statements about referees made TODAY, in light of the scandal, carry more weight because the public has become more sensitive to the accusation. If the scandal had never occurred, Krawczynski's tweet would not be considered as such an indictment of the ethics of the NBA referees. In other words, context matters.
  2. Because context matters, Krawczynski actually has a greater duty of care than he might have in the past, precisely because in today's NBA people are more sensitive to the claim of a referee's bad intentions. So while Krawczynski may meet an ordinary duty of care in his reporting, because of the context, this ordinary duty is no longer enough. By failing to meet his duty of care, Krawczynski cannot claim a valid affirmative defense.

What does it all mean?

I would argue that the press has by and large mis-reported the story in the sense that they have not thoroughly examined or explained what the actual charge in the lawsuit is, so I think there has been a tendency to understate the likelihood of Spooner's success. The tort that Spooner is attempting to apply to his case is really the only one in which he has a shot at winning. It is precisely because of the presumption of harm and the shifting of burden of proof that he has a shot.

However, I think that his chances are still not great because:

  1. The NBA has dismissed the suit as frivolous. They don't see it as a winning hand and not even worth supporting for the sake of their solidarity, let alone credibility. While the reporters may not understand the legal nuance, assuredly the NBA's legal department does. The league also wants to continue to distance itself from the Donaghy scandal, and if they perceived this suit as bringing it back to the forefront, they'd likely fight more vigorously to protect the product.
  2. There is also a 1st Amendment issue of freedom of the press at stake. As a Constitutional right, courts have tended to give quite a bit of leeway to reporters to make statements, even if those statements ultimately prove to be untrue. The state of Minnesota (where the suit was filed) has a reasonable duty of care standard for determining whether a reporter acted in good faith. I would guess it unlikely that a court would arbitrarily raise the level of duty of care to accommodate Spooner's complaint, since a moving level of sensitivity to public statements would have a tendency to shift only toward a restriction of speech and press, not a broadening of it.
More to come as further details arise...
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(Disclaimer - I do not practice law in the state of Minnesota. My interpretation of the suit is based purely on my reading of the filing and basic understanding of the intentional torts of defamation and defamation per se. Nothing written here should be taken as legal advice.)

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