A reminder on defamation involving public figures

I've mentioned this a few times here, and a few times on Reddit.

For Brady, Kraft, the Patriots, etc., to prevail in a defamation case, they must prove the poorly-named actual malice.

Three important points about actual malice:

• Actual malice does not require intent to cause harm per se.
• It does, however, require reckless disregard for the truth. Brady would have to prove, for example, that either the NFL knew that what they were saying was incorrect, or that they entertained serious doubts regarding its veracity.
• It is not sufficient to simply prove that the information is false. Nor is simple incompetence sufficient.

Damn, Goodell's incompetence defence would be strong.

Jlaff said:

Damn, Goodell's incompetence defence would be strong.

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By incompetence, I mean something like "Not bothering to check whether the story was true."

"11 of 12 footballs were deflated by 2 psi or more"

A known lie, attributed to an NFL source, left uncorrected for over 3 months.

ctpatsfan77 said:

I've mentioned this a few times here, and a few times on Reddit.

For Brady, Kraft, the Patriots, etc., to prevail in a defamation case, they must prove the poorly-named actual malice.

Three important points about actual malice:

• Actual malice does not require intent to cause harm per se.
• It does, however, require reckless disregard for the truth. Brady would have to prove, for example, that either the NFL knew that what they were saying was incorrect, or that they entertained serious doubts regarding its veracity.
• It is not sufficient to simply prove that the information is false. Nor is simple incompetence sufficient.

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When the NFL sent the Pats the 10.1 PSI halftime pressure in a letter the day after the game and leaked the same numbers to the media, they already had a written record of the halftime pressures.

But, let's assume it was a simple good-faith typo. Why didn't they correct the into, either to the Pats or the media. Why did they refuse to send the correct information to the Pats for more than two months, meaning that the Pats went through the entire interview process of the Wells investigation believing that the 10.1 PSI was the accurate number? Why, when they finally provided the Pats with the real data on March 23, did they specifically force the Pats to agree not to release the right numbers and correct the false information leaked to the media by the NFL that had been fueling the witch hunt for two months, uncorrected.

The false information was given to the media by the NFL leaks days after the game on Jan 18th. It was not corrected until the Wells report was released on May 6th, nearly four months later, four months in which the NFL knew the information it had leaked as false.

A totally different law to how it is here in the UK.

The plaintiff needs to show "probable harm" as opposed to "actual malice", they only need to have suffered a harmed reputation without having to show any other damages and the defendant has to prove what they said is the truth other wise they lose the case made against them.

hwc said:

The false information was given to the media by the NFL leaks days after the game on Jan 18th. It was not corrected until the Wells report was released on May 6th, nearly four months later, four months in which the NFL knew the information it had leaked as false.

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It's an interesting point, and I don't know how that would be resolved. My guess is that it would depend heavily on who leaked the "2 PSI" story to Mort.

In these cases would Brady be able to get access to NFL E-mails and company phones?

I'm no lawyer so at the risk of sounding foolish the 10.1 psi letter sounds like a reasonable argument. Maybe not a winning argument because the NFL could IMO argue they have no responsibility to correct the media.

I'm also curious about the NFL network. It would seem unusual in these cases that the people accused of defamation own a mass media vehicle. Is it unreasonable to say that if they allowed their own network to report information they knew to be factually incorrect, but didn't give them the correct information that could hurt them? Not only are they then complicit, but arguably taking action to perpetuate a lie.

I'm not a fan of the UK version of the law.

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Palm Beach Pats Fan said:

"11 of 12 footballs were deflated by 2 psi or more"

A known lie, attributed to an NFL source, left uncorrected for over 3 months.

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And to add to that, the NDA that the Patriots were forced to sign if they wanted to know the actual PSI readings that were recorded. That's gotta be enough for a defamation case? Clear act of trying to control the message.

Wheelman said:

And to add to that, the NDA that the Patriots were forced to sign if they wanted to know the actual PSI readings that were recorded. That's gotta be enough for a defamation case? Clear act of trying to control the message.

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Without knowing Mortenson's source it isn't exactly a slam dunk IMO. The NFL would probably say we didn't tell anything to Mort, didn't leak anything and our policy was consistent the whole time to not share the psi with the public.

I don't believe that, but without Emails, texts, or Mortenson's source how can anyone prove that's malice?

This is a little off topic for the thread but if Kraft can't appeal, can Brady appeal the draft choices taken away ? Even though that was a Patriots' punishment, he is part of the Patriots and the loss of a #1 pick has a negative impact on him and his career in future years. So in my non lawyer mind it would seem like Brady is being punished by the loss of the #1 pick; so could he appeal that ?

What's the legal chance of finding Mort's leaker through discovery?

It would seem SOMEBODY defamed the Patriots by putting out very incorrect numbers, but we don't actually know who. Is there such a thing as a libel suit whose defendants are Mort and a John Doe? What's his legal position if he then tries to protect his source?

Bobsyouruncle said:

Without knowing Mortenson's source it isn't exactly a slam dunk IMO. The NFL would probably say we didn't tell anything to Mort, didn't leak anything and our policy was consistent the whole time to not share the psi with the public.

I don't believe that, but without Emails, texts, or Mortenson's source how can anyone prove that's malice?

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ok... can Brady sue Grigson/Irsay/Colts for defamation then?

BelichickFan said:

This is a little off topic for the thread but if Kraft can't appeal, can Brady appeal the draft choices taken away ? Even though that was a Patriots' punishment, he is part of the Patriots and the loss of a #1 pick has a negative impact on him and his career in future years. So in my non lawyer mind it would seem like Brady is being punished by the loss of the #1 pick; so could he appeal that ?

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Kraft can appeal if he chooses to. He has ten days from the 5-11 notice to make up his mind.

Tom Brady wouldn't have anything to do with appealing the league's decision to punish the organization, so he cannot appeal the loss of picks.

Palm Beach Pats Fan said:

"11 of 12 footballs were deflated by 2 psi or more"

A known lie, attributed to an NFL source, left uncorrected for over 3 months.

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Unfortunately, an "NFL source" can be anyone from the water boy to the executives, so it would be impossible to bring up a defamation suit vs. Roger Goodell for this example.

I believe the legal team has been assembled for the appeals process, argument of unfair labor practices, and attempt to eventually bring a neutral arbitrator into this. I think we're getting ahead of ourselves with any thought on actually suing Goodell for defamation.

He would simply argue that he neither did the investigation, or handed down the punishment. If he upholds the suspension like we all assume, he'll say that he felt the evidence was strong enough to agree with both Wells and Vincent.

Big-T said:

A totally different law to how it is here in the UK.

The plaintiff needs to show "probable harm" as opposed to "actual malice", they only need to have suffered a harmed reputation without having to show any other damages and the defendant has to prove what they said is the truth other wise they lose the case made against them.

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And that looser standard is why the US has a federal law which prohibits all US and state courts from recognizing and enforcing the libel judgements of UK courts (and courts in other countries with similar looser standards).

Palm Beach Pats Fan said:

"11 of 12 footballs were deflated by 2 psi or more"

A known lie, attributed to an NFL source, left uncorrected for over 3 months.

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I also want to know why when the nfl had the correct information all along they didn't tell the patriots the exact measurements for 64 days after game! And than with the stipulations they couldn't release that information to the public! Why not? They weren't allowed to defend themselves on those false reports. Seems to me long enough to make sure the public had the wrong information in their head long enough there was no changing their minds.

ATippett56 said:

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When in doubt....use Hitler's picture. Very poor taste buddy.