Sunday, November 27, 2022

Golf and how not to plead a defamation claim -- UPDATED

August 26, 2022

Long time readers of this blog know that over the years I have posted many stories about golf related torts.  Go here and scroll down to see them.  Most of them relate to cases in which a golfer's negligence results in damages to another golfer or to a nearby property owner.  So today I bring you a golf story of a different sort.

If you know anything about professional golf, you know that there is a huge to do about the fact that a new professional tour (funded by Saudi Arabia) has been created to compete directly against the American PGA tour.  When a good number of top, established, PGA pro players signed to play with the LIV tour, the PGA banned them from playing in PGA events and the debate about the new tour started to get heated.

The availability of the LIV tour now threatens the PGA's control of the pro tour and its players, and the reaction to the competition has been very fierce on both sides.  PGA faithful players and commentators have spoken publicly against the players who defected to the LIV tour.  Players who defected have accused the PGA of many things...  etc.... ...  Insults and accusations are being thrown in all directions. ... You get the idea.

Enter Patrick Reed, a pro golfer who recently decided to leave the PGA and join the LIV tour.  For this, one of the commentators of the Golf Channel criticized him (and others) strongly over a series of broadcasts and Reed has now filed a claim for defamation.

That was a long intro for me to get to my point today.  If you want to learn how NOT to draft (or argue) a defamation claim, read the complaint now.

Here are some of the problems I see with the complaint. First, because of his celebrity golfer status the plaintiff will likely be considered a public figure so he has to meet a higher burden of proof against the defendants, who are members of the press.  Second, the complaint is full of conclusory statements characterizing the statements upon which it is based as "defamatory" with weak explanations as to how that conclusion is supported.  This is a problem because as alleged it is easy to point out that the vast majority, if not all, of the statements in question are not actionable because they are either statements of opinion (as opposed to statements of fact), insults or permissible hyperbole.  

And then there is the chance that maybe the judge could be convinced that the plaintiff is actually "libel proof" since his reputation is, well, not the best among many.  You can read more about the case and about Reed and his reputation here.  (As the author of that article says "It was a chain of suspicious incidents involving Reed and his golf ball, however, that smudged his image with a mark no eraser can fully eradicate.")

The complaint does have some statements that could be considered statements of fact (I think the point is debatable but I can see a judge not dismissing them for now) all of which relate to incidents in 2019 and 2021... and about those I wonder if they are affected by a statute of limitations.  

I am very interested in this case and I would like to see if the defendants file a motion to dismiss.  I would, and I think most if not all of the claims should be dismissed.  


UPDATE (11-27-22):  In my original post I commented on how poorly the complaint in this case was drafted.  Not surprisingly, the court agreed and dismissed it.  The dismissal is without prejudice, so it is possible the plaintiff's lawyer may be able to fix it, but we will have to wait and see.  Here is the dismissal order.

I found out about the dismissal in the Golf Dispute Resolution blog, which includes a short comment that starts as follows: 

I typically question the wisdom of a public person with a questionable past filing a suit for defamation. The essence of defamation is damage to reputation. Thus, by commencing such a claim, plaintiffs invite inquiry into all aspects of their past. The damage calculation in many respects is a gap analysis: what is the difference between the reputation with and without the allegedly defamatory statements. A defamation claim can be the legal system’s warning that those living in glass houses shouldn’t throw stones.

Thus, like many, I was puzzled with Patrick Reed elected to take on Golf Channel and its media talent, Brandel Chamblee and Damon Hack, with claims that they had defamed him. Certainly, Reed’s history–including longstanding stories about alienation from his parents, issues with teammates during his college career, more recent suggestions that his on course professional play has included incidents of cheating–paint a large target on his back for defense lawyers eager to challenge claims that the broadcasters have damaged Reed’s reputation.