Howard and Zimmerman Sue for Defamation, Unlikely to Win

Over the holidays, Al Jazeera America released an explosive, undercover report on doping in professional sports. Included in the story were secretly recorded interviews with Charlie Sly, a pharmacist who boasted of having provided illegal performance enhancing drugs to numerous professional athletes.

Among the many athletes that Sly claimed to have supplied with PEDs were several baseball players, including Ryan Howard and Ryan Zimmerman. According to Sly, both players bought and used the drug Delta-2, a banned hormone supplement.

Initially, both Howard and Zimmerman issued a joint statement staunchly denying the allegations. The two have now gone one step further, each filing suit against Al Jazeera on Tuesday evening for defamation.

However, while filing suit may provide a boost to Howard and Zimmerman in the short-term in their public relations battle against the network, the players are incurring some degree of risk by initiating legal action, and ultimately appear unlikely to prevail in their respective cases.

To begin, in order to win a defamation lawsuit, the plaintiff must prove that the defendant has made a false statement that injured the plaintiff’s reputation, causing him a financial loss. Defamation can take either of two forms: libel (written statements) or slander (spoken statements).

However, under the law, so-called “public figures” — those in the public spotlight, including most professional athletes — are required to meet a higher standard in order to prevail in a defamation case. Rather than merely prove that the defendant made a false statement that hurt their reputation, public figures must instead prove that the wrongdoer acted with “actual malice.”

A public figure can prove actual malice in one of two ways, neither of which is easily established: first, the plaintiff can prove that the defendant knowingly published a false statement; alternatively, the public figure can show that the defendant published the report with reckless disregard for its accuracy.

So in this case, Howard and Zimmerman will either have to prove that Al Jazeera definitively knew that Sly’s allegations against the players were false, but yet still published them anyway, or else that Sly was such an unreliable source that the network acted recklessly by publicizing his allegations without further substantiation.

It will be quite difficult for the players to meet the first standard and prove that Al Jazeera knowingly reported false information. While it is true that legal counsel for Howard and Zimmerman notified the network ahead of the publication of its report that both players categorically denied any alleged PED usage, that fact alone does not establish that Al Jazeera knowingly published false information. Indeed, players have frequently denied using PEDs in the past, only to later be shown to have used illegal substances.

Realistically, then, Howard and Zimmerman would need to provide some sort of evidence proving that the network definitively knew that neither player had ever taken a banned substance, but yet still ran the report anyway. Needless to say, such evidence is unlikely to exist, especially considering that Al Jazeera was well aware of the threat of a defamation suit prior to airing its report, but still ran the story anyway.

Instead, the better argument for the players will probably be to contend that the network recklessly disregarded the truth by naming them in the report. Along these lines, the players can assert that because Charlie Sly had subsequently recanted his accusations against Howard and Zimmerman before the Al Jazeera report had ever aired, the network acted recklessly by still including the allegations in its story.

However, merely publishing a recanted allegation alone typically is not enough to establish reckless disregard for the truth. Instead, courts usually require that a public figure show that the defendant acted with extreme carelessness, often motivated by some form of ill will towards, or intent to harm, the plaintiff.

So just because Sly has subsequently retracted his statements does not necessarily mean that Al Jazeera acted recklessly by publishing the allegations. Indeed, not only does there appear to be little reason to suspect that the network was motivated by some sort of ill will towards the players, there are in fact any number of reasons why Al Jazeera may have legitimately chosen to believe Sly’s original allegations, rather than his ensuing denial.

The New York Times is reporting, for instance, that several of the alleged PED users identified by Sly — including both Howard and Zimmerman — appear to be clients of Elementz Nutrition, a nutritional supplement company owned by Sly and his business partner, Florida-based fitness trainer Jason Riley. Al Jazeera may have believed that evidence of this sort helped substantiate Sly’s alleged relationship with Howard and Zimmerman.

Thus, even if Al Jazeera’s report may not have been a model of textbook journalism, the network still has a strong argument to make that it did not act with actual malice when publishing the allegations against Howard and Zimmerman. As a result, it would appear unlikely that the two players will prevail in their respective lawsuits against the network.

Even if Howard and Zimmerman are unlikely to win their cases, though, the two may still hope to derive some public relations benefits by filing suit. The mere fact that the players are willing to go to court over the matter will, in the eyes of some, further strengthen their denial of the accusations.

On the other hand, suing Al Jazeera is not without its risk for the two. By contending that the network’s allegations against them are false, Howard and Zimmerman have exposed themselves to questions about whether they have used banned substances in the past. Not only will Al Jazeera be able to push the players to turn over medical records that may establish their use of PEDs, but the network could also question the two under oath regarding their use of banned substances.

Even if neither player has ever used PEDs, this level of scrutiny can nevertheless still be quite an unpleasant experience. Worse yet, if Al Jazeera is able to further substantiate its allegations against Howard or Zimmerman, then such evidence could result in MLB suspending the players under the Joint Drug Agreement.

Along those lines, it is interesting to note that the players have only chosen to sue Al Jazeera and two of the reporters involved in the story, rather than Charlie Sly himself. Even though Sly has subsequently retracted his allegations, the players still could have sued him for originally asserting the allegedly defamatory statements. At the same time, though, suing Sly would involve some risk that the pharmacist would be able to produce evidence substantiating his initial allegations, a risk that may have deterred Howard and Zimmerman from suing Sly directly.

All in all, then, although Howard and Zimmerman will likely enjoy some short-term P.R. benefits by filing suit against Al Jazeera, the lawsuits are unlikely to ultimately prevail in court, and could potentially backfire for the players.