Juan Soto, Joe Simpson, and When Commentary Becomes Defamatory by Sheryl Ring August 9, 2018 Without a doubt — and this is an objective fact — the best thing about baseball in 2018 has been Juan Soto. I mean, you could say it’s Mike Trout, because the answer to almost every baseball question is Mike Trout. But Juan Soto is probably the best teenager baseball has ever seen, and baseball’s been around a while. Juan Soto has posted a .415 wOBA and 161 wRC+, both marks fifth in baseball among players with 200 or more plate appearances. He’s outhit Aaron Judge (157 wRC+) and Freddie Freeman (143) and Paul Goldschmidt (141) and a whole bunch of other people he has no business outhitting. Juan Soto is third on the Nationals in WAR (2.7) and has played in 68 games. Trea Turner, who leads the team with 3.5 WAR, has played in 113 games. Juan Soto is so good. And he’s doing this, again, at 19 years old. For no other reason than because Juan Soto is my favorite thing about 2018 Major League Baseball, here is Juan Soto hitting a ball to somewhere past Saturn — off fellow southpaw Chasen Shreve: And an even more impressive dinger on a pitch that was probably off the plate inside: Juan Soto doing Juan Soto things has brought him some degree of attention around the league, and Soto might be, at just 19, the best position player on a Nationals team that also employs Bryce Harper and Anthony Rendon. And it’s likely because of his surprising ascent that, when he came up to bat against Atlanta earlier this week, Braves announcer Joe Simpson made a comment that raised a few eyebrows. You can hear the audio here, but here’s what he said as relayed by the New York Post: “If he’s 19, he certainly has his man-growth,” Simpson said. “He is big and strong.” Perhaps understandably, Nationals general manager Mike Rizzo reportedly confronted Simpson after the game about his comment, which led Simpson to clarify his remarks during the second game of that day’s doubleheader, as passed along by USA Today: “If you were with us in Game 1, you might have heard me make a comment off the top of my head about if he’s 19,” Simpson said Tuesday night. “Well, he is. He’s bonafide 19. And he is a full-grown man. He is strong. And he is one heck of a player. You might well just write his name in on the Rookie of the Year award right now.” It also led to this tweet from the Nationals themselves: Noted 19-year-old Juan Soto puts the #Nats on the board with a solo HR in the first! pic.twitter.com/vQfVEoBaI7 — Washington Nationals (@Nationals) August 7, 2018 The notion of players — particularly Latin American players — falsifying their ages is nothing new. Though Miguel Tejada might be the most famous case, Hall of Famer Vladimir Guerrero, and lesser known players like Octavio Dotel and Wandy Rodriguez, among others, did, too. But what you’ll notice about all those players is none of them are active major leaguers. And though whispers have, perhaps unfairly, followed Albert Pujols for years (something I even addressed earlier this year), no evidence has really ever been produced against him. What evidence we do have suggests that the so-called age fraud problem isn’t one any longer, and hasn’t been for a while. Age fraud hasn’t been a thing in Latin America in nearly a decade. But then again Joe Simpson is stuck in the past, so it’s not a surprise that he proffers this sort of garbage. Ignore it. Juan Soto is 19. Period. Full stop. And he’s doing things the game never has seen before. https://t.co/V5iWMkkleF — Jeff Passan (@JeffPassan) August 8, 2018 Juan Soto is not South American. Age fraud has not been a real issue in MLB in fifteen years. — keithlaw (@keithlaw) August 8, 2018 Moreover, it’s not as if Simpson has any evidence beyond Soto’s physical appearance. Soto is listed at 6-foot-1, 185 pounds — and even if that latter figure is on the low side relative to the current version of Soto, it’s not unprecedented for teenagers to be big. Depending on what source you use, Ken Griffey Jr. was listed at 6-foot-2 and either 205 or 230 pounds in his 1989 rookie season. Ae debuted at 19. A 19-year-old Mickey Mantle was 5-foot-11 and 198 pounds. Soto is hardly unprecedented. Despite the attention earned by Simpson’s remarks at first, we have likely already witnessed the climax of this story. Rizzo had his say. Simpson clarified his statement. Neither the Nationals nor Soto seem interested in pursuing the matter any further, probably content with letting it fade away. Because I’m a lawyer, however — and because it is, in part, my job to consider such matters, if only in a hypothetical way — I thought I’d examine here what recourse Soto and his club could take if they were so motivated. The answer, in short, is that they could sue Simpson for defamation. The answer, in something less short, appears below. The District of Columbia has basically the same defamation law as most states, meaning Soto would have to plead and prove four different elements. First, Soto would have to plead and prove Simpson made an objectively false or defamatory statement. False and defamatory are not the same thing, and Simpson probably didn’t make an objectively false statement; after all, he didn’t say “Juan Soto is 23” on the air. That said, even the implication may well be enough: under a case called Guilford Transp. Indus., Inc. v. Wilner, in D.C., a defamatory statement is one which isn’t true, and “tends to injure [the] plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.” Nor would the fact that Simpson’s remarks were made more by implication than outright declaration matter too much; under a case called Moss v. Stockard, although an implication requires a higher burden of proof by the plaintiff, “[i]f it appears that the statements are at least capable of a defamatory meaning, whether they were defamatory and false are questions of fact to be resolved by the jury.” And Guilford said expressly that slander (spoken defamation) includes where the defendant “implied provably false statements of fact.” It’s a fair bet that questions about Soto’s age could harm his earning power and his community and professional standing, and I’m willing to bet a reasonable juror could find Simpson’s statement capable of a defamatory meaning. One needn’t look far for mention of it, after all. Rather, the conversation regarding Soto’s age has been ubiquitous throughout sports media, with several different pieces on it. And the headlines include things like this: It’s not all that difficult to conceive of a scenario where people begin to assume that “where there’s smoke, there’s fire.” Indeed, there’s already evidence of that happening… For the record, Soto may be 19, but I'd bet money he isn't. Soto is filled out. He certainly doesn't look like a teenager. — David (@AngryDingo) August 8, 2018 A broadcaster can't doubt a player's age? Joe Simpson on JUAN SOTO? Which, reminds me. How old is PUJOLS? #MLB — Rip Nottmeyer (@riptalkinsports) August 8, 2018 It's amazing and ludicrous how Joe Simpsons remark about Juan Soto's age is being considered racist. Fact is players have lied about age before and teams have falsified documents before so it's reasonable to speculate it could happen again. — mudbug2233 (@mudbug2233) August 8, 2018 Dominican…man growth…land of steroid use??? Braves announcer implies Nationals rookie phenom Juan Soto isn't actually 19 years old https://t.co/dG06Ei8yN7 via @YahooSports — WD Barr (@WDBarr1) August 8, 2018 Sorry Nats fans, but I have a hard time believing Juan Soto is 19 yrs old. Of course I have no proof, but the defense of 'age fraud isn't a thing' is hogwash. — Jaye Dub (@xXJayeDuBXx) August 8, 2018 And that brings us to the second element — namely, that the statement was made to a third party. Since it was made while literally on television, this one is pretty easily satisfied. The third element, under a case called Jankovic v. International Crisis Group, is ordinarily “that the defendant’s fault in publishing the statement amounted to at least negligence.” But here, mere negligence isn’t enough because Juan Soto is a public figure. That means Soto must prove that Simpson either knew that his statement was false or made the statement with reckless disregard for the truth. In other words, Soto must prove that, at the time Simpson made his statement, he either personally knew or should have known Soto was provably 19 and had no basis to say otherwise. The best phrasing I’ve seen for this test from a D.C. court comes from Nader v. De Toledano: a “high degree of awareness of… probable falsity.” In other words, the statements must have been made in subjective bad faith. Ordinarily, proving a person’s state of mind is difficult. But Simpson’s second statement is helpful to Soto here, because he essentially concedes that there is no reasonable basis upon which to question Soto’s age. And given Law and Passan adding that age fraud is no longer an issue, it’s hard to believe Simpson had any sort of even subjective good faith basis on which to imply Soto was lying about his age. Since none of us are Joe Simpson, it’s impossible for any of us to know just why he felt the need to make the implication he did. But if the sole reason was Soto’s birthplace, I think it’s absolutely possible a court finds that Simpson’s statement was made in bad faith. As the U.S. Supreme Court once explained, in a case called St. Amant v. Thompson, Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Finally, Soto would have to prove some degree of damages. In D.C., defamation law is unusual in that damages are limited to “special damages“; that is, measurable pecuniary loss. But D.C. law also allows for an award of what is called “nominal damages.” Nominal damages is an award of one dollar ($1.00) given to a plaintiff who proves the existence of a wrongdoing by a defendant and either has no damages from that wrongdoing or can prove the existence of damages but not an amount. This case would be a great example; if Soto sued Simpson and won, he would receive $1 in nominal damages if he failed to prove a larger amount. Still, people can and will sue for nominal damages, even taking those cases to trial either by choice or otherwise. Sometimes the reason is simple vindication. Sometimes it’s to get a public hearing on the wrongdoing. As I’ve noted above, Soto isn’t likely to sue Joe Simpson for defamation. But if he did, he might very well win. It would be a $1 verdict, but it be worth far more than that — not only in terms of Soto’s future earnings but also as a (well-needed!) reminder that public comments require substantiation. Undoing a lie frequently requires more than simply confronting it with a truth. Juan Soto is a 19-year-old teenager doing something most of us can’t imagine and that none of us has ever seen before. It’s enough pressure to be the best teenager ever. He doesn’t need, on top of that, to be answering for a lie he didn’t tell.