Do Zimmerman, Howard have case against Al Jazeera over PED story?

SI.com's legal expert Michael McCann breaks down the lawsuits filed by Ryan Zimmerman and Ryan Howard against Al Jazeera over "The Dark Side" and its PED claims.

On the heels of Al Jazeera’s highly-publicized report “The Dark Side: Secrets of the Sports Dopers,” Nationals first baseman Ryan Zimmerman and Phillies first baseman Ryan Howard—both of whom were implicated in the report as users of the hormonal drug Delta-2—have filed separate federal defamation lawsuits against the news agency in the U.S. District Court for the District of Columbia. Both players insist that they have never taken any steroid or performance-enhancing drug and that Al Jazeera has defamed their reputations in an attempt to improve sluggish TV ratings.

Zimmerman and Howard are two of several prominent athletes mentioned in "The Dark Side;" NFL players Peyton Manning, Clay Matthews and Julius Peppers are also among those named by former Guyer Institute employee Charlie Sly, who told Al Jazeera that they had obtained either Human Growth Hormone (HGH) or Delta-2. HGH can only be taken lawfully with a physician’s prescription and only for three narrow uses (HGH deficiency, Idiopathic Short Stature and physiological wasting from AIDS), and Delta-2 is a hormone supplement sometimes used as a PED due to its ability to evade drug testing. Both MLB and the NFL prohibit the use of HGH and Delta-2.

Of those athletes, Zimmerman and Howard are the first to take legal action against Al Jazeera; notably, Manning has categorically denied the accusations in "The Dark Side" but has not yet filed a defamation lawsuit. Manning has at least one year to file a defamation lawsuit under relevant statutes of limitation. His possible reluctance to sue illustrates a key problem for Zimmerman and Howard: the difficulty of winning a defamation lawsuit.

There are three major hurdles that Zimmerman and Howard (and any other athlete who sues) will face in pursuing legal action against Al Jazeera. First, if the report’s accusations are true, Al Jazeera and any individual persons sued (Al Jazeera reporter Deborah Davies and undercover investigator Liam Collins are named in Zimmerman's and Howard’s lawsuits as co-defendants) will prevail. Truth is always a defense to a defamation lawsuit, as a statement is not unlawfully defamatory if it is true. Judges, moreover, tend to look unfavorably on plaintiffs and their attorneys who use taxpayer-financed courtroom time to challenge statements they know are true.

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Second, as someone who is highly recognized by the public, an athlete implicated in "The Dark Side" is a “public figure” under defamation law. As a result, he must prove that Al Jazeera possessed actual malice in implicating him. The athlete must show that not only were the statements made about him false, but also that Al Jazeera either knew the statements were false or recklessly disregarded any attempt to ascertain the accuracy of those statements. The actual malice standard is often difficult to satisfy, particularly when public figures sue media companies, which receive significant protection from the First Amendment in news reporting and news gathering. The difficulty of achieving the actual malice standard is among the key reasons why public figures often hesitate to file defamation lawsuits.

Third, neither Al Jazeera nor its employees made the actual accusations broadcast in "The Dark Side." The key accusations were made by Sly, who later recanted all of them. Along those lines, at no time did Al Jazeera express that Sly’s statements were true. Al Jazeera’s role was that of a news gatherer: It took Sly’s statements and then used them to produce a news segment. Media companies have substantial latitude under the law in gathering and disseminating news—even news that later proves untrue.

Despite all of that, it won’t be impossible for Zimmerman and Howard to win this case. Attorneys for both players are well aware of the aforementioned hurdles in suing Al Jazeera for defamation and will attempt to overcome them in their complaints. The arguments are as follows:

• Al Jazeera knew before publishing "The Dark Side" that Sly had, in Zimmerman’s words, “recanted his scandalous and untrue allegations.” Zimmerman’s complaint then charges that Al Jazeera, in “abdicating all journalistic responsibilities,” went ahead and published the story anyway in order “to increase Al Jazeera’s low ratings.” Zimmerman and Howard raise this argument to advance a theory of actual malice: The most explosive portions of "The Dark Side" are based on accusations by Sly, whom Al Jazeera allegedly knew had recanted his accusations.

• The defamation Zimmerman and Howard suffered is so severe that it warrants a finding of defamation “per se.” To bolster that point, the players highlight how Sly’s statements go beyond allegations of mere cheating and “impute criminal conduct,” since the purchase and use of drugs without a prescription can be considered criminal. If Zimmerman and Howard succeed in establishing defamation per se, they would enjoy much better odds at establishing malice.

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• Al Jazeera acted recklessly in employing Collins as an undercover journalist. Collins, who recorded his conversation with Sly without Sly’s knowledge, is a former athlete whose investment companies have attracted controversy (Howard’s complaint describes Collins as a “known fraudster and publicity-seeker”). Most relevantly to the defamation lawsuits, Collins does not appear to have any training or background in journalism. Along those lines, Zimmerman’s complaint notes that Collins “has no known news reporting training or experience,” and he links Collins’s lack of experience to some of his controversial news gathering strategies, including “falsely claiming to be a potential [PED] client.” These points are important for Zimmerman and Howard to establish that Al Jazeera recklessly went about fact-finding in this story.

• Al Jazeera did more than solely broadcast Sly’s statements. Zimmerman and Howard argue that the media company essentially owned those statements by providing Sly with a forum and then sensationalizing the underlying accusations. For instance, the players highlight Al Jazeera's use of “stylized clips” of them batting and “stylized baseball cards” as a backdrop for a conversation between Collins and Sly about Zimmerman and Howard. To further this point, the players note that Al Jazeera promotes its investigative unit by stressing that it “does not report the news, it makes the news.” In other words, the players want to depict Al Jazeera as more than a mere conduit between Sly and the public—they want Al Jazeera to appear to be partners with Sly in defaming professional athletes.

Attorneys for Al Jazeera will soon answer the complaints filed by Zimmeran and Howard, and in its answers, Al Jazeera will undoubtedly deny the players’ allegations that the media company violated the law and will also petition the court to dismiss the lawsuits. If the Zimmerman and Howard lawsuits aren’t dismissed, the parties will then enter the pretrial discovery phase. During pretrial discovery, each side will likely make invasive evidence requests of the other and also require that witnesses—including Zimmerman, Howard and potentially their family members—make statements while under oath. If a witness knowingly lies while under oath, he or she can be charged with perjury, which is a felony.

By filing defamation lawsuits, Zimmerman and Howard also open themselves up to having to reveal sensitive information about their training regimens and their work with any clinics. Major League Baseball, which obtained the requisite evidence to suspend Alex Rodriguez in 2014 through its lawsuit against the Biogenesis clinic, will carefully watch for any discovery disclosures that implicate Zimmerman, Howard or other players.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He teaches an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.