Sean Miller's Statement Takes the Fight to ESPN: Is a Lawsuit the Next Step?

Will Sean Miller or Deandre Ayton sue ESPN for defamation after Arizona circled the wagons in support of its basketball coach? Confirmation from a source that previous reports about the program's involvement were not accurate has left that possibility open.

As Arizona coach Sean Miller forcibly professed his innocence on Thursday in a statement that affirmed his status with the team, a source familiar with the college hoops corruption investigation confirmed with SI that the details of a wiretapped phone call involving Miller were inaccurately reported in a story by ESPN that said Miller “discussed paying $100,000 to ensure star freshman Deandre Ayton signed with the Wildcats.”

According to the source, relevant FBI wiretaps in the investigation did not begin until 2017—months after five-star recruit Deandre Ayton had already committed to Arizona in Sept. 2016. This account is consistent with reporting by Evan Daniels of 247Sports. The recruitment of Ayton, therefore, would have not been at issue in an intercepted phone call that occurred in 2017. To that end, the source told SI what Miller clarified for the first time Thursday: Ayton is not the player on whose behalf former ASM Sports employee Christian Dawkins allegedly sought a payment from Miller, and Miller never pursued paying or made any payments to a recruit associated with Dawkins.

This account depicts Miller as complying with both the law and NCAA recruiting rules. The same holds true of Ayton, whose compliance with NCAA rules would ensure that he remains eligible to play for the final month of his freshman year.

For his part, Miller made clear on Thursday that he will fight the allegations. In a press conference held at the university, Miller stressed that he had “never paid a recruit or a prospect” and would never do so. He also asserted that he and Ayton have suffered “defamation” by the manner in which the media has reported the allegations. The possibility of Miller and Ayton filing defamation lawsuits is examined more closely below.

On a related note, the fact that Arizona allowed Miller to publicly defend himself in an official capacity indicates that university leaders believe him. This is particularly significant since public universities tend to be risk averse. If the university’s top officials and attorneys found Miller unconvincing, Thursday’s press conference would have almost certainly not been held at the school.

The risk of misinformation in leaking protected evidence

The evidence compiled in the FBI’s investigation into college basketball corruption is not available to the public or media. It is subject to a protective order, which a judge can impose as part of the pretrial discovery process. During a prosecution, pretrial discovery compels the government to turn over its evidence to attorneys for the defendants to ensure that the defendants obtain a fair trial.

A protective order limits access to this evidence to a very small universe of persons. Normally that universe includes the judge, court officers, prosecutors, defendants and defendants’ attorneys—and that’s it.  A protective order is considered appropriate when disclosure of certain evidence could seriously prejudice the defendants’ ability to receive a fair trial. Violation of a protective order can lead to a range of sanctions that includes fines and contempt of court orders. In addition, attorneys who breach protective orders can face potential penalties from the states in which they are admitted to practice law.

Here, the Justice Department has been required to turn over evidence that includes details from several thousand intercepted phone calls. Attorneys for the defendants are in possession of this evidence. One plausible explanation for a leak of an intercepted phone call involving Miller and Dawkins is that one of the defense attorneys or perhaps one of the defendants leaked its details for some strategic purpose. U.S. District Judge Lewis Kaplan, who is presiding over the case, will likely review procedures to ensure that the leaks stop. If Judge Kaplan identifies the leaker(s), he could punish them.

It’s worth noting that whoever leaked information about Miller may have gotten a lot of things wrong, including the date of the call, the identity of the recruit and, possibly, the dollar amount of a demanded payoff. Whether those possible mistakes reflect the leaker having not carefully reviewed the evidence, having incomplete access to the evidence or intentionally transmitting false information in order to damage Miller, Ayton and the Arizona program is unknown.

Miller and Ayton could explore suing for defamation, but odds would not favor them

In light of the above, there is reason to believe that Miller did not attempt to arrange for a payment to Ayton. For different reasons, this allegation has been damaging to the reputations of both Miller and Ayton.

Though well-known to college basketball fans as a successful coach, Miller has become far more recognizable in the past week, but for all the wrong reasons. He has been portrayed across different media platforms as violating NCAA rules, engaging in dishonest conduct and potentially breaking the law. Even Miller’s employment contract and the conditions under which Arizona could fire him have become newsworthy items (including at SI).

Ayton, 19, has proven to be one of the best players in the country and will likely be drafted among the top three picks in the 2018 NBA draft—SI currently projects the 7'1" center as the first overall pick. While being accused of taking money under the table is hardly the most damning accusation an elite recruit can receive, it can nonetheless impact public perception about the player’s ethics. That, in turn, can influence the amount of money the player may be able to secure in endorsement deals.

Granted, no matter how the current scandal plays out, the major apparel companies will aggressively recruit Ayton once he turns pro. But those companies’ calculus of the projected value of Ayton’s endorsement will be influenced by whether his reputation will be one fans and parents will embrace. To that end, Ayton could argue that his personal brand has been unfairly tarnished by untrue accusations about his character.

While Miller and Ayton could kick the tires on defamation claims, it’s worth noting such a claim would face obstacles. For one, both Miller and Ayton are public figures, which means they would have to prove that defamation occurred with “actual malice.” This requirement would obligate Miller and Ayton to not only establish that false and damaging information has been published about them, but that such information was published by those who knew it was false or published by those who exhibited reckless disregard for the information's truth or falsity. Media reporting on the allegations appears to be based on leakers, who presumably relayed the allegations as credible information.

The leakers themselves would also be difficult to sue. Although their identities could become known, they are not presently known. Also, information gathered in litigation is often regarded as exempt from defamation claims.