By Jason Kurtyka*

Two weeks ago, Al Jazeera re-ignited the controversy surrounding performance-enhancing-drug use among professional athletes when it aired The Dark Side: Secrets of the Sports Dopers,[1] in which Peyton Manning, other NFL stars, and MLB athletes Ryan Howard and Ryan Zimmerman were implicated in a doping ring.

The report, first promoted by the Huffington Post, was an hour-long documentary intended to expose doping in international sports and only briefly included the names of Manning and other US professional athletes during an interview with Charlie Sly, a former pharmaceutical intern at the clinic where the banned substances were sent from.

In the wake of the report Howard and Zimmerman, both of whom were implicated in the report as consumers and users of Delta-2, a hormonal drug banned under both the NFL and MLB collective bargaining agreements because of its ability to avoid detection in drug tests,[2] have filed separate defamation lawsuits against Al Jazeera America in the U.S. District Court for the District of Colombia.[3]

In his complaint, Zimmerman flatly denies the allegations purported by Al Jazeera. “All of these statements concerning Mr. Zimmerman are categorically untrue. Mr.

Zimmerman has never taken Delta-2, human growth hormone, or any other steroid or other performance-enhancing substance banned by the MLB.”[4]

The complaint then pushes back on Sly’s implication that Zimmerman and Sly work together in the offseason and that Sly informed him about Delta-2.[5] “Mr. Zimmerman has not known Charles David Sly for six years …. Mr. Zimmerman has never received any banned substances from Charles David Sly and has never “been coached [by Charles David Sly] on what to take and how to avoid testing positive.”[6]

Days after Al Jazeera broke the report; Sly took to YouTube to recant his implications of the athletes. “To be clear,” Sly said, “I am recanting any such statements, and there is no truth to any statement of mine.”[7]

Howard’s complaint alleges that Al Jazeera was aware that Sly had fabricated his statements in the report, but Al Jazeera chose to publish them anyway. “Mr. Howard learned (from a source other than Defendants) not only that the sole source of the allegations against him were statements made by Sly . . . but that Sly had unequivocally advised . . . Al Jazeera’s counsel, in writing, that the purported statements were false.”[8]

However, even with Howard and Zimmerman’s claims and Sly’s recant, there may be more to the connection between these men than has been acknowledged. In what may turn out to be a crucial twist in the story, the New York Times’ Michael Powell recently found a connection between Sly and both Zimmerman and Howard. Specifically, Sly and Jason Riley (a fitness trainer based in Sarasota, Florida) founded Elementz Nutrition together, and the company’s Facebook page,[9] until recently, featured pictures of Howard and Zimmerman.

Powell said Howard’s photo disappeared from the company’s page last Tuesday and the business dissolved voluntarily.[10]

Attorneys from both sides have likely already recognized the connection between Riley, Sly, and the athletes, meaning this relationship will likely be scrutinized during depositions.

With this said though, succeeding in a defamation lawsuit will be difficult, but not impossible, for Howard and Zimmerman.

Compared to a defamation suit filed by a non-public figure, athletes must abide by the higher burden of proof defined in the landmark First Amendment case New York Times Co. v. Sullivan because they are public figures.[11] Thus, Zimmerman and Howard must prove that Al Jazeera possessed “actual malice” in implicating them in the report. To show actual malice, the athletes must either prove that “the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”[12]

The Supreme Court recognized that the right to free speech and open criticism of public figures might at times be “vehement, caustic and sometimes unpleasantly sharp,” however it is necessary to allow such criticism to a certain extent in order to protect freedom of speech.[13]

This principle has given the media varying degrees of leeway in recent decades to publish news reports that may damage the reputation of a public the figure, so long as they are substantiated.

In his complaint, Zimmerman argues that the “actual malice” element has been met because Al Jazeera was aware that Sly had recanted and did not attempt to uncover any facts confirming the allegations, but chose to publish regardless.[14]

Howard and Zimmerman’s arguments attempts to frame Al Jazeera as a news source with falling ratings that intentionally chose to harm the athletes to boost its own reputation by breaking a big story.

As the litigation unfolds and information about Al Jazeera comes to light, it will be interesting to see how Al Jazeera’s verification process compares to other news sources and to learn about the motive behind Sly’s initial statements and later retraction.


 

*Staff Writer, Villanova University Sports and Entertainment Law Society Blog; J.D. Candidate, May 2018, Villanova University School of Law.

[1] See “The dark side: The secret world of sports doping,” Al Jazeera (Dec. 29, 2015) http://www.aljazeera.com/news/2015/12/dark-side-secrets-sports-dopers-151227133355144.html.

[2] See Michael McCann, “Do Zimmerman, Howard have case against Al Jazeera over PED Story?” Sports Illustrated (Jan. 6, 2016), http://www.si.com/mlb/2016/01/06/ryan-zimmerman-ryan-howard-lawsuit-al-jazeera-peds-dark-side?xid=si_social

[3] See Kenny Ducey, “Ryan Zimmerman, Ryan Howard sue Al Jazeera over Doping Report,” Sports Illustrated (Jan. 6, 2016), http://www.si.com/mlb/2016/01/05/washington-nationals-ryan-zimmerman-lawsuit-al-jazeera-hgh-doping

[4] See Zimmerman’s Compl. at para. 43, http://blogs.reuters.com/david-ingram/files/2016/01/al-jazeera-zimmerman-lawsuit-0105.pdf

[5] See id. at para. 42.

[6] Id.

[7] See Michael Powell, “Finding a Common Thread in the Al Jazeera Doping Report,” New York Times (Jan. 5, 2016) http://www.nytimes.com/2016/01/06/sports/baseball/al-jazeera-peyton-manning-derek-jeter-charles-sly.html?_r=0

[8] Howard’s Complaint, para. 51.

[9] See Powell, supra note 7.

[10] See id.

[11] New York Times Co. v. Sullivan, 367 U.S. 254 (1964).

[12] Id. at 280.

[13] Id. at 270.

[14] See Zimmerman’s Compl., supra note 4, at para. 69.

 

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