Commanders lawyer: Decisions on whether to sue ESPN “will be made at a later time”

NFL: AUG 20 Preseason - Commanders at Chiefs
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Earlier this month, ESPN published a lengthy article about the situation with the Commanders. It included allegations that owner Daniel Snyder claims to have “dirt” on other owners and Commissioner Roger Goodell. A subsequent letter from Snyder to all other owners hinted at potential litigation against ESPN.

During a Thursday #PFTPM interview of attorney John Brownlee of Holland & Knight, outside counsel for the Commanders, I asked him whether a defamation suit will be filed against ESPN over the contents of the article.

“I really can’t get into that,” Brownlee said. “I would say that those lawsuits are very difficult, as particularly for . . . public people. And so the burden is high. [Sullivan v.New York Times ‘malice’ is one of the toughest things to satisfy in the law. That being said, I certainly think that these reporters knew what they were publishing was false.

“And so those kinds of decisions will be made at a later time. I think, right now, Dan and Tanya are really focused on the season. They’re trying to win some games, and our hope would be that we could try to turn down the noise as best as you can. You only have so much control over that. And try not to be a distraction to the coaches and the players because, you know, they’re the ones out there on the field, doing their darnedest to try to win ball games. And I think it’s incumbent upon all of us to try to turn down the noise, try to set the record straight. . . . At the end of the day, our hope is that the noise can be turned down, so the focus can be on the players and the coaches and what’s going on on the field.”

The legal standard Brownlee mentioned requires that, for public figures, a defamatory statement be made with “actual malice,” which means that the publication knew the statement was false, or that the publication acted with reckless disregard as to the truth or falsity of the statement. Brownlee definitely seems to think portions of the ESPN article count as false.

“It’s false,” he said. “I mean, I think that the general thrust of the article is a fabrication, right? First of all, you start with, it’s all anonymous sources. Now, I get the fact that anonymous sources can be somewhat valuable in certain kinds of investigations, whether it’s government or something like that. But this is not one of those. And in fact, I was talking to a well-respected reporter [Wednesday] who said, you know, his shop would’ve never allowed something like that out the door. . . . We engaged with the reporters beforehand. They showed us some of the allegations. We told them it wasn’t true. We showed them why it wasn’t true, and yet they went ahead and reported it anyway. And here we are now two weeks after that, and still no corroborating evidence at all for any of the allegations. . . . The allegation that Dan Snyder was hiring private investigators to snoop on other owners, I mean, that’s just patently false. . . .

“I just thought that that was something that was a fabrication. It was false. It was pushed, and it really hurt, right? Because it tends to try to try to break the ownership apart or to try to create fissures within it, based on evidence that’s just not true. So that’s one thing we wanted to certainly discuss. I think they also took some unfair shots against Jason Wright, that he somehow wasn’t in control, or was — I think they kind of insinuated that he was kind of a token, which is so unfair, right? And it’s that old dog whistle that they pushed. This is an accomplished guy, a graduate of Northwestern, consulted at McKenzie and is doing a great job. And yet there’s people that were pushing this narrative and why they want to try to undermine the team through negative stories about people like Jason and, and people like the Snyders.”

Brownlee said that “ESPN kind of basically just took its great network and handed it over to people who had an axe to grind, had their own motivations, and said, ‘You can say whatever you want to, and we’ll print it.’ So trying to go back to them to try to clean stuff up, I found to be kind of a fool’s errand.”

It’s also a fool’s errand for someone who has found himself in multiple controversies to pursue a defamation case against anyone. Even if it can be proven that ESPN acted with “actual malice,” the damages are determined by assessing the harm to Snyder’s reputation. This requires Snyder’s pre-existing reputation to be determined. Which opens the door to aggressive discovery efforts regarding anything and everything Snyder has ever said or done that would diminish his reputation, in any way.

For some, filing a defamation case amounts to pulling a pin on a grenade buried deep in the plaintiff’s own pocket. In this specific case, a defamation case would give ESPN license to explore all sorts of things about Snyder, starting with the still-hidden details regarding the Beth Wilkinson investigation.

That’s likely the real reason for not filing suit. Snyder realizes that going after ESPN would allow ESPN to go after him — and that it quite possibly would uncover facts that would make it harder for Snyder to persist in his refusal to sell the team.

7 responses to “Commanders lawyer: Decisions on whether to sue ESPN “will be made at a later time”

  1. And maybe this is why ESPN ran the story in the first place, to bait Snyder into cracking a door open that they can push him through. They actually want the defamation suit. See, ESPN is a sports network. They depend if fan interest in sports. Snyder is not good for fan interest in football. Removing Snyder is better for the NFL and this better for ESPN.

  2. It’s a fool’s errand to sue a publisher for libel. As the old saying goes, never argue with a man who buys ink by the barrel. This is a lot of bluster and will go nowhere near a courthouse unless Snyder is completely delusional.

  3. Billionaires often use litigation, or the mere threat of it, to bully weaker opposition into backing down. ESPN has deep enough pockets to fight fire with fire in the legal arena, so they won’t back down and they could actually do some damage to the Snyders.

  4. It’s a shame what’s happening to Synder, anyone that goes against the grain or the narrative is ruined. Just a bad time in America.

  5. If Danny boy sues, ESPN will use “the best defense against defamation is the truth” defense. And ask for Discovery. Be careful what you wish for Dan.

  6. Consulting at McKinzie(sic) isn’t a good thing. Where McKinsey, terrible follows. Feel free to look that up.

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