How Team Mayweather May be Able to Weather the Defamation Storm

January 1st, 2010 Paul Haberman Esq. A Quick Review of the Necessary Elements of Defamation Per Se in the Backdrop of Manny Pacquiao’s Lawsuit Against Team Mayweather and How Team Mayweather May be Able to Succeed in Challenging the Lawsuit Round one of the battle between boxing’s pound-for-pound best, Filipino sensation Manny (Pac Man) Pacquiao and the undefeated Floyd (Money) Mayweather took place about two and half months ahead of schedule. On December 30, 2009, at a time when boxing fans around the world remained cautiously optimistic that Mayweather and Pacquiao would put their respective feelings on the drug testing controversy aside and salvage the March 13, 2010 mega-bout, Pacquiao filed a federal complaint (the “Complaint”) in the United States District Court of the State of Nevada against Mayweather, as well as his father, Floyd Mayweather, Sr., his uncle and trainer, Roger Mayweather, Mayweather Promotions, LLC, Richard Schaefer, the Golden Boy Promotions executive who has been acting as Mayweather’s mouthpiece in negotiations for the Pacquiao fight, and Oscar De La Hoya (collectively the “Defendants”). The Complaint alleges a single cause of action, defamation per se, and cites to several specific instances where the Defendants purportedly made statements inferring that Pacquiao uses or has used performance-enhancing drugs. Since the filing of the Complaint, it has already been reported that the March 13, 2010 date is off, and with the legal wrangling that will inevitably occur in the coming weeks, some may wonder if this fight will ever happen at all. At the core of this lawsuit is not when or if the fight will happen, however, but rather a basic legal question: Can the Defendants be found liable for defamation per se pursuant to the allegations made in the Complaint? A brief analysis of this possibility follows. What are the Elements of Defamation and Defamation Per Se? There are two basic forms of defamation, libel, which is defamation in a written form, such as in a newspaper, magazine, or blog, and slander, which is a defamatory spoken statement. The basic elements of a defamation cause of action are: (1) a false statement; (2) publication of the false statement to a third party; (3) fault amounting to at least negligence on the part of the publisher if the defamatory matter is one of public concern; and (4) damage to the person alleging defamation. When alleging defamation per se, or defamation by, of, for, or in itself, proof of damage is not necessary. Rather, one must be able to establish simply that a defamatory statement was made. When a public figure brings an action for defamation, he or she must also show “actual malice,” or that the person making the statement at issue knew it to be false or issued the statement in reckless disregard to the truth. Mere opinions are legally protected. What Can Team Mayweather Do First? Upon service of a federal complaint, a defendant may either answer the complaint, meaning that he or she would provide an itemized written response to the allegations contained within the complaint, or make a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) and/or a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Although Rule 12(b) provides seven separate grounds for filing a motion to dismiss, the most common ground is failure to state a claim upon which relief can be granted. By filing such a motion, a defendant is essentially alleging that the plaintiff has failed to allege the requisite elements of a given cause of action within the four corners of the complaint. To successfully oppose a motion to dismiss for failure to state a claim upon which relief can be granted, a plaintiff must show that he or she has, in fact, made a prima facie showing, or showing at first view, that he or she is entitled to the relief sought in the complaint as a matter of law. Given the high stakes involved in Pacquiao v. Mayweather, one would anticipate that the Defendants, or at least a few of the Defendants, will be making a motion to dismiss the Complaint. In order to make a successful motion to dismiss, the Defendants will have to allege that Pacquiao failed to allege the requisite elements of a cause of action for defamation per se. Pacquiao would then have oppose the Defendants’ motion by showing that he made a prima facie showing to entitlement to relief for defamation per se as a matter of law. To do so, Pacquiao would have to walk each statement made concerning his use of performance-enhancing drugs that is referred to in the Complaint through the elements detailed above and show why, before the start of any depositions or other discovery, he has made a sufficient initial showing of defamation per se based on same. The federal court must then review the Complaint, review the arguments, review the case law supporting the arguments, and decide whether or not Pacquiao’s cause of action is legally sufficient as to all or some of the Defendants. Can Team Mayweather Succeed in Having the Complaint Dismissed? Pacquiao’s Complaint details seven or eight specific instances where he was purportedly defamed. Of the specific instances documented, three or four of them appear to indicate that Pacquiao uses or used performance-enhancing drugs, while the balance of the instances seem fall into the category of innuendo, inference, or opinion. The strongest claim appears to be against Roger Mayweather, who allegedly told the website Boxing Scene that “I know he’s got somethin’ in his system anyway.” This particular statement reportedly came on December 30, 2009, the same day the Complaint was filed and several days after Pacquiao first started telling the press that he would be filing a lawsuit. Unlike most of the others, Roger Mayweather’s quote most explicitly declares that Pacquiao uses performance-enhancing drugs as if it were a fact. An allegation against Richard Schaefer is concerning for similar reasons, but is not directly quoted. The Complaint is thus rather vague as to how defamatory Schaefer’s alleged statements actually were. The weakest claim appears to be made against Oscar De La Hoya, whose written tirade on his blog about the drug-testing situation is quoted within the Complaint. De La Hoya’s blog reportedly read as follows: “If Pacquiao, the toughest guy on the planet, is afraid of needles and having a few teaspoons of blood drawn from his system, then something is wrong. The guy has tattoos everywhere; he’s tattooed from top to bottom. You’re telling me he’s afraid of needles? Now I have to wonder about him. I’m saying to myself ‘Wow, those Mosley punches, those Vargas punches and those Pacquiao punches all felt the same.’ I’m not saying yes or no. I’m just saying that now people have to wonder, ‘Why doesn’t he want to do ? Why is it such a big deal?” The Complaint goes on to allege that De La Hoya also added that “hy don’t you want to do it? C’mon. It’s only a little bit of blood. If you have nothing to hide, then do the test.” Despite its incendiary nature, at no time within the language quoted above does De La Hoya expressly accuse Pacquiao of using performance-enhancing drugs. Instead, De La Hoya uses a fact about Pacquiao to undermine Pacquiao’s claims of a dislike of needles, opines about Pacquiao’s punching power as against prior, naturally bigger rivals, and opines that Pacquiao should submit to random testing if he has nothing to hide. The rest of the allegedly defamatory statements fall between Roger Mayweather’s and De La Hoya’s remarks in their degrees of severity. A few, like De La Hoya’s, arguably appear to be nothing more than opinion, which is legally protected. In sum, therefore, it would appear as if several of the Defendants might be able to stop Pacquiao in round one of the mega-fight of 2010 and be dismissed from the lawsuit if a motion to dismiss is made. http://www.8countnews.com/news/138/ARTICLE/2192/2010-01-01.html