This past weekend, Al Jazerra published “The dark side: The secret world of sports doping,” a forty-nine-minute news story. Relying on unsworn and dubious statements Charlie Sly made while he was allegedly being secretly recorded, Al Jazeera published Sly’s defamatory accusations that Peyton and Ashley Manning engaged in illegal and deceptive acts involving human growth hormone. The story badly defames the Mannings. It also contains evidence that could give rise to several actionable claims.
Colorado Defamation Law
In Colorado, a statement is defamatory of a person if it tends to harm the person’s reputation by lowering the person in the estimation of at least a substantial and respectable minority of the community. A defamatory statement is defamatory per se if no extrinsic evidence or innuendo is necessary to show its defamatory nature.
To win their defamation claims, public figures, like Peyton and Ashley Manning, must prove the (1) the substance or gist of the defamatory statements about them were false and (2) the people who published the statements either (a) knew they were false or (b) recklessly disregarded whether they were true or false when they published them. To prove someone recklessly disregarded whether a defamatory statement they published was true or false, a public figure must prove the person who published the statement had serious doubts about its truth or falsity when it was published.
These two elements of a public figure’s defamation claim must be proved by clear and convincing evidence in Colorado. This standard of proof is higher than the standard required to prove most civil claims, which is by a preponderance of the evidence. But it is lower than the standard required to prove most criminal claims, which is beyond a reasonable doubt. The clear and convincing standard of proof generally makes winning defamation claims more difficult for public figures than for private figures.
Public figures must also prove they suffered damages to win their defamation claims. To prove their damages, they must present evidence that proves it is more likely than not likely the defamatory statements damaged their reputations, caused them emotional distress, or caused them economic harm. Jurors get to determine what the value of someone’s damaged reputation or emotional distress is. There is no set formula for calculating these types of noneconomic harms. In cases involving substantial economic damages, experts are often called to the stand to explain the value of the past and future economic harm.
What are the Actionable Claims if Sly’s Statements are False?
As I explained to NBC journalist Ari Melber this morning, the Al Jazeera story’s accusations are defamatory under Colorado law. They accuse the Mannings of committing crimes involving controlled substances. They accuse Peyton Manning of cheating by using banned performance-enhancing drugs. And they accuse Ashley Manning of helping her husband cheat. If Sly’s defamatory accusations are false, they could give rise to actionable defamation claims against Al Jazeera and Sly.
Sly publicly recanted the recorded statements that Al Jazeera republished in the story. By recanting his statements, he created evidence that his recorded statements are false. It would be easier for the Mannings to win a defamation lawsuit against Sly than it would be for them to win a defamation lawsuit against Al Jazeera.
Due to personal jurisdiction laws, the Mannings probably could not successfully prosecute Sly for defamation in Colorado unless he lived in or regularly did business in Colorado when he made the defamatory statements or he agreed to let Colorado courts adjudicate the case. The Mannings would probably be able to successfully prosecute Sly in the state where his defamatory statements were recorded. Based on the information the Al Jazeera story provides, it appears Sly’s statements were recorded in Texas. If the Mannings sued Sly in Texas for defamatory statements he made in Texas, Texas’s laws would apply.
Unlike Sly, Al Jazeera has not publicly stated that it knew Sly’s statements were false before it published the story. Nor has Al Jazeera admitted it had serious doubts about whether Sly was lying before it published the story. But there is evidence Al Jazeera had serious doubts about whether Sly’s statements were true before it republished them. If Al Jazeera had serious doubts about whether Sly’s defamatory statements about the Mannings were true before it published the story, the Mannings could have viable defamation claims against Al Jazeera.
After viewing all the recordings of Sly’s statements and evidence that calls Sly’s trustworthiness into question, reasonable people could conclude that Al Jazeera must have had serious doubts about whether Sly’s statements were true or false before it published the story.
When interpreted in a light most favorable to the Mannings, Sly’s recorded statements can prove he was probably lying or embellishing to impress a prospective doping client. The recordings can prove Sly probably thought his lies or embellishments would persuade the prospective doping client to illegally buy drugs from him for a substantial profit.
The recordings of Sly can also prove he was intentionally committing crimes or he admitted to having intentionally committed crimes when the recordings were made. Some of the crimes he was committing or admitted to having committed involved deceptive, dishonest conduct. Reasonable people could agree this evidence of his untrustworthiness gave Al Jazeera more reasons to have serious doubts that his defamatory statements about the Mannings were true.
There is also evidence that Sly informed Al Jazeera his recorded statements were false before Al Jazeera published the story.
If the Mannings proved by clear and convincing evidence that Sly’s defamatory statements about them were false and Al Jazeera had serious doubts about whether Sly’s defamatory statements were true or false when it published the story, then the Mannings could win defamation claims against Al Jazeera. They could rely on Sly’s public recantation to help them prove his statements about them were false. They could rely on the contexts of his recorded statements and evidence of his willingness to engage in illegal and deceptive conduct, to help them prove Al Jazeera must have had serious doubts about whether Sly’s defamatory statements were true or false.
What are the Actionable Claims if Sly’s Statements are True?
If Sly’s defamatory accusations are true and his claim he was a member of the medical team that treated the Mannings at the Guyer Institute in Indianapolis, IN is true, his statements could give rise to actionable negligence, invasion of privacy, or breach of fiduciary duty claims against him.
Sly claims he was part of the team that treated or sent medicine to the Mannings. Information about Peyton Manning’s or Ashley Manning’s medical treatments or prescriptions is protected healthcare information (PHI). Sly would have violated state and federal laws if he accessed or disclosed the Mannings’ PHI without authorization.
If Sly were a member of the medical team that treated Peyton or Ashley Manning, he would have had a legal duty to not access or disclose the Mannings’ PHI without authorization. Sly would have breached his duty to the Mannings if he accessed and published their PHI without authorization. If the Mannings could prove Sly’s accessing or publishing their PHI without authorization caused them damages, they could prove a negligence claim against Sly.
If Sly, as he claims, was a member of the Mannings’ medical teams, the Mannings could also have viable invasion of privacy claims against him if they could prove they suffered emotional distress because he accessed their medical records or PHI without authorization or because he intentionally disclosed their PHI to a large group of people or the public.
If the Mannings entrusted Sly with their confidential information, Sly promised to keep their information confidential, and Sly voluntarily disclosed their confidential information despite the confidentiality agreement, then the Mannings could have actionable breach of fiduciary duty claims against Sly.
Should the Mannings Sue?
The Mannings should only seriously consider suing Al Jazeera or Sly if (1) Sly’s defamatory statements are false, (2) they are willing to reveal sensitive details about their private lives and business dealings during the discovery process, and, (3) after six to nine months, they determine the Al Jazeera story caused or is likely to cause them substantial economic harm. That economic harm could come in the form of lost endorsement deals, lost business opportunities, lost profits, money spent on public relations or marketing consultants or services to mitigate the story’s damage, or attorneys’ fees and legal costs incurred during the NFL’s forthcoming investigation into Sly’s defamatory allegations.
If the Mannings decide to seriously consider suing Al Jazeera or Sly, their attorneys should consult experienced plaintiffs’ defamation lawyers to help them carefully evaluate the risks and benefits of defamation litigation and help them determine whether Colorado, Texas, or another state would be the best venue for the lawsuit against Al Jazeera. Experienced defamation lawyers could also help the Mannings predict which law firms would likely be hired to defend against their lawsuit and which litigation tactics those law firms would likely use. This experienced-based information could help ensure the Mannings’ lawsuit would survive motions to dismiss and motions for summary judgment.
By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2016. All rights reserved.
 See Colorado Jury Instructions for Civil Jury Trials Instruction 22:8.
 The preponderance of evidence standard is also known as the more likely true than not true standard.
 Private figures who litigate defamation per se lawsuits involving matters of private concern do not need to prove their damages. Damages are presumed in these types of cases. Even so, competent defamation lawyers will present evidence proving damages to juries when these types of case make it to trial.