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Zimmerman v. Al Jazeera America LLC

United States District Court, District of Columbia

March 31, 2017

RYAN W. ZIMMERMAN, et al., Plaintiffs,
v.
AL JAZEERA AMERICA, LLC, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON United States District Judge.

         In any lawsuit claiming defamation of character, the status of the individual who was allegedly defamed is one key determinant of the applicable legal standard. Whereas a private individual can maintain a suit for defamation if the publisher of the allegedly false and defamatory statement has acted negligently in disseminating the falsehood, public figure plaintiffs must demonstrate that the allegedly false and defamatory statement was made with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). In this case, there is no dispute that the plaintiffs-two Major League Baseball (“MLB”) players-are public figures. The question is whether their complaint contains allegations of fact that, if true, are sufficient to permit a reasonable jury to conclude that the named defendants-a major media conglomerate, one of the company's news producers, and an independent consultant-published a false and defamatory statement about these plaintiffs, and did so with the requisite intent.

         The allegedly false and defamatory statements at issue here are expressed in a documentary film called “The Dark Side, ” which purports to investigate the supply chain of illicit performance-enhancing drugs (“PEDs”) that exists for elite athletes. (See First Am. Compl. (“Compl.”), ECF No. 9, ¶ 37.) Plaintiffs Ryan Zimmerman and Ryan Howard claim that the film's producers (Al Jazeera[1] and Deborah Davies), and also Liam Collins, one of the individuals who is featured prominently in the documentary (collectively, “Defendants”), are liable for defamation and the related tort of false light invasion of privacy because of allegedly false PED-related representations that are made about Plaintiffs in the film. Specifically, the complaint alleges that Defendants elicited from an alleged supplier of steroids false and defamatory statements about Zimmerman's and Howard's use of PEDs, captured those statements on video via a hidden camera, and then incorporated the supplier's false allegations into “The Dark Side[, ]” despite Defendants' knowledge of facts that cast doubt on the truthfulness of the supplier's representations, including the fact that the supplier had recanted the allegedly defamatory accusations prior to the film's release. (See Compl. ¶¶ 1, 73; Howard Compl., Dkt. No. 10, in Civ. Action No. 16-cv-0014, ¶ 1.)

         Before this Court at present are two motions to dismiss: one that Al Jazeera and Davies have filed jointly (see Defs. Al Jazeera and Davies' Mot. to Dismiss (“Defs.' Mot.”), ECF No. 26), and another that Collins has submitted on his own behalf (see Def Collins's Mot. to Dismiss (“Def Collins's Mot.”), ECF No. 24).[2] Al Jazeera and Davies argue that “The Dark Side” does not contain actionable defamatory statements about Zimmerman or Howard, because the pertinent representations are not reasonably capable of conveying a defamatory meaning, and in any event, the complaint fails to plead facts that would support an inference of actual malice. (See Defs. Al Jazeera and Davies' Mem. in Supp. of Defs.' Mot. (“Defs.' Mem.”), ECF No. 26-1, at 26-45.)[3]Collins-who is not an Al Jazeera employee-incorporates the arguments that Al Jazeera and Davies make into his motion by reference, and he further contends that the complaint does not adequately allege that he has published any defamatory statements at all, much less that he acted with actual malice pertaining to any such publication. (See Def. Collins's Mem. in Supp. of Def. Collins's Mot. (“Def. Collins's Mem.”), ECF No. 24-1, at 6 n.1, 12-19.) Zimmerman and Howard oppose Defendants' motions, arguing that a reasonable viewer could have understood “The Dark Side” to convey the message that Plaintiffs have used PEDs (see Pls.' Consolidated Opp'n to Defs.' Mot. and Def. Collins's Mot. (“Pls.' Opp'n”), ECF No. 30, at 18-21), and they further maintain that Defendants' knowledge of the supplier's recantation supports the inference that all three Defendants published the statements with actual malice (see Id. at 21-27).

         For the reasons explained below, this Court concludes that the complaint that Zimmerman and Howard have filed contains sufficient allegations to state defamation and false light claims against Al Jazeera and Davies, but only with respect to the statements contained in the film; the statements made in the accompanying news article do not convey a defamatory meaning. The Court further finds that the complaint does not state a defamation claim or a false light claim against Collins, because the complaint does not contain facts from which a reasonable jury might conclude that Collins published a false and defamatory statement about Zimmerman or Howard. Accordingly, Al Jazeera's and Davies's motion will be GRANTED IN PART and DENIED IN PART, and Collins's motion will be GRANTED in full. A separate Order consistent with this Memorandum Opinion shall follow.

         I. BACKGROUND

         Plaintiffs' complaints, and the exhibits attached to them, allege pertinent background facts, which are described briefly below. Notably, although Zimmerman and Howard initially filed two separate legal actions, this Court has consolidated the cases with the parties' consent, and the instant Memorandum Opinion primarily analyzes the complaint and motions that have been filed Zimmerman's case.[4]

         A. The Making Of “The Dark Side”

         “The Dark Side: Secrets of the Sports Dopers” is a 49-minute documentary that Al Jazeera produced in 2015. (See “The Dark Side: Secrets of the Sports Dopers” (“Film”), Ex. L to Compl., ECF No. 9-12; see also Tr. of “The Dark Side: Secrets of the Sports Dopers” (“Film Tr.”), Ex. A to Defs.' Mot., ECF No. 26-4.)[5] “The Dark Side” purports to reveal little-known facts about the supply chain of elicit performance-enhancing drugs in professional sports (see Film. Tr. at 2), and the film features an undercover investigation that Al Jazeera producers allegedly conducted over a period of eight months (see id.). Using a combination of taped confessionals and hidden camera footage that is intended to “capture what athletes call the dark side[; i.e., ] the secret world of doping” (id), the film primarily details and displays the producers' efforts to “catch” on film individuals who purport to distribute PEDs to athletes-people such as “[d]octors, chemists, [and] chiropractors”-as they talk about the substances and “the players” they “claim[] [they've] doped to fame” (id.).

         Deborah Davies, a British reporter employed in Al Jazeera's Investigative Unit, served as the lead reporter of the investigation that is featured in the film (see Compl. ¶ 33) and is also the principal narrator in the documentary (see generally Film Tr.). Although much of “The Dark Side” consists of hidden camera footage of secretly-record discussions with various alleged medical professionals, it is Davies's voice-overs that help to explain the contours of the undercover investigation; consequently, her remarks provide the context for the photos, video clips, and statements in the film that expressly link certain professional athletes to the underground world of performance-enhancing drugs. (See, e.g., Film Tr. at 3 (during a scene depicting fans at a professional football game, Davies suggests that the investigation seeks to explore “extraordinary claims that raise questions” about whether a particular “American sporting hero”-who she mentions by name-is “linked” to PEDs).)

         At the outset of the film, Davies asserts that “[t]he best way to understand the dark side of sport is to meet an athlete who's been there-and back.” (Id.) Davies then introduces the audience to a former track star who had been banned from his sport for using PEDs, and who claims that he first obtained PEDs from a particular Bahamian doctor. (Id. at 4-5.) In order to investigate this claim, Al Jazeera's producers decided to “[w]ork[] with a British athlete” to “infiltrate a network [of suppliers] who claim their scientific expertise can cheat the system.” (Id. at 2.) Plaintiffs' complaint alleges that the athlete Al Jazeera and Davies enlisted-Liam Collins-is “a former hurdler, would-be bobsledder, and bankrupt real-estate promoter” who has “no known news reporting training or experience.” (Compl. ¶¶ 8, 40.) However, Davies explains in the film that Al Jazeera's producers considered Collins to be “perfectly placed to go undercover” (Film Tr. at 6), and that the producers approached him with a “proposal”: “help us to investigate doping in sport . . . by claiming to be an athlete desperate to qualify for the Rio Olympics.” (Id.)

         After Collins agreed to participate in Al Jazeera's investigation, the producers helped to “test out [his] cover story” by connecting him with the Bahamian doctor previously mentioned. (Id.; see also Id. at 7.) From there, Collins spent six months in an undercover capacity, chasing leads and trying to contact various alleged suppliers of PEDs in the Bahamas, Canada, and Texas. (See Compl. ¶ 40.) According to the complaint, Collins's modus operandi generally involved “[f]alsely claiming to be a potential client[, ]” and “induc[ing] people he came into contact with to discuss the topic of performance-enhancing substances and to provide him with [such substances], ” all while he was secretly recording the interactions with a hidden camera. (Id.) Collins solicited the allegedly defamatory statements at issue in the instant case when he was speaking with a central figure in the documentary: a purportedly notorious supplier of PEDs named Charlie Sly. (See Film Tr. at 27-28.)

         The broad investigatory narrative that Davies presents in “The Dark Side” focuses in large part on Sly. He is featured and discussed at multiple points in the film, and Davies repeatedly comments on her impressions of him, mostly casting him in a favorable light. For example, Davies characterizes Sly as a “doctor of pharmacy” when he is first introduced (see Id. at 15), [6] and when Sly is heard discussing a particular banned substance (growth hormone) at one point in the film, Davies states, “Charlie Sly appeared knowledgeable about the drug-he knows it's severely restricted even as legal medication.” (Id. at 33; see also Id. at 33-34 (Davies comments that “[w]e checked [Sly's claim regarding growth hormones] with one of America's leading experts. Professor Alan Rogol is an endocrinologist . . . He confirmed [Sly's claim].”).) The documentary also includes several comments from Davies indicating that her investigatory team had confirmed certain details regarding Sly's background. (See, e.g., Id. at 33 (“We've confirmed Charlie Sly worked in their pharmacy in 2011.”).)

         Davies's voice-over also makes clear that Sly's reputation as a “chemical mastermind” (id. at 2) precedes him: Collins contacts Sly precisely because two other suppliers are captured on tape calling Sly “a genius at outwitting” the World Anti-Doping Agency, and someone who's “taken smart drugs to a whole new level.” (Id. at 14, 15; see also id. at 15 (Davies remarks that “[s]omeone who's taken drugs to a new level-was someone we needed to meet”).)

         Davies explains in the film that, after Collins established contact with Sly, Al Jazeera set up hidden cameras at a café and in a hotel room to capture Collins's initial meeting with him. (See Id. at 15.) During the ensuing exchange, which is shown in the film, Sly offers Collins “[o]ne anabolic, ” and says that he can “give [Collins] something to use right now” that will be “great for . . . strength gains.” (Id.) Sly also says that “[t]here's a bunch of football players who take this. And a bunch of baseball players who take it too . . . [, ]” and he adds that “it was recently added to the MLB banned list.” (Id.) In the film, this conversation between Collins and Sly continues inside Sly's apartment, where, according to Davies's voiceover, Collins “discovers [Sly's] fridge is full of drugs[, ] [i]ncluding a half filled syringe-which Sly offers for immediate use.” (Id. at 16; see also id. (Davies asserts that Collins “declines the offer, saying he wants to read up on Delta 2[, ]” which Davies describes as the “designer steroid” that Sly handed to Collins).) Collins then “takes the syringe away” (id.), and in a confessional spoken directly to the camera, Collins asserts that Sly had talked to him about a famous professional football player (by name), and had told him that the player “buys all [the] stock” of Delta 2 from the only company that sells it on the internet (id. at 16-17).

         “The Dark Side” proceeds to feature other aspects of Collins's investigation into doping, but Collins's multiple meetings with Sly are a central component of the film. Recorded hidden-camera footage of several conversations between Collins and Sly are shown at various points, and in nearly every video clip, Sly brags about his connections to famous players, who he names specifically in the course of promoting his services, drugs, and business to Collins. (See, e.g., Id. at 17, 19, 28, 29.) Eventually, Davies states that the producers “wanted to test [Sly's] doping expertise and his level of connections” (id. at 23), and a video clip of the foyer of Sly's apartment follows (see id.). Then, as viewers gaze upon the entry to Sly's residence, Davies remarks that Sly “proved his link to one sportsman very quickly[, ]” because “[w]aiting at his building is a baseball player, Taylor Teagarden.” (Id.; see also Id. at 23-24 (Davies comments that Teagarden has played on professional teams “in Chicago, Texas, New York, and Baltimore[, ]” and that Sly has “guided him on a mix of clean and banned substances-including the steroid Delta 2”).)[7]

         Significantly for present purposes, at one point about 35 minutes into the film, Sly is shown driving in a car with Collins. According to Davies's narration, during this drive, Sly casually started to “name[] more sportsmen he claims are linked to Delta 2- in baseball and football[, ]” and then asserted that “he coached them on what to take and how to avoid testing positive.” (Id. at 27.) Davies notifies the audience that her production team had “primed Liam [Collins] with questions to dig into the claims” (id.), and the subsequent discussion between Sly and Collins is captured by Collins's hidden camera. It is in response to Collins's questions that Sly maintains that Howard and Zimmerman use PEDs. (See Id. at 27-28.)

         B. The Film's Allegedly Defamatory Statements About Plaintiffs

         The following is a description of the segments in “The Dark Side” that feature a specific conversation between Collins and Sly about Howard, with background narration by Davies:

Davies [off-screen narration over video clip of Sly and Collins driving]: Back in Texas, the pharmacist Charlie Sly names more sportsmen that he claims are linked to Delta 2, in baseball and football. He says he coached them on what to take and how to avoid testing positive. In a series of conversations crisscrossing Texas, we primed Liam [Collins] with questions to dig into the claims.
[The video then cuts to a stylized clip of Howard running the bases in his Phillies uniform, with voiceover as follows.]
Sports Announcer: That is well hit, it is way back, 50 home runs for Ryan Howard.
[The shot then rests on a backdrop of a stylized Howard baseball card. Against this backdrop, the following recorded conversation is played while the text of the speakers ' words appear in subtitle-like fashion.]
Collins: So with the likes of Howard, once you've set him off is there like a maintenance thing?
Sly: He is somebody that you cannot overwhelm with stuff. You just make sure you have everything in bags. He knows to take stuff twice a day. Usually I just have him like teach it back to me.
Collins: What did he notice in his hitting?
Sly: With the D2?
Collins: Yeah.
Sly: I think maybe some more explosiveness. He had a couple of years where he had just a ton of home runs.

         (Film; see also Film Tr. at 27-28.)

         A discussion of Zimmerman follows immediately; it features a conversation between Collins and Sly during this same road trip:

[The video cuts to a stylized clip of Zimmerman batting in his Nationals uniform, with voiceover as follows:]
[Sports] Announcer: That's a seeing-eye single for Ryan Zimmerman. 3 for 4 on the day.
[The shot then rests on a backdrop of a stylized Zimmerman baseball card. Across this backdrop, the following conversation is played while text of the conversation scrolls across the screen.]
Collins: How long have you known Zimmerman?
Sly: Probably six years . . . I worked with him in the off-season. That's how I get him to change some stuff.
Collins: Is he on the D2 as well?
Sly: Yeah.
Collins: What does he think of the D2?
Sly: It does its job.
Collins: Does he notice a lot more power or not?
Sly: Yeah, I think some guys have just kinda gotten used to ...

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