By Ryan M. Rodenberg and Herlanda L. Hampton
After a rough start to a tennis career that included zero wins and 54 straight-set losses on the international tennis circuit, aspiring professional player Robert Dee was labeled the “world’s worst tennis pro” by dozens of newspapers and other media outlets in his native Great Britain. Dee didn’t shirk from adversity, however. Instead of meekly returning to the practice court, he proceeded to write demand letters and file a defamation lawsuit against one newspaper that refused to apologize to him. In a 33 page opinion released earlier this year, Mrs. Justice Sharp of the High Court of Justice (Queen’s Bench Division) ruled against Dee.
The court found that the offending “world’s worst tennis pro” headline must be interpreted in conjunction with the full-length article that accompanied it in the newspaper:
When read together, it is said the articles are not arguably defamatory of [Dee]. In addition, it is said [Dee] has no real prospect of rebutting the justification and/or fair comment defences upon which the Defendant relies. On either basis it is said that no tribunal of fact could rationally conclude that [Dee] had been libelled.
As part of the hearing that preceded the decision, both parties submitted “skeleton” arguments. Dee’s strongest claim was that any reader of the front page would think his record was of unrelieved defeat. Additionally, the title of “world’s worst tennis pro” and the reference of him being the worst in the world underlies the message that, other than his solitary victory over an unranked 17 year old, he had won no professional matches. Defendant The Daily Telegraph, a prominent British newspaper, countered by arguing that the factual aspects of the front page article are not capable of being defamatory of Dee. They claimed that Dee had no prospect of success in establishing that his proffered meaning is defamatory. The court ultimately agreed.
Two aspects of the case were particularly important.
First, Dee claimed that The Daily Telegraph’s article contained four false statements regarding his professional career. The first statement ranking him the world’s worst tennis pro found in the first paragraph, the second being the headline of the article that read “The World’s Worst Tennis Pro.” The third and fourth statements were that Dee had lost 54 consecutive professional matches, and that he only managed to break his streak by beating a teenage rookie. With these statements being on the front page of “Britain’s best selling quality daily,” they created a label that the claimant believed would inevitably stick regardless of its truthfulness. Dee argued that this would negatively impact his potential to earn a living as a tennis coach in the future.
Second, The Daily Telegraph argued that defenses of justification and fair comment were the most likely to succeed. They were right. The defendant newspaper claimed that the clear meaning of the front page article is that Dee did in fact lose 54 consecutive professional matches, and such words were non-defamatory. They contended that the article should not be understood to refer to all professional matches played by Dee, only those sanctioned by the International Tennis Federation as ranking-granting tournaments. The Daily Telegraph did not allege anywhere in their justification defense that the lower-tier Spanish tournaments Dee participated in were to be included with other professional matches recognized by the ITF.
Like American courts, the decision in the Dee case appealed to precedent, citing opinions stretching back to 1865. The case also gave credence to the role of expert testimony, including that of former Wimbledon winner Boris Becker, who testified on behalf of the defendant newspaper. In his attempt to demonstrate that the article was patently false, Dee argued that he wasn’t actually winless as a professional player on the international tennis circuit, citing several matches he won at local prize money tournaments in Spain. Becker’s testimony was used to rebut Dee’s claim, positing that the “international tennis circuit,” as the phrase is commonly used, refers to tournaments of a caliber that carry with them merit-based ATP Tour world ranking points based on matches won, not smaller unaffiliated national-level events of the type Dee sometimes competed (and regularly won matches) in.
The case also highlighted important differences between British and American common law. As has been detailed recently in the dueling defamation lawsuits involving former pitcher Roger Clemens, a prima facie case of defamation (slander or libel) in US jurisdictions usually must include:
(i) Language by the defendant that is false and defamatory;
(ii) Language that identifies the plaintiff to a reasonable reader;
(iii) Third-party publication;
(iv) Reputational damage incurred by the plaintiff; and
(v) Fault by the defendant.
As to the damages prong, the U.S. Supreme Court’s decision in New York Times v. Sullivan makes clear that plaintiffs must prove “malice” before any recovery. The requirement to prove malice is more stringent than that found in Great Britain. As such, given that Dee’s case was unsuccessful under the more liberal standards in his home jurisdiction, it is a near certainty that a similar case brought in the United States would be dismissed quickly or disposed of via summary judgment.
Ryan M. Rodenberg is an assistant professor at Florida State University where he teaches sports law. Herlanda L. Hampton is currently pursuing a PhD in Sport Management at Florida State University where she teaches sports law. © Ryan M. Rodenberg and Herlanda L. Hampton
