By Ben Coulthard
In Favre v. Sharpe,[1] a Fifth Circuit decision levied in September 2024 has affirmed a 2023 district court ruling from the Southern District of Mississippi.[2] The decision effectively dismisses a defamation suit by former Green Bay Packers quarterback Brett Favre against fellow NFL legend Shannon Sharpe.
Facts/Background
Favre, former quarterback for the University of Southern Mississippi and the Green Bay Packers, recently came under fire after allegedly committing financial improprieties.[3] The Mississippi native was connected to a scheme that misused government welfare funds. Favre reportedly received some of the misused funds.[4]
The first time any reports surfaced of such financial improprieties was in October 2021.[5] The Mississippi State Auditor’s Office reportedly found that seventy-seven million dollars were illegally misused by various individuals across the state.[6] These funds were meant to be used for the federal Temporary Assistance for Needy Families (TANF) program, which provided financial support to low-income Mississippians.
In May 2022, the Mississippi Department of Human Services (MDHS) filed a civil suit against Favre and others to recover the missing funding. Six individuals have since pled guilty to state and federal felony charges related to their involvement. Favre, however, has not been criminally charged.
What Happened in MDHS’s Suit?
After discovering the missing funds, MDHS sought $1.1 million in recovery from Favre, the amount Favre received from a Mississippi non-profit, the Mississippi Community Education Center, Inc. (MCEC). Favre received this money from MCEC for 2017 and 2018 speaking engagements he never actually performed.
While Favre repaid the $1.1 million amount before MDHS’s civil suit commenced, MDHS amended its original complaint, seeking a new total of $5 million in misallocated TANF funds. The new figure was calculated as being the amount allegedly funneled from TANF by Favre, who instead used the money to help fund the construction of a brand-new volleyball facility at the University of Southern Mississippi.
MDHS alleged that Favre approached MCEC seeking funding for the volleyball facility campaign. The building campaign would not reach its initial target amount through donations alone. Ultimately, the TANF funds were used to help fund the new USM volleyball facility. This disclosure became central to the scandal, generating media coverage.
Media Coverage Following the Initial Revelations
Media coverage began with an article published by a Mississippi news source, Mississippi Today. Their article detailed the civil suit MDHS filed against Favre. It included text messages between Favre and Nancy New, former president and CEO of the MCEC non-profit. New was one of the six individuals eventually criminally charged for involvement related to the scandal. The messages discussed the construction funding of the new USM volleyball facility. Favre and New also talked about how unlikely they thought it would be that the media determined the source of the funds.[7][8]
How did Undisputed and Sharpe Classify Favre’s Conduct and the Scandal in the Media?
National media personalities and outlets discussing the news included Shannon Sharpe on his sports talk show Undisputed. At the time, Undisputed aired on Fox Sports 1. Sharpe and his co-host Skip Bayless held debate-style programs about relevant sports news or sports-related stories. The duo discussed the welfare scandal on Undisputed.
On September 14, 2022, the day after the Mississippi Today article first appeared, Sharpe and Bayless discussed the scandal on Undisputed. The show’s moderator, Jen Hale, asked “for…thoughts about [the scandal’s] impact on Favre’s legacy.”[9] The analysts eviscerated Favre’s character, labeling him as “a sleazeball,” “shady,” “gross,” and a “diva,” and accusing him of “steal[ing],” “egregious” behavior, and “illegal activity.”
What was in Question? How did Favre Respond? What Happened Afterwards?
After the Undisputed segment aired, Favre asked Sharpe for three specific statements that Sharpe made about Favre during the Undisputed segment to be retracted.[10] These were: 1. “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low.” 2. “Brett Favre is taking from the undeserved” in Mississippi; and 3. Favre “stole money from people that really needed the money.”[11]
Sharpe denied Favre’s request,[12] leading Favre to sue Sharpe for defamation.[13] In the complaint, Favre alleged the three statements he asked Sharpe to retract “injured his reputation, falsely accused him of serious crimes, and were defamatory in nature.”[14]
After Favre’s filing, Sharpe removed the case from state court to the United States District Court for the Southern District of Mississippi[15] based on a diversity jurisdiction claim.[16] Sharpe filed a FRCP 12(b)(6) motion to dismiss, alleging Favre failed to state a claim.[17] Sharpe argued that the comments he made on Undisputed regarding Favre and the welfare scandal were “a classic example of the kind of rhetorical hyperbole and loose, figurative language” protected by the First Amendment. Sharpe’s motion argued that Mississippi law protects such comments because “they discuss a matter of public concern and are drawn from official proceedings.”[18]
How did the Lower Court Respond?
The district court granted Sharpe’s 12(b)(6) motion, ruling that listeners would have recognized the comments made on Undisputed as “mere rhetorical hyperbole,” making the comments “unactionable.”[19] The court concluded that “no reasonable person listening to the Broadcast would think that Favre actually went into the homes of poor people and . . . committed the crime of theft/larceny.”[20] Favre appealed the district court decision, leading to the case at hand.
5th Circuit’s Analysis of District Court’s Rulings
The Fifth Circuit reviewed the district court’s dismissal de novo, taking the factual allegations from the original complaint as true. The court’s complaint stated that, to survive a Rule 12(b)(6) motion, “[a] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”[21]
To avoid dismissal, “a plaintiff need not provide exhaustive detail, . . . but the pleaded facts must allow a reasonable inference that the plaintiff should prevail.”[22] After considering these two precedential notions, the Fifth Circuit “[took] the factual allegations in the complaint as true but disregard[ed] conclusory allegations and legal conclusions,”[23] all while resolving questions of fact “in the plaintiff’s favor.”[24]
The Fifth Circuit noted how the district court’s ruling only ruled on the “rhetorical hyperbole” argument, concluding Favre’s original defamation claim failed as a matter of law.[25] The district court did not analyze any of Sharpe’s other claims, which included that “his statements were protected under state law as opinions based on disclosed facts or as reports of official proceedings.”[26]
The Fifth Circuit ruled it could affirm a district court’s dismissal of a suit for failure to state a claim “on any basis supported by the record.”[27] It decided not to analyze rhetorical hyperbole and instead analyze whether the statements in question were protected opinions based on previously disclosed factual premises.[28]
How Do the Fifth Circuit and Mississippi Law Interpret the Statements in Question?
The Fifth Circuit’s inquiry focused on whether any statements made “could be reasonably understood as declaring or implying a provable assertion of fact.”[29] The court noted its analysis does not turn on the mere labeling of a statement as “fact” or “opinion.”[30]
The Fifth Circuit found that statements, “even if phrased as [] opinion[s], will not enjoy constitutional protection if the court concludes that the substance…of such statements could reasonably be found as declaring or implying an assertion of fact.[31]
State-specific, the Fifth Circuit found that Mississippi law holds “defamatory communication may [be] . . . in the form of an opinion,” and that “[o]pinion statements are actionable only if they clearly and unmistakably imply the allegation of undisclosed false and defamatory facts as the basis for the opinion.”[32]
Further, Mississippi law says that “offensive insults and opinion statements” “generally are not actionable in Mississippi”[33] because “nothing in life or our law guarantees a person immunity from occasional sharp criticism,” and “no person avoids a few linguistic slings and arrows, many demonstrably unfair.”[34]
The Fifth Circuit stated in conclusion that “strongly stated [opinions] . . . based on truthful established fact . . . are not actionable under the First Amendment.”[35] The Mississippi Supreme Court has ruled similar commentary based on disclosed facts qualifies as “fair comment[s].”[36]
Reactions from Both Parties
From Sharpe’s perspective, his statements were protected opinions that were “fair comments” on a publicly known and reported matter.[37] He also claimed that “contemptuous language” and “unfair” criticism regarding previously reported facts do not rise to the level of defamatory speech.[38] While the comments made on Undisputed paint Favre in an unpleasant light, Sharpe asserted that the broadcast clearly stated any comments made were based on reports from elsewhere in the media regarding Favre’s involvement.[39]
Sharpe claimed that such involvement was a matter of public concern,[40] and he also stated that his comments were made based upon “truthful established fact[s],” entitling him to voice his opinion and “sharp criticism” of Favre.[41]
Favre wholly disagreed, arguing that even if Sharpe’s statements were “protected opinions,” it would not change the fact the comments would still be actionable, as Sharpe never
provided “a correct and complete recitation of “the facts upon which he base[d] his opinion and the statements “imply a false assertion of fact.”[42]
To Favre, the facts behind Sharpe’s opinions were “incorrect and incomplete” since the Undisputed broadcast left out key facts from the original Mississippi Today article.[43]
How did the Fifth Circuit Rule?
The Fifth Circuit found that Sharpe’s statements about Favre that were made on the Undisputed broadcast, which Sharpe based on facts reported in the original Mississippi Today article, could not have been seen by outsiders as anything more than strongly stated opinions.[44]
The court corrected Favre’s claim that several of the statements from Sharpe were inaccurate, saying that they were corrected on the broadcast.[45] Since Favre did not allege any other statements made on the broadcast were false, the court found there were no more inaccuracies to correct.[46]
Conclusion
While Favre surely wanted to avoid sharp criticism regarding his involvement in the welfare scandal, it was found that Sharpe relied only upon the facts that were reported in local and state news within Mississippi and specifically what the Mississippi Today article stated.
Sharpe’s statements relied on information from other sources when he talked about what Favre objected so vehemently to on the Undisputed broadcast. Since Sharpe relied on facts that were publicly known, he had a right to characterize those facts in a way he wanted. Therefore, his statements about Favre were “strongly stated” opinions “based on truthful facts,” making the allegedly defamatory statements unactionable.
[1] Favre v. Sharpe, 117 F.4th 342 (5th Cir. 2024) OR 2024 U.S. App. LEXIS 23519
[2] Favre v. Sharpe, No. 2:23-cv-42-KS-MTP, 2023 U.S. Dist. LEXIS 193928 (S.D. Miss. Oct. 30, 2023).
[3] Isabel Gonzalez and Steven Taranto, Brett Favre scandal explained: Ex-NFL QB accused of misusing Mississippi state welfare funds, CBS Sports (Aug. 10, 2023, 4:03 PM) https://www.cbssports.com/nfl/news/brett-favre-scandal-explained-ex-nfl-qb-is-accused-of-misusing-of-mississippi-state-welfare-funds/.
[4] Id.
[5] Favre, at *2.
[6] Id.
[7] Favre, at *4.
[8] https://www.cbssports.com/nfl/news/brett-favre-scandal-explained-ex-nfl-qb-is-accused-of-misusing-of-mississippi-state-welfare-funds/
[9] Favre, at *4.
[10] Favre, at *5.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id., at *5-6.
[17] Id., at *6.
[18] Id.
[19] Id.
[20] Id.
[21] Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023).
[22] Mandarala v. Ne. Baptist Hosp., 16 F.4th 1144, 1150 (5th Cir. 2021).
[23] Id.; Allen 65 F.4th at 743.
[24] Favre, at *7, citing Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
[25] Favre, at *7.
[26] Id.
[27] Id., quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780-81 (5th Cir. 2007).
[28] Favre, at *7.
[29] Id., quoting Milkovich v. Lorain J. Co., 497 U.S. 1, at 21-22.
[30] Id., citing Roussel v. Robbins, 688 So. 2d 714, 723 (Miss. 1996).
[31] Favre, at *7-8.
[32] Favre, at *8, citing Ferguson v. Watkins, 448 So. 2d 272, 275-76 (Miss. 1984); Restatement (Second) of Torts § 566 (Am. L. Inst. 1977) (emphasis added)
[33] Favre, at *8, citing Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 493 (5th Cir. 2013).
[34] Id.
[35] Id., quoting Texas Beef Grp. v. Winfrey, 201 F.3d 680, 688
[36] Favre, at *8, citing Ferguson at 276.
[37] Favre, at *8-9.
[38] Favre, at *9.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id., at *10.
[45] Id.
[46] Id.
