By Rick Karcher
On November 29, a jury in Alabama awarded $5 million to a former University of Alabama football booster, Ray Keller, who claimed the NCAA defamed him when it announced the imposition of penalties on the Crimson Tide in 2002. Keller maintained that the NCAA wrongly lumped him in with other boosters who were accused of making improper contacts and payments to recruits in the 1990s. A timber dealer and Crimson Tide fan, Keller argued that the NCAA slandered and libeled him during the announcement of penalties by referring to him and others as “rogue boosters,” “parasites” and “pariahs.”
According to press reports, the NCAA did not use the name of Keller or other boosters in announcing penalties against Alabama, but their names appeared in news accounts and the university sent Keller a letter barring him from its athletics program. The jury awarded him $3 million in punitive damages, $1 million for mental anguish, $500,000 for economic loss and $500,000 for damage to reputation.
One only needs to review the press reports to realize that this case essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by twelve Crimson Tide fans.
For example, Keller indicated that he felt this verdict could help show that Alabama was also wronged: “If this does anything to vindicate them, great. I’m an Alabama fan now, and I was when this started.” Press reports also stated that Keller’s attorney, Archie Lamb, commented that Keller was wrongly swept up by the NCAA when it “set a trap” to get Alabama and acted in a “blind rage” to target the late Logan Young of Memphis, a former Alabama booster convicted of paying a high school coach $150,000 to steer a recruit to Alabama. Lamb also indicated that, while college athletics needs the NCAA to police recruiting, “they need to also abide by their own rules.”
But the jury’s role in this case was to merely decide whether Keller had been defamed by the NCAA, not to determine the legality of the NCAA’s authority to issue sanctions against its member schools nor to determine whether the NCAA’s bylaws were breached with respect to sanctions it issued against Alabama in 2002. The jury’s award is not only questionable applying defamation law principles, but it also raises a policy question whether announcements of rulings made by private associations pertaining to their member institutions should be subjected to third party tort claims.
Applying defamation law principles, a statement must be a false factual statement, not a statement of opinion. When one thinks for a moment, the NCAA’s use of the terms “parasites” and “pariahs” does not even make sense in characterizing former boosters who were found to have made improper payments to football recruits. For starters, neither term is capable of being proven true or false in reference to the former boosters. A parasite has essentially two meanings: (1) an organism that lives on or in an organism of another species, known as the host, from the body of which it obtains nutriment; or (2) one who takes advantage of the generosity of others (i.e. feeds off of them) without making any useful return. Certainly, nobody would take the NCAA’s statement to mean that the boosters are organisms. And the second definition of parasite ironically appears to have the opposite meaning in the context of describing improper booster activity – because a booster who gives benefits to recruits is not feeding off of the recruits; if anything, it is the recruits who are feeding off of the booster. The use of the term pariah, which is essentially a social outcast, does not even seem relevant in this context. But regardless, whether somebody is a social outcast is a matter of opinion and there is no way to prove its truth or falsity. As a general principle, the broader the language used and the more meanings that can be ascribed to a particular term, the less likely that it will be reasonably interpreted as a statement of fact.
A statement must also be “defamatory” — meaning that the statement must tend to adversely affect the plaintiff’s reputation, for example, by impeaching the plaintiff’s honesty or integrity. A statement of opinion, by definition, cannot be defamatory because it is merely one’s opinion. So the question from a defamation standpoint is: what impact does the use of these terms have on the recipient of the statement? Does the use of these terms cause the recipient to think any less of these former boosters than if the NCAA had simply made the announcement without using these terms? Probably not. Simply, it is the fact that the NCAA implicated Keller in wrongdoing that led to sanctions imposed on Alabama’s football program which has the potential to damage his reputation in the community, not the fact that the NCAA called the former boosters parasites and pariahs. Granted, the NCAA’s use of these terms could most certainly be described as unnecessary, mean-spirited, unsavory, or a poor choice of words. But that does not make the statement defamatory. Defamation law does not redress hurt feelings.
Another question raised by the jury’s decision is whether the damages award was excessive, assuming that the NCAA statement is a defamatory statement of fact. When a defamatory statement relates to a private person involving a matter of public concern or controversy — such as penalties imposed on Alabama’s football program as a result of improper booster activity — the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) held that damages are limited to the “actual injury” sustained by the plaintiff, which includes out-of-pocket loss, impairment of reputation, humiliation and mental anguish. However, there must be competent evidence of actual injury; damages are not presumed, which is typically the case in libel actions relating to private persons involving matters of purely private concern. Thus, the $2 million compensatory damage award covering mental anguish, economic loss and reputation impairment may be difficult to justify in this case. Indeed, the $3 million punitive damage award can hardly be justified absent a showing that the NCAA made a false statement with knowledge of its falsity.
Keller v. NCAA also raises a policy question whether courts should permit tort law to be used as a vehicle to challenge rulings made by private associations with respect to its members, but that impact third parties to the association-member relationship such as Keller. The NCAA has no authority over Keller, and he is not a party to the NCAA’s bylaws. Keller has no standing to challenge the NCAA’s factual determinations, nor the sanctions imposed upon an NCAA member institution. Yet, Keller is effectively challenging, via a defamation claim, the results of the NCAA’s investigation relating to one of its member institutions. The jury’s $5 million award is based on one of two grounds; either the jury decided that Keller’s name should be cleared because it simply disagreed with the NCAA’s factual findings in connection with its investigation that led to sanctions imposed on Alabama, or the jury decided that the NCAA’s use of the terms parasites and pariahs was simply a poor choice of words or an unsavory reference. If the former, then the court is essentially permitting a jury to engage in a rehearing of the sanctions imposed upon Alabama. If it’s the latter, then the jury’s award is excessive or, arguably, the NCAA’s statement is not even defamatory as a matter of law.
This is not to say that defamation claims should always be precluded as a policy matter in these circumstances. Such claims should be allowed to proceed when the defamatory material is outside the scope of the association’s investigation or interest in the enforcement of its rules and regulations, for example, if the NCAA stated that “the results of our investigation also raise questions regarding the integrity of Keller’s timber business.” But in this case, the jury used the NCAA’s poor choice of words as an excuse to compensate Keller either because they felt he was wrongly accused by the NCAA or because they felt the need to vindicate Alabama, neither of which is an appropriate basis for compensation. The NCAA’s unsavory comments should not be condoned, but that does not mean the NCAA should be required by law to compensate for it.
Rick Karcher is the Associate Professor of Law and Director of the Center for Law and Sports at Florida Coastal School of Law
