By Jeff Birren, Senior Writer
D.C. United trainer Reade Whitney flashed a hand gesture at a photoshoot session during the 2023 Major League Soccer All-Star game festivities. Photos were posted online and subsequent comments debated whether it was a racist gesture. The team conducted an internal review and the trainer was fired. D.C. United issued a public statement concerning the termination without naming Whitney. He responded by filing a lawsuit alleging defamation. The District Court granted the team’s motion to dismiss, ruling that it had not made “provably false statements.” Reade Whitney v. DC Soccer, LLC, U.S. D.C.C., No. 1:23-cv-02988-AHA (January 7, 2026).
“Background”
Whitney was hired by D.C. United as an athletic trainer in 2021 and became head trainer in 2022. In 2023 he was “part of a photo shoot in D.C.” for the MLS All-Star team and training staff. In one photo Whitney “made an upside-down OK hand gesture below his waist.” He was sitting in the front row. Whitney alone made a hand gesture in the photo at issue. The team posted various photos online. His gesture “quickly became an online topic of conversation, with comments debating whether Whitney ‘flashed a racist hand signal’ or ‘was instead playing something known as the Circle Game.’”
Team management had a video call with Whitney. He stated that he had no idea that the hand signal “could be construed by some as a white power signal.” He was fired later that day. Sports Litigation Alert previously reported these this event. “DC United Ousts Athletic Trainer Over Discriminatory Gesture”, August 25, 2023. The article states in part:
“The team issued the following statement: “There is no place for racism, homophobia, misogyny, or discrimination of any kind in our sport and world and D.C. United do not tolerate any acts of this nature.” The incident took place during festivities involving the MLS All-Stars. Specifically, during a photo shoot on the National Mall, Whitney flashed a hand gesture that “has been adopted by white supremacists in recent years,” according to the Washington Post.
The hand signal has traditionally been used to signal ‘OK,’ according to the media. “But the practice of touching a thumb and index finger together while outstretching the other three digits was listed as a hate symbol by the Anti-Defamation league in 2019.”
D.C. United’s statement “went viral” on local, national and international news. The Post “quickly identified Whitney as the athletic trainer at issue.” It “speculated that the team or league must have determined that Whitney knew the gesture could be construed as racist, while other comments stated or implied that Whitney was a racist.” The “Anti-Defamation League recognizes the ‘okay’ hand gesture as an ‘obvious and ancient gesture that has arisen in many cultures over the years with different meanings.” Some are “innocuous” while others have used it as a symbol of white power. Whitney claimed that he was playing the “Circle Game” where the gesture is “regularly used to photobomb serious photographs.” It differs from the “racist gesture because it is ‘upside-down and backwards’ and ‘held below the waist.’”
Litigation
Whitney filed a nineteen-page Complaint on October 6, 2023. The photograph is at ¶ 32. The Complaint sought $7,500,000; presumed damages; compensatory damages; punitive damages; pre-judgment interest; post-judgment interest; and allowable costs. It pled causes of action for defamation per se and defamation. Whitney alleged that the team’s statement “falsely and directly implied that [he] was associated with racism, homophobia, misogyny and discrimination.” This tarnished his “reputation, destroying his ability to earn a living, and causing emotional damage.” He has “no history racist conduct” and is a “lifelong anti-racist.”
D.C. United filed a motion to dismiss. After a series of stipulated stays, the parties again agreed to a stay in August 2024, pending the D.C. Circuit’s resolution of Florio v. Gallaudet Univ. 119 F. 4th 67 (D.C. Cir. 2024). The Florio opinion was issued on October 4, 2024. The Whitney Court denied the motion to dismiss as moot because it predated the new authority. It ordered the parties to establish a briefing schedule if D.C. United filed a second motion to dismiss. An opposition and a reply followed.
Whitney filed a “Supplemental Memorandum” on January 17, 2025. That filing was not included in the briefing scheduling Order, and the Court directed the parties to comply with its directives. (Standing Order, 2-5-2025). The Court later denied Whitney’s unopposed motion for a status conference, because “Plaintiff does not articulate a basis for a status conference.” (Minute Order, 6-13-2025).
The Court’s ‘Discussion”
A claim must be plausible on its face to survive a motion to dismiss. It requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 559 U.S. 544, 570 (2007). Factual allegations must be taken as true, but not legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).
Whitney “has not stated a defamation claim.” To “’do so, a plaintiff must allege: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement met the requisite standard; and (4) either the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.’” Florio, 119 F. 4th 73. The statement must be both “defamatory” and “provably false.” Id. at 77.
Whitney failed to allege “a provably false statement.” The Court thus did not need to address the claim for defamation per se, as it differs from defamation only in respect to whether special damages must be alleged. To be “provably false”, a statement must either be factual, imply a provably false fact, or rely on facts that are provably false based on the entire context of the document.
Choice of law
The parties differed as to whether D.C. or Virgina law applied, “although neither offers any meaningful analysis of choice of law principles.” In tort cases a court applies the law of the jurisdiction that has the most significant relationship to the dispute. D.C. United does business in D.C., but Whitney resides in Virginia. The photoshoot took place in D.C., and the parties’ relationship was “centered around Whitney’s employment”. The Complaint “specifically alleges that “a substantial part of the events giving rise to the claim” occurred in D.C.
The Court applied D.C. law, though “neither party identifies a difference between D.C. and Virginia law that would affect the outcome of the case.” No matter which law was applicable, “Whitney has not alleged that D.C. United made a false statement about him; rather, D.C. United’s statement is nonactionable opinion about whether Whitney made a discriminatory gesture.”
Florio Applied
In Florio, four fraternity members were photographed “performing the Bellamy salute.” It was “created in the late 19th century for the Pledge of Allegiance” but resembles the Nazi salute. The University suspended the fraternity. The Washington Post followed with stories that said the photos involved the “Nazi salute” and “KKK-style garb.” Alumni sued the school and the Post.
The D. C. Circuit “held that the statements were ‘protected opinions’”, Florio, 119 4th at 70. They were “based on facts not provably false” because the Bellamy salute and the Nazi salute “are at least similar in appearance.” Statements describing the students were also non-actionable opinions. Id.at 77. Those comments were based on the salute photograph, “’providing factual context that readers can easily judge for themselves’. Id. at 77-78 (cleaned up)”. Observing the photographs, “some might conclude the use of the gesture” warrants harsh condemnation while other “might conclude that the condemnation is unfair.” Id. at 78.
“The same is true here.” “To the extent the organization’s statement that it fired Whitney after” its internal review “implies that Whitney made the discriminatory version of the hand gesture, as opposed to an innocuous ‘okay’ or Circle Game’ gesture” it is an “opinion that is not provably false.” The Complaint acknowledged that the Anti-Defamation League recognized that in 2017 white supremacists ‘ironically” use the gesture to signify “white power.” (Complaint ¶71.) The “Anti-Defamation League amended its publication in 2019, identifying “the hand gesture as a potential hate symbol.” (Complaint ¶72.).
Whiteny admitted that the gestures “are at least similar in appearance.” In Florio, the relevant statements were based on a photograph from which observers could draw their own opinion. Similarly, D.C. United’s statement: “There is no place for racism, homophobia, misogyny or discrimination of any kind in our sport and world” can be read “to suggest Whitney’s gesture was racist or otherwise prejudiced, that was nonactionable hearsay opinion” as it was based on the photograph, “providing factual context that readers can easily judge for themselves. Florio, 119 4 F. 4th at 77-78 (cleaned up.)”
Whitney argued that D.C. United had no right to “publish a statement” that associated him with homophobia and misogyny. This, however, “was framed as an articulation” of the club’s “general values”. Furthermore, “Whitney does not explain how a statement that implies the gesture is homophobic or misogynistic is any less a non-actionable opinion than the statement that it is discriminatory or racist.”
Whitney tried to distinguish Florio, asserting that the gesture in Florio was “by then decades suspect”, the photo had been taken long before the statements about it were made, the statements followed “a series of events” at the university and there was “much to comment on.” He did not “cite any legal authority for why these facts are material, and it’s hard to see why they should be.”
Whitney contended that the “nefarious meaning of the ‘okay’ gesture is less ‘widely known’ than the salute in Florio, that the ‘okay’ gesture is more often used innocuously” and his hand gesture “is commonly used in the Circle Game.” “Even if true”, the “critical question” is whether D.C. United ‘s statement “is opinion based on facts that are provably false.” The case does not turn on “how widely known the gesture’s discriminatory meaning is or how often it is used innocuously.” Whitney acknowledged that the gestures are similar. “As in Florio, the question of which gesture Whitney was making is one readers can judge for themselves”. The Complaint alleged that there were differences of opinion after viewing the gestures, just as are differences in the actual gestures.
Undeterred, Whitney argued that D. C. United’s “statement is factual” due to the absence of any qualifying “language that expressly framed its statement as opinion”. A statement that is “cautiously phrased in terms of apparency” may make a statement less likely to be viewed as a statement of fact but instead “as a statement of opinion.” Ollman v. Evans, 750 F.2d 970, 977 n. 12 (D.C. Cir. 1984). The “absence of such language” is but “one indication of how the [statement] would come across to the reader, Id. at 985 n. 31.” Furthermore, the “language of apparency” did not necessarily convert the statement to opinion. “D.C. United’s interpretation of the gesture here is not rendered factual merely because D.C. United did not say it was stating an opinion.” The language in Florio was not actionable “even though some did and some did not contain language of apparency. See Florio, 119 F.4th at 72.” One statement said the gesture was “an apparent Nazi salute” while another said that there were “’[p]hotos involving Nazi salute.’”
Whitney insisted that even if “D.C. United was expressing an opinion, its statement that his termination resulted from an ‘internal review’ makes the opinion actionable because it ‘impl[ies] an assertion of objective fact.’” Statements of opinions can be actionable if they “imply a provably false fact or rely upon stated facts that are probably false.’ Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 597 (DC 2000); see Florio, 119 4th at 77)”. However, the club’s statement that it conducted an “internal review” does not imply a false fact. Whitney claimed this implied “that D.C. United discovered some objective fact confirming that the gesture was discriminatory” but failed to “identify what that objective fact would be.” The “statement, taken as a whole, expresses the club’s opinion that Whitney made a discriminatory hand gesture in the photo, which is not provably false.”
The Complaint failed “to allege any factual statement of opinion implying a provably false statement.” The Court dismissed the case without prejudice on January 7, 2026. Whitney filed a notice of appeal thirteen days later.
Editorial
Florio was too high a hurdle for Whitney, though unfortunately, virtually no one will now “observe” the photograph to form an opinion concerning the club’s public statement. There is little reason to doubt that Whitney thought he was playing a game to “photobomb” photographs. One can understand his reactions. He wants his career back, but that does not make D.C. United’s statement “provably false.” Those in the soccer industry should leave “photobombing” at All-Star games to Messi, Ronaldinho, Yamal or others of that status.
Plaintiff’s lawyers should think at least thrice before filing basic tort claims in federal court. U.S. District Courts may have diversity jurisdiction, but most tort cases will rarely be welcomed there. Whitney would have been decided the same way in U.S. District Court in D.C. or Virginia. The prudent path is to stick to state court. Many state court judges would have ruled that the case involves a question of fact and sent it to a (possibly sympathetic) jury.
