By Justin B. Kozubal, MSA & Michael S. Carroll, PhD
On October 14, 2019 Eric Smith and his wife, Atinuch Naoward (Plaintiffs), filed in the Cuyahogo County, Ohio Court of Common Pleas a lawsuit alleging negligence, defamation, negligent infliction of emotional distress, false light, and loss of consortium against numerous defendants including, Cleveland Browns Football Club LLC., Cleveland Browns, Cleveland Browns Stadium Company LLC., First Energy Stadium, National Football League (NFL), Bob Sivik, Peter John-Baptiste, John Doe Security, and John Does I-X. Plaintiffs seek damages, equitable relief, and other remedies from Defendants in excess of $25,000.
The complaint stems from an incident that occurred during the Cleveland Browns’ home opener on September 8 2019, in which Tennessee Titans player Malcom Butler intercepted, and ran back for a touchdown, a pass from Cleveland Browns quarterback Baker Mayfield. Butler, along with teammate Logan Ryan, leaped in to the stands, at which time an unidentified fan poured beer on Logan Ryan. This incident captured widespread media attention, with much of the focus on fan behavior. The next day, Logan Ryan tweeted, tagging the NFL and the National Football League Player’s Association (NFLPA), about the incident, prompting NFL Security to contact Ryan. The NFL immediately issued a statement that they would address the situation and ban the individuals from First Energy Stadium for violation of the Fan Code of Conduct. Court documents state that on September 11, 2019, Bob Sivik, Vice President of Sales and Tickets for the Cleveland Browns organization, contacted Plaintiff, Eric Smith, to inform him that he had been identified as the fan in question. This identification was based on video footage and multiple security cameras allegedly matching Plaintiff’s face, as well as an arm tattoo. Smith claimed that he informed Mr. Sivik that he had not attended a Cleveland Browns game in over nine years and was home with his family, preparing for a DJ appointment at the time of the incident. Despite his claim of mistaken identity, Smith alleged that Mr. Sivik was rude and dismissive of his explanation and called him a liar. To make matters worse, Smith claims that the entire conversation was overheard by his office staff. Only after realizing their error did Cleveland Browns Vice President of Communication, Peter John-Baptiste, call Smith to apologize. Court documents further state that on September 12, 2019, the Cleveland Browns organization misidentified yet another fan. In his suit, Smith cites that these actions by Defendants have caused mental anguish, loss of income, and loss of enjoyment and companionship. Five counts of remedy have been requested, including negligence, defamation, negligent infliction of emotional distress, false light, and loss of consortium. He requests compensatory, consequential, and general damages in an amount in excess of $25,000. He further requested statutory damages, and punitive or exemplary damages, to the fullest extent permitted by law. Additionally, he requested that Defendants be required to make a public retraction, which they never did, despite knowing that their original accusation against him was in error. Interestingly, the Browns never made a public statement regarding their identification of Smith as the beer douser. It was Smith, through his own social media use and interviews with local media, that made public their accusations against him. His defamation claims relate solely to the office staff that allegedly overheard the conversation between Smith and Mr. Savik. These facts could hurt Smith in his defamation case against the Browns, as they could argue that it was Smith himself that outed his name to the public and that his contact with media regarding the incident was sufficient to mitigate any damages resulting from the alleged defamation. Finally, would a jury of his peers really believe that Smith and Naoward (Smith’s wife) experienced “mental anguish” over the misidentification, resulting in a deprivation of “comfort, companionship and consortium?” As of December 2019, the case has yet to come to a resolution.
Court document: https://www.clevescene.com/media/pdf/image.pdf
Justin B. Kozubal is an Executive Professor of Sport Management and a second year PhD student Troy University specializing in research related to sport law and risk management in sport and recreation. He resides in Marysville, Ohio with his wife, April and eight-year-old son, Cameron.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He has published over 30 articles and delivered over 50 presentations at professional conferences. He lives in Orlando, FL.