By Kevin Brown, of Waller Lansden Dortch & Davis LLP
On Sunday, September 8, 2019, the Cleveland Browns hosted the Tennessee Titans for the first game of their 2019 season. The game did not go well for the Browns that day. They lost badly to the Titans – 43 to 13. During the fourth quarter, Browns quarterback Baker Mayfield threw an interception that was run back for a “pick six” by Titans player Malcolm Butler. Butler jumped into the stands to celebrate, and Titans cornerback Logan Ryan joined him. As cameras rolled, an apparently disgruntled Browns’ fan (a bearded man wearing sunglasses, a Browns jersey and a hat) doused Ryan with beer. Ryan was not pleased. The next day, he complained about the incident on social media, and the Browns reportedly investigated it.
According to a recent lawsuit filed in the Court of Common Pleas in Cuyahoga County, Ohio (Eric Smith vs. Cleveland Browns Football Club LLC), the Browns’ investigation led them to identify Eric Smith as the culprit. Unfortunately, as alleged in the suit, Eric Smith (the plaintiff) was not at the game that day. In fact, he allegedly was at his home relaxing with his wife and kids before he left for a wedding DJ gig. According to Smith, within a few days of the incident, the Browns Vice President of Sales and Tickets (Bob Sivik) called Smith at his office and informed him that they had used footage from “multiple security cameras” in the stadium to identify him as the beer-tosser. When Smith allegedly explained they had the wrong guy, the Browns VP was allegedly “rude, short and dismissive,” told Smith he was a liar and that he was banned from First Energy Stadium (the Browns’ stadium). Smith asserts claims against the Browns for negligence (predicated on the Browns’ alleged failure to properly investigate the incident), defamation, negligent infliction of emotional distress, false light and loss of consortium. Smith is seeking damages in excess of $25,000 and a public retraction.
Mistaken identity lawsuits are nothing new – particularly in the age of social media. For example, in December 2018, a Minneapolis choreographer reportedly won a defamation verdict totaling $210,000 after she was targeted for allegedly making racist comments on Facebook that she did not make. Despite the routine nature of mistaken identity cases, the Smith vs. Cleveland Browns case raises some interesting issues.
For example, did the Browns try to retract their statement or fail to do so timely? The lawsuit alleges that the Browns’ Vice President of Communications reached out to Smith and apologized shortly after wrongly identifying him. There is no allegation in the suit that the Browns ever publicly identified Eric Smith, and the sole predicate for Smith’s defamation claim appears to be Bob Sivik’s call to Smith at his office, which Smith claims was overheard by his “unidentified office staff.” If those allegations are correct, then why wasn’t the Browns’ private apology sufficient? And why would the Browns be required to publish a public retraction?
Another interesting aspect of the case relates to the nature and extent of the Browns’ investigation into identifying Smith as the culprit. The requisite standard of fault in defamation cases depends, in part, on whether the plaintiff is a private or public individual. Private individuals who are the subject of a defamatory statement typically must prove only that the statement was made negligently. In contrast, public individuals must prove that the speaker published the defamatory statement with “actual malice.” “Actual malice” typically means the statement was made with knowledge of falsity or with reckless disregard for whether the statement was false or not. The lawsuit alleges that Sivik informed Smith that the Browns had identified Smith using “footage from multiple security cameras in the stadium.” Ultimately, if the case proceeds, the sufficiency and reliability of the Browns’ investigation and sources may be called into question in determining the Browns’ culpability (likely under a negligence standard). It is unclear how the Browns determined that Smith was the alleged culprit. Did they utilize facial recognition technology? Was that technology reliable? To what extent can team owners rely upon such technology to identify and ban fans for misbehavior at games?
Even assuming there is some underlying liability, Smith may have a difficult time proving up any cognizable damages. Defamation damages are often difficult to quantify. This case is unlike other cases of mistaken identity involving a wrongful arrest or an employer relying upon or conducting an erroneous background check to decide not to hire a potential employment candidate. The damages in those cases seem more straightforward and plausible. Will a jury really believe that Smith and his wife (also a plaintiff in the lawsuit) experienced “traumatic emotional distress” from the Browns’ misidentification?
Lastly, defamation plaintiffs (like Smith) have a duty to mitigate their damages just like any other alleged tort victim. Notably, the Browns never announced Smith’s name publicly. Instead, Smith himself allegedly reported the “mistaken identity” incident on Twitter and conducted several interviews with local media about it. In particular, on September 11, 2019, Smith allegedly tweeted (via his Twitter handle at “Eric Cougar Mellensmith @TheBeardedDJ”) that “I legit just got a [call] from the @Browns telling me I’ve been banned from the stadium for throwing the beer in Logan Ryan’s face Sunday. I’m fairly certain I haven’t been to a game since 2010.” Here, the Browns may argue that Smith’s voluntary decision to “go public” about the incident (via Twitter and press interviews) contributed in whole or in part to his alleged damages. That is, the only way the public became aware of Smith’s mistaken identity was because Smith himself publicized it – not through any conduct by the Browns. Alternatively, the Browns may argue that Smith’s own conduct in engaging in press about the incident (to confirm his mistaken identity) was sufficient to mitigate any alleged damages.
Kevin Brown is a partner in the Austin, Texas office of Waller Lansden Dortch & Davis LLP. Kevin’s experience includes advertising and marketing law matters, copyright and trademark infringement, false advertising, internet defamation, social media liability, contract and real estate disputes, and general business torts. kevin.brown@wallerlaw.com.
