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UK responds again to Sun-Times attack

Vaught’s note: Kentucky has issued this statement in response to the Chicago Sun-Times continuing to allege that star recruit Anthony Davis, who could commit to UK, is asking $200,000 from a school for his commitment and implying that UK has offered the money and is being investigated by the NCAA.

LEXINGTON — The University of Kentucky is dismayed by the continued lack of professionalism and responsible journalism exhibited by Michael O’Brien and the Chicago Sun-Times in running yet another false and defamatory story on August 6, 2010, regarding the University’s recruitment of a high school student-athlete.  Both the father of this student-athlete and the University have repeatedly told Mr. O’Brien that these unsubstantiated ?rumors? are untrue.  Neither the University of Kentucky nor any member of its Athletic Department has offered or paid any money or other illegal benefits to the student-athlete or his family.

Mr. O’Brien’s August 6 story also mischaracterizes the NCAA’s involvement in this matter by stating that “the NCAA is checking into the recruitment of” the student-athlete.  The University of Kentucky spoke with David Price, NCAA Vice President of Enforcement, who advised that the NCAA contacted Mr. O’Brien simply to inquire as to the alleged sources for his article and that “this in no way confirms an NCAA investigation of the University” or an examination of the recruitment of the named student-athlete.  It is the University’s understanding that such an inquiry represents the NCAA’s normal procedure any time allegations of misconduct are made, no matter how outrageous or unsubstantiated they may be.

The University of Kentucky has put Mr. O’Brien and the Chicago Sun-Times on notice that these published statements are false and defamatory.  The University fully supports any action the student-athlete and his family may take against Mr. O’Brien and the Chicago Sun-Times.  The University is also evaluating all available rights and remedies it may have against Mr. O’Brien and the Chicago Sun-Times in responding to these false and defamatory statements.

Permanent link to this article: http://vaughtsviews.com/uk-responds-again-to-sun-times-attack/

49 comments

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  1. Jan in Indiana

    I say Go,GO,GO!!!

    Someone has got to put a stop to the way these so called reporters are making victims out of these young kids, whether they are coming to Kentucky or not.Right now it seems like they are after the ones coming to Kentucky, but that is because they are after coach Cal, they don’t care who they hurt as long as they can get Cal.

    Word to the unwise: if you want to become respected in your profession use some INTEGRITY and be professional, get out and get a real story, instead of making something up or believeing something someone tells you without checking it out. In other words WORK FOR IT like the great reporters do.( If you need help with this you might take some pointers from Larry Vaught!!!)

  2. TheProfessor

    http://www.citmedialaw.org/legal-guide/illinois/illinois-protections-sources-and-source-material

    Illinois has a shield law that provides reporters a qualified privilege to protect sources. However, Section 8-907 speaks directly to exceptions to this privilege that would apply I believe should UK and/or the Davis family sue O’Brien and the Sun Times for defamation. It says, “Sec. 8‑907. Court’s findings.

    An order [requiring the disclosure of protected information] shall be granted only if the court . . . finds . . . that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff’s need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information . . . .”

    UK would have to make the case that their need to know the identity of these sources outweighs the public’s interest in protecting their confidentiality. I believe that is a case UK will be able to make in a federal court.

  3. Jan in Indiana

    Thank you Professor, like I said before I appreciate your input in these legal items.

  4. TrueBlueJohn

    The sad part about these kind of allegations is that they are blasted across the front page of the sports section, and if they are forced to print a retraction or apology, it will wind up on the back page in the bottom corner.

    It is obvious that with a few exceptions, the sports media are biased against Coach Cal and the Cats. We are guilty until proven innocent.

  5. Tony

    Is it in UK’s best interest to sue or should it be better for the Davis family to? The reason I say this is that if UK subjects itself to a drawn out suit would it be positive or negative towards how the university is viewed. I am very angered about the whole article and beleive it is a smear campaign to take the focus off of Pitino. The timing is too relevant. Does the Chicago Sun Times (CST) see the opportunity for publicity much more helpful for them than losing a lawsuit? This is too well planned out for a general story. They are baiting UK to sue them to take the focus off of Pitino to smear UK/Calipari. I really wish that some well know journalists/media would call it like it is and take the CST to task and seek to uncover the story behind the story. Now that would be a story! If the journalism profession doesn’t police itself who will?

  6. Jan in Indiana

    I really don’t care who does it I just hope someone does, there just needs to be something done or this will just keep on and on.

    At first I thought this might be to take heat off of RP, but as LindaS commented earlier Davis is said to be considering DePaul also, and Depaul is in Chicago, so it might be a tactic to get him to go to DePaul, I think they are hoping he will think if he comes to Kentucky the NCAA will be investigating him, and UK he will not want to have to go through that.

    Either way it is a shame that these young men are being used this way.

  7. TheProfessor

    I have read today that UK may not have a cause of action in this matter, and that any legal remedy will belong to the Davis family. I do not buy that argument.

    I believe that UK and the Davis family have similar interests in this matter, and should pursue this as co-plaintiffs. Mr. Barker laid out the basis for UK’s claim in his first letter, defamation per se, and identified an argument for actual, special, and punitive damages against the writer and the Sun Times.

    Enough is enough. The main goal for the litigation process should be to expose the identity of the sources and their agenda, and to demonstrate the falseness of the allegations.

  8. Andy

    This is the low level kind of journalism that should never be published. How come the sun times isnt writing about Isiah thomas being a “consultant” with the knicks while still coaching at FIU and being allowed to do so by the discretion of the NCAA. That has possible violations written all over it. Again, these kids names are being tarnished by no name journalists.

    According to the article, three independent sources from colleges were being mentioned, that is so vague at best. Anyone can go out on a whim and say 3 sources from major universties said this and that. If you are gonna throw an accusation, better back it up with facts rather than he said/she said instead of throwing some information towards the end of the article. I hope the writer gets sued along with the sun times for slandering a kid without any proof.

  9. gmoyers

    Thanks again Professor for your insights. This thing is crazy. I can’t imagine ever taking unnamed sources and throwing allegations like this out there. I hope they all sue the guy — and that this doesn’t impact the NCAA making a timely ruling on Kanter to punish UK for something this guy speculated about

  10. Jan in Indiana

    IT SURE DID NOT TAKE THEM A LONG TIME TO DECIDE THE ISIAH THOMAS
    MATTER, NOW DID IT?

  11. King Ghidora

    A lawsuit by UK would open them up to discovery which means that rag could go on a fishing expedition through all UK documents and obviously they don’t care about the truth. Innuendo is all a “reporter” needs these days. No paper requires 2 sources anymore. Anonymous sources are very popular sources of information and we’ve seen how many reporters just flat make up stories based on the anonymous source. We all remember Rathergate. The NCAA has so many rules no university can keep from breaking them by sheer accident or ignorance. But a private individual who hasn’t become a public personna can sue without much worry about retaliation because they won’t have documentation of anything. So this student should sue if his family has the means. Of course “boosters” couldn’t help him with legal expenses because of NCAA rules. Everything is geared to destroy the university of choice in the NCAA rules. They tried to destory UK’s basketball program in the late 1980’s and they did it with incredibly flimsy evidence. And reporters have almost free reign to make all sorts of allegations because ball players become public personnas at a university like UK. But a player who hasn’t played and hasn’t even signed might get around that. I really hope they do file suit against that rag. That would make the papers big time. And if he won he might change the whole face of college sports. But the NCAA would fight tooth and nail to keep that from happening. They are no friends of UK. They don’t like a “hick university” owning a major sport like UK does. They think only their favorite teams should be able to hold that distinction. Duke and UNC are their favorites with UCLA being close behind along with UCONN. Someone needs to break their grip on the sport. I’d love to see that happen.

  12. UKFAN197TONE

    I think UK and the Davis family should take any and all legal action against this paper and writer. Then, just maybe, these “writers” will do a little extra work before they hit the send button.

    If UK takes this to court, it will not have any negative affect on recruiting or the fan base. If anything it will show that UK does NOT condone this type of attack against the University/fans/coaches/recruits and players. Heck, I’ll send some cash to help pay for the legal fees. I’m tired of reading about UK cheating. PROVE IT.

  13. LindaS

    Thanks for taking my mind off my last day of work. I needed this! #1 why would UK offer a recruit $ to come to UK when there are hundreds waiting in line to get in and play for Cal?
    #2 what better way to scare this recruit off and future recruits then to start rumors like this.
    #3 Anthony Davis has just recently hit the air waves as far as recruiting goes. Is he worth $200K?
    #4 As Jan noted and I posted in another post, DePaul is in Chicago and Anthony visited them on Monday, the day after visiting UK. What better way to get him to DuPaul then to start rumors.
    #5 It seems this jacko journalist covered mostly high school sports until recently.
    #6 Every school program no matter who they are are so jealous of UK at this moment they are sitting back and enjoying all of this and hoping it tears us down.
    #7 Some how, some way the NC2A is going to have to put a stop to things like this. They are going to have to demand that before anything can be publish evidence must be shown to them first.
    #8 It is not fair to the family or the young man to ruin his life and the father’s life like this. jacko packo turdo amigo said the father approached colleges, I think, with a price for his child to play for them.
    #9 I am so sick of all of this and it is not going to get any better until we have more journalist like Mr. Vaught!
    #10. After the past week in Louavull, this hitting the air ways and everything else going on it is just too much.
    Please someone put up a billboard in every city of the USA spelling out INTEGRITY – ETHICS with the definitions. Why do people have to try to make a name for themselves doing jack doo doo like this? I hope someone sues the pants off this guy. It does not take to much to get someone else to say yes, this happened or that happened. Where is the proof?

  14. UKFMLY

    The NCAA might as well have a representative on the UK campus at all times like the FDA does at meat processing plants.

    I am actually serious(not really just frustrated). This is going to happen as long as Coach Cal is at UK. Getting to top recruiting class 2 if not 3 years in a row breeds a dangerous kind of ENVY!

    Cal’s past run ins with the NCAA(and UK’s) fuel what I believe is a witch hunt mentality by the unmedia. They all want the next Pulitzer Prize for investigative reporting(like the one I believe was won by the guys who broke the infamous money in the mail story).

    This type of irresponsible journalism will effect the parents of recruits. Who wants this type of spot light put on their child. I am sure that Cal and his staff are now making damage control phone calls. Over a BS article by a BS writer! !

    As we all know Cal & UK is a perfect storm for recruiting but it is also a perfect storm for allegations. As always I will defend UK and the BBN until the cows come home, but UK and the Davis’ need to take legal action because if they don’t it will legitamize this type of BS.

    Even if as the Prof mentioned we may not have grounds we should take legal action anyway to show that we will not take this crap laying down.

    KEEP UP THE GOOD WORK. GO BLUE AND I GOT $5.00 ON THE LEGAL FUND

    PS. I’m sorry for the ranting but I am livid.

  15. Jan in Indiana

    UKFMLY,It looks as if we are all livid(I’m sure CST likes for us to be that way, we are giving them way to much publicity)But I really don’t care I’m just sick and tired of all these so called reporters that think they have the right to tear people’s lives apart.

    King Ghidora, just wanted to say welcome back, I’ve noticed you haven’t been on for awhile.

  16. not telling

    start sending him emails. Not nasty ones, send him jokes, what every. crash their servers.
    go to their website,his email address is on the stories.
    Then go to customer service tab, right had side, contact us…and send emails to the paper and crash their servers.

    if you must vent your feelings in the emails, do it nicely don’t be cruel or nasty, show some class where he does not.

  17. UKFAN

    If this story is true, shouldn’t a great journalist, check all the schools who have recruited this player. It would mean that any school recruiting this kid, would have to be in on the sweepstakes. This story was printed to try to keep Davis at home.

  18. TheProfessor

    King, I understand your concern about the discovery process, and any party is entitled to explore areas during discovery that could lead to relevant evidence in the case at hand. That is a broad standard that will allow something of a witch hunt to occur. However, the Rules still provide some protections against abject fishing expeditions during discovery.

    Discovery preceedings and documents can be sealed by the court. The court can limit or restrict the areas into which a party may inquire. The court can impose a gag order on the parties relative to information about the case, or generated via the discovery process in the case. Finally, your concerns at least suggest a fear that UK has evidence of NCAA violations buried with its records that the Sun Times would discover if given access via this discovery process.

    I simply do not believe that is the case, but if UK’s hands are not clean, then UK should not take this matter to court, only to be fully exposed and lose.

  19. TheProfessor

    I have read over the last few days that O’Brien’s original “source” about the $200,000 purchase of the kid’s services was an anonymous posted on a rival’s basketball message board. I have no way of verifying this of course. However, if that is the case, that must rank as one of the most absurd jobs of “reporting” I have ever heard about.

    I have been a participant on various sports message boards for several years. The anonymity that posters on these boards enjoy permits them to say anything about anyone with complete impunity, even some of the vilest things one can imagine that are total fabrications. Using any message board as a “source” for a news report is the essence of absurdity.

    Finally, since that initial report, which the Sun Times first edited and then removed after UK complained, they have published a new article, city numerous unnamed sources from 3 other schools. Are these sources also from various message boards.

  20. King Ghidora

    If the Sun Times stuck to the rules they would never have posted the story they did. So yes I fear discovery and it isn’t because I think UK is guilty. It’s because they can imply UK is guilty based on incredibly flimsy evidence. They obviously don’t fear retribution from the courts either or they wouldn’t be publishing the garbage they do. I remember how UK has been treated in the courts in the past. A NY judge actually offered UK players a free ride if Rupp would retire in connection with the point shaving scandals. I see no reason to expect a Chicago judge to treat UK differently. They are politicians in many places and that means sticking with the home team and Chicago is notorious for their corruption as it is. And that isn’t unfounded speculation either. It’s known fact. Chicago machine politics is a historical fact.

    I just don’t trust the legal system because I’ve seen it go against UK too often. I don’t trust the NCAA either because I’ve seen them try to destroy UK based on the accounts of obvious fans who were disgruntled about UK recruiting being too successful in their state. UK would be fighting uphill all the way and that includes in the media. And that would hurt recruiting. A case like this could take a very long time to be settled and that’s exactly what the Sun Times wants – a protracted battle.

    There’s an old axiom about never doing battle with anyone who buys their ink by the barrel. I think UK needs far more solid evidence than I’ve seen to ignore that axiom. I hope to heavens someone (UK) does find a way to go after the press. I just think they have far more to lose than the Sun Times does. That rag would benefit from this fight. UK would have to win big in court to have any victory at all in the not so near future.

  21. TheProfessor

    The only people that can go after someone like O’Brien and the Sun Times are those people who are harmed by the conduct. In this instance, that is either UK, Calipari, or the Davis family. So, if someone is going to hold O’Brien and the Sun Times accountable, it must by one or more of these potential plaintiffs.

    Let’s presume for this discussion that these stories are totally false, cut from whole clothe for the express purpose of harming UK, Calipari, and in some weird way harm Davis for his selection of UK. If no one takes O’Brien and the Sun Times to hold them accountable, then they will get away with an offense that in my opinion is worse than the extortion of Pitino by Sypher.

    I agree King that no person or organization should be so ready to jump into court that they do so at the drop of a hat. Those decisions to litigate must be made carefully, considering all ramifications. However, this is a case that in my opinion merits that type of step IF the allegations are simply not true.

  22. gmoyers

    Being told UK is really serious about going after this story to make sure things like this don’t happen again. We will see

  23. LindaS

    It’s all a bunch of bull hockey. The only way this is ever going to go away is for UK to give up all sports programs.

  24. Jan in Indiana

    The Chicago Tribune has a story by Paul Skrbina that says that the Davis family will file suit next week againest the CST and Michael O’Brien.

    The Davis attorney Georgette L Greenlee said the allegations are baseless, this is defamation of character and very harmful.

    There is more to the story and it does mention Kentucky.

  25. TheProfessor

    The only way this is ever going to really stop is for UK to find the right case, and let the rest of the world know that it will not stand idly-by and allow some members of the press to smear UK and Calipari based on rumor and innuendo.

    The right case to send this message must be a case in which UK’s position is lilly white, pure, above reproach. If the current O’Briend/Sun Times case fits that description, then I say go for the gusto and put an end to this sooner rather than later.

  26. TheProfessor

    Jan, I read that article in the Chicago Tribune. How often do people say they will file a lawsuit tomorrow, next week, … only to find that it just doesn’t happen?

    I like the adage, don’t tell the other side what you are going to do, just do it. However, if you do tell the other side that you will do it, then for heaven’s sake do it.

  27. Suziecat2

    It is being reported today….that next week, the Davis family will file a law suit against CST and the writer. They could have the best chance of winning.

    I may be totally off base, as I have said before, law is NOT my forte. As much, as we (fans) want UK to sue CST, we don’t want to do that unless UK can win. For UK, a public figure, to win a liable case they would have to show malice and prove that CST showed a wreckless disregard for the truth. If the federal Privacy Protection Act protects reporter’s sources, that could be diffcult. After CST posted their second story, I have to think they believe the law will protect them.

    I, too, hope UK can find a way to put an end to this irresponsible practice. Chicago is so corrupt they judge everyone by their standards. $400,000????? NOOOOOOOOOO!!! Ask for Millions!

  28. gmoyers

    Would be best for all if family sues and wins. Just anxious to see what this might do to Davis and his commitment of Monday

  29. LindaS

    I still say if a journalist has information that is libel against a recruit they should have to present it to the NC2A first before they make it public or leak it. If an individual leaks it, then that person will have to pay the piper, so to speak. This is not fair to this young man or his family, we all agree on that and it is not fair to Kentucky or any school that may face this type of situation in the future. Do you really think Anthony Davis will come to UK now? I don’t. But if I were him, and this is a big if, I would come just to show that jacko journalist the what fors. This is another thing that is making my blood boil. I might just stay away from the news and websites until after the season is over! Don’t hold me to that, I don’t want to eat my words.

  30. King Ghidora

    I agree Larry because of the reasons Suziecat2 mentions. The level of proof required for UK to win could be much higher than the Davis family because as of yet they are not public persons IMO. A high school kid should not fit into the same category as movie stars and major universities. The best thing to hope for would be to get the suit filed in Kentucky or in federal court. I’m no lawyer so I have no idea if that’s possible. I just don’t have much faith in the Chicago system.

    I’ve been hoping for a long time that either UK or one of the kids that get libeled would sue one of these media outlets. I’ve only expressed reservation on this issue because it is Chicago and because of the shield law which gives reporters free reign to print pretty much anything they want without fear of having to prove it was true or that any source even exists much less has told the story as reported. I think nothing will stop these low lifes from taking pot shots at UK until something is done. UK has the resources but whether they can win in a corrupt place like Chicago is an entirely different story. And I do fear they could go fishing for anything and cast aspersions based on no real evidence at all. Chicago protects it’s own and has for a very long time. The U. Of Illinois at Chicago calls Chicago a, “dark pool of political corruption”. In the last 36 years, 31 sitting or former Chicago alderman have been convicted of corruption or other crimes. And that brings us to Rod Blagojevich. Corruption has reigned in Chicago for almost 150 years. Just in recent years names like Dan Rostenkowski, Governor George Ryan was charged with corruption with the US District Attorney saying Illinois was basically for sale during Ryan’s term as governor (he was convicted), the pardoning of Rostenkowski by Bill Clinton, Robert A. Sorich and others were convicted of preferrential treatment in regards to bids for contracts, Antoin Rezko was convicted of numerous federal charges including money laundering and bribery of public officials, etc.. I just don’t see UK making out well in that enviornment.

  31. Wheatgerm

    Prof, because truth is an affirmative defense to libel, shouldn’t the burden fall on the defendant to prove the truth of the matter asserted? Not that the Sun-Times accurately repeated a rumor it learned from some other source, but that UK did, in fact, purchase Davis’ commitment? Is my intuition right that Davis Sr. will not have the burden to prove the statement is false (prove a negative)?

    Also, it’s my understanding that both actual malice (Sullivan et al.) and damage are presumed from the fact of publication in a defamation per se case. And that’s what Mr. Barker indicated in his letter Wednesday, that publishing a false and defamatory rumor is defamation per se, I’m guessing because it demonstrates a reckless disregard of the truth.

    That’s what this story needs now, some media tort expert who can explain the ins and out and pros and cons to pursuing such an action. I think we’d all like to read that. There’s certainly an audience for it, and maybe we’ll learn a little something along the way. Larry, I’m looking in your direction …

  32. King Ghidora

    I learned most of the case law from the other side of the coin. I was a journalism major and what you could say and what you couldn’t was a big part of what I learned. I was also a history major which gave me a lot of insight into the issues based on the progression of the media’s role in our country.

    Truth is the ultimate defense against libel but it’s hard to prove a negative except to demand access to the source of the story and then to try to discredit that source in one of many different ways. In the Rathergate case it was as simple as showing that the purported documents were prepared on a device that didn’t exist at the time they were said to have been created.

    The really bad part about this whole process is that the media loves it when you get down in the mud and wrestle with them. They thrive on dirt. UK must remain impeccable or they could lose in a very big way. That’s why even the slightest NCAA violation that might be uncovered in discovery could mean sanctions against UK and an end to the recruiting machine Cal has going. That is the end that rag wants. Some nobody reporter hopes to make a big reputation by bagging a big target like UK. A certain Ky reporter is still riding the gravy train after he created a scandal out of thin air 45 years ago or so. That’s why you see the local press so anxious to knock UK down. The national press would love to see it happen and any reporter who does it gets a huge career boost. Those nobody reporters have almost nothing to lose by taking their pot shots. They should be subject to criminal charges IMO. Seventeen states do have criminal libel laws. Illinois isn’t one of them. Besides they are never used except to persecute people politically. If you a political figure and someone damages you with false claims you can file a criminal libel complaint and if the courts are on your side the reporter can go to jail. But even with the incredibly glaring case of Dan Rather publishing false information just before a presidential election there was no criminal libel charges filed. But a Colorado man was sentenced to 23 years in prison for libel on the net. He spread vicious lies about people and they threw the book at him. We need laws like this for reporters since they no longer police themselves. There was a time when no editor would let a half baked lie be published in his paper but that was quite a while ago. Now it’s common to see reporters lie endlessly. I see the courts stepping in to stop this at some point. It has happened before. For an example of how bad it can get the press actually got a war started by telling lies about an explosion on a ship. The ship was The USS Maine and the war was the Spanish American War. The ship sank because of a design fault but the press created a scandal claiming sabotage. There’s no end to the atrocities of an unchecked press. We need a free press but if they don’t print the truth they should be held responsible and they aren’t.

  33. TheProfessor

    There is a lot here from King and Wheat. I agree that truth is an absolute defense to a defamation allegation, and the burden will shift to the defendant eventually. However,per so defamation eliminates the need to prove actual damages, but not the need to provide actual malice. If the plaintiff is a public figure, the plaintiff must overcome the Sullivan malice burden even if the defamation is per se.

    What I am unclear about is when the burden shifts on the truthfulness question.

    The issue of public figure will come into play in the Davis v Sun Times case. I believe it is clear that UKAA and Calipari are public figures in cases regarding college basketball recruiting. However, is a recruit? or the recruit’s father? I am not sure about that. In this case, it would be hard to make that case in my opinion because I am not aware of any overt actions by Davis or his dad to place themselves into the public eye even with respect to Davis’ recruitment. The trip to UK was relatively secret.

    However, it appears to me from the public comments that Mr. Davis and his attorney have made that they are laying the groundwork for an actual malice type of allegation against O’Brien/Sun Times.

    I agree with King that if at all possible, UK needs to remain out of this fray. However, just as the US v Sypher trial was really about Pitino’s conduct, a Davis v O’Brien trial will really be about UK’s conduct. If UK’s hands are clean, and I believe they are, I would rather have UK participating in the case as a party rather than exposed to all the mud without a seat at the table during discovery.

  34. larry vaught

    Guys, really enjoyed these comments. Fun to sit back and read your perspectives

  35. LindaS

    OK, guys, my views are just from the heart, I’ll leave all the legal mumbo jumbo to the last 3 that posted before Larry. I’ll step back until I get really mad again, which probably won’t be too much longer since my blood is still boiling. Larry, great job on the football articles. Wish I knew more about football then I do but that is not where my passion lies. I do wish them luck and it sounds like a really great season lies ahead. Don’t forget to keep an eye out in the spring for Eric Quigley on the men’s tennis team. He was an All American as a Sophomore in both Singles and Doubles and an exceptional young man! Ranked pretty high also. All student athletes are UK are exceptional young people are they would not be there! GO CATS!

  36. TheProfessor

    According to Restatement 2nd of Torts, “In defamation actions generally, factual truth is a defense which it is the
    defendant’s burden to prove. In a defamation action against a newspaper
    by a private person suing over statements of public concern, however, the
    DEFAMATION CACI No. 1700
    911 (Pub.1283)
    0005 [ST: 907] [ED: 10000] [REL: 9999] Wed Oct 22 13:31:49 EDT 2008
    XPP 8.1C.1 Patch #3 SC_01283 nllp 1283 [PW=514pt PD=720pt TW=352pt TD=528pt]
    VER: [SC_01283-Local:24 Aug 08 02:42][MX-SECNDARY: 23 Sep 08 17:20][TT-: 23 Aug 08 10:46 loc=usa unit=01283-ch1700] 40
    This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
    http://www.lexisnexis.com/bookstore, for public and internal court use.
    First Amendment places the burden of proving falsity on the plaintiff. As
    a matter of constitutional law, therefore, media statements on matters of
    public interest, including statements of opinion which reasonably imply a
    knowledge of facts, ‘must be provable as false before there can be
    liability under state defamation law.’ Whether a statement contains
    provably false factual assertions is a question of law for the trial court to
    decide.” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359,
    1382 [88 Cal.Rptr.2d 802], internal citations omitted.)

    Based on this, I believe the UK/Davis would have to first prove the falsity of the statements before the burden would shift to the paper to prove the truthfulness of the statement. That is a tough duty, because how does UK/Davis prove the allegation is false short of their own testimony that it is false. UK could send a parade of its employees to the stand, but does UK send every employee and agent to the stand to testify as to the falsity of the allegation? What about agents [boosters] who are not employed, and are not under the direct immediate control of the UKAA?

    Defamation actions are tough to win against a newspaper, and they know this when they are making editorial decisions. Some editors are more cautious than others.

  37. Wheatgerm

    Davis Jr. must be a limited public figure, if only because of his remarkable rise as a recruit. He’s been the subject of quite a lot of press in the narrow world of basketball recruiting. But Davis Sr.? I don’t think a convincing argument can be made that he was a public figure before this story broke. Now, of course, he’s an involuntary public figure, but not for purposes of the Aug. 4 story. So he’s got that going for him. Which is nice. Because it would mean he doesn’t have to show actual malice, a heavy burden to carry. Downside: damages are likely to be significantly lower.

    Couple that with what I believe to be the defendant’s burden to establish the affirmative defense of truth (perhaps Davis Sr. will have the initial burden of going forward with little more than an averment), and I don’t see a lot of downside to litigating this.

    I understand but don’t share King’s concern about a fishing expedition in discovery. UK’s counsel (UK would be a 3d party here) has any number of objections against providing under subpoena information that doesn’t bear on the matter in dispute. It’s not like the Sun-Times will be able to rifle through every record UK has looking for another story. And if the parties can’t agree on what should be produced, the judge will hold an in camera hearing (with just the judge looking at the documents) to resolve the matter.

    The Sun-Times attempted in its Aug. 6 piece to make the point that UK was not necessarily the source of the money. The original story was that the commitment cost $200K. Two days later, it was that someone who wanted Davis to commit to UK negotiated the deal. So it could have been a booster or – wait for it – WWW funding the purchase. In which case, production from UK could be quite limited.

    Seriously, Larry, we need an interview with a legal expert in this field. A few of us are trying to grapple with it from our own perspectives, but who knows. Let’s get somebody who can hit the nail on the head. Gotta be someone in town or easily accessible.

  38. Wheatgerm

    Prof, thanks for actually doing some research. Greatly appreciated.

  39. TheProfessor

    A paper that is part of the Sun Times family of papers has an article entitled “Boatright heard about alleged Davis deal” at http://www.suburbanchicagonews.com/beaconnews/sports/2576780,2_AU7_Boatright-heard-about-alleged-Davis-.article

    The headline suggests to a novice reader that Boatright, another player, heard about UK offering Davis money for the commitment to UK. However, read the article, and it says that Boatright has heard about the original Sun Times reporting of this alleged event.

    This is precisely why UK must bring the Sun Times to account for this entire mess.

  40. Suziecat2

    What educational, intelligent, thought provoking, info posted here. Thanks to everyone that took the time to contribute…great reading.

    Larry, you have the best followers.

  41. gmoyers

    I agree Suzie. No where have I seen better, more informed discussion than here. I learn something every time one of you posts

  42. King Ghidora

    What we all have staring us in the face is the nature of the media industry (present company completely excluded Larry) and the way they do things. The only successful libel suit brought by a public figure in recent years has been the Carol Burnett or at least the only clearly successful lawsuit of someone of the stature of a celebrity. UK certainly falls into the category of an institution that seeks fame and therefore must suffer the infamy that often attaches itself to famous people and institutions. There have been notable victories for private individuals like accused Olympic Park bomber Richard Jewell.

    Still media types know every trick in the book when it comes to avoiding these kinds of lawsuits. It’s obvious they get away with murder all the time. Yes the high school athlete that is becoming a national figure might have problems showing he was still a private individual but his father wouldn’t.

    The bottom line is that the family will have to prove a negative which is almost impossible and they won’t have access to the sources used by the rag in question. They also won’t have any support from UK boosters which could include just about any UK fan. And lawyers never take these cases on a contingency basis because the case are very hard to win and the settlements are often very small sometimes only resulting in an apology.

    Again there are two major problems filing a lawsuit in Illinois. First they have the shield law for their sources and second it is Illinois where the home team rarely loses in court. Besides that the people at that rag have an army of lawyers on retainer who specialize in these cases. UK doesn’t. Even if UK has proof the university and Calipari would likely lose more than they won because the suit would bring so much attention to the case that it would be like giving that rag a huge boost for their story. Even if UK wins most people will still suspect UK is guilty. And worst of all the media outlet can claim that the reputation of UK is such that they had every reason to believe the story. Yes it will be UK’s reputation on trial. Not just the fact. It will drag in every innuendo and accusation from the past 75 years. They will cite the sanctions and even though it won’t alter the outcome of the trial it almost certainly will affect any award granted to UK. So in short because Roselle caved back in the 80’s UK will have no leg to stand on when it comes to damages. Because many will claim UK has a terrible reputation (because of the continued false allegations in the press for the most part – how many people know the Emory letter had practically nothing to do with UK’s sanctions?).

    Media outlets know all these things and they know how to use them for their advantage. It’s their business. UK is not in that business. Whatever the outcome of the trial the likely outcome will be that far more people think UK is dirty and the Sun Times will suffer no consequences. In fact they will gain lots of notoriety and there is no bad press for a newspaper.

    Only if UK wins a gigantic settlement (which is very, very unlikely) will the rag in question actually suffer any real damages. UK needs to file a lawsuit against one of these clowns. But I don’t believe it should be this particular clown. A national media outlet would be a far better target. That might be fought out in federal court. But possibly the best choice would be to sue in a state that has a criminal libel law. UK might win a per se lawsuit because one of the grounds for that is that a statement needs to be “injurious to another in their trade, business, or profession” and that certainly applies here. But the chances of UK winning a substantial settlement in Illinois are almost moot. It’s a losing proposition in this case IMO no matter how grievous the lie. However one of the states that does have criminal libel laws is North Carolina, where an organization named ESPN maintains offices. That’s the dream lawsuit I’d like to see.

  43. TheProfessor

    If UK is a plaintiff, this case would be in federal court and not Illinois state court. However, if Mr. Davis is the only plaintiff, the venue is likely to be the state court in Illinois. Reason, diversity of citizenship keeps jurisdiction with the fed’s if UK is in.

  44. King Ghidora

    I believe in the lack of bias in federal judges like I believe the California gay marriage issue being decided by a gay judge had no bearing on the outcome of the case. UK could still suffer under the rule of a federal judge in Illinois. Picking the right court to sue is one of the most important aspects of a lawsuit. I don’t think a federal court would be as bad as a state court but it could be pretty bad.

  45. Suziecat2

    “Boatwright Heard About Alleged Davis Deal” article.

    Hummmmm, one recuit heard about an article that stated rumors about another recuit…..What a non-story!!! Some reporter was really scraping the bottom of the barrel when he wrote this.

    However, I understand the Professor’s concern for how this story could be interpreted.

  46. TheProfessor

    publish a lie, retract the offending article but write another one alluding to it, and then get sister papers to write stories about people who saw the original article.

    It is slimy at best, but I think UK can use it to show that even though the original lie was retracted, many people in the sport saw it and took heed of its illicit message.

  47. Suziecat2

    AGREED…Slimy

    Thanks. Don’t know how I overlooked that “sister” paper was trying to give credibility to the original article.

  48. Wheatgerm

    Warning: mumbo jumbo ahead. Prof, spent lunch today in the law library. Couldn’t find Sack on Defamation, so snuggled up with AmJur2d and Ill. Compiled Stats Annotated. Mmm, good times. Bottom line, we have a pretty good handle on this. Falsity is an element in Ill., plaintiff should plead and come forward with initial showing, but since the law will not presume the misconduct of a person, the falsity of defamatory words is generally presumed, and consequently the defendant bears the burden of establish truth – a purchased commitment – as an affirmative defense. None of the media privileges seems to apply. If Davis Sr. is a private plaintiff (my guess), negligence by preponderance. If public figure (Gary Parrish’s guess), reckless indifference by clear and convincing. But if language is libel per se (also my guess), something established by common law and supplemented by statute, malice is imputed from the words therein.

    All in all, not nearly as onerous for the plaintiff as I imagined. The defense has tough burdens here as well on truth and negligence/reckless indifference. Particularly if O’Brien simply repeated a rumor he saw on some website. The art of it will be to use the Aug 6 follow-up story (better sourced, more detailed, somewhat different) to help prove your case on the key Aug 4 story while keeping the defense from using it to blur the line between the two. Biggest risk: the defense of substantial truth. If Davis Sr. did solicit other schools, it won’t matter whether he sold his son to UK. The court would consider the act complained of to be materially close enough to the truth that the plaintiff will not be heard to complain about distinctions, as though his reputation could be saved by doing so.

    We are clearly more sanguine about the judicial branch than some. You’re right, of course, about venue. State court indeed. And King, it won’t be outsider UK against hometown Chicago, it’ll be Chicagoland’s own Davis Sr. against the media, and not the good media either. Pretty sure juries won’t be predisposed to give the Sun-Times a lot of love. I will say though, because I’ve seen outside counsel become a target, it wouldn’t hurt for Davis Sr. to get local counsel. Just to keep it all in the family.

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