Sleeping Yankee Fan Strikes Out With Lawsuit Against ESPN

As reported by multiple media outlets, a Yankee fan who fell asleep during the New York Yankees-Boston Red Sox game on April 13th filed a lawsuit against the Yankees; ESPN New York; MLB Advanced Media; and ESPN announcers, Dan Shulman and John Kruk.

The Complaint, which was filed by Okwara & Associates, P.C. on July 3rd in the Bronx County Supreme Court, alleges that “announcers like” Shulman and Kruk “unleashed [sic] avalanche of disparaging words against the . . . plaintiff” when ESPN’s Sunday Night Baseball broadcast showed Andrew Rector “nap[ping]” during the top of fourth inning of “the rivalry game between the Boston Red Sox and the New York Yankee [sic].”  The alleged defamatory language included:  “stupor, fatty, unintelligent, [and] stupid.”

The Complaint further alleges that “these vituperative utterances against the plaintiff” were repeated on MLB’s website and that plaintiff was accused of being “someone of a confused state of mind, disgusted disgruntled, unintelligent, and probably intellectually bankrupt.”

Based on these factual allegations, Plaintiff brings causes of action for defamation and intentional infliction of emotional distress, and he ultimately seeks damages in the amount of ten million dollars.

This lawsuit is certainly novel, but the outstanding question is whether it has any merit.  Based on the allegations in the Complaint and the relevant law, the answer is “no.”


Initially, the defamation claim appears to be improperly pleaded.   Under New York law, to properly state a claim for defamation, “the particular words complained of must be set forth in the complaint.”  C.P.L.R. § 3016(a).  This requirement is strictly enforced and the exact words must be set forth.  Varela v. Investors Ins. Holding Corp., 185 A.D.2d 309, 310 (N.Y. App. Div. [2d Dep’t] 1992), aff’d, 81 N.Y.2d 958 (1993).  Any qualification in the pleadings renders the complaint defective.  Gardner v. Alexander Rent-A-Car, Inc., 28 A.D.2d 667, 669 (N.Y. App. Div. [1st Dep’t]] 1967).

Here, Plaintiff does not satisfy this exacting standard as he fails to set forth the exact words that Kruk and Schulman stated.  Additionally, he qualifies his defamation claim by stating that “[a]nnouncers like Dan Shulman and John Kruck [sic]” made disparaging comments and then used the qualifying phrase “includ[ing] but [sic] not limited to” when listing the allegedly defamatory comments.

Second, Plaintiff’s allegations do not satisfy the elements of a defamation claim under New York law, which include:  (1) a false statement; (2) published to a third party without privilege or authorization; (3) without fault amounting to at least negligence; and (4) that caused special harm or defamation per seSee Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y. App. Div. [1st Dep’t] 1999).  To begin with, one can plainly see (and hear) from the alleged offending clip above, no “false statements” were published by Kruk or Schulman.  Moreover, the allegedly defamatory words and phrases contained in Plaintiff’s Complaint were clearly not uttered by the ESPN announcers.1

1  When a plaintiff chooses not to attach to the complaint or incorporate by reference the material upon which it solely relies and which is integral to the complaint, the defendant may submit such material and the court may take that material into consideration in deciding a motion to dismiss.  See, e.g., Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991).  Thus, when moving to dismiss the Complaint under C.P.L.R. § 3211(a), the defendants can rightly rely upon the actual transcript of the broadcast at issue.  Alternatively, the defendants could file a motion for summary judgment pursuant to C.P.L.R. § 3212.

Further, Plaintiff cannot satisfy the second element of a defamation claim.  The First Amendment protects commentary about the public actions of individuals.  See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964).  Rector attended a public baseball game that was being aired on national television.  While Rector did not bring attention upon himself by being unruly or out of control, it is a fact that he was in a public setting and was fully aware of the fact that he may be subjected to public viewing, either on the ESPN broadcast or the gigantic screen in center field.  This is not a scenario where Plaintiff is suing based on a violation of a private right.

Moreover, the fine print on every Yankee ticket states:

By using this ticket, the bearer agrees that . . . the Yankees, the other participating club, and each of their respective agents and licensees shall have the unrestricted right and license to use the bearer’s likeness in any broadcast, telecast, or photograph taken in connection with the game or other transmission or reproduction, in whole or in part, of the game.

In other words, there is an argument that, by virtue of simply using his ticket to the game, the named defendants had authority to show the plaintiff on camera.

Likewise, the opinion and fair comment privilege and the defense of substantial truth are also applicable in this context.  Notably, in his Complaint, Plaintiff concedes that he was, in fact, sleeping at the game.  Thus, an announcer pointing this out is simply a fact.  All of the other comments by Kruk and Shulman (noting that he was “oblivious” to the game, wondering whether he slept through Beltran’s homerun, that he looked comfortable, that Yankee Stadium is not the best place to sleep, etc.) are clearly opinions and are protected by the First Amendment to the United States Constitution.

Intentional Infliction of Emotional Distress

Plaintiff’s claim for intentional infliction of emotional distress also appears to be a losing proposition.  Preliminarily, courts will dismiss a cause of action for intentional infliction of emotional distress when the allegations fall within the ambit of other traditional liability, which, in this case, would be a cause of action for defamation.  See Fischer v. Maloney, 43 N.Y.2d 553, 558 (1978).

Even if this claim was not subsumed within Plaintiff’s defamation claim, it would still fail on the merits.   Two of the necessary elements to such a claim include “extreme and outrageous conduct” and “an intent to cause, or disregard of a substantial probability of causing, severe emotional distress.”  Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 117 (1993).   New York has a high threshold for conduct that is “extreme and outrageous” to constitute the intentional infliction of emotional distress; the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society].”  Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983) (citing Restatement of Torts (Second) § 46 , comment d (1965)).  At the pleadings stage, whether sufficient facts have been pleaded to meet this standard is a legal issue for a court to resolve.  See, e.g., Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 262-63 (N.Y. App. Div. [1st Dep’t] 1995).  The aforementioned clip does not show any evidence of “extreme and outrageous conduct” on the part of the announcers.

Communications Decency Act

While the Complaint is not articulate, at its heart, this lawsuit appears to be focused on the fact that, as a result of the broadcast depicting Plaintiff sleeping at the game, Plaintiff was subjected to being mocked and ridiculed online.  For example, Plaintiff lists the following as false statements that were made about him:

  • Plaintiff is an unintelligent and stupid individual.
  • Plaintiff is not worthy to be a fan of the New York Yankees.
  • Plaintiff is a fatty cow that needs two seats at all times and represents a symbol of failure.
  • Plaintiff is a confused and disgusted and socially bankrupt individual.
  • Plaintiff is a confused individual that neither understands nor knows anything about the history and the meaning of the rivalry between the Red Sox and the New York Yankees.
  • Plaintiff is so stupid that he cannot differentiate between his house and a public place by snoozing throughout the fourth inning of the Yankees game.

Clearly, Kruk and Schulman, while making light of the situation, never came close to using such language.  Reviewing the articles posted on ESPN’s and MLB’s websites and the video posted on MLB’s official YouTube page reveals that the allegedly defamatory language is contained within the comments left by third-parties viewers of the websites.  Thus, Plaintiff appears to be arguing that the owners of the websites (ESPN, MLB, and/or the Yankees) should be liable for the language left by commenters on their websites.2

2  In fact, many of the alleged defamatory statements were contained in posts or user comments on twitter, blogs, and other websites that have no affiliation with ESPN, the Yankees or MLB.

To the extent that Plaintiff is seeking to hold the defendants responsible for the postings by commenters on their websites, such a claim is not actionable.  The Communications Decency Act (“CDA”) is a federal law which protects the owners of websites from liability – such as defamation – when user-submitted content is published on its website.   Section 230 of the CDA provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  The CDA operates to prevent claims against interactive service providers for information that originated with a third-party user of the service.  See Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).   In other words, the CDA operates to bar claims asserted against providers of interactive services for harm allegedly caused by content provided by a third-party.  Gibson v. Craigslist, Inc.,No. 08-CV-7735, 2009 U.S. Dist. LEXIS 53256, at *8-10 (S.D.N.Y. June 15, 2009).

For Section 230 of the CDA to apply, three elements must be met:  (1) the defendant is a service provider of an interactive computer service; (2) the content posted on the interactive computer service was provided by another information content provider; and (3) the cause of action treats the defendant as a publisher or speaker of information.  Zeran, 129 F.3d at 330.

Based on the allegations, it appears that Plaintiff’s Complaint meets these elements.  Plaintiff’s lawsuit is not blaming the defendants for what they actually stated but for what others stated in response to the video clip.  Such a lawsuit is clearly prohibited by the express terms of the CDA.

* * * *

Mr. Rector’s lawsuit is certainly a novel one and perhaps under a different fact pattern (i.e., if the announcers actually provided the defamatory statements) or with a better-prepared Complaint, the lawsuit may at the very least survive a motion to dismiss.  As currently constituted, however, the Complaint does not appear to be supportable under the law.3

3  In addition to filing motions to dismiss based on the aforementioned grounds, the defendants will likely also seek an award of costs and fees for filing a frivolous lawsuit.  See C.P.L.R. § 130-1.1(a)-(d).


Danny Lallis (852x1280) (3)

Written by Danny C. Lallis

Danny is a Partner with Pisciotti Malsch, and his practice includes appeals, product liability, and commercial litigation.

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