It’s the busiest week of the year and it just got busier.
While doing Live Updates during the 12th stage of the Giro d’Italia on Thursday, we received several questions relating to the recent allegations Floyd Landis made against his former teams (U.S. Postal and Phonak) and teammates.
I thought I would answer a few of those submitted during the stage.
Reader Rob J. writes:
That’s some pretty heavy stuff Landis is throwing out there. Can’t he be sued for slander? What happens then? What if he can’t pay damages?
Slander (generally spoken, transitory comments) and libel (comments that are written, broadcast or widely disseminated) fall under the umbrella of “defamation.”
To succeed in defamation claim a plaintiff would generally need to show that the statement was about them and that it was false and defamatory.
One would also need to show that the statement was somehow “broadcast” (a loose standard that basically means you told someone else), and that the plaintiff has suffered harm as a result.
There is an important exception to the requirement that a plaintiff prove that he or she has been harmed and it would probably apply to this case. Most states recognize something called “per se defamation” where the damage is already presumed. Generally per se defamation includes statements that represent an attack on a person’s professional character or standing, which would most certainly be the case in a doping allegation against a professional athlete or a bribery charge against a UCI official. The other ways to show per se defamation – that an unmarried woman is unchaste, that a person has a “loathsome disease” (now known as a sexually transmitted disease) or that person has committed a crime of moral turpitude – probably don’t apply in this case.
So, we have a statement about several people. It needs to be shown that the statements were made by the potential defendant – in this case Floyd Landis – and that it was broadcast. Obviously, that latter element is clear. You can see evidence of “broadcast” on our site and at the Wall Street Journal and any number of other news outlets. The potential plaintiffs – those named in the statement – can easily prove that harm has been done by merely showing that the statement meets the per se standard.
A plaintiff will also need to show that the statement is false and that the defendant either knew or should have known that it was untrue. How does a plaintiff prove a negative, namely the assertion that “I never doped?” He could show that he is – to rely on an oft-used phrase – “the most tested athlete in the world” and produce evidence that he has never failed a drug test. Would that be sufficient? That would be up to the court to decide.
But that is a rebuttable claim. Under U.S. law, truth is an absolute defense to a defamation claim. Employing that defense, however, could – in some jurisdictions – prove risky, since claiming truth and then failing to prove it in court could be seen as a way of aggravating the damage caused by the original statement.
Even if the plaintiff shows – by a preponderance of the evidence – that the statement is both false and defamatory, he must also show that the defendant knew or should have known it to be untrue.
The standard is even higher once a plaintiff is shown to be a public figure. Under normal circumstances, a private individual merely has to show that the defendant negligently broadcast a false and defamatory statement. In the famous New York Times v. Sullivan case in 1964, the U.S. Supreme Court ruled that a plaintiff who is a “public figure” has to show that the defendant showed actual malice or a reckless disregard for the truth in making that statement. It doesn’t sound like a big difference, but it is a significantly higher burden of proof. (Of course, since Landis is claiming to have first-hand knowledge of the events in question, it would be easy to show malice if they were subsequently shown to be untrue.)
The definition of “public figure” has been expanded since Sullivan and would include professional sports figures, particularly those involving the sport in which they participate.
Will there be a lawsuit? Only time will tell. U.S. defamation laws are not particularly friendly to plaintiffs, especially when those plaintiffs are public figures.
Reader Zamudio asks
Isn’t Landis slandering enough to put him in jail for a while?
There is no federal criminal defamation statute and only a few states have them on their books. In order to gain a conviction, criminal defamation charges would have to meet a much higher standard of proof – the “beyond a reasonable doubt” standard – and such prosecutions are quite rare in the U.S.
Reader John F. wanted to know
If we donated to the Floyd Fairness Fund, can we get a refund?
It would be tough, but there are a few creative types who have suggested it might be worthy of a class action lawsuit. I doubt much would come of it and you would probably just chalk it up as an expensive lesson learned.
Reader Ken from New York asks a slightly different question:
So what are the chances I can get a refund for my Landis book?
Slim to none. I guess at this point your best bet is to take it out of the non-fiction section of your bookshelf and place it in another.
Email Charles Pelkey
“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to WebLetters@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.