Chances are that Tiger Woods has never gotten an “F” on any test or examination in his life. After all, he’s won 79 PGA Tour events, is a 14-time major champion and, prior to turning professional, spent two years as an undergraduate at Stanford University, one of our nation’s most prestigious institutions. This is at least part of the reason that Brandel Chamblee’s 2013 season-in-review “report card”, published last week on Golf.com, in which he gave Woods a grade of “F” for the season, has drawn the ire of the golfer’s agent, Mark Steinberg. However, it’s the other underlying accusation in the article, that Woods is a cheater, that caused Steinberg, in an interview with ESPN.com this past weekend, to threaten to file a lawsuit on Tiger’s behalf, purportedly for libel against the online publication.
Steinberg took issue, specifically, with the writer’s critique of Woods, which stated:
“When I was in the fourth grade, I cheated on a math test and when I got the paper back it had “100” written at the top and just below the grade, was this quote: “Oh, what a tangled web we weave when first we practice to deceive!”… Written once more beneath that quote was my grade of “100,” but this time with a line drawn through it and beneath that an F. I never did ask my teacher how she knew I cheated and I certainly didn’t protest the grade. I knew I had done the wrong thing and my teacher the right, but I never forgot the way I felt when I read that quote.
I remember when we only talked about Tiger’s golf. I miss those days. He won five times and contended in majors and won the Vardon Trophy and … how shall we say this … was a little cavalier with the rules.*
So, the Insider has to ask the question: would there be liability in a claim for libel based on this statement? In, for instance, New York, a libel plaintiff is required to prove five elements: (1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) defendant’s fault, varying in degree depending on whether plaintiff is a private or public party; (4) falsity of the defamatory statement; and (5) injury to plaintiff. Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir. N.Y. 2001) (citing Celle Filipino v. Reporter Enters, Inc., 209 F.3d 163, 176 (2d Cir. 2000)).
Yet a statement cannot form the basis of a defamation claim in New York where it (1) is not an assertion of fact capable of being proven false, or (2) is a non-actionable statement of opinion and/or hyperbole. Stoner v. Young Concert Artists, Inc., 2012 U.S. Dist. LEXIS 141892, at *24 (S.D.N.Y. Sept. 25, 2012). In New York, a statement is to be deemed an opinion where (1) the specific language in issue lacks a precise meaning which is readily understood; (2) the statements are incapable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact. Gross v. New York Times Co., 623 N.E.2d 1163, 1167 (N.Y. 1993) (citations and internal quotation marks omitted).
It’s certainly arguable that the quote, above, taken alone, suggests that Chamblee, in some way, knows something we don’t about Woods’ alleged cheating. This could be interpreted as an actionable offense. See McNamee v. Clemens, 2013 U.S. Dist. LEXIS 107551, at *8-9 (E.D.N.Y. July 31, 2013) (“Only statements of facts, or ‘mixed opinions’ that give the impression that the speaker has information, known only to him, which support his opinion can serve as the basis of a defamation claim”). Ah, but there’s a catch: the footnote to the article itself containing links to, and information which, reports providing the basis for Chamblee’s opinion in the article. It states:
“*Tiger’s rule controversies in 2013 included taking an illegal free drop at the Abu Dhabi Championship, avoiding disqualification at the Masters despite signing an incorrect scorecard following an illegal drop, giving himself a favorable drop after hitting into a water hazard at the Players Championship, and a two-stroke penalty for causing his ball to move while removing a twig resting against it at the BMW Championship.”
Therefore, not only does Chamblee go to great lengths to state his opinion; by linking to evidence, he invites the reader to draw his or her own conclusions and form an opinion regarding same. Beside this defense, in a defamation action, Chamblee would also have other possible defenses at his disposal. Woods is a public figure and thus, under the decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) he would have to show that Chamblee’s statement must have been published “knowing it to be false or with reckless disregard to its truth (also known as actual malice“). The fact that the opinion may even be true with regard to Woods shows that there was simply no reckless disregard in publishing same, certainly not rising to the level of “actual malice.” And, it’ll be extremely difficult to show “actual malice”, in the same article in which Chamblee handed an “A+” to Jason Dufner’s season for, in part, “being married to one hot woman” and reasoned that Vijay Singh’s 2013 season deserved an “F,” because, he stated, “I hate him.”
In the interview, Steinberg was quoted as saying, “I’m not sure if there isn’t legal action to be taken. I have to give some thought to legal action.” Don’t worry Mark, we’ll do the thinking for you. There’s no claim for defamation in that article, at all.