A three-judge panel on the U.S. Court of Appeals for the Fifth Circuit Monday affirmed a trial judge’s ruling last fall to dismiss retired NFL quarterback Brett Favre’s defamation lawsuit against sports talk show host and fellow retired NFL player Shannon Sharpe.
Sharpe might have his former co-host, Skip Bayless, to thank.
In finding that U.S. District Judge Keith Starrett properly dismissed the lawsuit, Judge Leslie Southwick reasoned that Sharpe was simply offering “strongly stated opinions” about a “widely reported welfare scandal.”
Viable defamation claims involve statements that are damaging and concern an alleged fact that is in fact false or untrue (as opposed to a damaging statement that is an opinion).
Southwick, in an opinion joined by Judges Kyle Duncan and Jeremy Kernodle, stressed that while Starrett tossed the case on grounds Sharpe’s comments were rhetorical hyperbole, the Fifth Circuit sees a different rationale for siding for Sharpe: His statements were protected opinions that were based on disclosed materials, including in news reports.
While co-hosting FS1’s Skip and Shannon: Undisputed with Bayless in 2022, Sharpe said:
· “Brett Favre is taking from the underserved.”
· “[Favre] stole money from people that really needed that money.”
· “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low.”
Southwick noted Sharpe’s statements were in response to a Mississippi Today article about Mississippi’s Department of Human Services civil lawsuit against Favre. Southwick noted that Sharpe made an incorrect statement about Favre having not repaid an additional $1.1 million in Temporary Assistance for Needy Families funds, but Bayless corrected the statement on the air to say that Favre had repaid the amount except for the interest. Bayless also stressed that Favre “has not been criminally charged.”
Southwick acknowledged “it is understandable that Favre considers Sharpe’s statements to be contemptuous,” but underscored that the Undisputed program “did not imply that Sharpe was relying on any undisclosed facts.”
Sharpe was instead commenting, as a talk show host, on the news of the day.
Favre can petition for a rehearing en banc where, if granted, other judges on the Fifth Circuit would consider the case. However, rehearing petitions are rarely granted. He could then throw a Hail Mary pass to the Supreme Court, which only accepts 1% or 2% of petitions, and hope it takes the case.
Michael McCann was a colleague of Leslie Southwick in the mid-2000s when both taught at Mississippi College School of Law.
