In an unexpected turn in Brett Favre’s defamation case against fellow retired NFL player and sports talk show host Shannon Sharpe, a recent court ruling about former Alaska governor and 2008 GOP vice presidential nominee Sarah Palin has become central to the dispute.
Last Friday, Sharpe’s attorney, Joseph M. Terry of Williams & Connolly, wrote a letter to the clerk of the U.S. Court of Appeals for the Fifth Circuit arguing that Favre’s attempt to interject the Second Circuit’s decision last month to reinstate Palin v. New York Times is “improper and unavailing.”
As Sportico detailed, Favre, through attorney Amit R. Vora, maintains that the Second Circuit’s decision stands for the principle that trial judges ought not to go too far in taking away defamation cases from jurors. The Second Circuit agreed with Palin that a trial judge “abused” his “discretion” by excluding evidence from jurors and by holding against Palin while the jury was deliberating. Favre sees a parallel with his case, which U.S. District Judge Keith Starrett dismissed last October. Starrett reasoned that nothing Sharpe said about Favre—including that Favre “stole money” in the form of welfare funds—could count as defamation under the law. Favre insists jurors should decide that matter.
Terry maintains the Second Circuit’s decision in Palin “has no relevance here,” since it concerned the sufficiency of actual malice evidence. For public figures, such as Palin, to win a defamation suit, they must establish the defendant made an untrue and reputationally harming statement while knowing it was false or with reckless disregard as to whether it was false. The trial judge in Palin erred by excluding certain evidence from jurors about whether a former Times editorial page editor might have acted with actual malice in an editorial that incorrectly asserted Palin’s political action committee, SarahPAC, released a map showing Democratic members of Congress under crosshairs.
But “actual malice is not at issue” in Favre v. Sharpe, Terry insists. Instead, the question is whether Sharpe made statements that were “rhetorical hyperbole and/or opinion based on disclosed facts” concerning Favre, who has been sued by the Mississippi Department of Human Services but has not been charged with a crime.
While co-hosting FS1’s Skip and Shannon: Undisputed with Skip 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.”
Terry also objects to Favre’s attempt to invoke statements made by Mississippi Secretary of State Shad White in White’s new book, Mississippi Swindle: Brett Favre and the Welfare Scandal That Shocked America. As Favre tells it, White, who Favre has sued and who in turn countersued Favre, used the word “steal” in the context of Favre allegedly diverting and receiving funds intended for welfare recipients. Favre maintains this broader use of “steal” undermines Starrett’s conclusion that Sharpe was merely engaging in “rhetorical hyperbole” while speaking about Favre on the show.
Terry says not so fast. He notes that White is a “non-party” to the dispute and that, regardless, White’s written statements in 2024 “have no bearing on the meaning of statements made during a sports debate program years earlier.”
Favre and Sharpe now wait for a Fifth Circuit decision on Favre’s appeal.
Sharpe joined ESPN’s First Take last year and recently signed a multiyear contract extension that envisions an expanded role for Sharpe on ESPN.
