ESPN, the Yankees, Major League Baseball, and announcers Dan Shulman and John Kruk are being sued by Andrew Rector, 26, who says that he was defamed after the network showed him asleep at the New York Yankees-Boston Red Sox game and joked about his being “oblivious” to the game. While Rector says that the commentators called him “stupor, fatty, unintelligent, stupid,” those insults are not heard on the videotape below from the telecast. Rector is suing for $10 million.

What is heard is ESPN announcer Dan Shulman referring to the sleeping fan as “oblivious,” while John Kruk comments that the ballpark was “not the place you come to sleep.” Those seem pretty accurate descriptions of the situation and “truth is a defense” to defamation. Indeed, Shulman marveled at the thought that the fan slept through a third inning home run by Yankee Carlos Beltran and 45,000 fans giving him a standing ovation.

Rector, who works for a Bronx-based auto leasing firm, alleges that he was defamed by comments portraying him as a “fatty cow that needs two seats” and a “confused disgusted and socially bankrupt individual.” (A “fatty” cow? If the announcers called someone a “fatty cow,” they deserve to be sued on abuse of a colloquialism alone). Rector claims that “[t]hese unmitigated verbal onslaughts crossed the line between reporting on sport and abuse against the plaintiff without reasonable cause or restraint.”

The clip shows nothing more than gentle teasing with Shulman saying “Is that guy to his left his buddy who’s just letting him sleep?” Kruk then replies “Maybe that’s his buddy, and he likes him a lot better when he’s asleep.” Yet, Rector claims that “[a]nnouncers like Dan Shulman and John Kruck [sic] unleashed avalanche of disparaging words against the person of and concerning the plaintiff. These words, include but not limited to ‘stupor, fatty, unintelligent, stupid’ knowing and intending the same to be heard and listened to by millions of people all over the world …” The use of “like” leaves it unclear as to who is being references but it suggests that somehow these defendants would be liable for comments from other individuals. Those other “announcers” may in fact be commenters on the ESPN website since the complaint states “The defendant Major league Baseball continually repeated these vituperative utterances against the plaintiff on the major league baseball web site the next day. These words and its insinuations presented the plaintiff as symbol of anything but failure.” I assume his lawyer, Valentine Okwara, of Jamaica, N.Y., meant “present the plaintiffs as [a] symbol of [nothing] but failure.”

The complaint continues (with garbled syntax and typos) to allege that “The defendant MLB.Com continued the onslaught to a point of comparing the plaintiff to someone of a confused state of mind, disgusted disgruntled and unintelligent and probably intellectually bankrupt individual. . . . Nothing triggered all these assertions only that the plaintiff briefly slept off while watching the great game something or circumstance any one can easily found them self.” The lawyer seems to get one of the key defendant’s names wrong in stating that “John Krock in his verbal attack insinuated that the plaintiff is individual that know neither history nor understood the beauty or rivalry between Boston Red Sox and New York Yankee.”

The defamatory statements include

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

There is a host of problems with the lawsuit. The first is colloquialism that defamation does not protect people from commentary on their public actions. Notably, Rector is not suing for a privacy claim like intrusion upon seclusion. It is possible to make an inclusion claim based on a public encounter but it is difficult. That was the case in Nader v. General Motors Corp., where Ralph Nader was able to show that GM hired detectives to follow him closely. One such instance involved looking over his shoulder at banks to read his bank slips, which was found to be an intrusion upon seclusion even though it was a public place. However, being shown in a public baseball game on television is far from that mark. We have seen other fans embarrassed and even lose their jobs over obnoxious conduct. Rector was clearly not be obnoxious in any way but he was in a very public place that is known to be subject to both national television and a roaming stadium camera. Indeed, people love the opportunity to be on the big screen.

Moreover, most tickets have an express provision on consent to be photographed or record (albeit in print that only a high-powered microscope could read). The Yankee tickets include the following warning:

BY USING THE TICKET, THE BEARER AGREES THAT: (A) HE/SHE SHALL NOT TRANSMIT OR AID IN TRANSMITTING ANY INFORMATION ABOUT THE GAME TO WHICH THE TICKET GRANTS ADMISSION, INCLUDING, BUT NOT LIMITED TO, ANY ACCOUNT, DESCRIPTION, PICTURE, VIDEO, AUDIO, REPRODUCTION OR OTHER INFORMATION CONCERNING THE GAME (COLLECTIVELY, “GAME INFORMATION”); (B) THE YANKEES ARE THE EXCLUSIVE OWNER OF ALL COPYRIGHTS AND OTHER PROPRIETARY RIGHTS IN THE GAME AND GAME INFORMATION; AND (C) THE YANKEES, THE PARTICIPATING CLUB, MLB PROPERTIES, INC., MLB ENTERPRISES, INC. AND EACH OF THEIR RESPECTIVE AGENTS AND LICENSEES SHALL HAVE THE UNRESTRICTED RIGHT AND/OR LICENSE TO USE THE BEARER’S VOICE, IMAGE OR LIKENESS , INDIVIDUALLY OR AS PART OF A CROWD, SHOT WITH OR WITHOUT OTHER ATTENDEES OF THE GAME AND THAT SUCH BEARER’S VOICE, IMAGE OR LIKENESS MAY BE INCLUDED IN ANY FOOTAGE, PHOTOGRAPH, POSTER, ADVERTISEMENT OR RECORDING OF THE GAME.

[Ironically, I went to the Nats v. Cubs game two days ago and sat three rows behind home plate. Aidan and I were on television every time the camera showed the batter. I got dozens of emails from friends and family telling me to stop eating so many peanuts or asking if that was my first or tenth beer. One friend even objected that the kid behind us got cotton candy and Aidan did not — for the record, Aidan preferred the cracker jacks.]

The second problem is the possibility of a frivolous lawsuit charge seeking costs and fees given the condition of the complaint, possible false allegations, and the lack of foundation for the lawsuit. That could put Rector and Okwara at risk of sanctions and expose his lawyer to bar action unless they can support the charges. Indeed, naming all of these defendants could come back to haunt them if all of these high-priced teams file to dismiss and then seek compensation for fees and costs.

The condition of this complaint and the lack of foundation will likely raise allegations that it is a “strike suit” where litigants sue in the hopes of getting a few thousand dollars in a quick settlement. Some litigants will sue knowing that it will costs thousands for the defendants to simply file motions to dismiss — making a cheap settlement a better option. In this case, the publicity would make a settlement highly unlikely. Instead, both Rector and his lawyer could be looking at a sanctions motion. According to the New York Times, Valentine A. Okwara was admitted to the bar in New York in 2013 and has a degree from the University of Buckingham in England. Below is the New York frivolous lawsuit provision.

Section 130-1.1 Costs; sanctions.
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.