The Case Michigan State's Tom Izzo Could Have for Defamation

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Over a week has passed since ESPN let loose its detailed report stemming from Larry Nassar's sexual assault incidences. The entire situation regarding the adequacy and possible active sexual assault cover ups at Michigan State University is unfortunate because there is so much that happened in the past that cannot be sufficiently remedied beyond justice being served. Some people are beginning to speak out against sexual assault cases they personally experienced, and some people are choosing to dig deeper into the dirt, almost as if trying to take ESPN's Outside the Lines report to the next level (and that report already took things to an uncomfortable but necessary level). In doing so, this creates a problem that implicates certain Michigan State figures - at this point, are we able to separate subjective opinion and irresponsible journalism from objective facts to learn what has really been going down in East Lansing?

The Low-Down

The Michigan State men's basketball team was a primary point of discussion in the Outside the Lines report. One particular case that received a great deal of attention involved then-staffer and 2009 Big Ten Defensive Player of the Year Travis Walton that occurred in 2010. Reportedly, in a matter of months, Walton had two incidences, one where he was criminally charged with punching a female student in the face and one where he was accused of sexually assaulting another student off-campus, and was fired after the basketball season ended. Although it is a technicality, I would like to point out that Walton was not an employee of the university, for he was a graduate assistant on the Men's Basketball staff and, therefore, a student, but whoever was in charge did allow him to remain on the staff after criminal charges were brought so as to kind of work in their benefit. Walton plead not guilty at his arraignment to the criminal assault charges, which were later dropped, and guilty to a civil infraction littering charge. Also, as he stated after the report came out, he was never charged with sexual assault - the alleged victim never pressed charges or reported it to the police.

Of course, Tom Izzo was the head coach of the Men's Basketball team at the time. With the Nassar scandal accounts being completely disturbing and completely true, naturally, other big Michigan State athletics names like Mark Dantonio, the head football coach, and Izzo would be under fire as well. That fire spread and could have tainted the careers of two of the most esteemed college coaches so much that one or both of of them could have been fired. Dantonio was cleared of any wrongdoing by the external investigation last week, but of course, there are much fewer news stories on that relative to the stories implicating him. Izzo, on the other hand, has not yet. While some have not gone so far as to say Izzo has swept his players' sexual assault allegations under the rug over the years as "no big deals" or cover ups, some have done so. A great deal of statements are painting an umbrella picture that does not make him look good whatsoever, and the worst part is that we do not know what is true or false or what really happened along the way. What we do know is that words and their presentation matter. They have separated many into camps sitting on extreme opposing sides. Hopefully, there is middle ground to see what, if any, role Izzo played in the hot mess.

Outside the Lines interviewed Ashley Thompson, the girl who Walton allegedly hit one night at the bar. “He started speaking with us, and I’m like, ‘I’m sorry. Can you just give us a moment?’’’ Thompson stated. “And he was like, ‘You don't know who I am?’ And I was like, ‘I really don’t care who you are.’ And he kind of got angry at that point, and I told him to not-so-politely F-off.” Thompson continued, "I barely got the words out of my mouth, and he came across and he struck me on the right side of my face. I kind of reached back toward him, and I didn't make contact, and then that's when he swung with a second reach and hit me on the left side of my face and hit me so hard that it knocked me backwards off of my barstool." She told reporters that "someone in the prosecuting attorney’s office told her not to discuss the incident with the media or the university," too. After ESPN published the report, she commented below and directly pointed the finger at Izzo:

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A separate report that does not help the coach's situation said that Izzo and Walton shared such a special bond that after Walton failed to earn a spot on the Detroit Pistons after his college basketball career was done, Walton moved into Izzo's basement while completing his degree and working as an assistant.

The Law

In tort law, defamation is "the taking of one's reputation" or, more closely, "the offense of injuring a person's character, fame, or reputation by false and malicious statements." Defamation can be either written or oral, where written defamation is called libel and oral defamation is called slander. To have a case for defamation, a plaintiff needs to satisfy a few requirements: (a) a false, judgmental, defamatory statement regarding the person; (b) an unprivileged publication of that statement to a third party; and (c) actual harm to the person or the person's reputation.

MCL 600.2911 is the Michigan law that specifically governs actions for libel or slander. Along with the basic defamation elements required, Michigan law expresses further requirements, clarifications, and limitations. For example, section 2(b) states that plaintiffs may only recover actual damages (i.e., the amount actually suffered based on evidence) with respect to property, business, trade or profession, occupation, or feelings and cannot recover exemplary or punitive damages in most circumstances.

In addition to the general elements a plaintiff must satisfy for slander, when the subject of the statements is a public figure, there is an additional requirement - actual malice, which takes aim at the defendant's actual state of mind when the cause of action arose. With respect to defamation, actual malice is saying or publishing a statement while either (1) knowing it is false, or (2) acting with reckless disregard for whether the statement is true or false. Michigan divides public figures into "all-purpose" public figures and "limited-purpose" public figures. An all-purpose public figure is someone whose fame "reaches widely and pervasively" throughout society whereas a limited-purpose public figure is someone (a) who voluntarily injects himself as a key character in a public controversy, or (b) whose fame has not reached the all-encompassing celebrity status of an all-purpose public figure but has gained prominence in a particular field nonetheless. Moreover, section 6 requires "clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether or not it was false." What is important, here is that a court will look to any kind researching, editing, and fact checking the defendant happened to do to assess whether the plaintiff met the evidentiary burden. Only having evidence that the defendant failed to contact the plaintiff for comment or that he relied on a bias source alone would probably not be sufficient evidence to satisfy the high standard of proof.

The Argument

Here, Tom Izzo could present present evidence for each defamation element. Thompson said that one of the city's prosecutors told her not to say anything about the incident to media outlets or the university. Alone, this is not enough to implicate Izzo, but the other comment she made on the story pulls him in hard. In saying, "It was plead down because Izzo runs East Lansing, period ... They made it go away," she made it clear that Tom Izzo had his hand in the lawsuit's outcome and did something to lessen Walton's charges. She said enough that people would recognize that her earlier statement meant the incident concerned shady, scandalous dealings, and tying in the second statement directly calls out Izzo as the main factor. As essentially a witness statement made to a nationwide audience, worldwide on the Internet, and without any sort of privilege, Thompson's statement was a publishing to more than one person done without privilege. Moreover, a large faction of the court of public opinion believes he needs to be fired now, and there is absolutely nothing Izzo can say or do to change their minds. The allegations and charges against Travis Walton, Keith Appling, and Adriean Payne were public information years ago, but because of the statement that alleged he was a part of  a cover up as a spin-off of the Nassar scandal, his reputation has experienced actual, provable harm presently and prospectively. If he does get fired or pressured to step down, there would be monetary numbers to point to for actual harm - his lost contractual salary.

He also qualifies as a public figure because people inside and outside of Michigan know who he is maybe even regardless of whether they are college basketball fans. Since he has coached the same team since 1995 (i.e., a whopping 23 years to date!) and already made his way into the Naismith Memorial Basketball Hall of Fame, he is one of the most respected basketball coaches currently still in the game and unquestionably has reached celebrity status with wide and pervasive fame. The law affords us average folk some room to say and know certain things about these kinds of people. Thus, if Izzo wanted to press a case for slander, he would have to prove actual malice in addition to the traditional requisites for slander against non-public figures.

 Source: JULIAN H. GONZALEZ Detroit Free Press

Source: JULIAN H. GONZALEZ Detroit Free Press

Here, he could argue that Thompson was the person that Walton allegedly punched, and since he was acquitted in court, she could hold a particular grudge and detest for anyone who could have a little say in the situation. He could further argue that she did not adequately research the situation or fact-check before saying her statements to ESPN. There is very little evidential meat on the bone connecting Izzo to mishandling sexual assault allegations, and what she has heard from somebody else or through multiple degrees of contact could actually be considered hearsay. Hearsay discredits witness testimony in a court of law, and it could be used as a parallel concept here. In addition to failing to contact Izzo or the East Lansing police for comment, Thompson had zero proof to back up what she said and either knew it was false or, if she genuinely does believe Izzo had a role in Walton's charge being dropped, let her opinion get the best of her and acted recklessly by failing to inquire into the facts, actually going against what is on record in the two written statements from independent and objective witnesses the City Attorney received during the case. When the truth is not a certainty, accusing someone of being involved with an assault scandal in a time where society is paying special attention to the sensitive topic is reckless.

Note: Since the Outside the Lines report, a former legal representative from East Lansing issued a statement about Thompson's allegations that Tom Izzo had some undue influence and worked with the East Lansing legal representatives to lessen Walton's charges. David Meyers was the assistant attorney from 2006-2016, and he says that the claims made in the report were "false allegations and misleading insinuations" and no one received preferential treatment during his tenure with the municipality. Furthermore, he wrote, "The case was fully reviewed and a determination was made that while the case wouldn’t be fully dismissed, a plea offer would be made ... Unlike a county prosecutor, city attorneys can only charge 90 day misdemeanors which are the lowest level charge that are still criminal, and due to that, most plea offers result in some type of civil infraction, typically a litter." This fact could work strongly in Izzo's favor and support that if Thompson had looked into the procedural aspects, it provides an explanation that does not involve the head basketball coach entangled in inappropriate conduct.

Heck, for the sake of discussion, what if Tom Izzo wanted to sue a media outlet like ESPN or a newspaper who published the defamation? It would be a much harder case to win. There, he would use a similar argument to what is stated above, adding that ESPN not only relied on a bias source in Thompson as the alleged victim, but it published it with top-story fanfare with a perspective that regardless of its truth, it makes a good story, and everyone would be checking ESPN for news and updates. How could he argue that this was done "with reckless disregard of whether or not it was false"? When Dantonio was cleared, I could not find a single article reporting on it on ESPN.com, but there are many, many articles mentioning the coaches being under fire and being connected to the pattern of inaction and suppression. Additionally, if ESPN were to research somewhat as deeply as the external investigation is doing and continues to do, it could have found the context in which certain Izzo and Dantonio quotes and actions were made (e.g., having a player "talk to his mother"). ESPN also did not provide back-up statements to what Thompson claimed.

We do not know all the details with respect to Tom Izzo, but if and when the external investigation clears him, he has his case.