Hall-of-Famer Brett Favre's Defamation Lawsuit Against Hall-of-Famer Shannon Sharpe Thrown Out

From yesterday’s Fifth Circuit decision in Favre v. Sharpe, by Judge Leslie Southwick, joined by Judge Kyle Duncan and Judge Jeremy Kernodle (E.D. Tex.):

Brett Favre … was named three times as the NFL’s Most Valuable Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame. Much more recently, his public image has been somewhat tarnished by his connection to individuals who were convicted for the misuse of government welfare funds and his alleged receipt of some of those funds….

In October 2021, the Mississippi State Auditor’s Office determined more than $77 million in federal Temporary Assistance for Needy Families (“TANF”) funds intended to help impoverished Mississippians were used for illegal purposes across the state. To date, six individuals have pled guilty to state and federal felony charges related to their involvement in this scandal. Favre has not been criminally charged. Mississippi’s Department of Human Services (“MDHS”) filed a civil suit in May 2022 against Favre and numerous persons, seeking to recover TANF funds that were unlawfully diverted between 2016 and 2019.

MDHS initially sought to recover $1.1 million in TANF funds Favre received from the non-profit Mississippi Community Education Center, Inc. (“MCEC”) in 2017 and 2018 for speaking engagements that he never performed. Favre had repaid the funds prior to MDHS’s suit. MDHS amended its complaint to recover $5 million in TANF funds Favre allegedly arranged to be used to fund the construction of a new USM volleyball facility. According to MDHS, Favre was unable to encourage sufficient donations for the facility’s construction, so he turned to the non-profit MCEC to help secure the $5 million in funding. TANF funds were ultimately used on the project.

Local and national news outlets continued to cover developments in the welfare scandal and Favre’s alleged involvement. During that time, two events occurred that gave rise to this lawsuit. The first was a September 13, 2022, article in an online news source called Mississippi Today. The article detailed the MDHS’s recent filing of a civil suit against Favre. The article included text messages between Favre and one of the six individuals later convicted in the scandal, Nancy New, that discussed the construction funding of USM’s volleyball facility and how it was likely the media would not determine the source of the funds. {New is the former president and CEO of the MCEC non-profit, which received and illegally disbursed TANF funds.}

According to the Mississippi Today article, these texts were proof that Favre worked with New to orchestrate MCEC’s use of the $5 million in TANF funds for the volleyball facility. The article stated the separate $1.1 million was a way to receive more funds for the project. It also acknowledged Favre denied knowing the money received for the project came from the TANF program.

The other event underlying this suit occurred the day after the Mississippi Today article appeared online. The defendant, Shannon Sharpe, along with Skip Bayless, hosted a nationally broadcasted sports talk show called Undisputed. Sharpe also had an exceptional professional football career. He played 14 seasons in the NFL, was on three Super Bowl winning teams, and was inducted into the NFL Hall of Fame. The relevant segment opened with the moderator briefly summarizing the Mississippi Today article and then asking Sharpe for his thoughts about its impact on Favre’s legacy. Sharpe and Bayless then engaged in an eleven-minute discussion about Favre, the welfare scandal, and MDHS’s civil suit. The hosts provided colorful and derogatory views on the article, calling Favre “a sleazeball,” “shady,” “gross[ ],” and a “diva,” and accusing Favre of “steal[ing],” “egregious” behavior, and “illegal activity.”

Favre viewed three of Sharpe’s statements as defamatory:

1. “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low”;
2. “Brett Favre is taking from the underserved” in Mississippi; and
3. Favre “stole money from people that really needed that money.”

Favre sued for libel, and the district court agreed, concluding “Sharpe’s comments were ‘mere rhetorical hyperbole’”; the Fifth Circuit affirmed, on the related but different grounds that the comments were opinion based on disclosed fact:

“[S]trongly stated [opinions] … based on truthful established fact … are not actionable under the First Amendment.” … Sharpe’s statements—in response to facts widely reported in Mississippi news and specifically in the just-released Mississippi Today article—could not have been reasonably understood as declaring or implying a provable assertion of fact. His statements are better viewed as strongly stated opinions about the widely reported welfare scandal.

As for the supposed factual inaccuracies with which Favre takes issue, those inaccuracies were corrected during the segment. Bayless correctly stated that “as yet [Favre] has not been criminally charged,” and he amended Sharpe’s one inaccurate statement that Favre had not repaid the additional $1.1 million in TANF funds by acknowledging that Favre had repaid everything but the interest on $1.1 million. Sharpe also mentioned Favre’s assertion that he did not know the source of the funds. Because Favre does not allege any remaining statements in the broadcast were false, there were no actual inaccuracies. Instead, the facts were fully disclosed to the listeners and contained no “clear falsity of fact.”

It is understandable that Favre considers Sharpe’s statements to be contemptuous. Nonetheless, the Undisputed program did not imply that Sharpe was relying on any undisclosed facts. He instead relied only on facts widely reported in Mississippi news and specifically in the just-released Mississippi Today article. Though there was no claim by Mississippi Today that Favre had committed a crime, there also was no implication from Sharpe’s statements that he was relying on information from other sources when he said Favre “stole money” and took from the “underserved.” At the time Sharpe made the statements, the facts on which he was relying were publicly known, and Sharpe had a right to characterize those publicly known facts caustically and unfairly. Sharpe’s statements were his “strongly stated” opinions “based on truthful established fact[s],” and thus nonactionable.

Joseph Marshall Terry argued on behalf of Sharpe.

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