Bad to The Bone

In this installment of my ongoing chronicle of sports-related litigation, https://www.videntpartners.com/blog/sports-law, I’m pleased to report on a recent decision that will be of particular interest to the baseball fans among our readers.  Of course, given the drearily familiar (in that it’s all about money, despite the unique current circumstances) dispute between MLB and the Players Association over what the 2020 season will look like, https://www.cbssports.com/mlb/news/mlb-2020-season-update-where-things-stand-as-league-makes-76-game-proposal-to-mlbpa/, this is not the most enjoyable time to be a baseball fan.  But we are a loyal bunch, and no doubt we will weather this particular episode of greed and incoherence and return to rooting for our favorite teams once the games begin again.

Our baseball-following readers certainly include Mets and Red Sox fans who are old enough to recall the 1986 World Series, which was perhaps the greatest disaster of our lives for the latter and an extraordinary achievement for the former.  Among the members of the 1986 Mets was a small but select group of “bad boys” – men who abused drugs, behaved badly in a wide variety of social situations, and in some cases even ended up in prison.  The most egregious of them was Len Dykstra, a serial offender who was a notorious racist, misogynist, homophobe, drug user, blackmailer, embezzler, thief and convicted felon.  

About a year ago, Dykstra sued Ron Darling, a former teammate and Mets announcer, for defamation and intentional infliction of emotional distress.  The lawsuit was based on a few paragraphs in Darling’s book 108 Stitches concerning insults that Dykstra hurled at Dennis “Oil Can” Boyd, one of most interesting and colorful characters in the long history of the BoSox:

In Game 3 of the 1986 World Series…Oil Can was on the receiving end of the ugliest piece of vitriol I’ve ever heard – in a bar, on a baseball diamond, anywhere….Lenny was leading off for us that night…and as Oil Can was taking his final warmups on the mound, Lenny was in the on-deck circle shouting every imaginable and unimaginable insult and expletive in his direction – foul, racist, hateful, hurtful stuff.  I don’t want to be too specific here, because I don't want to commemorate this dark, low moment in Mets history in that way, but I will say that it was the worst collection of taunts and insults I’d ever heard….

To be clear, bench-jockeying has a long and fine tradition in the game, and there’s a fine art to it, but there are lines that are not meant to be crossed….[T]his stuff coming out of Lenny’s mouth was beyond the pale. Unprintable, unmentionable, unforgettable.  And, like I said, he was landing his punches:  First at-bat of the game, Lenny smoked a 1-1 pitch deep down the right-field line for a home run, igniting a four-run rally….Lenny came back to the dugout and collected the high-fives and huzzahs that came his way, and for all I know, I was right there with my teammates, thrilled to be back in this thing.  It’s only in retrospect that I started to feel somewhat complicit and that by accepting the gifts that fell Lenny’s way as a result of his ugly treatment of the opposing pitcher, I was an accomplice of a kind.

The case was just dismissed for failure to state a cause of action, on the grounds that Dykstra is libel-proof.  “The libel-proof plaintiff doctrine bars relief in a defamation action, as a matter of law, to a plaintiff whose reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject….The rationale behind the doctrine is that free speech interests should prevail over the interests of an individual who, due to an already soiled reputation, would not be entitled to recover anything other than nominal damages.”  (Internal quotation marks omitted.)  Dykstra v. St. Martin’s Press et al., https://mlb.nbcsports.com/wp-content/uploads/sites/7/2020/06/153676_2019_LENNY_DYKSTRA_v_ST_MARTIN_S_PRESS_LLC_et_al_DECISION___ORDER_ON_74.pdf (5/29/2020).  After a full discussion of the legal issues, the judge meticulously marshalled the evidence of Dykstra’s libel-proof status – five full pages of his 20-page opinion quoted one sickening example after another – and summed it up as follows:

Based on the papers submitted on this motion, prior to the publication of the book, Dykstra was infamous for being, among other things, racist, misogynist, and anti-gay, as well as a sexual predator, a drug abuser, a thief and an embezzler.  Further, Dykstra had a reputation – largely due to his autobiography – of being willing to do anything to benefit himself and his team, including using steroids and blackmailing umpires…. Considering this information, which was presumably known to the average reader of the book, this Court finds that, as a matter of law, the reference in the book has not exposed Dykstra to any further public contempt, ridicule, aversion or disgrace…. The nature and seriousness of Dykstra’s criminal offenses, which include fraud, embezzlement, grand theft, and lewd conduct and assault with a deadly weapon, and notably the degree of publicity they received, have already established his general bad reputation for fairness and decency far worse than the alleged racially charged bench-jockeying in the reference could…. Given the aforesaid litany of stories concerning Dykstra’s poor and mean-spirited behavior particularly toward various groups, including racial minorities, women, and the LGBTQ community, this Court finds that, as a matter of law, the reference cannot induce an evil opinion of [him] in the minds of right-thinking persons…as that evil opinion has long existed….

The question before this Court is only whether or not Dykstra can assert a cause of action for defamation.  In order to do so, Dykstra must have had a reputation capable of further injury when the reference was published.  This Court finds that Dykstra lacked such a reputation at the time of publication.  (Internal quotation marks, footnote and citations omitted.)

For our purposes, here at Vident Partners, it would have been strangely enjoyable to locate an expert or two for this matter, given the peculiar nature of the requirements.  But alas, this was not a case that we assisted with – indeed, given the dismissal of the complaint at an early stage of the litigation, it seems likely that neither party had yet devoted serious thought to the need for expert witness testimony.  Nonetheless, we hope that you will remember us when you are confronted by the need for an unusual expert or two (even if they’re not sports-related).  We are known for providing the best experts, and we look forward to your inquiry, whether it’s for an often-needed medical expert or a rarely-needed pink unicorn, https://www.videntpartners.com/blog/2020/catching-pink-unicorn.

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