Fortson v. Colangelo

• Decision Date: 05 June 2006
• Docket Number: No. 04-61634 CIV.,04-61634 CIV.
• Citation: 434 F.Supp.2d 1369
• Parties: Danny FORTSON, Plaintiff, v. Jerry COLANGELO, individually, the New York Post, a foreign corporation, and Peter Vecsey, individually, Defendants.
• Court: U.S. District Court — Southern District of Florida

434 F.Supp.2d 1369

Danny FORTSON, Plaintiff, v. Jerry COLANGELO, individually, the New York Post, a foreign corporation, and Peter Vecsey, individually, Defendants.

No. 04-61634 CIV.

No. 04-61634 CIV.

United States District Court, S.D. Florida.

June 5, 2006.

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Alexander Clark, Esq., Winston & Clark, P.A., Plantation, FL, for Plaintiff.

Anthony P. Strasius, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, Miami, FL, Slade R. Metcalf, Esq., Katherine M. Bolger, Esq., Hogan & Hartson LLP, New York City, Lori Piechura, Esq., Hogan & Hartson LLP, Miami, FL, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT

SELTZER, United States Magistrate Judge.

This cause is before the Court upon the Motion and Supporting Memorandum of Law of Defendant NYP Holdings, Inc.¹ for Summary Judgment (DE 27) and Defendant, Jerry Colangelo's Motion for Summary Judgment and Supporting Memorandum of Law (DE 45). The Motions were referred to the undersigned pursuant to the consent of the parties. Having carefully reviewed the papers in support of and in opposition to said Motions and being otherwise sufficiently advised in the premises, it is hereby ORDERED that the Motions are GRANTED.

I. INTRODUCTION

On October 25, 2004, Plaintiff Danny Fortson filed a Complaint in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, asserting a slander claim against Jerry Colangelo and libel claims against the New York Post (hereinafter, the "Post,") and Peter Vecsey.² See Complaint (Ex. A to Notice of Removal (DE 1)). Defendants thereafter removed the action to this Court.

The Complaint alleges that on November 26, 2003, Fortson, a professional basketball player for the Dallas Mavericks, pushed Phoenix Suns player Zarko Cabarkapa while defending a basket; the push resulted in Cabarkapa being thrown off balance, falling, and breaking his right wrist. Id. ¶¶ 8, 10, 11 (DE 1); Fortson's Statement of Undisputed Material Facts ¶ 4 (DE 40). The slander claim arises out of oral statements about Fortson made by Colangelo immediately following the game, and the libel claims arise out of written statements about Fortson made in a column by Vescey and published by the Post four days after the game.

Colangelo and the Post now move for summary judgment (DE 27 and 45, respectively). Fortson has responded to the motions (DE 41, 46), and Colangelo and the Post have replied thereto (DE 44, 48). The matter is now ripe for decision.

II. UNDISPUTED FACTS

A. THE LITIGANTS

Danny Fortson has played professional basketball for several National Basketball Association ("NBA") teams since 1997. Fortson Dep. at 51. Fortson was playing for the Dallas Mavericks at the time of the incident giving rise to this action. See 2004-05 Official NBA Guide at 92, 166, 275, 290, 304, 315.³

By his own admission, Fortson has garnered a poor reputation for his physical style of play. In April 2003, he told a reporter for the San. Jose Mercury News: "You get a reputation—on court, I don't back down from anybody . . . . So I guess people think I'm a bad guy. But I'm not a bad guy." Fortson Dep., Ex. 17. In August 2003, The Dallas Morning News published an article entitled, "Fortson Eager to Get on Court; He's Out to Prove His Reputation as a Bad Guy is Undeserved"; the article discussed Fortson's reputation as a "bad guy" and Fortson's seeming commitment to change that reputation. Id., Ex. 19.

League statistics provide insight into the reasons for Fortson's reputation. During his career, Fortson has ranked among the league leaders in personal, technical, and flagrant fouls.⁴ See 2004-05 Official NBA Guide at 92, 166, 275, 290, 304, 315. For example, during the 1998-99 season, Fortson led the league not only in personal fouls (212), but also in game disqualifications (9). Id. at 166. In addition, Fortson has been fined significant sums and suspended (without pay) on repeated occasions.⁵ Fortson has acknowledged committing "a lot of flagrant fouls over [his] career"; by his own admission, he has "collect[ed] rebounds as quickly as [he has] amassed fouls." Fortson Dep. at 173, 190. And Fortson has conceded that even before the foul on Cabarkapa, an individual considering his history of flagrant fouls and fines could conclude that he is a "rough player." Id. at 386.

At all pertinent times, Colangelo was the Chairman and CEO ("owner") of the Phoenix Suns. See Colangelo Dep. at 7. Colangelo has 40 years of professional basketball experience as a player, coach, and manager. Id. at 54. As an owner, Colangelo has served as Chairman of the NBA Board of Governors, as well as Chairman of the Rules Committee. Id. at 23, 29.

Defendant NYP Holdings, Inc. is the publisher of the Post, a daily newspaper distributed primarily in the New York metropolitan area. See Post's Motion at 1, 6 (DE 27); Vecsey Decl. ¶ 1. At the time of the events giving rise to the Complaint, Peter Vecsey was the NBA columnist for the Post. Vecsey has more than 40 years' experience as a professional sports journalist; for most of that time he has covered professional basketball exclusively. In addition to writing for the Post, Vecsey has written for the New York Daily News and for USA Today. Vecsey Decl. ¶¶ 7-11. Vecsey has also worked as a television and radio commentator; he has provided on-air commentary for NBA games, anchored half-time shows, and moderated NBA-related programs for several networks, including: CBS, NBC, Turner Network Television, Fox Sports Network, SportsChannel, USA Network, Madison Square Garden Network, NBA Entertainment Television, and ESPN radio. Id. ¶¶ 12-23.

At the Post, Vecsey writes a column⁶ (the "Column") entitled "Hoop du Jour" three times a week during the professional basketball season. Id. ¶¶ 30-31. Vecsey explains that the Column "is dedicated to [his] thoughts, opinions, and reactions regarding the league" and "is meant to enlighten and entertain readers." Id. ¶ ¶ 31. Vecsey describes his style as "colloquial and informal"; he "often us[es] slang terms as they are used by basketball players and avid basketball fans." Id. ¶ 52. And he uses language that is deliberately hyperbolic to convey his strongly held opinions. Id. ¶ 56. Vecsey is frequently critical of NBA management, and his criticism is sometimes directed at the NBA's discipline of players for fouls or misconduct. Id. ¶ 32; see also id. ¶¶ 33, 35, 36, 37 (sampling of articles directed to league's disciplinarians and disciplinary decisions).

B. THE FLAGRANT FOUL AND ITS FALLOUT

On November 26, 2003, the Mavericks and the Suns met in an NBA game. As reported by game officials, with slightly less than 3 minutes remaining and the Suns holding a 24-point lead, Suns rookie Zarko Cabarkapa received the ball on a fast break and elevated to the basket. While Cabarkapa was in the air, Fortson extended his arms and (without making any effort to play the ball) pushed Cabarkapa on the chest, knocking him to the ground. The Suns rookie landed on and broke his right wrist; the injury sidelined Cabarkapa for a considerable period of time.⁷ Fortson was immediately called for a flagrant foul (level two), ejected from the game, and escorted by security personnel out of the arena.⁸ In addition, the league fined Fortson $1,000 and suspended him for three games without pay, a suspension that by NBA standards is "on the high side." Fortson Dep., Ex. 31; Jackson Dep. at 119-20. The three-game suspension without pay cost Fortson $198,606. Fortson Dep. at 181.

Fortson offered this account of the foul:

Well, first of all, I shouldn't have been in the game at that particular moment. Was like two, three minutes left, the game was over. I'm not loose and I was on a—we were one—I was on the bench, the game was already decided. And running back on defense and I, I don't know, the ball went over the top of my head, I don't know, guarding my man, I happened to turn around and look and this guy is flying in the air. I have no choice but to put my hands out to stop him from jumping over the top of me or you know, stop him from the layup or the dunk or whatever he was doing. The guy being so light, any little thing that I did, he's going to bounce off me and he just landed pretty bad.

Fortson Dep. at 151. When asked in a follow-up question whether he had "pushed Zarko [Cabarkapa] to the floor," Fortson responded: "The way it looked, maybe. But for me personally, I thought I just was trying to push him to stop him from, you know, making a basketball play. But it wasn't—the push wasn't, you know, intentionally trying to hurt anybody." Id. at 162. Fortson, however, did acknowledge that it was "a bad play" and that he "knew it could be ugly" when he put his hands on Cabarkapa. And he apologized, adding: "I wouldn't want to be hit like that." Id. at 175 (affirming statement in newspaper article).

Following the game, Colangelo stated of Fortson: "He's a thug. He always has been and is." Fortson Dep., Ex. 23. Colangelo further remarked: "He should be put down for every day that [Cabarkapa] is out. I'll do everything in my power to see that happens. With the game over, there's no excuse for that." Id., Ex. 23.⁹ Colangelo's statements were broadcast and published by the media. Fortson's Response at 2 (DE 46). In the days that followed the incident, television stations throughout the country showed video footage of the incident, and the print media reported on it as well. See Vecsey Decl. ¶ 46. The incident triggered outrage not only in the teams' home-town newspapers, see The Fort Worth Star Telegram and The Arizona Republic articles attached as Exs. 25 and 27 to Fortson Dep., but in out-of-town newspapers as well. Writing in the New York Post a few days later, Vecsey spoke out about the incident and, in particular, what he considered to be the NBA's inadequate response to Fortson's foul. Vecsey's November 30, 2003 Column, entitled "Stern Warnings Are Not...