Why Andrew Rector, the dozing baseball fan, has 'no case' against ESPN

A New York Yankee fan who is suing two ESPN broadcasters for mocking him when a TV camera captured him napping at a game will strike out in court, legal analysts say.

Spectator at Yankees game claims he was the target of an 'unending verbal crusade'

A New York Yankees fan who is suing two ESPN broadcasters for mocking him when a TV camera captured him napping at a game will strike out in court, legal analysts say.

"He has no case except for the possibility of being the defendant in a [frivolous lawsuit] counter charge," said Jonathan Turley, a George Washington University law professor and noted constitutional scholar.

"None whatsoever," Howard Wasserman, a law professor at Florida International University, said about the plaintiff's chances of winning his case.

Andrew Robert Rector admits in court documents he "napped" during a game against the Boston Red Sox on April 13, but says two ESPN commentators, Canadian Dan Shulman and John Kruk, unleashed an "avalanche of disparaging words" and an "unending verbal crusade" against him.

Turley pointed out that some of the more vicious comments Rector attributes to the defendants came from comments posted online, and not the ESPN hosts. Even still, those comments, which the lawsuit alleges include words like "fatty," "unintelligent" and "stupid," would not be legally actionable, Turley said.

'He knows that baseball games are televised'

There are two general claims that could be made in this type of case: privacy and defamation.

"As far as any privacy claim, he's in a public space, he knows that baseball games are televised. That pretty well takes care of any privacy claim he may have," Wasserman said.

As Turley noted on his blog, the back of most tickets have a provision providing consent to be photographed or recorded. For example, the back of the Yankee ticket says that the ticket bearer agrees that the team has the right to "use the bearer’s voice, image or likeness, individually or as part of a crowd shot… and that such bearer’s voice, image or likeness may be included in any footage, photograph, poster, advertisement or recordings of the game."

When it comes to privacy issues, people can pursue legal action under the privacy tort of "intrusion upon seclusion," meaning somebody invades a space that a person would reasonably expect to be private. 

In the notable case Ralph Nader v. General Motors, the consumer advocate sued for invasion of privacy when the automaker hired private detectives to follow him. The court found that while the private detectives were in their rights to follow Nader into a bank, they crossed the line when looking over his shoulder to read what he was writing on a deposit slip.

"Even though what he was doing was public, what he was writing was reasonably viewed as something that was private," Turley said. 

But this is a rare exception, and normally, "when you are in public, particularly at a well televised forum, your expectations of privacy are quite low."

"Unfortunately this is like complaining about the weather. It is simply one of the elements you live with when you’re at a baseball game or some other well televised event."

'Truth is a defence'

As for the defamation claim, which is the legal avenue Rector is pursuing, experts said his case is also weak.

Wasserman said the commentators were making jokes at his expense but they weren't asserting any demonstrably false statements about him that would be damaging to his reputation.

"First of all, truth is a defence," Turley said. "So the fact that they observe him sleeping and make comments on the fact of his sleeping is not defamation and certainly not actionable."

And the comments that followed on the internet were clearly opinions which are protected in the U.S from liability, he added.

"People are taking the public image and giving their opinion as to the character or actions of the individual," he said. "The Supreme Court has recognized that protecting free speech involved protecting a great deal of low-grade speech."

Turley said that an individual would have legal cause under the "false light" tort — when someone manipulates an image that leads a viewer to falsely assume a fact that's damaging to that person's reputation. Someone could also sue if their image is used for commercial purposes without that person's consent.

While Canada has stricter defamation laws than the U.S, truth and fair comment are still defences to defamation, said David Fraser, a privacy lawyer with the Halifax firm McInnis Cooper.

"Light-hearted comments about somebody dozing off or even making a reasonable assumption about the circumstances, that doesn't seem to be the sort of thing would rise to the level of defamation," he said.

But Fraser said other comments could be considered defamatory because it could harm the reputation of the individual in the minds of viewers.

"Somebody saying 'he's drunk' would be more likely to be defamatory than 'oh, it seems to me this guy is drunk,' " which Fraser said may be viewed as fair comment.

As for rights to privacy, Fraser said that as long as someone is in a public place where they are visible by the public at large or by a large enough number of invited people, they can't say they have a reasonable expectation of privacy.

"And that can be in a park, that can be on the street and that can be at a concert or another large venue," Fraser said. 

With files from The Associated Press


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