Act One of “The Dark Side”?

Editor’s Note: This is the first of a series of columns Mr. Dean contemplates on the controversial investigative report by Al Jazeera Investigates.

On December 27, 2015, at 9 PM that Sunday night, Al Jazeera America, the struggling news channel owned and funded by the government of Qatar, dropped a news bomb. They broadcasted an astonishing exposé titled “The Dark Side: Secrets of the Sports Dopers” that accuses a half dozen leading professional American athletes of using performance enhancing drugs. Directly or indirectly the explosive documentary appears to implicate a who’s who of elite American athletes: quarterback Peyton Manning of the Denver Broncos, first baseman Ryan Howard of the Philadelphia Phillies, infielder Ryan Zimmerman of the Washington Nationals, former shortstop Derek Jeter of the New York Yankees, former boxing champion Mike Tyson and linebacker James Harrison of the Pittsburgh Steelers. If true, Al Jazeera America has issued a damaging indictment of American professional sports.

If true—that is the operative qualifier. Buzz about the program, and its charges, started on Saturday, December 26, when Al Jazeera posted the program to be later broadcast on YouTube, and also provided it to The Huffington Post. From the start, however, the buzz was confusing, raising fundamental credibility questions. The key source for this “investigative report” by Saturday, December 26, had recanted all the charges he had made when he was secretly video recorded for some twenty-seven hours over many days by Al Jazeera. He appears to be the sole source for some of the show’s most explosive charges.

The news of the charges quickly focused on NFL quarterback Peyton Manning, who currently plays with the Denver Broncos. According to Al Jazeera’s source, Charlie Sly, a former pharmacy intern at an anti-aging clinic in Indianapolis, the city where Manning played with the Colts until 2011 when he underwent two neck surgeries that sidelined him for the entire season, human growth hormones (HGH), an NFL banned substance, had been mailed from the clinic to Manning’s wife in Florida. Sly suggested this was a ruse, and added, “Another time I worked with Peyton, him and his wife would come in after hours and get IVs and shit.”

Charlie Sly was sharing this information with a man pretending, in the program, to be interested in performance enhancing drugs: Liam Collins, a 37-year-old former UK champion hurdler, who was looking for a last hurrah at the next Olympics. In fact, Liam Collins was working as a mole for Al Jazeera, using undercover cameras to capture and record the dark side of elite sports—the business of doping. With Sly it seems Al Jazeera thought they hit a jackpot, and built the program with his charges as the centerpiece.

I watched as much as I could of the program online. It reeks of sleaze, which surprised me because other reports I had watched on Al Jazeera were respectable journalism. The narrator of “The Dark Side,” and apparently the principal investigative journalist who assembled it, is Deborah Davies, who lays out the ugly story interspersed with conspicuously surreptitious video footage of obviously illicitly recorded conversations. Ms. Davies reports it all with her matter-of-fact clipped British accent.

Before watching the program I had read of the charges against Peyton Manning, his denial, and that Charlie Sly had recanted everything he had told Liam Collins. I have an ongoing interest defamation of public people and how they deal with these situations given the fact that American law has all but abandoned them. When Manning first responded, he was talking about “probably” suing. As a number of mainstream sports journalists mentioned, had Manning said nothing—since Sly had recanted—they would not even have reported the story. See, for example, Mike Florio’s report for NBC Sports, who explained that had Manning said nothing he would have passed on the story, but he proceeded to point out the perils of such a lawsuit.

On December 31, 2015, USA Today headlined the matter: “The reasons why Peyton Manning, others probably won’t sue Al Jazeera over report.” This piece by A.J. Perez reported that Phillies first baseman Ryan Howard had “threatened legal action,” and Steelers linebacker James Harrison “talked it over with his legal team” and had decided “it may cost more than what it’s worth.” Perez talked to an attorney, Arthur Whang, about the difficultly for any of these men—all of whom are public figures in the eyes of American defamation law so they must meet a very high standard of proof. While Whang appears to have explained the California law to USA Today, the report made the point that such lawsuits are “rarely successful.” (Actually, California law is even more difficult for public figures than the federal standard (that arises from the U.S. Constitution) that applies in all states because not only must a public figure (or official) plaintiff prove the statement(s) was made knowing it was false or with reckless disregard to as to whether it was true or false, the federal standard, but in California apparently you must also show animus and intent to harm in making the statement.)

Actually, given the fact that Charlie Sly recanted on his most sensational charges before the broadcast suggests that this material was broadcast knowing it was false, or with reckless disregard regarding its truth or falsity, which would meet the constitutional standard with overwhelming clear and convincing evidence. In what appeared an effort to head off a lawsuit, on January 4, 2016, Deborah Davies, the reporter responsible for the story, appeared on CNN’s “Reliable Sources,” to explain that, in fact, Charlie Sly, was not her only source on Peyton Manning. Rather she had what she called an “impeccably placed” confidential source, who confirmed HGH was “repeatedly sent to Ashley Manning, [Peyton’s wife], in Florida and other places in the U.S.” Why wasn’t this mentioned in the program? Ms. Davies did not really have a good answer. But she said she had not finished reporting on this subject.

Indeed, that is true. She has been sued in federal court in the District of Columbia where she lives. Washington Nationals ace infielder Ryan Zimmerman, represented by Quinn Emanuel Urquhart & Sullivan, filed a 24-page complaint against Al Jazeera America, Deborah Davies, and Liam Collins on January 5, 2016. That same day, in a clearly coordinated action, Ryan Howard, represented by Miller & Chevalier, Chartered, filed a 25-page complaint against the same group. As I write, the cases have yet to be assigned a judge.

I have read a lot of defamation/slander complaints over the past twenty years, and I am not unfamiliar with this esoteric body of law, and the difficulties it presents for public figures like Ryan Zimmerman and Ryan Howard. Both men are represented by sophisticated counsel, and have been told downsides, and limits of the upsides. Not only have these lawsuits filed for damages (which could run in the millions), but they have sought a retraction. Al Jazeera did not air “The Dark Side” without seeking legal advice. They are represented by Davis Wright Tremaine, and they were put on notice before airing the program. This is not merely an interesting legal battle brewing, but a real test of American defamation law. If “The Dark Side” was not a smear job, I do not know what it could be called. The question is whether Al Jazeera, Deborah Davies, and her puppet Liam Collins can get away with it.

Airing “The Dark Side” was the first act of a battle that is just starting. I will be back with more.