Bill Shаnkly said it most succinctly: “Some people think football is a matter of life and death ... I can assure them that it is much more serious than that.”
I. BACKGROUND
Mr. Shirley began as a coach in the League in 2000 and сontinued for nearly ten seasons, albeit with some volatility and controversy along the way. During the 2009 season, he coached the Pony League Wolverines to the brink of the League’s “Super Bowl.” But after the Wolverines’ playoff game on November 15, 2009, Maura Fitzgerald, a parent and a member of the Board, lodged a complaint with the Board about an altercation she claimed she witnessed between Mr. Shirley and a volunteer play monitor.
That evening, Mr. Shirley was notified of his suspension via e-mail (the “Notification”).
Because the Wolverines were scheduled to play in the League’s “Super Bowl” the following weekend, the Board granted Mr. Shirley an expedited appeal hearing on the evening of Friday, November 20 (the “Suspension Hearing”). As League rules provide, the hearing was open; only Board members were invited, but a few parents and coaches attended as well (all attendees were affiliated one way or another with the League). At the Suspension Hearing, Mr. Heckman again described Ms. Fitzgerald’s allegations. Mr. Shirley was allotted fifteen minutes to respond. He called two witnesses, Coaches Rick Silver and Brandt Mensch, and read a statement from Coach James Wilson, all of whom testified that Mr. Shirley did not engage in inappropriate conduct during the playoff game. Mr. Heckman then related a series of incidents involving Mr. Shirley that were reported to him by other Board members or spectators between 2002 and 2009, including: a co-coach disassociating himself from a team he coached with Mr. Shirley; an ongoing dispute with a parent involving repeated phone calls by both parties and a call from Mr. Shirley to the parent’s employer requesting that the parent be terminated for using company resources for personal business; an on-field verbal fight with a cheerleading coach; a verbal assault on a high school-aged referee during a flag football game; ejection from a pee-wee football game for foul language; rеpeated missed games and practices; and multiple instances of verbal abuse in the view of children. Mr. Shirley was given five additional minutes to respond and did so. At the conclusion of the hearing, the Board upheld the suspension.
Mr. Shirley then filed suit against Mr. Heckman and the
The appellees moved for summary judgment on Mr. Shirley’s remaining defamation claim. After a hearing, the circuit court found no genuine disрutes of material fact and that the appellees were entitled to judgment as a matter of law “by virtue of asserting the privilege of common interest or qualified privilege.” (Emphasis added.) The circuit court found that the common interest privilege raised a question of law, that the privilege applied, and that Mr. Shirley failed to demonstrate that Mr. Heckman or the League had abused the privilege. The court relied on Piscatelli v. Smith,
Mr. Shirley filed a motion to alter or amend the judgment that the circuit court denied. This timely appeal followed.
II. DISCUSSION
Although Mr. Shirley raises two issues in his brief,
There are absolute privileges to defamation, but the common interest privilege is not one of them. The common interest privilege is one of the four qualifiеd or conditional privileges to defamation
The common interest privilege shields a speaker against liability for defamation arising from statements “publish[ed] to someone who shares a common interest or, relatedly, published] in defensе of oneself or in the interest of others.” Dan B. Dobbs, The Law of Torts, § 413, at 1158 (2000). The privilege recognizes the broader public value in “promoting] free exchange of relevant information among those engaged in a common enterprise or activity and to permit them to make appropriate internal communications and share consultations without fear of suit.” Gohari v. Darvish,
Once the privilege is found or conceded to apply, the burden shifts to Mr. Shirley to prove that the appellees breached the condition to (or, interchangeably, abused) the conditional privilege. See Piscatelli,
Mr. Shirley argues that the appellees defamed him through two sets of statements, both published by Mr. Heckman, that described allegations of (mis)behavior by Mr. Shirley, and that he proffered evidence from which a jury could find that the appellees abused the privilege. In the first publicаtion, the Notification, Mr. Heckman explained the basis for the League’s decision to suspend Mr. Shirley in an email he sent to Mr. Shirley, the Board, the League Commissioner, and Mr. Wilson. The second publication occurred during the Suspension Hearing, when Mr. Heckman “made a verbal presentation to those assembled, listing a litany of ‘bad acts’ by [Mr.] Shirley as justification for the suspension.” The appellees
A. Mr. Shirley Failed To Produce Evidence That Could Support A Finding That Mr. Heckman Acted With Malice.
We take the second prong first. Malice, as defined by the Court of Appeals, requires proof of “a person’s actual knowledge that his [or her] statement is false, coupled with his [or her] intent to deceive another by means of that statement.” Piscatelli,
No case says so in so many words, but a careful reading of three opinions from the Court of Appeals reveals a collective holding that the Ellerin definition of malice determines whether a speaker has abused any of the conditional privileges to defamation. The first milestone is Marchesi v. Franchino,
The statements at issue here fall well short of demonstrating even a potential for malice undеr the Ellerin standard. In both instances, Mr. Heckman simply reported allegations that others lodged with the Board and the evidence on which the Board relied in deciding to suspend Mr. Shirley and to uphold the suspension. In the Notification, Mr. Heckman told Mr. Shirley (and the indisputably League-affiliated recipients) that “[i]t was reported that you were verbally abusive, used foul language and acted aggressively towards a volunteer play monitor,” and that the behavior was confirmed by Mr. Brodsky—he made no accusations of his own, or on behalf of the Board, and offered no views on the truth of the allegations. Mr. Shirley does not (and cannot) dispute that Ms. Fitzgerald submitted her complaint to the Board, nor does he contend that Mr. Heckman misstated, embellished, or otherwise misreported her account. In his capacity as Board President, Mr. Heckman published the Notification to a limited and relevant group of people sharing a common interest in the League and its processes, for the purpose of providing notice of the suspension to Mr. Shirley in the manner the League’s rules required. The minutes of the Board’s initial meeting and the depositions of Ms. Fitzgerald and Mr. Heckman confirmed the fact and substance of Ms. Fitzgerald’s complaint and that her
Mr. Shirley contends that “the court disregarded evidence that [Mr.] Brodsky asserted that he did not confirm the behavior described in the email.” But Mr. Brodsky sent his email after Mr. Heckman sent the Notification, so it could not have affected anyone’s views of the merits. Moreover, his argument misses the point: the Notification served a specific purpose under the rules of the League, i.e., to notify Mr. Shirley of the suspension and its bases and to advise him of his right to appeal. Mr. Shirley proffered no evidence that Mr. Heckman (mis)used the League’s notice rules to publish statements he knew to be false with the intent to deceive others—the record reveals only that the Notification disclosed the League’s initial decision to suspend Mr. Shirley and the allegations on which that decision was based.
Mr. Shirley’s allegations of malice arising from the Suspension Hearing suffer the same fate, for two reasons. Mr. Shirley produced no evidenсe from which a jury could find that Mr. Heckman knew that the reports of Mr. Shirley’s behavior were false or that his statements during the course of the Hearing were intended to deceive. At most, the record reveals competing evidence and differing points of view about Mr. Shirley’s behavior. Mr. Shirley produced two e-mails Mr. Heckman received in May 2007, in response to a League decision to censure Mr. Shirley, that disputed two then-Board members’ first-hand reports of Mr. Shirley’s behavior at a May 2007 flag football game.
B. Mr. Shirley Failed To Produce Evidence From Which A Reasonable Jury Could Find That Mr. Heckman’s Statements Were Made For A Purpose Outside The Common Interest.
Mr. Shirley also could have proven abuse of the common interest privilege by establishing that Mr. Heckman’s publications were “made for a purpose other than to further the social interest entitled to protection.” Gohari,
Again, the purpose of the common interest privilege is to promоte and protect the free exchange of information, and to allow those sharing the common interest to speak freely and defend themselves. The privilege contemplates that discourse •within the common interest could, and perhaps should, be
We hold that so long as they are not speaking or acting with malice, the League and individuals within its sphere of common interest are immune as a matter of law from liability for defamation arising from statements published in connection with the League’s disciplinary process, see Gohari,
Because Mr. Shirley failed to proffer evidence that could support a finding that the appellees abused the common interest privilege, either by establishing malice or that Mr. Heckman’s statements strayed outside the common interest, the circuit court correctly granted summary judgment in their favor.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. The Oxford Dictionary of Quotations 706 (Elizabeth Knowles ed., 5th ed., Oxford University Press 1999) (quoting Sunday Times (England), Oct. 4, 1981). Mr. Shankly, the manager of the Liverpool Football Club in England, spoke of course of the brand of "football’' that Americans call soccer. But his sentiment originated here in America and with our brand of football: wittingly or not, Mr. Shankly paraphrased UCLA football coach Henry Russell "Red” Sanders, who declared on the eve of a showdown with USC for a Rose Bowl bid that "[t]his game is not merely a matter of life or death ... [i]t’s more important than that.” Tommy Hart, Looking 'Em Over, Big Spring (Texas) Herald, Dec. 6, 1966.
. The play monitor assures that each child receives the minimum playing time required by League rules. The rules require that any players who have not played a minimum number of plays by the beginning of the fourth quarter must enter the game immediately and stay in the game until the minimum is fulfilled.
. Ms. Fitzgerald could not remember exactly what word was used, but, at her deposition, she stated that she was "pretty sure it was 'that's bullshit.' ”
. All but one Board member voted for suspension—the other voted to expel Mr. Shirley. During his deposition, Mr. Heckman explained that the Board considered reports of past misbehavior as well as the reports of the November 15 incident in deciding to suspend Mr. Shirley:
[Counsel for Mr. Heckman:] When you read a version of the prior reports that had been received by you or the board captured in Exhibit 3, was—were these episodes, prior reports, and complaints considered by the board during the initial decision to suspend?
[Mr. Heckman:] Yes.
[Counsel for Mr. Heckman:] And so were you giving Mr. Shirley information about what the board had considered to date in electing to suspend him when he read a version of Exhibit 3 at the appeal?
[Mr. Heckman:] Yes.
[Counsel for Mr. Heckman:] ... In the past reports and complaints received in Exhibit 3 and captured in Exhibit 3, when you gave Mr. Shirley notice of these prior reports and incidents as information to have been considered by the board, you were not acting as the arbitrator of fact or telling the board that these were facts that you had decided were true, were you?
[Mr. Heckman:] I was reporting what the board—previous board’s board members, other people had reported or discussed in board meetings.
. The Notification was sent as well to the head coach of the Wolverines, James Wilson, League Commissioner Craig Brodsky, and Board Members Ned Ahnell, Ralph Bernardo, Hillary Clagett, Christie Daley, Maura Fitzgerald, Kit Mays, Chuck Miller, Shane Neff, Andy Stefanelli, and Mike Zacks.
. Mr. Shirley also publicized his situation by sharing information about the lawsuit with the public through a blog and outreach to local news outlets.
. Mr. Shirley’s claims against the League alleged that Mr. Heckman acted as an agent of the League in connection with each statement.
. Mr. Shirley listed one question presented with two subparts:
1. Whether or not the lower court committed reversible error in awarding summary judgment to the Defendants on the count of defamation[.j
A. Whether or not the lower court erred in determining whether or not defamаtion occurred[.j
B. Whether or not the lower court usurped the function of the jury in determining whether or not any conditional privilege was destroyed!)]
. The four qualified privileges recognized at common law are:
*43 (1) The public interest privilege, to publish materials to public officials on matters within their public responsibility; (2) the privilege to publish to someone who shares a common interest, or, relatedly, to publish in defense of oneself or in the interest of others; (3) the fair comment privilege; and (4) the privilege to make a fair and accurate rеport of public proceedings.
Gohari v. Danish,
. See, e.g., Gohari,
. There is no evidence in the record supporting a finding that Mr. Heckman had heard any evidence disputing the eight other incidents relied upon by the Board in suspending Mr. Shirley prior to reciting those incidents at the hearing. Without such evidence, Mr. Shirley cannot establish that Mr. Heckman had any knowledge of falsity of those reports.
. During his deposition, Mr. Heckman was questioned at length by counsel for Mr. Shirley regarding a list of prior incidents that Mr. Heckman referenced during the Suspension Hearing. For each prior incident, Mr. Heckman explained the specific first-hand account he received.
. There is no dispute that the Notification and notice оf the Suspension Hearing were published in a manner consistent with the League’s rules. Mr. Heckman e-mailed the Notification only to the Wolverines’ coach, the League Commissioner, and to the Board. And under the League’s rules, any member of the public was entitled to attend the Suspension Hearing. Moreover, the audience was comprised entirely of individuals affiliated with the League—all parents who attended either were Board members (and thus invited) or attended on their own, not at the appellees’ invitation, a fact that both Mr. Heckman and Mr. Shirley acknowledged in their depositions.