ORDER
This is аn action claiming defamation. Following the widely publicized departure
Presently before the Court is the Defendants’ Motion to Dismiss [ECF No. 25]. The Court has carefully сonsidered the Complaint, the Wells Report, the briefs and arguments of counsel, and the applicable law. For the reasons that follow, the Court finds, that none of the challenged statements contained in the Wells Report are actionable for defamation, and no omission or juxtaposition of any facts gives rise to a claim of defamation by implication. Consequently, the Defendants’ motion shall be granted.
I. BACKGROUND
A. Turner’s Career
According to the allegations in the Complaint, Turner attended Boston College, where he played as a fullback for the Boston College Eagles football team and served as team captain during the 1987 college football season. Compl. ¶ 18. Following his graduation from Boston College, Turner played semi-professional football for a brief time before turning his attention to coaching, beginning with a position as an offensive coach for his former high school team in Braintree, Massachusetts, and as offensive coordinator for an English semi-professional team. Id. ¶19. In 1990, Turner joined the United States Marine Corps and became a platoon commander and operations officer, serving for four years in the Middle Eastern, Asian, and European theaters. Id. ¶ 20. He was honorably discharged in 1994 and returned to coaching football. Id. ¶21. Between 1994 and 2011, Turner held various coaching positions at Northeastern University, Louisiana Tech University, Harvard University, Temple University, the University of Delaware, and Texas A&M University before being hired as the Dolphins’ offensive line coach for the 2012 Season, where he remained until his termination in February 2014. Id. ¶ 21-22.
B. Martin’s Departure from the Dolphins and the Defendants’ Investigation
On October 30, 2013, the national sports media began reporting that Martin had “gone AWOL” from the Dolphins after a cafeteria “prank” by his teammates. Id. ¶ 31. One commentator reported that the incident was the “final straw” for Martin and, as a result, Martin had checked himself into a treatment facility. Id. Over the following days, reports began to surface containing allegations that Martin had
On November 6, 2013, NFL Commissioner Roger Goodell announced that the NFL had retained Paul, Weiss to conduct “an independent investigation” led by Wells “into issues of workplace conduct at the Miami Dolphins” and to “prepare a Report for the commissioner,” which would be made public. Id. ¶¶ 2, 33-34 (internal quotation marks omitted). During the course of the investigation, Wells and other Paul, Weiss partners, associates, and paralegals interviewed current and former Dolphins players, Dolphins coaching staff, and front office personnel; reviewed emails and text messages between Martin and his teammates and coaches; and interviewed Martin’s parents, his agent, and his former teammates and coaches at Stanford University. Id. ¶ 36. Turner was interviewed twice during the investigation. The first interview was conducted in person in November 2013 between Wells, two other members of his team, Turner, and a member of the Dolphins’ legal staff. Id. ¶ 39. The second interview was conducted via Skype the following month; Turner characterizes this interview as “more accusatory” than the first, with Wells’s questioning taking on a “suggestive and aggressive tone,” which caused Turner to feel “uncomfortable and defensive.” Id. ¶ 43.
C. The Wells Report
On February 14, 2014, the Defendants publicly released the report of the investigation, ie., the Wells Report. Id. ¶ 45. Over the course of its 144 pages, the Wells Report found that several Dolphins players subjected Martin to “persistent harassment,” making insulting and derogatory comments about Martin and his family, which “contributed to Martin’s decision to leave the team.” Id. (quoting Compl. Ex. A (“Wells Report”) at 4) (internal quotation marks omitted). It also found that Dolphins players and coaches created a culture that both encouraged this bullying and harassment and discouraged Martin from seeking help from coaches or management without being considered a “snitch” or a “traitor.” Id. ¶ 49. Ultimately, it concluded that “the treatment of Martin and others in the Miami Dolphins organization at times was offensive and unacceptable in any environment, including the world professional football players inhabit.” Id. ¶ 45. (quoting Wells Report at 5) (internal quotation marks omitted). Five days after the Wells Report was released, the Dolphins fired Turner. Id. ¶ 48.
Turner points to four passages pertaining to him within the Report that he alleges contain false and defamatory statements. He alleges that “the Defendants accused [him] of: [1] participating in the ‘harassment’ of a Dolphins player who teammates often joked was gay (though he was not); [2] establishing a so-called ‘Judas Code’ under which players were not supposed to ‘snitch’ on teammates or they could face a fíne; [3] knowing about the bullying and harassment directed at Martin but failing to take any action to stop it; and [4] improperly pressuring Martin publicly to defend Incognito after Martin quit the team.” Id. ¶ 47.
1. The “Blow-Up Doll” Incident
The Report asserts that “Player 1” (ano-nymized in both the Report and the Complaint),
The Report contends that Turner “was aware of the running ‘joke’ that Player [1] was gay, and on at least one occasion, he participated in the tаunting.” Id. at 20. Specifically, during the 2012 holiday season, Turner gave the offensive linemen stockings filled with gifts, including a CD of music and a copy of the book Men Are from Mars, Women Are from Venus. Compl. ¶ 80. Turner alleges that the purpose of the gifts was to encourage the players to work on their relátionships with their significant others. Id. He also warned the players that if they did not learn to improve their relationships with people outside football, those relationships might not last. Id. To that end, he presented each player with a female “blow-up doll.” Id. Each player, that is, except Player 1, to whom Turner gave a male blow-up doll. Id. ¶81. Martin told the Defendants he was surprised Turner made, this gesture to Player 1, and he was offended that Turner “endorsed the humiliating treatment of Player 1 by participating in it.” Id. (quoting Wells Report at 20).
According to the Report, “When interviewed, Turner was asked if he. gave Player [1] a male blow-up doll. He replied, T can’t remember.’ We do not believe that Turner forgot this incident, which many others recalled.” Wells Report at 20. According to Turner, the Defendants did not ask him about the incident during the first interview, but rather waited until the second, “purposely confrontational and accusatory” interview to ask. Compl. ¶89. When asked about the incident, Turner questioned its relevance to Martin’s decision to leave the team and, in the face of the Defendants’ aggressive tone, dismissed the doll question as irrelevant and accusatory. Id.
Turner alleges that the genesis of the “joke” of the male blow-up doll was that Player 1 did not have success dating women. Id. ¶ 85. “Thus, giving Player 1 the male doll was intended as a joke and was in the same spirit as the rest of the gift exchange” and “in no way expressed cruelty or homophobia on Turner’s part.” Id. Turner states that the Defendants failed to include that Player 1 viewed the gift as a joke and did not view the prank as malicious “in any way.” Id. ¶ 86 (internal quotation marks omitted). According to Turner, Player 1 himself believes that the Defendants portrayed the incident out of context, and Player 1 released a statement on national television to that effect. Id. Turner claims that “[i]n light of the nearly universal view that Turner’s gift was an inoffensive joke enjoyed by those present, and particularly in light of the fact that Player 1 himself was not offended by the episode, an impartial analysis could only conclude that Turner did not behave inappropriately with respect to this incident.” Id. ¶ 87.
2. The Existence of a “Judas Code”
Turner next alleges that Defendants falsely accused him of “establishing a ‘Jut das Code’ by which an offensive lineman could be fined and branded a ‘Judas’—a reference to the Biblical Judas who betrayed Jesus Christ and meaning, in this
The Report states that Martin claimed that a general code against “snitching” exists in footbаll and that he did his best to honor that rule. Wells Report at 37. It continues: “[t]he Dolphins offensive line enforced this general prohibition with their own peculiar rule—the so-called ‘Judas’ code, which was buttressed by the imposition of fines ....” Id. As an example of this rule in action, the Report provides that “if Coach Turner, while watching game film footage, criticized a lineman for missing an assignment, and that lineman pointed out that one of his teammates was actually at fault, that lineman might be labeled a ‘Judas,’ which could result in a fellow player imposing a fíne.” Id. at 37-38. The Defendants reported that multiple offensive lineman were familiar with the “Judas” concept and had told the Defendants that Turner had discussed the concept with them. Id. at 38. The Report states that Turner denied hearing the term “Judas” or “Judas fíne” in the offensive line locker room and denied lecturing the offensive linemen on the meaning of the term “Judas.” Id. But the Report ultimately discredits Turner’s denials and finds that “[t]he evidence shows that Turner was aware of the ‘Judas’ concept and ... he had discussed its meaning with the linemen, explaining how Judas had betrayed Jesus Christ and defining Judas as a ‘snitch.’ ” Id.
Regarding Martin, the Defendants reported that he believed that going to his coaches or other authority figures “meant risking ostracism or even retaliation from his fellow linemen.” Id. On this issue, the Report concludes: “We accept that the fear of being labeled a ‘snitch’ or a ‘Judas’ played a role in Martin’s decision not to report abuse from his teammates.” Id. The Defendants also state that “the better course of action would have been for Martin to report the abuse,” and that they “strongly believe[d]” that had Martin reported the harassment to a coach, front office executive, or his agent, the team could have addressed his issues before it was too late. Id.
In his Complaint, Turner alleges that he had no role in creating or implementing the offensive line’s fine system. Compl. ¶ 92. He also alleges that the facts do not support the Defendants’ conclusion that his occasional use of the term “Judas” “to describe situations in which one of his players transferred responsibility for an on-field error to another player impacted Martin’s behavior.” Id. ¶ 96. By ignoring the evidence when analyzing the “code” and by falsely connecting his “use of the term ‘Judas’ to Martin’s failure to report issues he may have had with his teammates,” Turner alleges that the Defendants “falsely accused [him] of playing a role in Martin’s emotional struggles and decision to leave the Team.” Id. ¶ 99.
3. “Insulting Comments” Regarding Martin’s Sister
Turner also alleges that the Defendants falsely accused him “of hearing or learning about ‘insulting comments’ directed toward Martin yet fail[ing] to take action to stop it.” Id. ¶ 102. Specifically, the Report details how Incognito, Jerry, and Pouncey made several crude sexual remarks about Martin’s sister both orally and via text message to Martin. See Wells Report at 9-11, 13, 16, 32-33, 44, 71-76. Martin told the Defendants that he was “particularly offended” by these comments, but his obvious discomfort only increased the frequency and intensity of the remarks. Id. at 10. The Report found, based on the evidence,
Regarding Turner, the Report states: “[Martin] said that these comments at times were made in the presence of Coach Turner, who neither participated nor urged his teammates to stop.” Id. at 74. The Report also states, “Martin claimed that both of his offensive line coaches, Turner and [Chris Mosley, the Dolphins former assistant offensive line coach], overheard some of the raunchy comments about his sister in the offensive line room or on the practice field. ... According to both Martin and Incognito, Turner neither joined nor criticized the harsh language. Also, both Martin and Incognito said they thought Turner was a good coach.” Id. at 44. The Report concludes: “[W]e find that Coaches Turner and Mosley were certainly aware of some of the insulting comments directed to Martin by Incognito, Jerry[,] and Pouncey, although we cаnnot determine the full extent of that awareness and whether they had any appreciation of how hurtful this language was to Martin. It is undisputed that these coaches never sought to stop the behavior.” Id. at 45.
4. Text Messages between Turner and Martin
Beginning on November 2, 2013, after Martin left the Dolphins, Turner and Martin engaged in a text message discussion of the media’s coverage of Martin’s departure from the team:
November 2, 2013
TURNER: Richie Incognito is getting hammered on national TV. This is not right. You could put an end to all the rumors with a simple statement. DO THE RIGHT THING. NOW.
MARTIN: Coach. I want to put out a statement. Believe me I do. This thing has become a huge story somehow. But I’ve been advised not to ... And I’m not supposed to text anyone either cuz last time I responded to a teammate (Richie) I was intentionally manipulated and the conversation was immediately forwarded to a Reporter.
TURNER: He is protecting himself. He has been beat up for 4 days. Put an end to this. You are a grown man. Do the right thing.
'TURNER: John I want the best for you want your health but make a statement and take the heat off Richie and the locker room. This isn’t right.
November 3, 2013
TURNER: I know you are a man of character. Where is it?
November 6, 2013
TURNER: It is never too late to do the right thing!
Compl. ¶ 108 (quoting Wells Report at 46-47). Upon review of this conversation, the Defendants “accepted] that Turner may have believed in good faith that Incognito was being unfairly attacked by the media, but he should have realized that it was inappropriate to send such text messages to an emotionally troubled player.” Wells Report at 47. The Report concludes: “We
Turner alleges that the Defendants omitted materially relevant information pertaining to the context of these communications and that by doing so they “ereat[ed] a false impression of Turner’s motivations for reaching out to Martin.” Compl. ¶ 110. Turner contends that the Defendants knew, but purposely ignored, that Martin and Incognito were close friends and that Turner believed Martin did want to release a statement defending his friend but that a third party was advising (or directing) Martin not to do so. Id. ¶ 112. According to Turner, his messages to Martin “reflect not only a concern for Incognito’s unfair treatment by the press but also his concern for Martin and his health, and for the other players who were being caught in the media frenzy.” Id. ¶ 114.
D. Procedural History
Turner filed suit in this Court on September 2, 2015. In his Complaint, he alleges three theories of defamation against Wells and Paul, Weiss: (1) defamation per se; (2) common law defamation based on actual malice, recklessness, or negligence; and (3) defamation by implication. The Defendants moved to dismiss the Complaint in its entirety on October 28, 2015. The motion was briefed, and the Court held oral argument on the motion on May 4, 2016.
II. LEGAL STANDARDS
A. Motion to Dismiss
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” meaning that it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
B. Defamation
The parties do not dispute that Florida law should govern the analysis of Turner’s claims. Under Florida law, defamation is generally defined as “the unprivileged publication of false statements which naturally and proximately result in injury to another.” Wolfson v. Kirk,
True statements, ie., statements that are not capable of being proved false, and statements of pure opinion are protected from defamation actions by the First Amendment. See, e.g., Keller v. Miami Herald Publ’g Co., 778 F,2d 711, 717 (11th Cir.1985). Whether the statement is one of fact or opinion and whether a statement of fact is susceptible to defamatory interpretation are questions of law for the court. Fortson v. Colangelo,
1.Falsity
“A false statement of fact is the sine qua non for recovery in a defamation action.” Hallmark Builders, Inc. v. Gaylord Broad. Co.,
2.Pure Opinion
A statement is pure opinion, as a matter of law, “if the speaker states the facts on which he bases his opinion.” Lipsig v. Ramlawi,
3.Defamation by Implication
The Florida Supreme Court recently recognized the tort of defamation by implication. Under this theory, the defendant may be held responsible for a defamatory implication if the defendant “[1] juxtaposes a series of facts so as to imply a defamatory connection between them, or [2] creates a defamatory implica
That said, “[a]ll of the protections of defamation law that are afforded to ... private defendants are ... extended to the tort of defamation by implication.” Id. Notably, if a defendant creates a defamatory implication by omitting facts—as Turner alleges here—that defendant “may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.” Id. (emphasis added). In other words, because the language specifically carves out an exception for opinions, if the Court determines that any of the Defendants’ statements are in fact pure opinion, then the question of whether the Defendants created a defamatory implication by omitting facts from the Wells Report is irrelevant.
III. DISCUSSION
A. Statements and Omissions Pertaining to the Blow-Up Doll Incident
Turner challenges two statements in the Defendants’ recitation of the blow-up doll incident: (1) that he “participated in the taunting” of Player 1, Wells Report at 20; and (2) that the incident was “part of a pattern of abusive, unprofessional behavior that ultimately undermined the offensive line and hurt the team,” id. at 21. He argues that each of these statements is a false statement of fact. He also alleges that the Defendants defamed him by implication by omitting “crucial information” demonstrating that Turner “did not ... participate in any taunting, that Player 1 did not find anything Turner said or did to be abusive or offensive, and that Turner said or did nothing which, by any objective standard, was abusive or offensive.” PL’s Opp’n at 12.
1. “Participated in the Taunting”
a. Pure Opinion, Despite Allegedly Omitted Facts
It is well settled in Florida that “[c]ommentary or opinion based on facts that are set forth in the article or which are otherwise known or available to the reader or listener are not the stuff of libel.” Rasmussen v. Collier Cnty. Publ’g Co.,
Here, the facts upon which the Defendants relied in making the challenged statement were each laid out in the Report:
(1) During Player l’s time with the Dolphins, Incognito, Jerry, and Pouncey often called Player 1 homophobic slurs in a demeaning tone. Wells Report at 19.
(2) Incognito reportedly accused Player 1 of performing oral sex on men and urinating while sitting down. Id.
(3) Incognito reportedly asked Player 1, “[Wjhere’s your boyfriend?” Id.
(4) Incognito acknowledged that Player 1 was spoken to in this matter “every day from everybody, high frequency.” Id.
(5) Incognito and others admitted that Incognito, Jerry, and Pouncey routinely touched Player 1 in a mockingly suggestive manner, including on his rear end, while being taunted about his supposed homosexuality. Id.
(6) Turner was aware of the running “joke” that Player 1 was gay. Id. at 20.
(7) During the 2012 holiday season, Turner gave every offensive lineman except Player 1 a female blow-up doll as a gift. Id.
(8) Turner gave only Player 1 a male blow-up doll. Id.
(9) Incognito and оthers reported that this event transpired. Id.
(10) When interviewed, the Defendants asked Turner if he gave Player 1 a male blow-up doll. Turner replied, “I can’t remember.” Id. ■
The Report concludes, based on these outlined facts—none of which Turner disputes—that Player 1 was taunted by his teammates for being gay and that, in giving a male blow-up doll only to Player 1, Turner “participated in the taunting” of Player 1. Id. at 20.
Turner hones in on this phrase specifically, arguing that because he intended the gift of the male blow-up doll as a joke, the Defendants’ assertion that he “participated in the taunting” is necessarily a false statement of fact. Turner, in essence, urges this Court to look at this phrase in a vacuum, uncoupled from the surrounding facts. But to make the determination of whether a statement is pure opinion, a court “must construe the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication” and “must consider the context in which the statement was published and accord weight to cautionary terms used by the person publishing the statement.” Hay,
Construing the entire section devoted to the treatment of Player 1 (contained on pages 19-22 of the Wells Report), including the blow-up doll incident, in its totality, it is obvious to the Court that the Defendants presented the facts regarding Player 1 and regarding Turner at the same time as they offered their independent commentary on those facts, which mandates the characterization of that commentary as pure opinion. See Zambrano,
Turner also argues that the Defendants omitted several facts from this section of the Report: (1) Turner did not give Player 1 the male blow-up doll “as a taunt regarding supposed homosexuality but as a tongue-in-cheek play on the fact that Player 1 notoriously had little success with dating women,” Pl.’s Opp’n at 12 (citing Compl. ¶ 85); (2) Player 1 described Turner as a “great coach,” a “great man,” and a “great father,” id. (quoting Compl. ¶ 86); (3) Player 1 did not perceive Turner as participating in taunting or abusive conduct, “nor did anyone else (except perhaps Wells apparently),” id.; (4) Dolphins players and coaches “uniformly contended that the joking and taunting that occurred amongst Dolphins players and coaches was not pervasive, excessive or any different from what they had experienced in other football locker rooms,” id. (citing Compl. ¶¶ 54, 59). Based on these omissions, Turner contends that the Defendants’ recitation of facts was incomplete and their assessment of the facts was erroneous because it “presented the gag as a statement of fact that Turner engaged in derogatory conduct” and, thus, the conclusion drawn from these facts is not opinion. Id.
In making this contention, Turner relies on a statement, originally appearing in the
In Milkovich, the plaintiff, Milkovich, a high school wrestling coach, brought suit against a newspaper, arguing that the newspaper had defamed him in an “opinion column” in its sports section. The column contained the accusation that Milkovich hаd perjured himself in testimony to a state court concerning his role in an altercation at a wrestling meet between his team and an opposing team, after he had previously given conflicting testimony before the board of the Ohio High School Athletic Association (OHSAA); The challenged passage read, “Anyone who attended the meet ... knows in his heart that Milkovich ... lied at the hearing after ... having given his solemn oath to tell the truth.” Id. at 5,
The dispositive question in Milkovich was not, as Turner seems to argue, simply whether the author left out facts that may have painted the plaintiff in a more positive light, but rather “whether a reasonable factfinder could conclude that the statements in the ... column imply an assertion that [he] perjured himself in a judicial proceeding,” which itself is an objectively verifiable assertion.
By contrast, the Defendants’ characterization of Turner giving the male blow-up doll to Player 1 as “participat[ion] in the taunting” of Player 1 is not objectively verifiable. Whereas one can determine with resort to empirical proof whether a plaintiff perjured himself in a judicial proceeding, whether a governmental department reported a certain fact, whether a plaintiff was committing medical child abuse, or whether a plaintiff was a gay prostitute, the subjective assertion that Turner’s purchase of the male blow-up doll for Player 1 constituted “participation] in the taunting” of Player 1 is not “an articulation of an objectively verifiable event.” Milkovich,
b. No “Positive Light” Facts Required
The Defendants are not required, as Turner argues, to have included facts in the Report that would have painted Turner in a more positive light because the facts they did include were truthfully and accurately reported, and the omitted facts did not create a defamatory implication. In Janklow v. Newsweek, Inc.,
Although the Janklow litigation dealt specifically with claims of defamation against a magazine, its teachings are no less applicable here. A publisher need not include facts in a réport simply because they reflect favorably on a subject; nor should that publisher feel coerced into including such facts out of fear of a defamation lawsuit. See Miami Herald Publ’g Co. v. Tornillo,
. Let us not forget, the Wells Report concerned workplace misconduct in the Miami Dolphins organization, especially as it related to the departure of Jonathan Martin from the team. It was not a report on Turner. The Defendants used their discretion in deciding not to include facts they deemed not relevant to their investigation or its conclusions, including Turner’s statements about other teams’ locker rooms, Player l’s statement that he viewed the male blow-up doll as a “joke,” or Player l’s opinions of Turner as a coach or father. See Perk v. Reader’s Digest Ass’n,
In sum, the Court finds that the Defendants’ conclusion that Turner participated
2. “Abusive, Unprofessional Behavior”
The Court finds no merit in Turner’s allegation that the Defendants’ conclusion that the blow-up doll incident was part of a “pattern of abusive, unprofessional behavior” is a false statement of fact. Numerous courts -have held in various circumstances that a defendant’s characterization of a plaintiffs actions as “unprofessional” is nonactionable pure opinion. See, e.g., Varughese v. Mt. Sinai Med. Ctr., No. 12-8812,
While the Defendants’ statement that Turner’s behavior, along with the behavior of several other players and coaches, was unprofessional “might not reflect the same conclusion that other individuals would reach when considering [the plaintiff]’s behavior, ... they are clearly not provably false.” Hupp v. Sasser,
Furthermore, the Defendants’ characterization of the various taunting incidents as “abusive .., behavior” is also pure opinion. The Defendants disclosed true facts at the same- time they provided their independent commentary on the incident, and their judgment that the blow-up doll incident, along with the other incidents, was “abusive” is not an objectively verifiable statement. See Glaze v. Marcus,
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Accordingly, the Defendants’ motion to dismiss Turner’s defamation claims, to the extent those claims rely on any of the statements or omissions in the Wells Report surrounding the blowup doll incident, is granted.
B. Statements and Omissions Pertaining to the “Judas Code”
1. No False Statements of Fact
In his Comрlaint, Turner alleges that the Wells Report falsely states that he “establish[ed] a ‘Judas Code’” and that “this fictional ‘code’ prevented Martin from reporting the ‘abuse’ to which he was allegedly subjected by his teammates.”
The NFL permits players to establish so-called “kangaroo courts” under certain conditions; for example, any money they collect must be put to a common team-oriented purpose, such as a postseason party. Around the beginning of the 2013 season, the Dolphins offensiv⅛ linemen established such a system, and began to impose fines on each other for a variety of trivial offenses .... Incognito and Pouncey, as the leaders on the line, imposed many of the fines, but other linemen also proposed penalties. The fine book was often maintained by Incognito ....
Sometimes, a fine would be levied on a lineman for acting like a “Judas,” meaning a traitor or snitch. For example, if Coach Turner, while watching game footage, criticized a lineman for missing an assignment, and that player pointed out that his teammate was actually at fault, that player might be labeled a “Judas,” which could result in a fine. Multiple offensive linemen were familiar with the “Judas” concept and told us that it had been referenced in discussions with Coach Turner. When we interviewed Turner, however, he denied knowing what the term “Judas” meant in the context of the. Dolphins offensive line. He said, “I’ve never heard ‘Judas fine’ in my rоom,” and denied hearing any other references, to “Judas” in the offensive line room. He also denied lecturing players on the meaning of the term. The evidence shows, however, that Turner was aware of the “Judas” concept, and that he discussed its meaning with a number of linemen, even explaining how the biblical Judas had betrayed Jesus Christ and so became a “snitch.” Further, Coach Mosley informed us that it had been Turner who introduced the idea of the “Judas fine” to the offensive linemen.
Wells Report at 121-22 (emphasis added). Regarding Martin, it states:
Martin interpreted the “Judas fines” concept as confirming that “snitching” was contrary to the team ethic. He said that it discouraged him from complaining to anyone in the Dolphins organization about the conduct of his teammates.
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We accept that the fear of being labeled a “snitch” or a “Judas” played a role in Martin’s decision not to report abuse from his teammates. Martin believed that going to his coaches or other authority figures meant risking ostracism or even retaliation from his fellow teammates.
Id. at 122, 38.
The Court finds there is no false statement of fact here to support a claim of defamation. Although courts are directed to accept a plaintiffs allegations as true in ruling on a motion to dismiss, they are “not bound to accept the truth of general allegations in a complaint where they are contradicted by specific factual details in attached exhibits.” Michel v. NYP Holdings, Inc.,
Moreover, Turner’s allegation that the Defendants falsely stated that the Judas Code “prevented” Martin from reporting the abuse is likewise directly contradicted by the Report, which states that Martin believed that “snitching” was contrary to the team ethic and that being labeled a “snitch” or a “Judas” played a role in Martin’s decision not to report abuse. Wells Report at 122, 38; see also id. at 37 (“Martin claimed that there is a general code in football against ‘snitching’ on fellow players and that he did his best to honor that rule.”). It is clear from the Reрort that the Defendants credit Martin’s fear of being labeled as a snitch as contributing to his failure to report the abuse to his coaches, not that the Judas Code prevented him from doing so.
2. No Defamation by Implication through Juxtaposition of Facts
Turner also contends that the Defendants “falsely juxtapose[ed] facts about Turner’s occasional use of the term ‘Judas’ with the offensive line’s fine system,” which resulted in the defamatory implication that Turner “created and emphasized a ‘Judas code’ against snitching and, further, that it was an important factor in Martin not being forthcoming with the Team about his sensitivities.” Pl.’s Opp’n at 14.
A review of applicable case law establishes that claims based on a false juxtaposition of facts must rely on more than a “tortured and extreme” reading of select facts, Nelson v. Associated Press, Inc.,
Crane said he and Henderson talked about the allegations, the House request for an investigation and the Justice Department probe of them. He said Henderson told him Van[n] is “a kook.”Henderson, however, told The Republic he was not aware that specific allegations have been made against him, Crane or the strike force, that he had not talked to Crane about them and that he did not know that the House committee had requested an investigation by the Justice Department.
“This is all news to me,” he said.
Id. at 1522. The newspaper did not dispute that the inconsistency in these statements was attributable to the fact that the reporter spoke with Henderson nearly two months before he spoke with Crane, and Henderson and Crane had conferred in the interim. The Ninth Circuit agreed with the plaintiffs that, by juxtaposing the statements in this way, рlacing a discussion of the later interview prior to the discussion of the earlier interview, while providing no explanation for the direct contradiction between the two individuals’ statements, the newspaper “falsely conveyed the message that either Crane or Henderson lied to the reporter.” Id.
Second, in McBride v. Merrell Dow & Pharmaceuticals Inc.,
[The experts’] data, said scientists who attended the meeting, were hardly convincing. [An] FDA panel member ... said that “As far as I’m concerned, the purpose of the hearing was to objectively view the scientific data. None of these people brought anything other than special pleading.”
■ These expert witnesses included William McBride ... who was paid $5,000 a day to testify in Orlando. In contrast, [Mer-rell Dow] pays witnesses $250 to $500 a day, and the most it has ever paid is $1,000 a day.
Id. at 1462. The D.C. Circuit held that the juxtaposition of the true statement that McBride received $5000 per day for his expert testimony on behalf of the civil plaintiffs alongside the also-true statement that Merrell Dow paid a much lower amount for expert testimony could, sufficiently to withstand a motion to dismiss, support the implied defamatory meaning that the plaintiffs’ case “was so weak they had to pay that much to get any expert to testify, and hence that Dr. McBride’s testimony was for sale.” Id. at 1465.
None of Turner’s allegations regarding the Defendants’ statements in the Wells Report vis-á-vis the fine system or the “Judas” concept even closely approximate the direct contradiction at issue in Crane or the stark juxtaposition of objectively true statements at issue in McBride. See also, e.g., Golden Bear Distrib. Sys. of Tex., Inc. v. Chase Revel, Inc.,
“A statement is not dеfamatory unless the ‘gist’ or the ‘sting' of the statement is defamatory.” Rubin v. U.S. News & World Report, Inc.,
The Court is hard-pressed to discern what arguably defamatory statement could reasonably follow from the facts about the fine system or the “Judas” concept. The Court dоes not accept Turner’s “tortured and extreme” interpretation that the Defendants somehow implied that Turner “created,” “established,” or “emphasized” the fine system, in direct contradiction to the Report’s actual text, which fully attributes the creation, establishment, and emphasis of the fine system to the Dolphins players. The same goes for Turner’s interpretation that the Defendants implied that he imposed fines for snitching, as the Report makes clear that only the players imposed fines, or that he established a “Judas Code” against snitching, as the Report specifically states that Martin believed that the rule against snitching was a “general code” that operated throughout professional football.
Finally, Turner argues that the Defendants, “[i]n referencing the ‘Judas Code’ ..., omitted pertinent information,” namely, that he reached out to Martin following Martin’s failure to attend team workouts in May 2013, encouraged Martin to explain what bothered him, and brought Martin’s struggles to management’s attention. Pl.’s Opp’n at 15. It is confusing what precisely this “omitted pertinent information” has to do at all with the Defendants’ discussion of the fine system, but, regardless, as Turner admits in the same sentence of his brief, the Defendants included each of these facts in the Report. Id. Turner’s contention that defamation is somehow implied by the fact that the Defendants, as he puts
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The Court concludes that none of the statements in the Wells Report regarding the fine system, the “Judas” concept, or Martin’s decisions based thereon , could give rise to any claim of defamation by Turner. As a result, the motion to dismiss the Complaint, to the extent it alleges claims based on these statements or omissions, is granted.
,C. Statements und Omissions Pertaining to Insulting Comments about Martin's Sister
Turner next argues that the Defendants’ conclusion that Turner heard in-
On page 44 of the Report, under the header “Coaches,” the Defendants wrote:
Martin claimed that both of his offensive line coaches, Turner and Mosley, overheard some of the raunchy comments about his sister .... According to both Martin and Incognito, Turner neither joined nor criticized the harsh language. Also, both Martin and Incognito said they thought Turner was a good coach. ... Ultimately, ... both Martin and Incognito agreed that the bulk of the insulting comments were not made in front of Turner and Mosley, and both players were uncertain to what extent their coaches truly appreciated the nature of the conduct at issue.
Wells Report at 44 (emphasis added). On the next page, and as part of this same “Coaches” section, the Defendants wrote:
Based on the entire record, we find that Coaches Turner and Mosley were certainly aware of some of the insulting comments directed to Martin by Incognito, Jerry[,] and Pouncey, although we cannot determine the full extent of that awareness and whether they had any appreciation of how hurtful this language was to Martin. It is undisputed that these coaches never sought to stop the behavior.
Id. at 45 (emphasis added).
Turner argues that the Defendants knew that he “was not aware of most of what they deemed ‘insulting comments’ but failed to mention this fact when in the Report they criticized Turner for failing to do anything to stop them.” PL’s Opp’n at 16 (quoting Wells Report at 44). The Court is baffled by Turner’s argument. The Report clearly states that Turner was aware of only some of these comments based on Martin and Incognito’s claims that Turner overheard some of the comments. Turner acknowledges that he was “not aware of most” of the comments, necessarily conceding that he was, in fact, aware of some of the comments. Id. Therefore, the Defendants omitted no facts which rendered the Report’s findings about these comments defamatory.
Turner then reiterates his argument, previously advanced during the discussion of the blowup doll incident, that the Defendants failed to note that former and current Dolphins players and coaches told the Defendants that the Dolphins locker room was the “exact same” as all other football locker rooms in which these players and coaches had been. Pl.’s Opp’n at 16 (citing Compl. ¶¶ 22, 54, 59, 105-06). But, just as before, this Court will not hold the Defendants “liable for omission of those additional facts that [the plaintiff] believes should have been published, but whose omission did not make what was published untrue.” Janklow I,
Turner’s reliance on Gottwald v. Bellamy, No. 11-0447,
Accordingly, the motion to dismiss the Complaint, to the extent it brings claims based on these statements and omissions, is granted.
D. Statements and Omissions Pertaining to Turner’s Text Messages to Martin
Finally, the Court turns to the statements and omissions regarding the text messages Turner sent to Martin in early November 2013.
When he sent these messages, Turner knew that Martin had left the team unexpectedly, had hospitalized himself in connection with a mental health condition and that Martin had previously struggled with serious psychological problems and had contemplated suicide. We accept that Turner may have believed in good faith that Incognito was being unfairly attacked by the media, but he should have realized that it was inappropriate to send such text messages to an emotionally troubled player. We find that these text messages to Martin demonstrated poor judgment on Coach Turner’s part. ...
Turner sent these text messages' to Martin knowing that Martin had hospitalized himself in connection with a mental health condition, and in the face of public reports indicating that Martin’s emotional cоndition may have been a reaction to his teahimates’ bullying and abusive behavior.
Wells Report at 47,135.
Turner sent text messages to Martin (who undisputedly he knew was “emotionally troubled” at the time he departed the team, id. at 47) that told him to, inter alia, “DO THE RIGHT THING. NOW.”, and continued to send similar messages after Martin told him he was advised not to issue a statement. The Defendants concluded that this behavior was. “inappropriate” and “demonstrated poor judgment.” Id.
The Court previously found that the Defendants’ conclusion that Turner’s behavior pertaining to the blow-up doll incident was “unprofessional” was pure opinion. See supra Section III.A.2. For the same reasons discussed in that analysis, the Court finds that the Defendants’ conclusion in this context is also nonactionable pure opinion.
Turner again argues in this context, based ostensibly on Milkovich, that the Defendants defamed him by implication, this time by “knowingly omitting]” facts regarding the “context of Turner’s communications to Martin.” PL’s Opp’n at 17. But, as the Defendants accurately point out, each of Turner’s purportedly “omitted” facts actually appears in the Report.
Second, Turner argues that the Defendants omitted that he “understood that Martin was receiving pressure from others not to support Incognito and, in good faith, believed that Martin wanted to put out a statement supporting his friend. PL’s Opp’n at 17. But the Defendants quoted the same text message from Martin that Turner himself quotes in this allegation: “Coach. I want to put out a statement. Believe me I do. This thing has become such a huge story somehow. But I’ve been advised not to... And I’m not supposed to text anyone either cuz last time I responded to a teammate (Richie) I was intentionally manipulated and the conversation was immediately forwarded to a reporter.” Wells Report at 47.
And third, Turner asserts that the “Defendants also ignored in their discussion of the text messages that Turner had been proactive in trying to help Martin overcome his reticence to discuss his suicidal thoughts and to get the help he needed, and had acted unwaveringly to support and assist Martin. Turner clearly cared about Martin’s mental health.” PL’s Opp’n at 18. The Court has already reproduced in full the Report’s recitation of these facts, see supra note 7 (quoting Wells Report at 112-15), including the Defendants’ statement that they “commend[ed] Coach Turner” for “t[aking] Martin’s disappearance seriously,” for “pushing] Martin to discuss his depression,” and for “promptly reporting] the information to Coach Phil-bin.” Wells Report at 115.
To the extent Turner takes issue with the placement of these favorable facts, or argues that they should have been iterated or reiterated alongside the discussion of the text message conversation, that argument falls flat. The Court, as it must, has considered the full context in which the Defendants’ statements regarding the text messages were made, which includes consideration of the positive facts pertaining to Turner’s concern for Martin’s well-being, and not just Turner’s cherry-picked passages. Upon this consideration, the Court’s conclusion is unchanged: the Defendants’ statements that Turner’s behavior in this instance was “inappropriate” or “unprofessional” are nonactionable opinion. As a result, the motion to dismiss the Complaint, to the extent it brings claims based on these statements or omissions, is granted.
IV. CONCLUSION
The Court has addressed each of the Complaint’s allegations of defamatory statements contained within the Wells Report and has concluded that none of the challenged statements are actionable as defamation. The Court has also concluded that no juxtaposition or omission of facts gives rise to a claim for defamation by implication. The Court therefore need not analyze the arguments regarding the De
Accordingly, it is ORDERED AND ADJUDGED that the Defendants’ Motion to Dismiss [ECF No. 25] is GRANTED. The Plaintiffs Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE.
This action is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of July, 2016.
Notes
. This individual is anonymized as "Player A” in the Report. Player A/Player 1 does not refer to Jonathan Martin.
. The federal courts of appeal have continually and consistently held similarly. See, e.g., Piccone v. Bartels,
. The case from which Turner pulled this quote directly, Johnson v. Clark,
. A case from the D.C, Circuit, Jankovic v. International Crisis Group,
. Turner admits in the Complaint that he did occasionally used the word "Judas” in coaching the offensive line "to describe situations in which one of his players transferred responsibility for an on-field error to another player.” Compl. ¶ 96.
. A not-insignificant portion of that text is dedicated to a recitation of Turner's statements that he did not know what "Judas” meant, that he had never heard of "Judas fines,” that he had never heard any references to "Judas,” or that he never lectured players on the meaning of the term, each of which Turner contradicts in the Complaint. See Compl. ¶¶ 96-99.
. The passage, in full, reads as follows:
On Monday and Tuesday, May 6. and 7, Martin stayed home and did not report to voluntary off-season workouts. As a result, Coach Turner reached out to him, and on May 7, Martin agreed to meet with Turner at the Dolphins training facility. Martin and Turner provided largely similar accounts of this meeting.
Martin said that at the outset, he told Coach Turner that he was upset and that he was thinking about whether he should leave football. At first Martin was relatively tight-lipped and vague, attributing his absence to unspecified personal issues, but Turner pressed him, believing that something was seriously wrong. Specifically, Turner asked if Martin was experiencing suicidal thoughts, and Martin responded by describing to Coach Turner his contemplation of suicide in January.
Martin then began to open up, telling Turner about his history of self-diagnosed depression. In response, Turner told Martin that he should not take football so seriously, and he encouraged Martin to be happy that he was making a lot of money. Turner also asked if Martin’s mental state was related to being named starting left tackle, and he asked if Martin did not want tо play football anymore. Martin said "no” to both questions. Turner probed other personal and family areas, but felt that Martin did not articulate a concrete reason for his depression.
According to Martin, he told Turner that he had anxiety about football in a general sense, but he intentionally did not tell Turner that he was depressed because of the treatment by his teammates and his inability to confront them, which he viewed as a personal flaw. When we asked Martin why he had not disclosed his view that he was being harassed by some of his teammates, Martin told us that his reluctance to talk about his teammates' conduct stemmed from what he perceived to be a "code” in professional football that a player should not "snitch” on his teammates. He maintained that he was not fully candid with Coach Turner because he did not want to break this code and because he did not want to jeopardize his ability to continue to play football by revealing the current severity of his depression.
Coach Turner promptly reported to Coach Philbin on his talk with Martin, Martin then met with Coach Philbin and discussed his depression and related mental health issues. This conversation lasted approximately 20 to 30 minutes. Coach Philbin told Martin that the team would get him help.
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[WJe commend Coach Turner—he took Martin’s disappearance seriously, pushed Martin to discuss his depression and promptly reported the information to Coach Philbin.
Wells Report at 112-15 (emphases added).
. This text message conversation has been reproduced in the factual recitation, supra, at subsection I.C.4.