The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "Arizona coach may have recourse for ESPN recruiting report."

On Thursday, University of Arizona head coach Sean Miller held a news conference where he adamantly denied an ESPN report that he discussed a $100,000 payment to land Deandre Ayton, a highly sought-after recruit in 2016.

Miller denied violating NCAA rules during his tenure with Arizona, stating he has “never paid a recruit or prospect or their family or representative to come to Arizona” and that he “never arranged or directed payment or any improper benefits to any recruit or prospect or their family or representative.”

The news conference was held in response to an ESPN report that Miller was caught on a FBI wiretap with a former employee of ASM Sports agency, Christian Dawkins, discussing a $100,000 payment to secure Ayton as a recruit.

However, more recent reports claim that the FBI wiretap investigation did not begin until 2017, months after Ayton committed to Arizona in September 2016. Therefore, the recruitment of Ayton would not have been discussed in a phone call between Miller and Dawkins nearly a year later.

At the news conference, Miller stated that he and Ayton have suffered defamation by the media in the way it reported the allegations. If Miller’s assertions that he did not violate NCAA rules are true, he and Ayton may pursue a legal claim of defamation against the media outlets for their damaged reputations and any financial consequences.

With minor variations among jurisdictions, in general, a claim of defamation requires (1) that the defendant made a defamatory communication to a third person; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. Ogundale v. Girl Scouts-Arizona Cactus Pine Council Inc., 2011 WL 1770784 (D. Ariz. 2011).

Further, public figures must prove an additional requirement — that the defamation occurred with “actual malice,” meaning the media reported the damaging information knowing it was false or exhibited a reckless disregard for the truth. Morris v. Warner, 770 P.2d 359 (Az. Ct. App. 1988).

It would not be difficult for Miller to show that the media reports were made to a third person considering it was publicized all over the world. These reports have portrayed Miller as violating NCAA rules, engaging in dishonest conduct and potentially breaking the law.

Additionally, Ayton has been accused of taking money under the table which could influence any endorsement deals he may get in the future as a NBA player and could potentially damage his NBA draft stock. As such, both parties have an argument that their relationship has been unfairly tarnished by untrue accusations about their character and that they have suffered harm as a result.

Thus, assuming the statements by ESPN were actually false, the likelihood of success for Miller and Ayton will likely turn on whether the media outlets knew the report was false or whether they reported it with a reckless disregard to its truth.

This element may be difficult to prove considering the media outlets likely relied on leakers to get the information who presumably relayed the allegations as credible. In the past, athletes and coaches have been able to overcome this element where sources recanted their statements and where evidence like drug tests or doctor reports point to the contrary.

In a suit against Al Jazeera America filed by MLB players Ryan Howard and Ryan Zimmerman in response to The Dark Side documentary linking them to the use of performance-enhancing drugs, the sole source of the information recanted his statements prior to the documentary airing. Zimmerman v. Al Jazeera America LLC, et al, 1:16-cv-00013 (D.C. Cir. 2016).

However, the network aired the film anyway and Howard and Zimmerman filed suit claiming that the “outrageously false and defamatory statements” damaged their reputations and public perceptions of them.

Though the case is still pending in Washington, D.C., Howard and Zimmerman have overcome several motions to dismiss based on the fact that the source of the information recanted his statements the day before the documentary aired, implying that the defendant aired knowingly false information about the athletes.

It is important to note that the defamation claims only have a chance of success if the statements are completely false. This element was notoriously at issue in Lance Armstrong’s lawsuit against The (London) Sunday Times, filed in response to an article that reprinted allegations he had used performance-enhancing drugs. Armstrong v Times Newspapers Ltd., 2004 EWHC 2929 (QB). The newspaper and Armstrong reached a settlement in 2006, but up to that point, Armstrong had, ironically, received rulings in his favor since he did not have a history of failing drug tests.

In short, if the allegations are substantially true or only slightly inaccurate, an action for defamation will fail. Desert Palm Surgical Group v. Petta, 343 P.3d 438 (Az. Ct. App. 2015). Therefore, in Miller’s case, if the only false information reported was something insubstantial like the date of the call, the identity of the recruit or the dollar amount, the defamation claim would likely fail.

While details continue to emerge, Miller made it clear in his news conference that he will fight any false reports and defend himself, and Ayton, against any “inaccurate, false and defamatory” statements.

Miller’s character and even his employment contract have become newsworthy in light of the ESPN reports and at least one high-profile recruit made a decision to go elsewhere after the allegations were released. Shaquille O’Neal’s son, Shareef, announced his decommitment from Arizona in a tweet shortly after the reports were publicized.

Miller did not coach Arizona in its game against Oregon after the ESPN report was released. However, things are looking up as Miller has returned to the team in his former capacity, the university president has publicly issued support for him, and fans at Arizona’s McKale Center have begun to chant, "we love Mil-ler!” during games.

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