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Thursday, June 15, 2006
Danny Fortson Loses “Thug” Suit Against Jerry Colangelo and Peter Vecsey

Last week, NBA journeyman and “flagrant foul machine” Danny Fortson lost his defamation suit against Suns owner Jerry Colangelo. The dispute concerned comments Colangelo made in 2003 after Fortson (then with Dallas) committed a flagrant foul leading Suns rookie Zarko Cabarkapa to break his wrist. At the time, the AP recounted:
Fortson was called for a flagrant foul on the play, and Suns owner Jerry Colangelo said he will ask the NBA to fine or suspend the Dallas player.

"Whether it's a fine or a suspension, it's not enough for him," Colangelo said. "He should be put down for every day that he (Cabarkapa) is out. I'll do everything in my power to see that happens. With the game over, there was no need for that."

The injury came with 2:58 left and the Suns leading 112-88.

"He's a thug," Colangelo said.

Before leaving, Fortson said he apologized to Cabarkapa.

"I had no evil intent," he said.

Cabarkapa was in tears in the Suns' dressing room, but later composed himself and said through a translator, "I can't comprehend it. I don't know exactly what happened. I just know I was trying to drive to the basket and Fortson pushed me."
In October, 2004, Fortson sued Colangelo, the New York Post, and Peter Vecsey (Vecsey characterized Fortson—directly or by implication—as “thugged out,” a “vacant lot,” a “wanksta” and a “meaningless mass” in his column in the Post). The District Court (S.D. Fla.) granted summary judgment on June 5 in favor of Colangelo and the Post’s holding company (the Westlaw citation is 2006 WL 1589793) (Vecsey was never served a copy of the complaint).

Mike has explained how hard defamation cases can be to win in connection with John Daly’s “Thug Life” case here and here Bob Lobel’s “drunk sportscaster” suit here.

Ultimately, Fortson was done in by the court’s characterization of Vecsey’s and Colangelo’s words as “rhetorical hyperbole” rather than fact. Rhetorical hyperbole falls on the non-actionable “opinion” side of the fact-opinion divide in defamation law. What the court calls Fortson’s “well-publicized history of overly aggressive play (fouls, ejections, fines, and suspensions)” didn’t help his case.

The court opined that “[t]o foreclose the use of hyperbole, under the threat of civil liability, ‘would condemn [sports commentary] to an arid, desiccated recital of bare facts.’”

While this story has been covered in the media in the past, no news outlet has yet reported the court’s opinion (as far as I can tell).


I think that it is pretty clear that Fortson is not a thug. What kind of thug even knows what a defamation suit is?

Anonymous Darren Heitner -- 6/15/2006 6:40 PM  

Geoff, great post. And it brings to mind the question of what these lawsuits actually accomplish. The law is so tilted against plaintiffs in defamation suits--especially when those plaintiffs are public figures--that most of these suits seem quixotic from the start. And while they may ultimately generate settlements, the settlements often supply far less than what the plaintiff feels that he deserves (which is not surprising, since the law affords the defendant with most of the bargaining leverage).

Plus, plaintiffs in libel suits risk being viewed as thin-skinned, which can cause more reputational harm than whatever negative words were stated/published by the defendant. And then there are also the very important, but often under-anticipated "litigation costs," which include tangible costs (e.g., lost money/lost time/lost opportunities of being a plaintiff) and often intangible ones (e.g., stress of being in a litigation; anxiety; sleeplessness).

I recognize that there may be a feeling of vindication upon serving another person with a libel/slander complaint, but I suspect that feeling is usually outweighed by the more lasting and significant costs associated with the litigation. It would interesting to examine the emotions of plaintiffs and defendants in defamation suits, both during and after the litigation.

Blogger Michael McCann -- 6/15/2006 8:31 PM  

Danny Fortson is a thug. No question about it.

Now he's a whining thug to boot.

Anonymous Anonymous -- 6/16/2006 9:28 AM  

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