“The [U]mpire Strikes Back” at Former MLB Player: How Much Was His Reputation Damaged By Podcast?

This was originally posted on the SGR Blog.

The Court is the “umpire” when an actual baseball umpire brings suit. And, as a recent case illustrates, jurisprudential umpiring is far more complicated than simply calling “balls and strikes.”

Joseph H. West, a currently active and well-known Major League Baseball umpire, sued Paul Lo Duca, a former Major League Baseball player, for defamation. West alleged that Lo Duca made defamatory statements about him on a podcast carried on a popular sports podcast provider. Contending that, during the podcast, Lo Duca, a retired catcher, described an alleged conversation with teammate Billy Wagner, a retired relief pitcher, in which Wagner purportedly claimed that West gave him favorable ball-and-strike calls during the game because Wagner gave West access to one of his vintage automobiles.

The Court previously concluded that West set forth sufficient proof of the facts underlying his cause of action to recover for defamation, including defamation per se; granted his motion for leave to enter a default judgment against Lo Duca on the issue of liability, and set the matter down for an inquest on the issue of damages.

At the inquest on the issue of damages, West testified on his own behalf and submitted the affidavit of former Major League Baseball relief pitcher William “Billy” Wagner. And adduced the testimony of Matthew Considine, an expert in digital forensics; Nicholas Carroll, an expert in “reputation management” and the effects of defamatory statements made on social media; and Pat Crowley, a journalist, and expert in public relations. Because it had already ruled on the issue of liability, the Court declined to take testimony by way of affidavit and ruled at the inquest that it need not consider Wagner’s affidavit, in which he essentially denied that the conversation described by Lo Duca had ever occurred.

At the time of the inquest, West was 68 years of age and was an active Major League Baseball umpire. He commenced umpiring school in 1974 and umpired in Minor League Baseball over parts of the next four years, with a few call-ups to the Major Leagues during 1976 and 1977. He became a Major League umpire in 1978 and umpired continuously in the Major Leagues for all or part of the next 23 seasons, including the abbreviated 2020 season. As of the end of the 2020 season, West had umpired in 5,345 Major League Baseball games, surpassed only by the legendary umpire Bill Klem, who had umpired in 5,375 games, and was the first umpire to be inducted into the Baseball Hall of Fame in Cooperstown, New York. At the time of the inquest, West was on track to break Klem’s record during the 2021 season. And he evinced a strong desire to be inducted into the National Baseball Hall of Fame, an honor previously bestowed upon only ten umpires.

The Court credited West’s testimony that one’s integrity and character are primary measures that are applied to the assessment of an umpire’s or player’s quality and, thus, the consideration that he will be given for election to, and induction into, the Hall of Fame. He expressed a legitimate concern that, if Hall of Fame voters credited Lo Duca’s false assertion regarding his integrity and character, he might not be elected for induction into the Hall of Fame for the same reasons as otherwise excellent players “Shoeless” Joe Jackson, Pete Rose, and Barry Bonds had or have not been elected. He also expressed concern that it would be difficult to completely repair his reputation, particularly because a special committee of baseball executives and former players were chosen by the directors of the Hall of Fame was responsible for selecting umpires for induction. No member of that committee told West that Lo Duca’s statement would or would not have an effect on his chances for election. According to West, at least one former player and an agent of a former player did express their belief to him that the false statement would hurt his chances for election, but those witnesses did not testify at the inquest.

West also credibly testified that he became very upset when he first learned of Lo Duca’s statements from the Office of the Commissioner of Baseball. He checked the record books to ascertain if he had ever called three straight strikes in any game in which Wagner pitched to Lo Duca, as Lo Duca claimed. Or whether he had ejected Lo Duca from eight of nine games, as Lo Duca also claimed. He learned that Lo Duca’s story was untrue even as to those matters. In addition to categorically denying the truth of Lo Duca’s story, West credibly asserted that he never gave preferential treatment to any team or player in all of his years of umpiring and that his duty of responsibility as a “gatekeeper” to the game of baseball, along with his sense of duty to his profession, his union, and himself forbade him from ever doing so.
West intended to retire at the end of the 2021 season. And planned, after retirement, to participate in speaking engagements that would generate income every other weekend for the first seven or eight years after his retirement. He credibly testified that most speakers at such events earned in the range of $2,500 to $7,000 per appearance but that Hall of Famers would likely earn between $15,000 and $20,000 per appearance.

West also intended to participate in baseball card shows on an average of 15 to 20 occasions per year that would generate $15,000 to $25,000 per appearance for a Hall of Famer. During the regular season, while he remained employed as an active umpire, West had far fewer opportunities to engage in charitable events, baseball card shows, and speaking engagements than he did during the offseason because of the vagaries of the Major League Baseball schedule and his travel requirements. In 2020, even though many such events were canceled due to the COVID-19 pandemic, West was interviewed for a Sirius Radio program on the Elvis Channel. As an accomplished singer, West intended to remain involved in the country music scene, as he had been for many years. West did not intend to pursue any other employment or remunerative activities after his retirement. But he was not aware of any charity or paying events during the 2019 baseball season or the 2019-2020 offseason, to which he was not invited as a consequence of Lo Duca’s statement.

West also assisted in developing an umpire’s chest protector that all but one Major League umpire now wears during games and is marketed by Wilson Sporting Goods under the trade name “West Vest.” He credibly testified that sales of his signature model protector would increase if he was elected into the Hall of Fame.

West intended to mitigate the negative effects of Lo Duca’s statement by generating positive publicity–and had started to engage in such a public relations campaign at the time of the inquest.

Considine, the digital forensics expert, credibly testified that he performed acquisition, preservation, processing, analysis, and reporting functions with respect to digital evidence. He had experience in recovering data from cell phones, email accounts, computers, and computer servers. And was retained to preserve and authenticate data from 75 specific, publicly available, active digital websites on which the Lo Duca statement or the underlying story appeared as of August 2020. Considine identified those websites and provided them to West’s legal team.

Carroll, an expert in the field of reputation management, credibly testified that there was a general belief that, once something is on the internet, it is there forever, but that, in reality, more than 50% of content that had been uploaded to the internet was now inaccessible. Of the 75 website links that Considine was asked to preserve and authenticate, Carroll credibly testified that 5 of them were no longer active as of the date of the inquest but that the Lo Duca story was promulgated by mainstream media and ended up on approximately 65 different newspaper or news sharing sites. He further credibly asserted that the remaining links would continue to stay live and active unless the particular newspaper that managed the site failed or West took action to have the manager of each site remove the story.

Carroll credibly concluded that there would be a differential between West’s income in the future with a “tarnished” reputation and Hall of Fame induction delayed or uncertain and a “cleared” reputation with most online defamation removed and a successful Hall of Fame induction. He further opined that Hall of Fame induction would not, with any certainty, quash all credence given by the public to Lo Duca’s story. Carroll concluded that, even if Hall of Fame induction were not a relevant factor, there would be a lesser, albeit still proportional, differential between West’s]post-retirement earnings with his reputation “tarnished,” as opposed to “cleared,” but he did not testify to any particular amount of the differential.

Carroll also asserted that hiring a reputation management company to “push down” negative or defamatory news stories would cost in the range of $50,000 to $100,000.

Crowley, the public relations expert, credibly asserted that, in order to minimize the harm caused by a defamatory statement, the best tack would be to overwhelm it with positive stories, particularly in mainstream media outlets such as the major televisions networks, the New York Times, Washington Post, Wall Street Journal, and Chicago Tribune, as their stories tend to be picked up by smaller and less mainstream media outlets. He y opined that to accomplish this goal, the victim of defamation, particularly a public figure like West, should retain a public relations firm, which should also reach out to local sports reporters in television, radio, print, podcast, and like media with press releases, talking points, and story memoranda, and create a personal website for the victim in which positive stories could be broadcast. Crowley created a multi-year public relations “plan” for West that “flooded the zone” by reaching out to and placing paid advertising content in U.S. Today, podcasts, and other social media, including so-called “influencers,” such as star athletes like LeBron James, in which the effort was ramped up at various times, such as when West broke the record for most games as an umpire and when he retired.

Crowley also asserted that, notwithstanding the Lo Duca story, it was more probable than not that West would have retained a public relations firm after his retirement in any event so that he might be considered as a baseball analyst on television and reap the reward of other opportunities presented to well-known sports figures. The Court also accepted his testimony that, if West did not intend to pursue a media career after retirement but limited his activities to speaking engagements and baseball card shows, very little of the expense and effort that Crowley described would be necessary.

By defaulting, Lo Duca admitted all allegations in the complaint, including the basic issue of liability. He was, however, entitled to present testimony and evidence and cross-examine West’s witnesses at the inquest on damages. But Lo Duca elected not to present such testimony or cross-examine witnesses, being provided with notice of the inquest.

The Court already has determined that West had a cause of action to recover for defamation per se, inasmuch as false allegations that a person committed a crime or that tend to injure another in his trade, business, or profession, constituted defamation per se. That finding relieved West of the requirement that he demonstrate special damages, in other words, proof of economic loss. So West could recover reasonable compensation for mental anguish, loss of reputation, and humiliation.

The `reasonableness’ of compensation must be measured against relevant precedents of comparable cases. Although prior damage awards in cases involving similar injuries were not binding upon the Court, they provided guidance and enlightenment with respect to determining whether a verdict in a given case constituted reasonable compensation. What constituted “reasonable compensation” was to be assessed with due regard to the circumstances presented.

Given the widespread dissemination of Lo Duca’s defamatory statement, the nature of the statement, and the legitimate anxiety that West suffered in connection with the possibility that he would not be elected to the Hall of Fame, the Court concluded that West was entitled to an award of $250,000 for past mental anguish and emotional distress.

Although not obligated to do so, West also established that he would sustain some degree of economic loss as a proximate result of the publication of Lo Duca’s defamatory statement. So-called special damages, i.e., the loss of something having economic or pecuniary value—were recoverable so as long as that loss flowed directly from the injury to reputation caused by the defamation. And damages based on expenses related to advertising and public relations that were meant to repair his reputation were recoverable in action alleging defamation.

West should be allowed, although not compelled, to attempt by a reasonable and proper effort to prevent damages liable to result from the wrongful act which was committed against him. The alternative proposition was that Lo Duca had the right to insist that the suffering party must sit still and allow damages to accumulate on the possibility that some time he may recover them. If West’s was successful, it was for Lo Duca’s benefit. And it was obvious to the Court that Lo Duca should pay the reasonable cost of securing that benefit.

The Court concluded, however, that the reputation management plan that Crowley created for West, estimated to cost $11m, vastly overstated the expenses necessary to remove the Lo Duca story from internet websites or “push down” the story by emphasizing positive stories about West. What Crowley described as “flooding the zone” concededly would be necessary only if West elected to pursue a public media career after his retirement as an umpire. But West testified that he did not intend to pursue such a career but only intended to participate in speaking engagements, charity events, baseball card shows, and country music events for the first seven to eight years after his retirement as an umpire. The Court concluded that based on both Carroll’s and Crowley’s testimony, an award in the sum of $250,000 was a reasonable sum to compensate West for expenses he would incur in retaining a public relations firm to formulate and operationalize a sufficient reputation remediation plan.

The Court further concluded that West failed to establish that he would be caused to forego income, including income from appearances and endorsement agreements and opportunities because Lo Duca’s defamatory statements would prevent or delay him from being elected to the Hall of Fame. While the Court might be inclined to credit West’s and Carroll’s testimony as to the differential between West’s post-retirement earning capacity as a Hall of Famer and that as a non-Hall of Famer, there was simply no proof that he would not be elected to the Hall of Fame or that his election would be delayed because of the defamation. The only evidence that West presented in this regard was the inadmissible hearsay declarations of a sports agent and a former player, who merely expressed their opinion that he should be concerned about the election. It was purely speculative as to whether West would or would not be elected to the Hall of Fame and, if so, when. Baseball fans notoriously speculate all the time about which players would or would not be elected, or should or should not be elected, to the Hall of Fame. Thus, it was not proper for the Court to base its award of damages on similar speculation as to whether West would be elected to the Hall of Fame at the earliest possible date subsequent to his retirement as an umpire. The Court declined to make an award for diminution of future income based on the presumption that West would not be elected to the Hall of Fame because of Lo Duca’s defamatory statement or that such election would be delayed as a consequence of the defamation.

The Clerk of the Court was directed to enter judgment in favor of West and against Lo Duca in the sum of $500,000, plus statutory prejudgment interest from the date of the inquest.

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