Ohio State Would Face a Hard Legal Road If It Were to Sue Brett McMurphy
A hotly disputed account of whether an assistant coach used the n-word during a practice altercation could become the source of litigation between a major college football program and a prominent sports journalist.
According to Eleven Warriors’ Dan Hope, Ohio State head football coach Urban Meyer believes that his employer is exploring the possibility of suing reporter Brett McMurphy of Stadium. Stadium is owned by a collection of companies, one of which, Meredith Corporation, also owns Sports Illustrated.
On Tuesday, Stadium published a news article and accompanying video in which McMurphy reported on claims by LeBron Grimes, the father of former Ohio State wide receiver Trevon Grimes, about the circumstances that led his son to transfer from Ohio State to Florida. The main reason for the transfer, according to the report: a September 2017 incident between then-freshman Trevon Grimes and Zach Smith, who at the time was Ohio State’s wide receivers coach. Smith, who was fired this past summer in the wake of domestic violence allegations, allegedly called Grimes a “b---- ass n-----” during a practice and then told him “I never should have recruited you.” These remarks, LeBron Grimes told McMurphy, spurred his son to insult Smith about him “messing around with college girls.” Trevon Grimes and Smith also allegedly engaged in a physical altercation, though it does not appear that anyone was hurt.
LeBron Grimes, McMurphy writes, originally heard about the incident in a phone call with his son. Upset by what he heard, the elder Grimes recalls flying from Florida to see his son in Ohio. Along the way, Grimes met up with longtime family friend Dennis Allen. LeBron Grimes and Allen then saw Trevon Grimes, who retold his account of the incident.
McMurphy’s story goes on to note that he tried to speak with Trevon Grimes, but that the younger Grimes refused to comment. McMurphy was able to speak with three of Grimes’s current Florida teammates, who would only speak with McMurphy on the condition of anonymity. The three players recalled Smith telling them about the n-word incident. Further, according to LeBron Grimes, Meyer knew of the incident but took no corrective steps.
Multiple current Buckeyes players, Meyer, Smith, Ohio State athletic director Gene Smith and university president Michael Drake all firmly denied the claims raised in McMurphy’s report. Drake went so far as to describe McMurphy’s reporting as “irresponsible, inflammatory and a severe invasion of privacy of a student athlete and his family as well as a baseless attack on Coach Meyer." McMurphy’s story notes these denials. The story also mentions that Grimes’s roommate at Ohio State, Jaylen Harris, was barred by Ohio State from speaking with McMurphy. However, Harris released a written statement in which he expressed, “at no time did I ever witness a physical altercation or racially insensitive language as alleged.” In addition, McMurphy spoke with Eli Goins, a senior wide receiver last season, who recalled there being a physical altercation but not hearing the n-word.
The difficulties of suing McMurphy for defamation
Ohio State would face long odds in any legal action against McMurphy. Worse yet for the school, it might unwittingly invite the risks of pretrial discovery by taking McMurphy to court.
If Ohio State genuinely believes the allegations contained in McMurphy’s story are untrue, the school could sue for defamation. A defamation claim would face very high obstacles. To prove defamation, Ohio State (and/or Meyer and Smith if they also sue) would need to convince jurors that McMurphy’s report is false, reputation-damaging and outside the scope of a relevant privilege.
For his part, McMurphy would argue that he adhered to sound journalistic practices. McMurphy’s story carefully avoids depicting the allegations as undisputed facts. Rather, the story cautions the allegations are derived from what McMurphy learned through reporting—namely, through interviews with persons who claimed to be familiar with the purported incident. Further, McMurphy’s story acknowledges that he interviewed several persons, including Trevon Grimes himself, who either refused to comment or who, to varying degrees, refuted LeBron Grimes’s claims.
A reader might nonetheless wonder if some of McMurphy’s sources, especially Grimes’s dad and his Florida teammates, are biased or unreliable given their affiliation and allegiance to Grimes. Those persons—most of whom weren’t eyewitnesses to whatever happened between Grimes and Smith—also spoke with McMurphy in a reporting context. This means they were not under oath and thus could have lied or exaggerated without fear of criminal perjury charges.
Yet this type of journalism dynamic is hardly unique to McMurphy’s story. Many “breaking news” articles are based on the damning accounts of persons who are decidedly not neutral. These persons may have an agenda in seeing certain information not only released to the public but shaped in a certain light. Sometimes these persons are whistleblowers who genuinely seek to right wrongs. Other times they are opportunists who seek attention or retribution.
McMurphy doesn’t hide this aspect of news-reporting from his readers. He provides significant background and context about his sources (including unfavorable points, such as how LeBron Grimes was arrested nearly 20 years ago for battery on a community college security officer and theft of less than $300). McMurphy also emphasizes that LeBron Grimes volunteered information in Facebook messages. A reader might posit that Grimes’s willingness and enthusiasm to share materials with McMurphy could reflect a desire on the part of Grimes to gain publicity or to inflict revenge on a coach who Grimes believes mistreated his son. By informing his readers about his sources and their possible motivations, McMurphy enables the readers to more substantively question those sources’ veracity.
To supplement his witness interviews, McMurphy might have also reviewed other news accounts about the football practice in question as well as relevant emails, texts and other electronic evidence. To that point, McMurphy details how he filed a public records request with Ohio State in which McMurphy sought text and other electronic messages from Meyer and Director of Football Operations Brian Voltolini concerning the incident. McMurphy claims that Ohio State did not respond to the request. The fact that McMurphy undertook an effort to assess university records suggests that he responsibly went about fact-checking.
Proving what really happened at the practice also seems difficult. McMurphy’s report features interviews with a number of persons who offer conflicting accounts. If Trevor Grimes and the persons who told McMurphy about Grimes’s alleged claims would be willing to testify under oath and say that Smith used the n-word, and if Smith and Meyer testify under oath and deny that the n-word was used, jurors would be left with a “they-said/they-said” conundrum. There is no indication that this particular practice was recorded by video or audio, or that if it was somehow recorded, that the alleged remark was captured on any recording that is still in existence. Jurors could decide to believe one group over another. But chances are jurors would be more inclined to conclude they really don’t know what happened. Such uncertainty would make them unlikely to impose liability.
The fact that Meyer and Smith are high-profile figures would make a defamation claim even more difficult. Public figures and so-called “limited-purpose public figures” (which refers to persons who are not generally famous but who are famous in relationship to a certain controversy—such as one involving Ohio State football) must prove that the defendant acted with “actual malice.” In this context, actual malice would require convincing proof that McMurphy knew the claims about Smith were false or that McMurphy had reckless disregard as to whether the claims were truthful or false.
While some Buckeyes fans believe McMurphy is biased against Ohio State in light of McMurphy breaking several negative news stories about the Buckeyes football team, a more likely explanation for that pattern is that McMurphy has cultivated well-placed sources connected to the program and has used them to beat other journalists in breaking news. Also, even if we assume that McMurphy is somehow biased, he is an experienced journalist. The idea that he would knowingly author false information or recklessly not care if information is true seems unlikely. Also, the fact that the story was edited and fact-checked by Stadium editors—as opposed to the story being a social media entry or blog post reviewed only by its author—suggests that steps were taken to vet the information contained in the story.
The difficulties of suing McMurphy for false light or invasion of privacy
Other potential claims likewise face long odds. Ohio State might insist that McMurphy has engaged in “false light.” This civil wrong refers to a statement that is not literally false but is articulated in such a misleading manner that it causes harm to the plaintiff’s reputation. The school might contend that even though McMurphy’s story repeatedly cautions the reader as to the uncertainty of the allegations, the fact that McMurphy wrote such an lengthy piece about the allegations lends them credence and thus implies that Smith and Meyer are guilty of racially-insensitive acts.
Don’t expect such a false light claim to prevail. For one, writing about allegations does not corroborate them. If journalists could only write about what is conclusively true, many great investigative stories would never be written.
Also, note that the headline for McMurphy’s story is “The Search for the Truth About Trevon Grimes’ Transfer From Ohio State to Florida.” Although McMurphy likely didn’t select the story’s headline (editors normally have that task), the headline emphasizes that the story seeks to find the truth, rather reveal what the truth is. Further, a few paragraphs into the story, McMurphy writes, “So what exactly is the TRUTH? Everyone has their version.” This statement makes clear there is dispute about what happened. The story also concludes with the inquiring statement, “What is the truth? It depends whom you ask.”
Ohio State could also contemplate an invasion of privacy claim against McMurphy. The incident involves attempted interviews with students and retelling of an alleged incident involving a student. Schools generally try to safeguard students’ privacy.
To rebut an invasion of privacy claim, McMurphy would emphasize that the First Amendment protects news reporting of matters that concern the public. Although its players are students, Ohio State football is undoubtedly one of the most prominent football programs in the country. That fame relates in part to the school profiting from the use of student-athletes’ intellectual property through lucrative broadcasting deals and extensive merchandise and apparel sales. The Buckeyes’ fan base rivals, if not eclipses, that of many NFL teams. The program also reportedly generates nearly $90 million a year in revenue and has been valued as high as $1 billion. The team’s coaching staff, led by Meyer—the third winningest coach in college football history—also has a national following. And while Smith was only an assistant coach at the time of the alleged incident, he has since become a high-profile, if not infamous, figure in light of the domestic violence allegations brought against him. The U.S. Supreme Court has been clear in ruling that courts are barred from stifling the publication of news, even news that might harm reputations. This position reflects how the First Amendment guarantees freedom of the press. These points all favor McMurphy in his decision to report on these allegations.
The risk of pretrial discovery
If Ohio State sues McMurphy, it would run the risk of McMurphy using the pretrial discovery process to compel Meyer and others connected to the Buckeyes program to testify under oath. For an investigative reporter like McMurphy, being able to direct his attorneys to ask Meyer and other Ohio State leaders sensitive questions under oath would probably be a gift. He would also relish the opportunity to compel the university to turn over sensitive emails, texts and other records.
Most likely, the school won’t take any legal action against McMurphy. Their current approach of denying the underlying accusations is one that will likely remain in effect.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.
