Could Mason Rudolph Sue Myles Garrett for a Defamatory Statement?

In his appeal hearing, Garrett said Rudolph called him a racial slur right before the Browns DE hit the Steelers QB in the head with Rudolph’s helmet. The NFL later said it “found no such evidence” of the alleged slur. Does Rudolph have a case against Garrett for slander?
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Mason Rudolph, Myles Garrett

As reported by ESPN, Cleveland Browns DE Myles Garrett claimed that Pittsburgh Steelers QB Mason Rudolph directed a racial slur at him during last Thursday’s Steelers-Browns game at FirstEnergy Stadium. Garrett leveled the accusation against Rudolph during an appeal hearing with the NFL on Wednesday. In a tweet published late Thursday, Garrett essentially confirmed ESPN’s reporting. He also expressed disappointment that what he thought was a private conversation would be leaked to media. The alleged slur occurred right before the two players brawled and Garrett dangerously struck Rudolph in the skull with Rudolph’s helmet. NFL spokesperson Brian McCarthy later told that the NFL “found no such evidence” of Rudolph directing a slur at Garrett.

Last Friday, the NFL suspended Garrett for at least the remainder of the 2019 regular season (six games) plus any playoff games in which the 4-6 Browns appear, and the league reserves the right to extend Garrett’s suspension into the 2020 season. Garrett appealed his suspension, but the NFL upheld all discipline. Maurkice Pouncey, who also played a role in the melee, had his three-game suspension reduced to two games per Thursday’s appeal. Rudolph has not been fined or suspended for his role in the fight at the moment.

Garrett’s denunciation was offered as a means of explaining why he would abruptly use Rudolph’s helmet as a weapon and risk causing Rudolph serious brain injury. If Garrett was provoked by a racist comment, Garrett’s response, while obviously still wrong, might be viewed as warranting a lower punishment.

Per the collectively bargained On Field Code of Conduct, appeals are heard by one of two appeals officers who are jointly appointed by the NFL and NFLPA. Hall of Fame linebacker Derrick Brooks and retired wide receiver James Thrash are the two officers, and Garrett’s appeal was heard by Thrash.

On Thursday, Thrash upheld Garrett’s punishment. In other words, Garrett’s strategy for the appeal—which apparently included accusing Rudolph of being a racist—failed to persuade Thrash.

Meanwhile, Rudolph’s attorney, Timothy Younger, categorically denies that his client made a racist comment. Younger describes Garrett’s claim as a “desperate attempt to mitigate his suspension.”

Garrett, however, reiterated his claim in a statement posted Thursday evening.

"This was not meant for public dissemination, nor was it a convenient attempt to justify my actions or restore my image in the eyes of those I disappointed. I know what I heard. Whether my opponent's comment was born out of frustration or ignorance, I cannot say," the Browns DE said. "But his actions do not excuse my lack of restraint in the moment, and I truly regret the impact this has had on the league, the Browns and our devoted fans."

A sensitive and challenging matter for the NFL to probe, but there are relevant investigatory methods

Garrett’s accusation alters the potential fallout of last Thursday’s incident. The NFL would consider a player directing a racial slur grounds for punishment. Although the league is not obligated to investigate whether Rudolph made the remark, it undoubtedly feels compelled to do so given the attention placed on the accusation. Also, the possibility of players directing racist comments at each other would, if true, badly damage the league in eyes of fans, sponsors and media.

The difficult, if not impossible, task for the NFL is assessing whether the slur actually happened. According to NFL Network’s Mike Garafolo, the league has already looked into the matter. At this time, the NFL has not found evidence supporting Garrett’s claim.

It remains to be seen if the NFL’s investigation will expand. Keep in mind, the NFL is known for very lengthy investigations. The league, for example, took more than three months to investigate the equipment controversy that became known as Deflategate. It seems plausible to expect league officials will take more than 18 hours to investigate a far more serious claim of racism.

One method of the NFL investigating the accusation is querying Rudolph on whether he said it. The NFL already knows how Rudolph would answer that question: Absolutely not.

The NFL could also ask other Browns and Steelers players who were nearby Garrett and Rudolph as to whether they heard a racist remark. It’s noteworthy that no player on either team, save for Garrett, has come forward to claim it happened. Similarly, the Browns organization—Garrett’s employer—neglected to mention this claim in its statement about the incident.

The NFL will also take stock in the fact that Garrett failed to reference the accusation when he apologized in his postgame comments and when he apologized in writing to Rudolph. Garrett, at those times, was trying to explain why acted so viciously, and he declined to mention the accusation. Omissions are sometimes as revealing as expressions.

In addition, and as detailed in a recent story or The MMQB on New York Jets quarterback Sam Darnold seeing “ghosts”, NFL Films records the audio of certain players during games. It’s unclear if any of the players near Garrett and Rudolph were wearing microphones. If they were, the NFL would possess audio evidence that might help to prove or refute Garrett’s allegation.

The NFL could also review the reputations and past activities of both players. Is Garrett known to lie, exaggerate or mishear things? Does Rudolph have a history of using racially insensitive or otherwise prejudicial remarks? Both players’ social media activity would be relevant evidence.

Rudolph could, but probably won’t, sue Garrett for personal injury or seek criminal charges against him

The NFL won’t necessarily control the trajectory of the controversy. Rudolph might now feel enraged and thus more inclined to pursue legal action against Garrett.

As detailed in a separate legal story for The MMQB, Rudolph could sue Garrett for personal injury. Rudolph could argue that Garrett committed battery on him and that Rudolph neither consented nor assumed the risk of another player removing his helmet and striking him in the skull.

It’s also possible that Rudolph could request that the Cleveland Division of Police investigate Garrett for the crime of assault (whether or not Garrett is criminally charged would be up to law enforcement, not Rudolph). Assault occurs when a defendant knowingly causes or attempts to cause physical harm on another person, including through the use of a weapon.

A football helmet swung at another person’s defenseless skull morphs from a piece of sports equipment into a weapon. Also, while there are assault-like events on every play during an NFL game—players repeatedly crash each into each and brutally hit and tackle—Garrett’s actions had nothing to do with the sport of football. It was just an attack and thus falls outside the scope of the game.

Neither a criminal charge nor a lawsuit is likely. It is extremely rare for a professional athlete to be charged with a crime in the United States for an incident that occurs during the game. In recent years, there have very few charges for such incidents, which I explained in a separate legal story for The MMQB. Further, pro athletes almost never sue each other (or the other player’s team). 

Rudolph does not appear to have suffered immediate injuries from the attack. A successful civil lawsuit requires proof of damages. It does not seem that Rudolph could show damages from the attack, though a whack to the skull could lead to neurological problems that don’t manifest for years. Regardless, Rudolph has—for now—sworn off involving the legal system.

Rudolph could sue Garrett for slander

Garrett has accused Rudolph of one of the most incendiary claims that a person can make about another, so this has become a very different situation for Rudolph, with a different type of injury: reputational. Rudolph might now rethink the appropriateness and wisdom of turning to the legal system.

To that point, Rudolph might not feel physical injuries from being whacked, but suddenly his character is under fire. If Rudolph didn’t make the remark—and the NFL has not yet found evidence he is guilty—Rudolph could explore the possibility of suing Garrett for slander.

Slander refers to a statement told to others that asserts an untrue claim against another person. The claim is also damaging to the referenced person’s reputation. A false accusation that another person uttered a racist word or phrase could form the basis of a slander lawsuit. In fact, such a damning accusation, if untrue, could warrant a finding of slander per se—meaning a lie about another person that, because it is so pejorative, is slanderous on its face.

Rudolph, as a well-known NFL player, likely qualifies as a public figure. This would probably require Rudolph to prove “actual malice,” meaning that Garrett knowingly expressed false and defaming information or had reckless disregard for the information’s truth or falsity. Rudolph could insist that if Garrett was telling the truth, he wouldn’t have first mentioned the accusation six days after the game. Also, if Garrett wasn’t sure whether Rudolph said it, he could have asked his teammates or simply asked Rudolph. If those steps weren’t taken, Rudolph could more credibly maintain that Garrett didn’t sufficiently care about his allegation’s truth or falsity.

A lawsuit would involve others, too. Browns and Steelers players and coaches would be required to give sworn testimony. The NFL and NFL Films could be subpoenaed to turn over any relevant recordings or statements.

As to possible damages, Rudolph could insist that his potential to land endorsement deals plummets if he is viewed by companies and consumers as a racist. Rudolph might be inclined to bring a lawsuit for that reason alone: counter any emerging narrative that he makes racist remarks. Rudolph’s profile has grown since the 24-year-old former Oklahoma State star took over for an injured Ben Roethlisberger early in the regular season. He has played adequately, if not fairly well, particularly for an inexperienced player—he’s thrown 12 touchdowns against eight interceptions and has amassed an 82.9 QB rating. The Steelers are 5-5, with a chance to still make the playoffs. The more he plays, the more opportunities he will have for endorsements.

Nothing in law is straightforward, however. If Rudolph elected to sue, Garrett could offer several defenses.

First, Garrett might claim that ESPN has not fully or accurately characterized what he expressed in his meeting with Thrash. This possibility seems unlikely in light of Garrett’s tweet. In the tweet, Garrett supports ESPN’s reporting when stating “I know what I heard... whether my opponent’s comment was born out of frustration or ignorance, I cannot say.” Second, statements made in the course of legal proceedings are normally exempt from defamation-related claims, including those for slander. Garrett could argue that while his meeting with Thrash was an arbitration hearing, it was still a legal proceeding and thus not grounds for defamation claims. To that point, Garrett’s tweet highlights that he thought the meeting was confidential. Third, Garrett could assert that any personal injury claims ought to be preempted by the collective bargaining agreement and namely that player-on-player disputes should be resolved by the league and not the court system. Fourth, and most bluntly, Garrett could maintain what he said is true and place the onus on Rudolph to prove otherwise. Along those lines, if Rudolph sues, he would open himself up to the possibility of pretrial discovery, which could allow Garrett to investigate his background. Lastly, if Garrett is sued and loses, he could demand the NFL and NFLPA indemnify him. Garrett could credibly argue that the controversy only surfaced because of the unauthorized leak to ESPN, a leak that Garrett could attempt to blame on the lack of security of the hearing.

One thing is for certain: the fallout of last Thursday’s brawl has become a lot more complicated, and that is bad news for the NFL.

Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.

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