As we know, podcasts are designed for conversational and unscripted discussion. Hosts are expected to be informal. Guests are expected to let their guard down. Producers are minimally involved, if they are involved at all. Listeners, then, are likely to regard a podcast’s dialogue as much more accessible and authentic than a formal radio interview, when both the host and guest are often cautious in their choice of words and circumspect while taking positions. These dynamics have made some podcasts extremely popular with those listeners who are looking for a “real” conversation by industry experts and insiders.
For wrestling fans, one very popular and very real podcast is The Art of Wrestling. Its host is Scott Colton, better known by his ring name “Colt Cabana.” Colton is a 38-year-old professional wrestler who previously competed for World Wrestling Entertainment. He has earned several heavyweight championships over the years. As Cabana, Colton is a household name in the wrestling world. He has over 255,000 followers on Twitter and is an influencer of wrestling fans’ opinions.
Colton’s The Art of Wrestling is distributed weekly on his website. It typically features interviews with professional wrestlers. One particular episode of The Art of Wrestling has become the center of a legal controversy.
On Nov. 26, 2014, Colton published episode No. 226 of his show. His guest that night was Phillip Jack Brooks, better known as CM Punk. The 39-year-old Brooks is among the most well known figures in wrestling and mixed martial arts. With 2.8 million Twitter followers and appearances in numerous video games and other products, the two-time WWE champion has amassed a significant public presence. Even as he nears 40 years of age, Brooks remains an elite athlete. He is scheduled to fight fellow welterweight Mike Jackson at UFC 225 on June 9.
While “in character” as CM Punk, Brooks comes across as a brash and opinionated critic of many things, including authority figures. He doesn’t hold back while in the ring and he doesn’t hold back while talking, either.
The podcast: real talk or real defamation?
With those points in mind, Colton introduced Brooks to the podcast in question as CM Punk. After some discussion with Colton, Brooks turned the conversation into a sharp rebuke of Christopher Amann, M.D. Although not a celebrity like Brooks or Colton, Amann carries significant authority at the WWE. An expert in sports medicine and orthopedics, Amann serves as the WWE’s senior ringside physician. In that capacity, Amann provides medical care to WWE wrestlers. He also oversees the performance of other ringside physicians and related healthcare providers.
During the podcast, Brooks blamed Amann for a Methicillin-resistant Staphylococcus aureus (MRSA) staph infection Brooks suffered before leaving the WWE in 2013. Such an infection is often more difficult to treat than infections caused by other bacterium because it tends to be resistant to antibiotics.
Brooks attributed his widely-publicized departure from the WWE to poor health. Brooks argues that Amann made his poor health even worse. Indeed, Brooks recalled becoming ill only to receive (allegedly) substandard medical care at the hands of Amann, whose name Brooks omitted during the Podcast but who appears to be the only person who fits the fact pattern.
Here is an excerpt of Brooks’s comments during the podcast:
After the European tour, the whole European tour I'm dry heaving after every match ... I'm on all fours after every match and I'm either puking for real or I'm just dry heaving because I don't having anything in my stomach. I have no appetite. I don't know what is up and what is down. I can't sleep, I can't [expletive] train. Doc—Doc is giving me—Doc's like, ‘Oh you're sick, here's a ZPak.’ They Z-Pakked me to death, so much that in December I [defecated] my pants on a SmackDown because that's what antibiotics do to you, right?
Brooks continued to criticize Amann, who Brooks contends misdiagnosed him as suffering from a “fatty deposit” on his back:
Somewhere along the way I get this [expletive] lump on my [expletive] back. This is where it gets good. So I go to Doc and I go, "[expletive] look at this, this wasn't here last week, what is that?" Oh it looks like a—a—a—what did he call it? Not a hematoma, a fatty, I don't know, he said it was like a fatty deposit. ... So they-they tell me no, we're not going to do anything about it because it's just, it's just like a fatty deposit, whatever, it's like a calcium deposit, whatever, so I [expletive], I let it go, fine. It gets bigger. A couple months later, I'm like, "This thing’s got [expletive] bigger."
Brooks further added that Amann refused to remove the lump, which Brooks says prompted him to scoff at Amann in a memorable exchange (assuming that exchange happened as Brooks recalled):
Let me ask you something, Doc, are you just—is that like your medical opinion or are you just a lazy piece of [expletive] and don't want to [expletive] do it, because I've seen you cut a million of these things out of somebody.
As the podcast continues, Brooks goes on to describe Amann as incompetent, negligent and non-responsive to his concerns—a depiction that Amann says unlawfully implies he breached his patient obligations as a physician in order to advance the economic interests of his employer, the WWE. For his part, Colton had comparatively little to say during the podcast about Brooks and Amann. However, like any good interviewer, Colton repeatedly urged Brooks to offer the most interesting and compelling details of his medical experience. As a host, Colton also arguably had a duty to fact check Brooks’s claims about Amann before publishing the podcast.
Many people have listened the podcast. Amann’s attorneys, Phillip Zisook and Brian Saucier of the Chicago law firm Deutsch, Levy & Engel, contend the podcast been streamed in excess of 1,000,000 times on YouTube and more than 10,000 times on SoundCloud.com. Plus, these attorneys note, there have been numerous downloads through iTunes and streaming through other websites.
Amann takes Brooks and Colton to court
In February 2015, Amann responded to Brooks’s remarks by suing him and Colton for defamation and invasion of privacy. The lawsuit, which was filed in the Circuit Court of Cook County, demands compensatory damages in excess of $1 million. It also requests that the court impose punitive damages in order to punish the two podcasters. Court records indicate that Brooks and Colton are represented by Sunny Brenner. Brenner is a former federal prosecutor who specializes in entertainment and intellectual property litigation in the Los Angeles office of Loeb & Loeb.
Amann has two basic arguments. First, he repudiates comments made about him during the podcast as completely false. To that end, Amann insists that Brooks never sought his care for a lump of any kind. Amann also contends that he never prescribed antibiotics to Brooks. Instead, Amann recalls, he treated Brooks for a possible concussion.
Second, Amann asserts that Brooks and Colton fully knew that sensational remarks about Amann during the podcast would draw the national media’s attention. Amann highlights that the celebrity of Brooks and reach of Colton’s podcast made that outcome nearly certain. To that end, Amann’s complaint lists articles published by influential news publications, including The Washington Post, Deadspin and Buzzfeed, as well as prominent wrestling websites. Articles run by those publications all retold allegations made by Brooks during the podcast.
In Amann’s complaint, his attorneys contend that the podcast’s comments about their client have badly tarnished his reputation as a physician:
The false statements and implications concerning Amann in the podcast are highly offensive in that they accuse Amann of a gross lack of integrity as a medical doctor, an inability to perform his professional duties as a medical doctor, and in placing the financial interest of his employer above life-threatening health conditions of his patients.
While the vast majority of lawsuits settle before trial, no such deal was struck between Amann, Brooks and Colton. A jury trial for the lawsuit began on Tuesday in the courtroom of Judge Elizabeth Budzinski. It is expected to last through the week.
According to observers of the trial, including Nick Hausman of Wrestling Zone, Amann has offered interesting testimony. While on the stand, Amann told the court he received hostile tweets from Twitter users who ridiculed him as a quack doctor. One Twitter user, Amann says, called him #DrZPak while another featured a sign saying “Can Someone Check My Staph Infection?” Amann contends that he suffered massive reputational damage as a result of allegations made against him during the podcast.
Defense arguments for Brooks and Colton
The defense will soon have its chance in the trial. Among the defense’s likely legal arguments are that the statements by Brooks were, at their core, true depictions of what took place (truth is an absolute defense to defamation). To the extent the statements were off, the defense might argue they were exaggerated for effect. This is because Brooks was appearing in character as CM Punk and conversing in the informal forum of a podcast with a friend.
Further, the more the podcast statements could be construed as statements of “opinion” rather than “fact”, the more likely Brooks and Colton will prevail. Actionable defamation requires that the defendant uttered statements that were couched as factual assertions. In contrast, statements that a listener would tend to perceive as opinion are insufficient grounds for a successful defamation claim. This is because statements of opinion are generally protected by the First Amendment’s guarantee of free expression.
The defense is also poised to criticize Amann for using a lawsuit to share medical information about Brooks. Such a strategy would be designed to depict Amann unfavorably before jurors. The defense will hope jurors regard Amann as opportunistic rather than grieved. In addition, the defense will no doubt question whether Amann suffered meaningful damages. After all, Amman continues to be employed by the WWE in a high level position and his critics seem to consist mainly of random individuals on the Internet. On the other hand, Amann’s defamation claim is configured as “defamation per se.” This means Amann contends the statements against him are so egregious that damages are presumed and do not have to be proven.
SI.com will keep you posted on developments in the trial.
Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.