Syracuse Ball Boys Given Another Shot

     ALBANY, N.Y. (CN) – Syracuse University must face claims that it defamed a pair of former ball boys who claimed to have been sexually abused, New York’s high court ruled Tuesday.
     “We conclude that the challenged statements are reasonably susceptible of a defamatory connotation, and not otherwise privileged, nonactionable ‘pure opinion,'” Judge Jenny Rivera wrote today for the unanimous Court of Appeals.
     Robert Davis and his step-brother, Michael Lang, sued the university and coach James Boeheim in 2011 after Boeheim rushed to the defense of his longtime coaching assistant, Bernie Fine, whom the men accused of molesting them for years.
     Boeheim told reporters that Davis and Lang were liars, out for money. The coach denied any knowledge of the incidents alleged – including a claim that Davis was seen lying on a bed in Fine’s hotel room during the 1987 NCAA Final Four.
     Davis and Lang’s allegations made headlines in November 2011, coming just a week after an investigation at Penn State led to the arrest of longtime assistant football coach Jerry Sandusky.
     Davis, now in his 40s, alleged his abuse occurred over nearly two decades, starting when he was about 11 years old.
     He took his allegations to police and the media, but nothing came of it. Syracuse University launched an investigation when Davis contacted it in 2005, but the school took no action against Fine based on a lack of corroborating evidence.
     ESPN reported Davis and Lang’s accusations against Fine after the Penn State scandal broke.
     Boeheim called the men liars when other media outlets picked up on the allegations.
     The Onondaga County Supreme Court dismissed Davis and Lang’s defamation complaint in 2012, concluding that anyone reading Boeheim’s statements would see them as “a biased and personal opinion … not fact.”
     Though the Appellate Division in Rochester affirmed dismissal last year, dissenting justices characterized Boeheim’s statements as actionable “mixed opinion.”
     The men turned to New York’s highest court, the Court of Appeals, to revive the complaint, arguing Boeheim’s statements were mixed opinion or defamatory facts.
     For that court Tuesday, the case turned on whether the contested statements “are reasonably susceptible of a defamatory connotation.”
     “The dispositive inquiry … ‘is whether a reasonable [reader] would have concluded that [the statements were] conveying facts about the plaintiff,'” Rivera wrote.
     Here the coach “used specific, easily understood language to communicate that Davis and Lang lied, their motive was financial gain, and Davis had made prior similar statements for the same reason,” the 16-page opinion states.
     Rivera also said “the statements are capable of being proven true or false.”
     Tougher for the court to decide was whether, as Boeheim and the university have argued, the statements’ context would lead a reader to conclude they were “an obvious and transparent effort to defend his long-time close friend and colleague against allegations of sexual abuse.”
     Though such a reading would amount to nonactionable opinion, Rivera said the statements also communicated that the coach “was relying on undisclosed facts that would justify Boeheim’s statements that Davis and Lang were neither credible nor victims of sexual abuse.”
     “The context further suggests to the reader that Boeheim spoke with authority, and that his statements were based on facts,” according to the opinion. “Boeheim was a well-respected, exalted member of the university and the Syracuse community-at-large, and as head coach of the team appeared well-placed to have information about the charges.”
     Since Boeheim had issued his first statement before the university released its own, Rivera said there is an appearance of access to confidential information. So too was Boeheim’s acknowledgement of working with Fine for many years and knowing Davis when he served as a ball boy.
     The statements then appeared in news stories that described the allegations and compared them to the ones made at Penn State – circumstances that “encourag[ed] the reasonable reader to be less skeptical and more willing to conclude that [they] stat[ed] or impl[ied] facts,” Rivera wrote, citing precedent.
     “We cannot state as a matter of law that the statements are pure opinion,” the court concluded. “There is a reasonable view of the claims upon which Davis and Lang would be entitled to recover for defamation, therefore the complaint must be deemed to sufficiently state a cause of action.”
     Chief Judge Jonathan Lippman and judges Victoria Graffeo, Susan Read, Robert Smith and Sheila Abdus-Salaam concurred. Judge Eugene Pigott took no part.
     The attorney for Boeheim and the university, Helen Cantwell of Debevoise & Plimpton in Manhattan, could not be reached for comment.
     Syracuse University released a statement saying it was “still reviewing the decision.”
     “We understand that the case will now be returned to the trial court, at which point we will assess our options going forward,” spokesman Kevin Quinn said.
     Mariann Meier Wang of Cuti Hecker Wang in Manhattan, represented Davis and Lang. Celebrity lawyer Gloria Allred of Allred, Maroko & Goldberg in Los Angeles was co-counsel.

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