All That and a Bag of Mail: ESPN vs. Sean Miller

Most of the time we don’t get a story like ESPN vs. Sean Miller in the world of sports, one in which one side of this story will be proven 100% right and the other side will be proven 100% wrong.

That’s going to happen in this case because eventually we’ll find out what the FBI uncovered relating to Sean Miller and DeAndre Ayton. If, as Miller alleges, he never discussed paying $100k for DeAndre Ayton on a phone call with a runner for an agent then ESPN’s report will be entirely wrong. And ESPN will have perpetrated the greatest journalistic malpractice in my life as a sports fan. If, however, Sean Miller is proven to have had the conversation on the FBI wiretaps that ESPN reported then Sean Miller’s college coaching career is over and he’ll be a proven liar.

The stakes here are absolutely enormous and I don’t see any way that one side isn’t proven 100% right and the other side isn’t proven 100% wrong.

Because unlike in many media controversies in the world of sports, when everything ultimately boils down to he-she saids and there is never a full ability to determine one party is telling the truth and the other is lying (or in the case of ESPN, has been lied to by a source(s)), we’re going to find the truth out here. Even if eventually takes a year or more for that to emerge.

Almost all of your mailbag questions this week relate to the Sean Miller vs. ESPN challenge so I grabbed those questions and put them all together here to answer them in an order that I think unpacks the larger issues at play in this story.

So here we go:

“How much legal liability does ESPN have here? Could Sean Miller or Deandre Ayton win millions of dollars in damages in the event this story is proven to be false?”

First, both of these guys, Miller and Ayton, are public figures. That means in order to win a defamation claim, the person suing must prove that the statement made about them was not true and then there must also be proof that the writer or publisher acted with actual malice by knowing the falsity of what was said and still publishing it or by acting with reckless disregard for the truth.

Both of these legal prongs are insanely difficult to meet for a public figure, which is why it’s so rare for public figures to actually file defamation claims in the United States.

Having said that, what is ESPN’s sourcing here? We don’t know. Did they actually hear the audio recordings? Did they review court transcripts? Did one person tell them what those recordings and transcripts actually said or did more than one person tell them that? We just don’t know.

Moreover it’s highly unlikely that ESPN would ever turn over their sourcing because, as you’ll see below, it’s possible ESPN’s source committed a crime or violated a court order in sharing this information. It’s also worth noting that ESPN has made a couple of corrections since their initial reporting, but that they have maintained the main facts of the story — that Miller agreed to pay $100k for Ayton — are true.

As a result it’s possible that if it comes out ESPN’s report was false — i.e. there were no tapes of conversations between Miller and anyone about paying for Ayton — I can see Miller or Ayton having a potential claim here that ESPN acted with a reckless disregard for the truth. Now, it’s still not a great claim, but it’s potentially a colorable claim that could withstanding a judge tossing the case. (That’s especially the case with Miller since it’s harder for me to see Ayton having long lasting damages, whereas Miller’s coaching career could have easily ended over these accusations).

How could this case be made?

Given that ESPN is unlikely to be able or willing to provide any information about who their source was — and cite journalistic privilege as the reason why they won’t give up their source — and given the fact that the report would end up 100% false in our hypothetical here, how can ESPN prove that their journalism wasn’t reckless? Asking a question more directly — wouldn’t Miller and his lawyers deserve the right to at least know how ESPN sourced this story in order to determine if this decision was reckless? And if ESPN doesn’t provide that information, how can this story be proven not to be reckless?

Let me give you a wild hypothetical that could benefit Miller.

What if it eventually came out during discovery that ESPN only had one source and that source was one paralegal inside a defense attorney’s legal team? And it later came out that paralegal was a diehard Arizona State fan with a history of lying in court proceedings and that paralegal doctored documents to make it appear Miller had done something he hadn’t? And then ESPN ran with that story because they believed that paralegal?

I think most of you reading that right now would agree that would have been reckless on ESPN’s part.

Again, that’s purely a hypothetical, and that’s if the sourcing was determined. Here it’s unlikely ESPN would share any information about their sourcing.

Absent that how can you prove your story wasn’t reckless?

Essentially, I’m not sure ESPN could legally refute Miller’s claim of reckless disregard for the truth in a matter that would require a judge to toss the lawsuit as a matter of law. (Remember, judges make decisions on questions of the law, juries make decisions on questions of fact).

That inability might be enough for a case to get past motions to dismiss or summary judgment and make it to a jury trial. If the case isn’t thrown out could ESPN become nervous enough about this case, which would likely be filed in Arizona, to try and settle the case rather than have an Arizona jury nail them with a large verdict.

I think that’s possible. Maybe not probable, but certainly possible.

Further, I’m not an expert on Arizona law, but there are likely other tort claims Miller could make in this case, maybe some unique to Arizona jurisprudence that would make me nervous if I represented ESPN.

Now, most lawyers would counsel Sean Miller against filing this lawsuit because it would be expensive and open him up to under oath deposition about his recruiting practices, statements that either could be used against him in court or by the NCAA, but it certainly could happen.

But, as I said at the beginning, all of this requires Miller to be vindicated and for ESPN to have failed when it comes to doing their due diligence under the law.

“Who is ESPN’s source and did that source break the law?” 

We don’t know who the source is, how reliable that source is, or even how many sources there are in this case, but whoever the source(s) is did probably break the law or act in contempt of court by sharing information with ESPN.

If ESPN’s source was in the FBI or involved in the prosecution of the case then that leak of information is at minimum in violation of a sealed court order, subjecting all leaking attorneys to potential contempt of court charges; and it’s arguably criminal if the sources were inside the FBI since it could lead to substantial issues with the prosecution in this case, since disseminating information like this would make it more difficult for individuals charged with crimes to get a fair trial.

If ESPN’s sources were the defense attorneys themselves then they would have violated the court order sealing this case as well.

The legal implications at play here with sealed court documents make it highly unlikely that ESPN would ever reveal any sourcing on this story.

“Did Arizona make the right decision here?”

I think so, yes.

Arizona initially suspended Sean Miller while they conducted their own investigation into the allegations in ESPN’s article. Then, a week later, they brought Miller back and allowed him to return to his coaching duties after issuing a full-throated denial of all charges.

How did Arizona make this decision?

I think it’s likely they reviewed all the allegations made by ESPN and were able to refute many of them. In particular, Arizona should have a call log of all phone calls made and received by Miller. They may have been able to prove that Miller didn’t speak with the alleged runner in the timeframe he was alleged to have done so.

I don’t believe Arizona would have allowed Miller to return to coaching if they thought he might be innocent of these charges against him. I think Arizona allowed Miller to return to coaching because they believe, after an investigation, that he is 100% innocent.

“Couldn’t some of ESPN’s article be true and some of it be false?” 

No, ESPN reported Sean Miller was caught on an FBI wiretap agreeing to pay $100k for Deandre Ayton.

That’s either going to be 100% true or 100% false.

Now, is it possible that Sean Miller was picked up by an FBI wiretap being asked to pay $100k for another player? Sure. Miller even hints that might be true in his statement if you listen closely. (He also says that player never enrolled at Arizona.) And is it possible that ESPN’s source got this call mixed up with other allegations? That certainly seems possible.

Miller also said in his statement that he never knowingly violated any NCAA rules.

So there’s no halfway here, ESPN is 100% incorrect or 100% correct.

“What’s the long range impact to Miller and ESPN?”

It depends on the result.

If Miller is cleared of wrongdoing here, there will always be a lingering whiff of scandal associated with him that will not pass for some time. But he’s likely to retain his employment so lost income will be difficult to prove. The lingering question would be whether this story will harm his ability to recruit at a high level in future years and whether Miller will explore legal avenues of redress. (Arizona has already lost several recruits over this story, hamstringing the program for several years ahead).

As for ESPN, this would be absolutely devastating to the company if this story is inaccurate, the biggest miss in reporting from a national news organization in the world of sports that I’ve ever seen. I asked my listeners to come up with examples of major media getting a sports story wrong — and I don’t mean talking about whether a coach might take a job or a recruit might pick a different school — I mean actually reporting legitimate fake news.

And no one could come up with one worse than this.

I know and like Mark Schlabach, the ESPN writer, and don’t believe he’d ever intentionally get anything wrong. I feel like the same is true of the individuals who worked on this story with him. But if ESPN is proven to be incorrect on this story it will open up their entire investigative process for review. And many will start asking whether the recent firings inside the company broke the journalistic credibility of the company as well.

Remember, many of those let go were the most plugged in and connected college basketball reporters and editors. Would some of them have avoided these mistakes?

Missing on a story like this will also leave other stories that ESPN breaks under a cloud of uncertainty. Many, like me, will find themselves saying, “Today ESPN reported (breaking news story here), but we have to remember to be careful accepting this story as truth because of what happened with their Sean Miller story.”

So far ESPN is standing behind their story, but will they be able to do so when these court documents are all eventually released?

The story will also raise larger issues — among them a question like this — what’s the actual value of enterprise reporting in sports on stories surrounding NCAA violations? Remember, ESPN’s business partners with the Pac 12. If I were running ESPN’s business side I’d throw up my hands and ask, “What the hell are we breaking stories like these anyway? Just let someone else break them and we’ll cover them.”

It’s no coincidence that Yahoo Sports, which has no substantial business relationship with the leagues or TV contracts, has broken most NCAA scandal stories.

The moment this story broke, my first thought was, why didn’t Yahoo have this instead?

But when I read the story and saw that ESPN cited government wiretaps, I believed it had to be true, that there was no way they would have run it without it being 100% true.

In that, it’s beginning to appear, I may have been completely wrong.

Thanks for reading Outkick and I hope y’all have fantastic weekends.

 

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