Friday, May 18, 2012
Sports and personal jurisdiction
Yesterday, Jonathan Vilma, a linebacker for the New Orleans Saints and the player-leader in the teams alleged "bounty program" (paying out cash for injuring opposing players), filed a defamation action against NFL commissioenr Roger Goodell in the Eastern District of Louisiana. Having read the complaint, one of my first thoughts is that there is an interesting potential personal jurisdiction issue here. If Goodell does challenge personal jurisdiction, the precdent that Vilma must overcome comes, ironically, from Roger Clemens' defamation action against Brian McNamee (not to be confused with the government's seemingly abortive prosecution of Clemens for perjury).
Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana. Goodell allegedly intended and expected his statements to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and to a Sports Illustrated reporter in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were ultimately disseminated. The majority never really considered whether McNamee knew or intended his statements would be published in Texas or anyplace other than New York. The key in Clemens is that the Fifth Circuit refused to impute the obvious Texas contacts of SI or even the reporter (Clemens did not sue either one, but obviously SI published in Texas and the reporter would have known that) to the source of the statements, who only knew he was talking to someone in New York and had no knowledge or control over what happened next.
A few distinctions do leap out, so Vilma may be able to establish jurisdiction even in the face of Fifth Circuit's narrow approach. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his particular statements were "directed" at Louisiana. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases that were reported on, but also defamatory statements in reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including intentionally sending some written materials into the state. Fourth, it is telling that Vilma did not sue in Florida, where he lives, recognizing that merely feeling the effects of defamation at home would not be sufficient under the effects test, where the conduct falsely described took place elsewhere.
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Your post, and the Clemens case (as I understand it), only seem to address *specific* personal jurisdiction. Is there an argument that Louisiana--and any other state in which an NFL franchise is located--can exercise *general* personal jurisdiction over Goodell, given his continuous and systematic contacts with such states in his role as NFL commissioner?
Posted by: Anon | May 18, 2012 11:25:23 AM
No. Courts cannot get general "doing business" jurisdiction over an individual; it only is for business entities. The Court discussed this in FN 1 of Burnham and I am not aware of any lower court apply this type of general jurisdiction over an individual. This is especially true after Good Year, which speaks of general jurisdiction as only where someone can reasonably said to be at "home." Read one way, Good Year suggests there no longer is general jurisdiction except in one's actual or functional home state. Plus, jurisdiction over an individual is considered independent of the person's contacts as head of an organization.
Posted by: Howard Wasserman | May 18, 2012 12:23:25 PM
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