In the modern jittery, twittery news cycle, events move so fast that Peyton Manning may soon have a huge decision on whether to join a defamation lawsuit Major League baseball players Ryan Zimmerman and Ryan Howard may file against Al Jazeera, possibly as early as next week, if the media outlet doesn't issue a suitable retraction.
In case you've been offline for the past week, an Al Jazeera report (sort of) accused Manning, half the Green Bay Packers, some forgotten track folk, and the above-named big leaguers of using performance-enhancing drugs.
Even before the special, "The Dark Side: The Secret World of Sports Doping," aired on Sunday night, Manning had refuted the report, calling it "trash" and "garbage." (His failure to add "rubbish" given the Al Jazeera investigators' UK ties seems like a missed opportunity.)
Al Jazeera's main source, Charlie Sly, recanted everything he said on an undercover video—before he even knew what he said on it. Yet Al Jazeera went ahead and aired its report anyway. Meanwhile, Manning's new PR representative, Ari Fleischer, former President George W. Bush's press secretary best known for, well, stuff like this, oversaw the release of statements that attacked Al Jazeera, mostly by invoking the name "Al Jazeera" like a Gregorian chant.
So far, that sounds like a fun media circus, but a fairly standard one when sports and doping intersect: accusation, denial, and then a wait for an expensive investigation or three to sort out some version of the truth years hence.
Rarely do athletes sue for defamation, though. And when they do, as Roger Clemens did when he embarked on a nearly decade-long legal battle with his former trainer, it can end badly. (More on that later.)
This case could be different. Zimmerman and Howard, through their attorney, William Burck, immediately signaled a willingness to sue Al Jazeera, telling mlbtraderumors.com, "We will go to court to hold Al Jazeera and other responsible parties accountable for smearing our clients' good names."
By Monday, Burck had fired a warning shot, sending a letter to Al Jazeera on behalf of each of his clients demanding a retraction. Such a letter is a required precursor to a lawsuit in some states. In some cases, if the party issues a full retraction of the statements in question, a lawsuit is prohibited. Al Jazeera responded with a smallish correction at the top of its web site that says an earlier version of the written story (not the documentary) contained inaccurate references to Zimmerman and Howard using human growth hormone.
"The substance alleged was Delta 2, not HGH," the correction reads.
That didn't sit well with Burck, who fired off this response Tuesday: "Today Al Jazeera tried sneaking out a correction which acknowledges major errors in their story about our clients Ryan Zimmerman and Ryan Howard. The original defamatory 'report' connected our clients to the use of HGH, but Al Jazeera has now admitted this defamatory accusation was wholly false and unsubstantiated. Al Jazeera's acknowledgment confirms their unforgivable sloppiness and the recklessness of its publication of this false story. Al Jazeera must retract the remaining false allegations against our clients immediately."
Compared with other famous PED accusations, this one may be ripe for legal action against a media outlet. Most of the reporting on these scandals, from BALCO to Biogenesis, was in some way hooked to ongoing criminal investigations or civil lawsuits. If you're a news organization, it's a good way to inoculate yourself against libel and defamation suits. There's no indication that "The Dark Side" was based on any kind of government investigation or lawsuit.
And Al Jazeera's use of hidden cameras and a reporter posing as an athlete looking to make the 2016 Olympics could be flirting with some dangerous legal precedents established in ABC's infamous Food Lion case. Since Food Lion, journalistic outlets in the U.S. rarely allow reporters to falsely represent themselves or use hidden cameras.
Any legal action from Zimmerman and Howard would provide a potential twist, one that could leave Manning in a precarious position.
When public figures sue for defamation, they open up parts of their private lives they'd rather leave closed, from business dealings to previously unknown medical and drug issues to family strife.
A prime example? Roger Clemens.
When the Yankees ace sued a former trainer who accused him of using PEDs in 2008, the blowback was crippling. Clemens had carefully contrived an image as a devoted family man. All that started to crumble in the months after he filed suit, with women telling tales of the baseball player stepping out on his wife.
One fling, with country music singer Mindy McCready, began, according to the singer, when she was 15 years old. All of that was fodder for the defense in Clemens' court case. Richard Emery, who defended Clemens's trainer, Brian McNamee, in the suit, explained why in 2008: "The issue in Roger's suit against McNamee is Roger's reputation and how it has been damaged," Emery said. "If it's proved that he's a philanderer, his reputation is already damaged. When you sue for defamation, you put your whole reputation in the community at issue. Anything is fair game, including his claim of sanctimonious purity."
As Clemens found out, defamation suits are based on character — real character, and not something that's been contrived by the sports world's PR machinery. The superstar's insurance company wound up paying McNamee earlier this year to settle the trainer's counter suit against Clemens.
Manning has built a nearly spotless reputation through his NFL career and leveraged that to build a lucrative side gig as a corporate spokesman — working his magic for, among others, arch-conservative pizza mogul Papa John Schnatter. If there are any skeletons in Manning's past, Al Jazeera's attorneys will try to exhume them.
Such skeletons added to the damage Clemens's long-term reputation absorbed from the PED stories; the pitcher saw his endorsement income plummet from more than $3 million a year in 2007 to practically nothing five years later.
"If [Manning] sues, can you imagine the deposition?" said New York attorney Tom Harvey, who successfully defended Victor Conte when the BALCO founder was sued for defamation by boxer Shane Mosley, and assisted in McNamee's defense.
Harvey pointed to the reports that the Guyer Institute sent products to Manning's wife, who was a patient at the clinic. She, too, would become fair game in a defamation suit.
Harvey rattled off questions opposing attorneys would ask Manning: "What was in those delivery packages? Were there any other drugs in those packages? Did your wife take HGH legally? Did she have a prescription? If not, did you know your wife was taking HGH without a prescription? How much did your wife pay for the HGH? Did your wife tell you she was taking HGH? Did she discuss it with you?"
Harvey says he "would tell Peyton to shut up and bide his time, which is what Clemens should have done."
If Manning doesn't join a lawsuit, however, that in itself creates a perception problem. By not pursuing the purveyors of a story that, on the surface, has massive reporting and ethical issues, is Manning admitting that Al Jazeera was correct in some way about his relationship to the Indianapolis anti-aging clinic?
Suing to clear one's name sounds honorable, but given all that Manning has at stake, including his legacy and his future earnings, it's not a simple choice.
Manning's quick thinking has made him one of the NFL's all-time greats. Now he may need that skill off the field more than he ever did on it.
Teri Thompson is the former Managing Editor/Sports at the New York Daily News and co-author of "American Icon: The Fall of Roger Clemens and the Rise of Steroids in America's Pastime." Luke Cyphers is a former senior writer at ESPN The Magazine and a journalism professor at SUNY Plattsburgh.