THE DISGRUNTLED TENNIS PLAYER

 

Dee v Telegraph Media EWHC (QB) (2009-2010) (3 separate judgments)

A world record and its courtroom aftermath...

 

Background facts

Robert Dee was a 21-year-old British professional tennis player based in Spain. Over 3 years, he lost 54 consecutive ATP [Association of Tennis Professionals] world-circuit matches – a world record at the time. Of those, Dee also lost every set – 108 of them on the trot.

In late April 2008, after he finally won a circuit match – against an unranked 17-year-old – a number of news outlets ran stories describing Dee as “the worst professional tennis player in the world”.

Said Dee, “[M]y life changed forever. Having been previously unknown to almost everyone in the tennis world, I suddenly became famous overnight.

However, such fame – or infamy, more accurately – was unwanted, and Dee felt the comments were misleading since he had won various matches on Spain’s tough national circuit, albeit at these tournaments he could not gain ATP ranking points.

To his credit, Dee secured apologies from over 30 news outlets, including the BBC, The Daily Mail, The Independent, The Guardian, several Yahoo news sites, Fox Sport and The Washington Post. He received damages in some cases.

But when Dee took on an unapologetic Daily Telegraph, he ran into the wall of defamation expert David Price, whom the Telegraph had instructed to handle its defence.

Facts relevant to claim

The Telegraph published two items about Dee in one newspaper edition: a succinct, front-page item, which outlined Dee’s losses and under which were the bolded words: “Full story: S20”, and the S20 item, itself, which built on the front-page item. The S20 article gave details to imply Dee had had at least some success in the Spanish tournaments. The S20 item also implied that the 54 consecutive losses did not represent Dee’s entire professional record.

Restricting his complaint to the front page, Dee alleged the Telegraph had implied to readers that until his win against the 17-year-old, “the Claimant had lost 54 consecutive professional tennis matches during his three years on the professional tennis circuit, and had therefore proved himself to be the worst professional tennis player in the world”.

The Telegraph argued both items had to be read together to form the full context of the publication. The Telegraph denied the words were defamatory, but otherwise argued they were true in substance and/or were fair comment.

Preliminary judgment – [2009] EWHC 2546 (QB)

The parties initially skirmished in a hearing before Eady J, in which the Court deliberated over whether Dee should be directed to answer questions about the terms “the circuit”, “the international professional circuit” and the “world circuit”. The Court did not, at this stage, offer a ruling on whether these terms had identical meanings in the tennis world, though the issue would be necessary to determine in order to assess whether the Spanish tournament matches Dee had won could be said, as Dee alleged, to have formed part of the “circuit”, in which case inaccuracies could be found in the Telegraphs front-page item.

Judgment on summary-judgment application – [2010] EWHC 924 (QB)

After the initial hearing, the Telegraph applied for summary judgment.

Held: Sharp J ruled in favour of the Telegraph, thus extinguishing Dee’s claim.

The judge first determined that the front-page and S20 items were to be read together as a single publication, a ruling based on settled bane-antidote law.

Regarding meaning, Her Honour said that the words were prima facie defamatory of Dee: that they suggested, among other things, that he was absurdly bad at tennis, and he lacked insight into his own lack of talent. However, since Dee had not pleaded these meanings himself, the judge’s comments on this issue are peripheral.

Viewing the case globally, the most important issue the judge ruled on was whether the publication was true. She held that on the strength of the material facts the Telegraph could prove – such as Dee’s 54 consecutive losses in the professional ATP tournaments – the only “rational conclusion” was that the Telegraph succeeded.

Unusually – or possibly “impermissibly”, as Dee’s counsel described it – the Court received evidence on natural and ordinary meaning (which is usually admissible only in respect of pleaded innuendo meanings). Some ‘celebrity evidence’ was received from Boris Becker and John Lloyd – well-known former professional players – who supported the Telegraph’s position that, in the tennis world, the phrase “the circuit” was effectively shorthand for the phrase “international circuit”. With this sub-issue resolved, the judge held it would not matter if the Telegraph could not prove that Dee had lost the total of his professional matches during his first three years, because on the material facts available the Telegraph could prove the actual sting of the publication. Further, the judge made clear that, in any event, to prove the sting of the publication, the Telegraph did not need to prove that Dee was objectively the worst professional tennis player in the world – which would be impracticable.

The judge did not need to consider fair comment/honest opinion, though a ruling on the true public-interest value of the story would have been interesting.  

Costs hearing – [2010] EWHC 1939 (QB)

The Telegraph applied for indemnity costs (total costs incurred) on the basis that Dee had acted unreasonably in pursuing the claim. The judge did not agree. She suggested: “It would be a rare case where both sides do not feel that the other has acted unreasonably, and unfortunately, an even rarer one where there would not be at least a measure of truth in such a view.” Dee, for his part, sought a costs reduction because the Court had said the publication contained defamatory meanings. This argument failed. The meanings identified by the judge were never part of the claim.

Discussion

  • This case is probably the best example of an athlete suing news media for defamation in respect of reportage of their ‘on-field’ performance. (There are plenty of defamation cases arising out of athletes’ ‘off-field’ performances!)
  • One could possibly be forgiven for thinking defamation law does not apply to sporting events, given the common sight of referees, coaches and players being denigrated – particularly with the rise of social media. However, while claims are rare, there have been other sports defamation cases. Coaches and referees have sued, for instance, in respect of suggestions that they were incompetent and biased, respectively.
  • As for sportspeople suing in respect of statements about their playing records – i.e. statements that suggest they are incompetent or are of ‘want of skill’ – Sharp J had these words to say:

It is difficult to characterise an allegation of relative lack of sporting skill, even if it leads to the bottom of whichever league the person or team participates in as necessarily imputing incompetence … Such an allegation might be said to dent someone’s pride rather than their personal reputation, depending of course on the context. In every race, match or other sporting event, someone has to come last: that is the nature of competitive sport. Losing sport is, as Mr Price submits, an occupational hazard…

A sportsman on a losing streak might be unlucky, inexperienced, playing out of his league, lacking proper management, out of form, injured or simply not as good as the others against whom he is measured. A bad run of defeats may be followed by a famous victory. Sportsmen or women may not failed either from want of trying, and a brave failure, depending on the context, might be regarded as creditworthy rather than the reverse.

  • On the issue of meanings, purists might view the judge’s receipt of extrinsic evidence on natural and ordinary meanings as impermissible. While such criticism would be sound, it not should be overlooked that the Telegraph in any event could have amended its claim to plead the judge’s meanings as Lucas-Box meanings, had the case not been dismissed. On the alternative meanings, the Telegraph would inevitably have prevailed.
PUBLISHERS’ TIP: Stories about on-field sporting performances will almost always be safe to publish. So long as any criticism is stated as obvious opinion – that is not stated as fact – and is confined to the sporting performance itself – i.e. the author does take the opportunity to also have a dig at an athlete’s personal life – honest opinion would usually prevail. Technically, this is because stories about sporting performance would be regarded as reviews, which have broad scope under honest opinion.

LAWYERS’ PRACTICE TIP: This case contains useful dicta regarding bane-antidote doctrine at paragraphs [17] to [32] of the summary-judgment decision.