On December 30 2009, Pacquiao filed a defamation action against Floyd Mayweather Jr., Floyd Mayweather Sr., Roger Mayweather, Mayweather Promotions, LLC, Richard Schaefer, and Oscar De La Hoya that is pending in the United States District Court for the District of Nevada.
The crux of the complaint is that the defendants allegedly started and continued to defame Pacquiao in connection with the first round of fight negotiations between Mayweather Jr. and Pacquiao by allegedly stating (or implying) that Pacquiao was using performance enhancing drugs.
It appears from the complaint that all of the alleged defamatory statements are oral and, therefore, if spoken and not true, would amount to slander, as opposed to libel, i.e. written defamation.
At this point, Schaefer and De La Hoya have filed a motion to dismiss the complaint (Mayweather Promotions joined that motion) and, on May 17, 2010, Mayweather Promotions filed its own motion to dismiss the complaint. For his part, Mayweather Sr. has filed an answer (not a motion). Finally, Roger Mayweather failed to appear and a default has been entered against him.
At the outset, I don't think there can be much of a dispute concerning the fact that Pacquiao is a public figure (it is harder for a public figure to prevail in a defamation action than it is for a non-public individual because the public figure must allege actual malice, which is defined as knowledge that the statement was false or reckless disregard of whether it was false or not). Thus, ultimately, it will be more difficult for him to prevail in his defamation action than a non-public figure.
I did take a quick look at the complaint and the moving papers and it seems pretty clear that at least some of the alleged statements at issue are nonactionable opinion. For example, the basis for the claims against Mayweather Promotions is the following alleged statement by Leonard Ellerbe:
"This is a simple question. If you have nothing to hide, then why not comply?"
Here, I do not think this alleged statement is defamatory because Ellerbe is not asserting a fact (remember statements of fact can be defamatory whereas statements of opinion generally are not) about Pacquiao. Instead, he is speculating about potential motivations Pacquiao may have for not agreeing to random blood testing with no black-out dates leading up to a fight. Therefore, it seems to be protected opinion and nonactionable.
I also think there are certain statements that are much more likely to be defamatory -- and certainly should survive a motion to dismiss. For example, Schaefer is alleged to have said that he is "sure Pacquiao was using performance-enhancing drugs."
At the outset, the general theme of Schaefer and De La Hoya's motion is that the alleged statements are true -- the brief points to Pacquiao's jump in weight classes, his change of appearance, his ability to withstand Cotto's punches, reporters' and other fighters' alleged similar claims (the motion also seems to take issue with the fact that Pacquiao hasn't sued more people which has absolutely no relevance to this defamation action) etc. However, while it may turn out that Pacquiao was using PEDs -- and truth is an absolute defense to defamation -- at this stage in the proceedings these arguments amount to speculation and are a transparent effort to muddy the waters on a motion to dismiss (a preliminary motion without any discovery where the court accepts the allegations as true). In this regard, the motion also attacks Pacquiao and his camp for allegedly lying about the differences between urinalysis and blood testing -- again, this is irrelevant for purposes of the motion to dismiss.
Similarly, as to the merits, Schaefer argues that this is not defamatory for a number of reasons that are not particularly compelling at this stage. While Schaefer puts in a declaration stating that the alleged statement was never made, at best, the declaration simply creates an issue of fact concerning whether the statement was made (Pacquiao's word against Schaefer's) requiring that the motion be denied.
Schaefer also argues that the alleged statement is alleged to have taken place during a broader discussion about Pacquiao and that this context is necessary (and the absence of allegations concerning the context is fatal to Pacquiao's complaint) to determine whether the statement can be construed as defamatory. Again, on a motion to dismiss, the court accepts the allegations as true and, ultimately, there are issues of fact concerning the context of the alleged statement. At this stage, Pacquiao appears to have satisfied the pleading requirements. Schaefer also argues that the statement is protected opinion. At this stage, I don't think the alleged statement (assuming it was said) that he was "sure" Pacquiao was using PEDs is fairly considered opinion in the context in which the statement appears in the complaint. There may ultimately be an argument here given the broader context and the presence of disclosed facts, but not at the motion to dismiss stage.
Pacquiao will now oppose the motions and I will continue to monitor.
Hopefully they will agree to fight now in November and as part of that negotiation they will agree to dismiss this action and move on.
Fight Lawyer
