ESPN cameras caught Andrew Rector sleeping in his seat in the fourth inning of the April 13 Boston Red Sox-New York Yankees game. In the time-honored tradition of TV play-by-play when something funny, weird or, most especially, sexy is spied in the stands, ESPN commentators Dan Shulman and John Kruk began making fun of him. The clip ended up on YouTube, naturally, and thus on various sports websites, followed by the various idiotic, cruel, gratuitously mean-spirited insults, usually composed by brave anonymous commenters.
This is a familiar pattern of unethical public mockery, and we have become inured to it. Though the ESPN team’s jibes were rather mild in nature, and Rector’s legitimate embarrassment quota would be far, far less than, say, that of George Costanza when this happened at the U.S. Open, let me say for the record that picking fans out of the crowd at sporting events and making fun of them, whatever they are doing, is generally a rotten thing to do. I know: it’s public, you know you might be on camera, and the fine print on the ticket stub puts you on notice. Unless, however, the conduct involved is actually newsworthy or despicable (as in instances where an adult has snatched a baseball from a child), the Golden Rule applies. Who knows why Rector was sleeping? Maybe he was up all night with a dying relative or a grievously ill child—Shulman and Kruk don’t know. And if he chooses to pay for a ticket and nap during the game—and it wasn’t exactly a scintillating game, I should add—so what?
Unfortunately, Rector, whose name was unknown and whose sleeping form would have been quickly forgotten, decided that his humiliation was so great that he needed to sue…for $10, 000,000. Rector filed the suit against ESPN, Shulman, Kruk, the New York Yankees and Major League Baseball. Now he is in the full throes of the Streisand Effect—in fact, I think we should consider calling it the Rector Effect. Absent his lawsuit, his embarrassment would have been fleeting and anonymous. As a result of it, he is being ridiculed and criticized all over the internet, from snarky gossip blogs to sports rags to serious legal commentary websites. This is entirely self-inflicted harm, and his lawyer, whom we will return to shortly, had a duty to warn him about it.
Rector’s complaint asks for damages for defamation and intentional infliction of emotional distress, citing malicious and false statements said about him,including that Rector is “a fatty cow” that represents a “symbol of failure.” You will notice in the video that none of the defendants actually said any of these things (“fatty cow”?) Rector’s suit is apparently making the creative legal argument that ESPN’s mild mockery seeded the vicious mockery elsewhere on the web. The theory is illogical and ridiculous, and is one of many reasons the law suit is likely to be thrown out of court, if not the window.
Meanwhile, the drafting of the complaint has raised eyebrows for other reasons. Here are some samples of Rector’s lawyer’s artistry:
Where to begin? Well, the complaint is careless, semi-coherent, horribly written, ungrammatical, and lacking in basic punctuation. Worse, from a legal ethics standpoint, it makes assertions that are demonstrably false. As ESPN has noted, its announcers didn’t say what the complaint alleges they did, and since the entire incident is a matter of video record, this amounts to a negligent of intentional misrepresentation to the court. You can read the entire, stunningly awful document here.
There are at least two serious legal ethics breaches suggested here. One is New York Rule of Professional Conduct 4.1, which forbids lawyers to make material misrepresentations of fact. This serious misrepresentation is being made to a court, and if the lawyer gets out the door without having an ethics complaint filed against him he should start playing the lottery. The other is Rule 1.1, Competence. If you can’t write any better than this when submitting a formal document to a court, you shouldn’t be representing clients in court. All over the web, bloggers are trying to find out what law school gave Rector’slawyer, ValentineOkwara, a law degree (he apparently passed the bar exam last year). Thus we can add a phantom law school to the ethical transgressors here…
- The mystery law school, for falsely leading Okwara to believe he was qualified to practice law, and taking his money to do so,
- Oksara, for filing and incompetent and false lawsuit (but not necessarily frivolous, because ya never know…),
- Oksara, for not advising his client that the chances of winning such a suit (especially with him as the lawyer) were slimmer than slim, and the chances of the laws suit magnifying Rector’s humiliation and infamy exponentially were huge,
- Oksara, for making his profession look bad
- Rector, for misusing the civil justice system to try to get a windfall payday that he doesn’t deserve from a bad lawsuit, as so many bad lawsuits have done for others in the past (but perhaps not quite this bad), and…
- Kruk and Shulman, for using a national broadcast to humiliate a fan who was, after all, just sleeping.
In a word–yecch.
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Ethics Alarms 
I agree with you about the horrible drafting job
.
And, Rector would have been better off making light of it. He could have made the talk show rounds and would have a mattress company endorsement contract by now.
But, the big question I have about the excerpt you gave is in Paragraph 8. Can a Court take judicial notice that this is the biggest rivalry “in all of sport”?
Packers-Bears, Packers-Cowboys, Michigan State-Ohio State, Manchester United-Liverpool (probably best not to bring soccer into it-those fans can be nuts)?
-Jut
No. And it’s irrelevant to the case.
Everyone knows that the biggest rivalry in all sports is the Harvard-Yale Game….
Here I thought it was the Army-Navy game?
If it hadn’t been for the poor craftsmanship and obscene payout, I could have supported a lawsuit smacking cruelty to a fan. If a fan is doing something that demands attention (wearing paint, attacking a mascot) then it’s newsworthy or part of the show. But dozing off harms no one and doesn’t disrupt others’ enjoyment of the game. That type of mockery is just cruel mob bullying, supposedly justified by ‘everybody does it.’
I can feel sorry for him, even if I think his complaint was originally justified. If the sleeper really wanted a change instead of a chance at the brass ring, the compensation should have been different. Or is that a commentary that people don’t care about the golden rule unless it costs them gold?
It’s not nice. It still doesn’t rise to defamation, and the emotional distress angle is a stretch. For there to be a valid suit, there have to be real damages. The lawsuit is more damaging than the original mockery.
Can one sue for an apology (as coerced as it would be anyway)? Or can one only sue for monetary recompense?
You can’t sue for mere indignities. There has to be a tort—actual, substantive, measurable harm recognized by the law. And you have to seek a remedy—like a retraction, at very least. Otherwise it’s trivia, and the law, by tradition, doesn’t care.
Maybe- but I was thinking the same way as Jut Gory after reading the column. If Mr. Rector had the glimmerings of manhood, he would have reacted with a letter to those two commentators to the tune of, “Hey, guys. I’m the one you found sleeping during last week’s game. I know you all poked a little harmless fun at me on TV, but I can handle that. (I had a tough night and just got too comfortable in my seat!) Unfortunately, the video seems to have gone viral on the internet and I’ve been seeing some really vile insults leveled at me by the usual lowlifes you find there. Say; do you think you could mention me on your next broadcast between plays and tell folks that I’m just a regular guy who enjoys the game like they do? Just asking! BTW: Enjoy your show on ESPN.”
A little character and good humor while pointing out that foul mouthed jerks on the internet are deserving of everyone’s disapprobation. With a little luck, it MIGHT pay off. Remember Jared of Subway! To sue Big League baseball and the families of every groundskeeper for a cool ten mill is not only uncool, but actually puts him in the same ethical category as the woman who scalded her lady parts with a hot McDonald’s coffee cup. It also lends credence to the words of those online jerks who accidentally proved to be accurate in their assessment of him.
But that wouldn’t include a slim chance of winning a civil lawsuit lottery!
Hmmm… I’m thinking Rector’s nap is merely the inevitable effect of attempting to watch baseball. It would be noteworthy if he hadn’t been bored to tears/sleep.
But maybe that’s just me. And it could also just be sour grapes because my favorite football team’s ineptitude produced this fan’s response: http://www.youtube.com/watch?v=ROixfhb6ZKY&feature=kp.
My own team, the Boston Red Sox, have offered their fans a virtual horror show this season, and have been about as dull a team as has been seen in Fenway in eons. And I would rather watch its worst game of the year a dozen times than watch football players maim each other, the corrupt faux game of basketball, or soccer’s third-world view of life and endorsement of the mob.
Jack,
Without throwing myself into the fray, I’m confused by your description of basketball as a “faux game?” Keep in mind, I don’t watch it either, nor am I particularly drawn to the sport, I’m just curious what you mean by the statement.
And, even more so, “[football’s] third-world view of life and endorsement of the mob?” Especially considering, the US aside, it’s the most beloved game in all the developed world.
Basketball is manipulated by refs, played by freaks, and has become, in the pro game at least, just an excuse for athletic stunts. The season is virtually meaningless, and the game would be unplayable if the rules were enforced (stars get to travel and double-dribble; fouls are called according to who fouled, when, and where the game is being played.) In the college game, basketball has been allowed to warp the priorities of the big b-ball schools.
Soccer is a mob-glorifying game, the antithesis of American values, which focus on individual responsibility and accountability within a society. Soccer advertises socialist, anti-individual values—no wonder that the rest of the world loves it. I honestly think it is plausible that the media’s ridiculous hyping of the World Cup is ideologically driven. Zombies could play soccer (though not well.)
I’ll endorse that point of view! However, I must disagree on football. Men need blood sports, after all. Bull fights don’t really cut it and gladiatorial combat is no longer legal. Without something like this, men the world over either become effeminate soccer wussies or they develop a huge collective case of Le Cafard. (Look up the French Foreign Legion for the definition of that term!)
Jack,
I don’t know enough about basketball to agree or disagree, so I’ll leave that for others (or no one, as the case may be).
“Soccer” is also sport at its most basic. Two teams, two goals, one ball. One score equals one point (something I like about baseball too, while we’re at it). Unlike most American sports (baseball excluded) there are far less ways of gaming the clock (also, the clock counts up, not down, showing they have faith that their audience can do basic math), and is also much less violent. What’s more, unlike most American sports, it requires nothing to play other than some flat land and a ball, compared with baseball (gloves, bats, a lined field, etc) or (the worst offender) golf (clubs, ball, carry case, acres of land, etc). There’s a reason it’s known as the “Beautiful Game.” Yet, despite all this simplicity, it’s incredibly difficult to play well (zombies could kick the ball, sure, but their abilities end there). Try doing anything just using your feet, especially with any degree of accuracy.
Also, unlike most American sports, “soccer” doesn’t allow for the use of replay in judging penalty decisions. This has led to mistakes, but it beats the twenty minutes of analyzing, repetitive replays, and announcers ranting about how unfair the call was anyway.
Actually no, feel free to dispute any or all of my claims above, as they’re largely subjective. Despite your personal views, “soccer” is a beloved game and those who play it do so passionately and with great skill. Calling it “un-American” and “socialist” sound like arguments made out of snobbery and personal choice more than actual fact. That would be like me arguing baseball encourages uncreative, linear thinking, as it dictates that players run along pre-determined paths based on a series of preceding events. That’s how computers operate, not people. I don’t actually believe that, mind you, but the argument is no less valid than yours. The same would go for “football encourages war,” “Monopoly encourages trust-building,” (fun fact you may know: it was originally designed as a critique of capitalism) and “lacrosse encourages hipsterhood” (the last one being true). When it comes to a game: if people love it and their love places no undue burden on others, it’s valid.
It’s mob rule because the fans are rowdy? It’s anti-American because it focuses more on the team than the players? It’s bad because you don’t like it? And the media’s coverage is agenda-driven? Might it not have more to do with the fact that (as I said before) the game is HUGE everywhere else but here and that people the world over (even movers and shakers) are interested in how it turns out. I’m really, terribly, awfully confused – especially since I don’t really enjoy the watching or playing, I simply don’t hold unfounded judgments of those who do.
-Neil
I think our games reflect and also influence our values and views of life. I believe those who try to steer the US toward soccer are also those who want the US to jettison its culture in favor of gun confiscation, and European-style socialism. They are teh ones who think “the rest of the world believes this” is a persuasive argument. I think the reason soccer has taken so long to take hold here is that in a very visceral way, it promotes values and views of society that are, or at least have been, alien to core American values.
I’ve played soccer. Like a lot of games, it’s more fun to play than to watch. I think it taps into a mob mentality (so does American football), and yes, I think it is alien to our culture.
Jack,
Taps into mob mentality HOW?
-Neil
The game IS a mob—it’s improvised swarming. And fan behavior is mob-like as well. I find it frightening, myself.
To be clear: I have no objection to anybody liking soccer, watching or promoting it. I object to the hype, and the efforts to ram it down this country’s throat, as well as the fake reports of “soccer mania.” I view the inbred hostility to the game here as a good thing, and a symptom of the culture’s resilience.
Jack,
I think you’ve read WAY too much into things. Sometimes a game is just a game, and sometimes the media hypes things because they have nothing else to do and it keeps ratings up.
“un-American”? “socialist”? “.. ram it down this country’s throat..”? “fake reports”? (Al Jazeera, CBS, and the BBC all collectively got together to make us thing people care when they really don’t?) That’s just .. silly.
It certainly could be. But there is reason Eastern cultures play Go, and we play chess, a reason cricket doesn’t fly outside of the British empire, a reason why baseball flourishes where it does, and why American football is king here, and no place else. It’s not a conspiracy, I didn’t argue that. But I do believe, and I think I’m right, that there are ideological and political underpinnings to soccer. Polls show that progressives are far more fond of soccer than conservatives, and I would have predicted that. Even allowing for age.
Jack,
This might be trivial to point out, but chess (aside from being played EVERYWHERE) was actually first developed in India and, today, the majority of the world’s grand-masters live in places like Russia, China, Armenia and, you guessed it, India.
Anyways, I’m going to let you have this one. Not because I concede, but only because your arguments are ultimately opinion-based and neither of us is going to gain any traction.
Anyways, since it wasn’t said before, the original post that started this whole thread, was excellent. Cheers.
-Neil
You should play Go and read about its influence on Asian strategy in business and global politics. It’s a fascinating topic.