Tom Fudge:
At last week's U.S. Open of Golf, San Diego's Phil Mickelson has some bad things to say about the course that prevented him from making the final cut. Do you think he'll sue the PGA? It's not such an absurd question. Losing has led to several lawsuits brought on by competitors who just thought they were robbed. Most of them are thrown out of court, or at least deemed frivolous. We talk about losers who sue, and how judges are supposed to respond to frivolous lawsuits.
Guest
- Dan Eaton , These Days legal analyst.
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS.
OF CONTESTS AND COURTS: IF AT FIRST YOU DON’T SUCCEED, SUE?
Written by Dan Eaton
In the afterglow of the Emmys, all winners have been congratulated and all who left empty-handed have said they were honored to be nominated in the first place even if they didn’t finish in, well, first place. But in recent years, some of those who walked away empty-handed from other contests they felt they deserved to win have taken a different tack. They sued.
The most famous and historically significant example of this, of course, is the battle waged in the courts between President Bush and then-Vice President Al Gore in the aftermath of the 2000 presidential balloting. Journalists who thought the counting of the votes was a two-day story at most ended up spending weeks in Florida covering legal proceedings in that state. But such lawsuits have been pursued over less historic prizes.
It seems fitting to start with a case out of Florida.
The three horse races that comprise the Triple Crown are, in calendar order, the Kentucky Derby, the Preakness, and the Belmont. In 2003, the horse Funny Cide won the Kentucky Derby. The Miami Herald reported, incorrectly, that the jockey had admitted carrying an object in his hand, an object the story implied was an illegal battery-operated device to spur the horse. The Herald later retracted the statement that the jockey had admitted holding such an object and apologized.
The same jockey went on to ride Funny Cide to an easy victory in the Preakness. Funny Cide and the jockey placed third in the Belmont. The end of the story, right? No.
The owners of Funny Cide sued the Herald, claiming that the false statement about the jockey cheating in the Derby caused him to over-ride the horse in the Preakness. But that, you will recall, is the second race, and one that Funny Cide easily won. The theory was that the jockey over-rode Funny Cide to vindicate himself after the Herald’s false accusation, draining the horse of the strength needed to win at Belmont. The owners sued for $6 million: $1 million Funny Cide coulda, shoulda, woulda won at Belmont and $5 million for the bonus that victory would have earned but for the manic jockeying provoked by that article.
The trial court threw the case out and, on May 16, 2007, the Florida Court of Appeal affirmed. Said the Court: “Simply put, it was not legally foreseeable that the article would cause the jockey to over-ride the horse in the Preakness, sapping the horse of its strength and resulting in a third-place finish in the Belmont. Those damages are too tenuous and this claim cannot be countenanced in the law.” ( Funny Cide Ventures, LLC v. Miami Herald Publishing Co. (2007) __So.2d __.)
In a 1989 lawsuit involving a spelling bee -- yes, a spelling bee -- the father of the runner-up in a countywide competition sued the newspaper sponsor of the contest. He claimed the boy who beat his son never should have been allowed to compete. Without the other boy standing in his way, the father’s son – and not this other boy – naturally would have advanced to compete in the national finals in Washington, D.C.
And why should that other boy not have been allowed to compete? Because that other boy had been eliminated in his school’s contest and was allowed into the county contest only after filing a late protest – late, mind you – of his elimination from his school’s contest on an acceptable alternate spelling of the word that had knocked him out. The word behind this controversy: “h-o-r-s-y” or “h-o-r-s-e-y,” which Webster’s defines as “dealing with or interested in horses or sports involving them.” (I couldn’t make that up.) The late protest, said the father, should have disqualified the boy from the county spell-off.
In reasoning similar to that used in Funny Cide , the California Court of Appeal rejected that argument. The runner-up "cannot show that but for the contest official’s allowing the winner to compete, he would have won the spelling bee . . . . [I]t is impossible for Gavin to show that he would have spelled the word correctly if Stephen were not his competitor. . . . ‘Courts of Justice do not pretend to furnish cures for all the miseries of human life. . .’” There is much unhappiness in the world that “‘human laws cannot undertake to remove.’” ( McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 102, 104.) But that doesn’t stop people from trying.
Journalists covering contests -- no matter the stakes -- should be alert that the victor’s race to the winner’s circle may be followed by the loser’s race to the courthouse.
