The right to remain silent . . . and not be sued for defamation

Whatever the reason, it seems that doping allegations and defamation go together.  This time, however, the admitted doper is the target of a defamation lawsuit for implicating a former coach in his rules violations.

Tyson Gay competed for the United States in the London Olympics as part of the silver-medal-winning 4×100-meter relay team.  After he tested positive for banned substances last year, Gay reportedly told the U.S. Anti-Doping Agency (USADA) that his former coach, Jon Drummond, (himself a winner of the gold medal in 4×100 m relay at the 2000 Summer Olympics) had told and helped Gay use the substances in question.  As pointed out by the Fort Worth Star-Telegram, “Gay did not get the typical two-year suspension because the USADA said he is cooperating with investigators and providing information on others who might have used performance-enhancing drugs.”  In fact, the lesser penalty will “allow[] Gay to return to competition this summer.”

As one might imagine, Drummond did not take Gay’s accusations lightly.  He has sued Gay and Travis Tygart, the chief executive officer of the USADA in Texas state court.  USADA predictably called the lawsuit “baseless” and Drummond’s lawyer issued a statement saying that “Mr. Drummond categorically denies ever having encouraged Tyson Gay, or any other athlete, to use any banned substance.”

My initial thought upon seeing this story was that Drummond obviously had a loser of a case thanks to the litigation privilege.  For those that aren’t familiar with defamation law, the litigation privilege is the legal doctrine that statements made in the course of judicial proceedings cannot form the basis for a defamation lawsuit.  The basic idea is that parties should be free to get at the truth in the course of litigation without fear of reprisal should later-discovered evidence negate claims made earlier in the process.  In most jurisdictions the privilege is even so broad as to cover statements made in anticipation of potential litigation.

It dawned on me, however, that Gay might not be able to claim the litigation privilege.  The privilege applies to communications made prior to and in the course of judicial proceedings, but were judicial proceedings in contemplation in his situation?  It seems to me that they might not have been.  I don’t know all the ins and outs of how the USADA makes these decisions, so it’s possible that there might be some quasi-judicial process regarding athlete bans.   Of course, remembering back to my Liliya Shobukhova post from not too long ago, a decision by the USADA could be appealed to the Court of Arbitration for Sport.  Perhaps that would be sufficiently judicial to bring Gay’s statements to the USADA under the umbrella of the litigation privilege.

If Gay felt the need to confess to the USADA rather than fight the allegations against him, that was certainly his right.  Depending on the evidence against him, it may very well have been the better choice.  Gay cannot, however, make false statements about Drummond or others to the USADA, especially statements that would injure a running coach such as Drummond in his professional reputation.  Obviously, implicating Drummond in any sort of doping scheme would seriously damage his ability to continue his career as a track coach.

As with any other defamation case, truth is an absolute defense.  If it turns out that Drummond was involved in activities banned by the USADA, the his lawsuit will obviously go exactly nowhere.  We’ll just have to wait and see how this one turns out.


2 thoughts on “The right to remain silent . . . and not be sued for defamation

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