from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:14-CV-00853-D)
Raymond S. Allred (Gary L. Richardson, Charles L. Richardson,
Alisa G. Hopkins, and Lia R. Rottman, with him on the
briefs), of Richardson Richardson Boudreaux, PPLC, Tulsa,
Oklahoma, for Plaintiff - Appellant.
D. Nelon (Jon Epstein, with him on the brief), of Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma
City, Oklahoma, for Defendants - Appellees.
MATHESON, MURPHY, and EID, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
2013, Sports Illustrated magazine
("SI") published a five-article series on
the Oklahoma State University ("OSU") football
program. The series explored "illicit payments" and
other "extreme measures" OSU used to recruit and
retain top players. Aplt. App., Vol. II at A446; Aplt. App.,
Vol. III at A699. The first article in the series, titled
"The Money," described an assistant coach who
offered "de facto bonus[es] . . . based on performances
on the field." Aplt. App., Vol. II at A448. It also
discussed boosters and coaches who made "direct payments
to players . . . independent of performance,"
id., and "funnel[ed] money to players through
dubious work arrangements," id. at
A452. And it briefly profiled John Talley, a
booster who "had been close to the football program
since at least 2002" and who allegedly "grossly
overpaid [OSU players] for jobs they did or compensated them
for jobs they didn't do." Id.
Talley sued Time, Inc., which publishes SI, and
SI reporters Thayer Evans and George Dohrmann
(collectively, "the Defendants") in state court,
claiming that the article placed him in a false light and
invaded his privacy. Invoking diversity jurisdiction under 28
U.S.C. § 1332, the Defendants removed the case to the
United States District Court for the Western District of
Oklahoma. After discovery, the Defendants moved for summary
judgment. The district court granted the motion. Mr. Talley
jurisdiction under 28 U.S.C. § 1291, we affirm because
Mr. Talley has not demonstrated a genuine issue of material
fact as to whether the Defendants acted with actual malice,
an element of Oklahoma's false light tort.
Oklahoma's False Light Tort
recognizes the common law tort of false light invasion of
privacy. It has adopted the Restatement (Second) of Torts
§ 652E, which reads:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is
subject to liability to the other for invasion of his
(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false
light in which the other would be placed.
See McCormack v. Okla. Publ'g Co., 613 P.2d 737,
740 (Okla. 1980) (recognizing "the tort of invasion of
privacy . . . as set out in the Restatement");
Colbert v. World Publ'g Co., 747 P.2d
286, 290 (Okla. 1987) (noting that the Oklahoma Supreme Court
has "specifically adopt[ed] the treatment of [invasion
of privacy] in the Restatement of the Law of Torts
(Second)"). False light plaintiffs must prove three
(1) "the defendant gave publicity to a matter concerning
the plaintiff that placed the plaintiff before the public in
a false light, "
(2) "the false light in which the plaintiff was placed
would be highly offensive to a reasonable person," and
(3) "the defendant had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the other would be placed."
Mitchell v. Griffin Television, LLC, 60 P.3d 1058,
1061 (Okla.Civ.App. 2002).
courts have specified that the third element-"knowledge
of or . . . reckless disregard as to the falsity of the
publicized matter"-is identical to the actual malice
standard articulated in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). See Herbert v. Okla.
Christian Coal., 992 P.2d 322, 328 (Okla. 1999) (quoting
New York Times, 376 U.S. at 280). We discuss this
standard in greater detail below.
is a sports magazine published by Time, Inc. Aplt. App. Vol.
I at A85. In early 2012, Mr. Evans, who was then a reporter
at Fox Sports, learned that the OSU football program might
have been using financial inducements to attract and retain
players. Id. at A86; Aplt. App., Vol. II at A388.
That fall, after taking a job at SI, Mr. Evans
shared this information with SI 's
Executive Editor B.J. Schecter. Aplt. App., Vol. II at
A388. Mr. Schecter asked Mr. Dohrmann if he would be
interested in working with Mr. Evans on a story about the OSU
program. Id. When Mr. Dohrmann agreed, SI
began a 10-month investigation into OSU's recruiting and
retention practices. Aplt. App., Vol. I at A87; Aplt. App.,
Vol. II at A388, A438. Mr. Schecter led the investigation,
which involved dozens of interviews with OSU players,
coaches, and boosters. Aplt. App., Vol. I at A86-88; Aplt.
App., Vol. II at A438, A442.
September 2013, SI published its findings in a
five-part article series titled "The Dirty Game."
Aplt. App., Vol. II at A445-82. Below, we quote the passage
about Mr. Talley, which appeared in the first article of the
series. We then describe the steps SI took to
investigate, research, draft, and edit the Talley passage.
Dohrmann and Mr. Evans co-authored "The Dirty Game"
using information they gathered during SI
's investigation. Aplt. App., Vol. I at A87-88;
Aplt. App., Vol. III at A770. The first article of the
series-a roughly 5, 000-word piece titled "The
Money"-described gratuities and inducements that OSU
used to attract and retain top players. Aplt. App., Vol. II
at A445-53. It detailed financial benefits-including payments
for performance on the field-that coaches offered to players
on the team. Id. It also described how several
"boosters," including Mr. Talley, "funnel[ed]
money to players," id. at A452, by paying them
"for little or no work," id.
Talley was the North Central Area Director of the Fellowship
of Christian Athletes ("FCA"). Id. at
A452; Aplt. App., Vol. I at A135. The 442-word passage about
him reads, in full, as follows:
According to multiple players, though, the generosity of
[booster Kay] Norris, who died of lung cancer in 2006, was
exceeded by that of other [OSU] Cowboys supporters. John
Talley, an area director of the Fellowship of Christian
Athletes, had been close to the football program since at
least 2002, when his son, Saul, was a walk-on long snapper.
"John Talley was the hot name around campus,"
[player Rodrick] Johnson says. "If you needed a job,
call John Talley."
[Players Fath'] Carter, [Brad] Girtman, [Rodrick] Johnson
and Thomas Wright each say that Talley either grossly
overpaid them for jobs they did or compensated them for jobs
they didn't do. They allege that numerous other players
benefited from Talley's generosity too. Girtman says
Talley paid him $1, 500 to $2, 000 every two weeks during one
summer to work on his horse ranch, far more than the job was
worth. Talley could also be counted on to set up speaking
gigs for players, paying $100 for a 15- to 20-minute talk.
"You might get more depending on who you were,"
says Shaw. Carter says he and a few other players were once
paid by Talley to help shoe horses. Asked if the players did
the work, Carter says, "Are you kidding? Most of us
hadn't even seen a horse before."
Quarterback Aso Pogi (1999 to 2002) says he and another
player lived at Talley's ranch one summer rent-free. In
retrospect Pogi says, "It's a big deal. I was the
starting quarterback." (Talley says that Pogi lived at
his ranch and had to work to cover his rent; Pogi denies that
he did any work.)
Talley says that he sometimes paid players a fee for speaking
engagements and that they frequently did work on his ranch
noting he always paid an hourly wage. He also says he cleared
the speaking fees and the hourly employment through the
university's compliance office. "I have paid lots of
players to work on my ranch," Talley says. "But I
would never pay someone not to work."
OSU compliance director Kevin Fite says of the speaking
engagements arranged by Talley, "They were not cleared
through our office as paid speaking engagements. In fact, two
of my staff members indicated to me that they had had
conversations with John and told him you cannot pay for
speaking engagements. If you want to employ our
student-athletes for other things, that's fine, but you
cannot pay them for speaking engagements."
While Fite says the school cleared Talley to employ athletes
on his ranch, he acknowledges that Talley's paying in
cash "is not something I am comfortable with. I think
that's a concern. I would prefer to see it done a
Dohrmann & Thayer Evans, Special Report on Oklahoma
State Football: Part 1 - The Money, Sports Illustrated,
Sept. 16, 2013, at 39-40; Aplt. App., Vol. II at A452.
The Reporting Process
previously noted, SI began investigating the OSU
football team in late 2012. Aplt. App., Vol. I at A86-87.
Between 2000 and 2005, OSU achieved its first winning seasons
in more than a decade. Aplt. App., Vol. II at A445. The
Defendants suspected that new and perhaps impermissible
recruiting strategies might have contributed to this sudden
success. Id. They focused their research on
individuals who were involved with the program between 2000
and 2005. Id. at A388.
Interviews with players and Mr. Talley
SI reporters interviewed 60 to 70 former and current
OSU players, coaches, boosters, and administrators. Aplt.
App., Vol. I at A87; Aplt. App., Vol. II at A388-90; Aplt.
App., Vol. III at A747. The reporters recorded the interviews
they used to write the passage about Mr. Talley. Aplt. App.,
Vol. II at A389. These recordings were later produced during
discovery. In addition, Mr. Schecter interviewed Mr.
Talley. Id. at A404. We describe below
the information gathered about Mr. Talley during these
Mr. Evans's interviews
Evans conducted most of the interviews. Id. at A388.
After each interview, he reviewed his notes and/or the
recording and e-mailed summaries to Mr. Dohrmann and Mr.
Schecter. Id. at A389-90, A408, A438. He also
occasionally re-interviewed players to ensure that his
information was accurate. Id. at A390.
Payments for speeches and work
November 2012 and January 2013, Mr. Evans spoke to former OSU
players Brad Girtman, Seymour Shaw, Prentiss Elliott, Chijuan
Mack, Xavier Lawson-Kennedy, Doug Bond, Thomas Wright,
Rodrick Johnson, T.J. Minor, and Larry Brown. Id. at
A389. The players reported the following:
• Brad Girtman revealed that Mr. Talley paid him
"fifteen hundred, a thousand" dollars to perform
"ranch hand" tasks. Dist. Ct. Doc. 60, Ex. 17 at
0:14-0:20, 0:42 (Girtman Interview); see also Aplt.
App., Vol. II at A508. When Mr. Evans asked if these payments
were excessive, Mr. Girtman responded, "I mean, I
thought he was overpaying me, cus I wasn't sure what I
was doing." Girtman Interview at 0:06-0:13
• Seymour Shaw reported that Mr. Talley "always
paid [players] to go talk" and that "if you needed
some money, you'd go to John Talley." Dist. Ct. Doc.
60, Ex. 15 at 1:09-1:13, 1:16-1:19 (Shaw Interview); see
also Aplt. App., Vol. II at A500.
• Chijuan Mack volunteered Mr. Talley's name without
any prompting from Mr Evans and described the speaking
arrangements and team building activities that Mr. Talley
organized for OSU players. Dist. Ct. Doc. 71, Ex. 12 at
45:49-46:37 (Mack Interview). When Mr. Evans asked, "So,
like, during the season you would go speak to schools, read
to schools, and they'd pay you like a normal job,
obviously?," Mr. Mack responded, "No, during the
season you couldn't get paid during the season. . . But
during the summer, you'd get to go there, he got a big
farm like, he'd do stuff like focus groups . . That's
when you would get paid." Id. at
• Mr. Evans asked Larry Brown, "You would go talk
to kids and [Mr. Talley] would pay you to go talk to kids,
right?" Mr Brown responded, "Yeah." Dist. Ct.
Doc. 60, Ex. 25 at 0:39-0:45 (Brown Interview)
• Thomas Wright denied that Mr. Talley ever overpaid him
for work. Dist. Ct. Doc. 71, Ex. 13 at 6:23-36 (Evans Wright
Interview). When Mr. Evans mentioned that "some guys got
paid" for Mr. Talley's speaking engagements, Mr.
Wright responded, "I know some guys did, but I
didn't. I didn't get paid for that."
Id. . at 6:27-45. In a different interview, Mr.
Wright stated that OSU players worked for boosters but
"got kinda overpaid." Dist. Ct. Doc 60, Ex. 19 at
0:00-0:21 (Evans Dohrmann Wright Interview). When asked about
Mr. Talley, Mr. Wright said, "I don't think he was
into all that, he seemed pretty good, but I mean he had to
have been a booster I would think . . . . He was hooking us
up big time with jobs, but I don't think, as far as
giving us money, I don't think-he'd never hand us
money . . . but he would definitely hook us up with
jobs." Id. at 0:53-1:21.
• Rodrick Johnson reported that Mr. Talley overpaid him
for work. When Mr. Evans asked about "jobs that you guys
got paid crazy amounts for," Mr. Johnson immediately
interrupted and said, "John Talley, John Talley. Oh, he
owes me, still to this day" Dist. Ct. Doc. 60, Ex. 13 at
0:00-0:07 (Johnson Interview). Mr. Johnson then added,
"He used to pay very well. I would work for about three
hours and I would get paid probably about 400 bucks."
Id. at 0:15-0:22. Mr. Johnson described cutting
bushes and doing yard work on Mr. Talley's property and
said, "Max[imum, ] I would do probably about ten hours
and I would get-a lot of money. Like, it'd be enough to
actually make it through the summer." Id. at
0:51-1:00. Mr. Johnson also noted that, while some employers
paid with an "actual check that wasn't anything
under the table," "Talley would pay in cash."
Id. at 2:32-2:39. Additionally, Mr. Johnson said
that Mr. Talley paid him for speaking engagements and that
"one time I went to speak at a school and he paid me 100
bucks, and it was, like, for 20 minutes" and that
"[t]here were guys that did that almost every day."
Id. at 2:42-3:02. He also stated "John Talley
was the hot name around campus tryin' to get jobs. If you
need a job, call John Talley." Id. at
3:20-3:25; see also Aplt App., Vol. II at A494.
• Xavier Lawson-Kennedy stated that he never worked for
Mr. Talley but that he "actually wanted to" because
"[Mr. Talley] had the funnest . . he had the best jobs
to do, like go talk to kids." Dist. Ct. Doc. 71, Ex. 14
at 13:20-32 (Lawson-Kennedy Interview).
March 2013 Mr. Evans had spoken with 19 players. According to
his notes, "five [of these] admitted to taking cash,
including three who said they were paid for their play, and
two others admitted receiving extra per diem money."
Aplt. App., Vol. II at A389. In addition, "[f]ive
players said they were either paid for no-show jobs or were
significantly overpaid for work." Id. Multiple
players-including Mr. Girtman, Mr. Shaw, Mr. Brown, Mr.
Wright, and Mr. Johnson-volunteered Mr. Talley's name or
provided detail about his involvement with the OSU program.
Id. at A389, A438.
Pogi living at the ranch
before publishing the article, Mr. Evans interviewed former
OSU quarterback Aso Pogi. Id. at A390. Mr. Pogi said he
frequently participated in Mr. Talley's speaking
engagements but insisted he was never paid to speak. Dist.
Ct. Doc. 71, Ex. 10 at 4:43-4:52 (Pogi Interview). He also
described living on Mr. Talley's ranch one summer. The
relevant exchange proceeded as follows:
Mr. Evans: So, how many times do you estimate John [Talley]
gave you money? John admitted that he gave money. Just that
way you know that I'm not lying to you. John admitted it,
said that he cleared it with the school, the school said they
never cleared it, and that John was never supposed to give
you guys money.
Mr. Pogi: Um, I don't know, man, it was, you know, just
Mr. Evans: You spoke a lot, though?
Mr. Pogi: Yeah I did, and, and, you know, we don't get
Mr. Evans: I know, I know, listen, and that's another
argument for another day. . . . But you spoke dozens of
times, is what people said.
Mr. Pogi: Yeah.
Mr. Evans: And he gave you money dozens of times.
Mr. Pogi: I was on the road a lot to speak. And it was just
for my gas, you know, just cus I had to drive my personal
vehicle there, you know what I mean? But, um-
Mr. Evans: It's not an indictment that you've done
anything wrong, Aso, okay? I'm not-
Mr. Pogi: And listen, I'm, I'm not really, I'm
not taking it that way. I'm, I'm kinda like, this is
kinda throwing me off-
Mr. Evans: It is, and it should. . . . There's no good
way to do it, Aso. You have to understand, I mean, from my
perspective, there's no good way to do it. Cus if I call
you ahead of time, you know, I want to get in front of you
because, again, like, your name is in the story for money.
Mr. Pogi: Yeah, that, and that, that kinda, that kinda hurts
me a little bit.
Mr. Evans: I mean, Aso, I mean, I'm sorry, you know? I
mean, there's just nothing I can do about it. You know
what I'm saying? I mean, like, that's why I came to
get your response. And we'll put your response in there.
Mr. Pogi: Well let me, let me just say this, then. Let me say
that, um, I'd like to just, um, I'm not going to sit
here and plead the Fifth or anything like that, but I,
I'd like to, like, you know, do my own research on it,
because I'm being honest with you in telling you that,
you know, we received gas money, and-
Mr. Evans: That's fine. I mean, I'll tell you what
you're gonna find. Because I know it, I mean, I know it
from the NCAA perspective, right? I mean, like I said, we
went to them and told them, right? John said that he had had
that approved, okay? Compliance said that they never approved
it, Aso. So he was-and it's against the rules for you to
be paid during the season, any of that stuff, for speaking
engagements, et cetera.
Mr. Pogi: And guys put me out there?
Mr. Evans: They threw, oh, absolutely.
Mr. Pogi: That I was the main one, huh?
Mr. Evans: No. You're not the main one. I mean,
there's a, it's a long list, my man. Okay?
Mr. Pogi: I mean, I, I just, I did a-
Mr. Evans: You worked at his ranch, too.
Mr. Pogi: I did a lot.
Mr. Evans: You worked at his ...