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Talley v. Time, Inc.

United States Court of Appeals, Tenth Circuit

May 8, 2019

JOHN THOMAS TALLEY, Plaintiff - Appellant,
TIME, INC., d/b/a Sports Illustrated Magazine; GEORGE DOHRMANN; THAYER EVANS, Defendants - Appellees.

          Appeal 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.

          Robert D. Nelon (Jon Epstein, with him on the brief), of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Defendants - Appellees.

          Before MATHESON, MURPHY, and EID, Circuit Judges.


         In 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.[1] 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.

         Mr. 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 timely appealed.

         Exercising 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.

         I. BACKGROUND

         A. Oklahoma's False Light Tort[2]

         Oklahoma 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 privacy, if
(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 elements:

(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).

         Oklahoma 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).[3] We discuss this standard in greater detail below.

         B. Factual Background

         SI 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.

         In 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.

         1. The Article

         Mr. 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.

         Mr. Talley was the North Central Area Director of the Fellowship of Christian Athletes ("FCA").[4] 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 different way."

         George 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.

         2. The Reporting Process

         As 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.

         a. Interviews with players and Mr. Talley

         The 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.[5] In addition, Mr. Schecter interviewed Mr. Talley.[6] Id. at A404. We describe below the information gathered about Mr. Talley during these interviews.[7]

         i. Mr. Evans's interviews

         Mr. 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.

         1) Payments for speeches and work

         Between 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 47:45-48:56.[8]
• 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).

         By 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.

         2) Mr. Pogi living at the ranch

         Shortly before publishing the article, Mr. Evans interviewed former OSU quarterback Aso Pogi.[9] 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 speaking engagements-
Mr. Evans: You spoke a lot, though?
Mr. Pogi: Yeah I did, and, and, you know, we don't get anything.
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 ...

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