Favre v. Sharpe

Case: 23-60610 Document: 79-1 Page: 1 Date Filed: 09/16/2024

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 23-60610

FILED

____________ September 16, 2024

Brett Lorenzo Favre, Lyle W. Cayce

Clerk

Plaintiff—Appellant,

versus

Shannon Sharpe,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:23-CV-42

______________________________

Before Southwick and Duncan, Circuit Judges, and Kernodle,

District Judge. *

Leslie H. Southwick, Circuit Judge:

This suit is between two former professional football players. The

defendant ex-player was a co-host of a sports talk show during which he said

the plaintiff stole funds from a government program meant for those living in

poverty. The plaintiff sued for defamation, but the district court categorized

the talk-show comments as hyperbole for which there was no liability. The

_____________________

*

United States District Judge for the Eastern District of Texas, sitting by

designation.

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No. 23-60610

court dismissed the suit on the pleadings. We apply a different doctrine that

also protects the comments and AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Brett Favre is a Mississippi native. He was a star football player for

the University of Southern Mississippi (“USM”) and then had a lengthy

professional career, primarily with the Green Bay Packers of the National

Football League. He was named three times as the NFL’s Most Valuable

Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame.

Much more recently, his public image has been somewhat tarnished by his

connection to individuals who were convicted for the misuse of government

welfare funds and his alleged receipt of some of those funds.

We start with an explanation of the misuse of funds. 1 In October 2021,

the Mississippi State Auditor’s Office determined more than $77 million in

federal Temporary Assistance for Needy Families (“TANF”) funds

intended to help impoverished Mississippians were used for illegal purposes

across the state. To date, six individuals have pled guilty to state and federal

felony charges related to their involvement in this scandal. Favre has not

been criminally charged. Mississippi’s Department of Human Services

(“MDHS”) filed a civil suit in May 2022 against Favre and numerous

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1

Both parties submitted documents to the district court that go beyond the four

corners of Favre’s complaint to provide details on the welfare scandal. Although a “district

court generally must not go outside the pleadings,” it “may consider documents attached

to a motion to dismiss that are referred to in the plaintiff’s complaint and are central to the

plaintiff’s claim.” Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010)

(quotation marks and citations omitted). The district court took judicial notice of

documents and facts related to the welfare scandal, finding them “integral to Favre’s

claim.” See id. We will not explore the reach of judicial notice but will set out some of

these details because neither party objected to their use by the district court.

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persons, seeking to recover TANF funds that were unlawfully diverted

between 2016 and 2019.

MDHS initially sought to recover $1.1 million in TANF funds Favre

received from the non-profit Mississippi Community Education Center, Inc.

(“MCEC”) in 2017 and 2018 for speaking engagements that he never

performed. Favre had repaid the funds prior to MDHS’s suit. MDHS

amended its complaint to recover $5 million in TANF funds Favre allegedly

arranged to be used to fund the construction of a new USM volleyball facility.

According to MDHS, Favre was unable to encourage sufficient donations for

the facility’s construction, so he turned to the non-profit MCEC to help

secure the $5 million in funding. TANF funds were ultimately used on the

project.

Local and national news outlets continued to cover developments in

the welfare scandal and Favre’s alleged involvement. During that time, two

events occurred that gave rise to this lawsuit. The first was a September 13,

2022, article in an online news source called Mississippi Today. The article

detailed the MDHS’s recent filing of a civil suit against Favre. The article

included text messages between Favre and one of the six individuals later

convicted in the scandal, Nancy New, that discussed the construction

funding of USM’s volleyball facility and how it was likely the media would

not determine the source of the funds. 2 According to the Mississippi Today

article, these texts were proof that Favre worked with New to orchestrate

MCEC’s use of the $5 million in TANF funds for the volleyball facility. The

article stated the separate $1.1 million was a way to receive more funds for

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2

New is the former president and CEO of the MCEC non-profit, which received

and illegally disbursed TANF funds. She pled guilty to 13 felony counts related to the

scandal.

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the project. It also acknowledged Favre denied knowing the money received

for the project came from the TANF program.

The other event underlying this suit occurred the day after the

Mississippi Today article appeared online. The defendant, Shannon Sharpe,

along with Skip Bayless, hosted a nationally broadcasted sports talk show

called Undisputed. Sharpe also had an exceptional professional football

career. He played 14 seasons in the NFL, was on three Super Bowl winning

teams, and was inducted into the NFL Hall of Fame. The relevant segment

opened with the moderator briefly summarizing the Mississippi Today article

and then asking Sharpe for his thoughts about its impact on Favre’s legacy.

Sharpe and Bayless then engaged in an eleven-minute discussion about

Favre, the welfare scandal, and MDHS’s civil suit. The hosts provided

colorful and derogatory views on the article, calling Favre “a sleazeball,”

“shady,” “gross[],” and a “diva,” and accusing Favre of “steal[ing],”

“egregious” behavior, and “illegal activity.”

Favre viewed three of Sharpe’s statements as defamatory:

1. “The problem that I have with this situation, you’ve got to

be a sorry mofo to steal from the lowest of the low”;

2. “Brett Favre is taking from the underserved” in

Mississippi; and

3. Favre “stole money from people that really needed that

money.”

Favre sent Sharpe a letter demanding he retract these statements,

apologize, and cease and desist from making any “further defamatory

falsehoods against Favre.” Sharpe refused. Favre sued for defamation in a

Mississippi state court. Favre alleged in his complaint that these three

statements injured his reputation, falsely accused him of serious crimes, and

were defamatory in nature.

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Sharpe removed the case to the United States District Court for the

Southern District of Mississippi based on diversity jurisdiction. He then filed

a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Favre’s

complaint for failure to state a claim. Sharpe argued (1) the challenged

comments are “a classic example of the kind of rhetorical hyperbole and

loose, figurative language” protected by the First Amendment, and (2)

Mississippi law protects Sharpe’s critical comments because they discuss a

matter of public concern and are drawn from official proceedings.

The district court granted Sharpe’s Rule 12(b)(6) motion because

Sharpe’s comments were “mere rhetorical hyperbole,” which made the

comments “unactionable.” The court concluded that “no reasonable person

listening to the Broadcast would think that Favre actually went into the

homes of poor people and . . . committed the crime of theft/larceny” because

“[l]isteners would have recognized Sharpe’s statements as rhetorical

hyperbole.” Favre timely appealed.

DISCUSSION

We review a Rule 12(b)(6) dismissal de novo. Allen v. Hays, 65 F.4th

736, 743 (5th Cir. 2023). To survive a Rule 12(b)(6) motion, “the complaint

must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Id. (quotation marks and citations

omitted). “A plaintiff need not provide exhaustive detail to avoid dismissal,

but the pleaded facts must allow a reasonable inference that the plaintiff

should prevail.” Mandawala v. Ne. Baptist Hosp., 16 F.4th 1144, 1150 (5th

Cir. 2021). We take the factual allegations in the complaint as true but

disregard conclusory allegations and legal conclusions. Id.; Allen, 65 F.4th at

743. We resolve “[a]ll questions of fact . . . in the plaintiff’s favor.” Lewis v.

Fresne, 252 F.3d 352, 357 (5th Cir. 2001).

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The district court ruled only on Sharpe’s rhetorical-hyperbole

argument when it concluded Favre’s defamation claim failed as a matter of

law. It did not analyze Sharpe’s other grounds, which were that his

statements were protected under Mississippi law as opinions based on

disclosed facts or as reports of official proceedings. This court may affirm a

district court’s dismissal of a suit for failure to state a claim “on any basis

supported by the record.” Ferrer v. Chevron Corp., 484 F.3d 776, 780–81 (5th

Cir. 2007). A different ground raised as a defense provides the clearest

ground on which to rule. We therefore do not analyze rhetorical hyperbole

and instead analyze whether the statements were protected opinions based

on disclosed factual premises.

Our analysis does not turn on the mere labeling of a statement as

“fact” or “opinion.” Roussel v. Robbins, 688 So. 2d 714, 723 (Miss. 1996)

(discussing Milkovich v. Lorain J. Co., 497 U.S. 1 (1990)). “[A] statement,

even if phrased as an opinion, will not enjoy constitutional protection if the

court concludes that its substance or gist could reasonably be interpreted as

declaring or implying an assertion of fact.” Franklin v. Thompson, 722 So. 2d

688, 693 (Miss. 1998) (quotation omitted). Instead, “[t]he relevant inquiry

is whether the statement could be reasonably understood as declaring or

implying a provable assertion of fact.” Id. (quotation omitted); see also

Milkovich, 497 U.S. at 21–22.

Mississippi recognizes that “a defamatory communication may [be]

. . . in the form of an opinion,” and “[o]pinion statements are actionable only

if they clearly and unmistakably imply the allegation of undisclosed false and

defamatory facts as the basis for the opinion.” Ferguson v. Watkins, 448 So.

2d 271, 275–76 (Miss. 1984); see Restatement (Second) of Torts

§ 566 (Am. L. Inst. 1977). Further, “offensive insults and opinion

statements” “generally are not actionable in Mississippi” unless they meet

the Ferguson standard. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 493

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(5th Cir. 2013). This is because “nothing in life or our law guarantees a

person immunity from occasional sharp criticism,” and “no person avoids a

few linguistic slings and arrows, many demonstrably unfair.” Id. (alterations

and citation omitted). Thus, “strongly stated [opinions] . . . based on truthful

established fact . . . are not actionable under the First Amendment.” Id.

(quoting Texas Beef Grp. v. Winfrey, 201 F.3d 680, 688 (5th Cir. 2000)). The

Mississippi Supreme Court has described such “[c]austic commentary”

based on disclosed facts as “fair comment[s].” Ferguson, 448 So. 2d at 276.

Sharpe argues his statements are protected opinions and editorial

“fair comments” on a publicly known matter, and “even ‘contemptuous

language’ and ‘unfair’ criticism regarding reported facts cannot be

defamatory.” He asserts the Undisputed broadcast clearly stated its factual

basis was Favre’s widely reported involvement in the welfare scandal and

that involvement was a matter of public concern. Because Sharpe expressed

his views on these “truthful established fact[s],” he argues he was entitled to

voice his “sharp criticism” of Favre’s conduct.

Favre disagrees and argues that, even if Sharpe’s statements are

considered protected opinions, those statements are still actionable because

Sharpe did not provide a correct and complete recitation of “the facts upon

which he base[d] his opinion” and the statements “imply a false assertion of

fact.” See Milkovich, 497 U.S. at 18–19. According to Favre, “the factual

basis for Sharpe’s purported opinions was incorrect and incomplete”

because the Undisputed broadcast omitted facts from the Mississippi Today

article about Favre’s contributions to USM and about who initiated the

funding process for USM’s volleyball facility. 3

_____________________

3

After briefing concluded, Favre submitted a 28(j) letter to notify the court of a

recent Second Circuit opinion that vacated a Rule 50 judgment and jury verdict. See Palin

v. New York Times Co., __F.4th __, No. 22-558, 2024 WL 3957617 (2d Cir. Aug. 28, 2024).

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Sharpe’s statements — in response to facts widely reported in

Mississippi news and specifically in the just-released Mississippi Today article

— could not have been reasonably understood as declaring or implying a

provable assertion of fact. His statements are better viewed as strongly stated

opinions about the widely reported welfare scandal. As for the supposed

factual inaccuracies with which Favre takes issue, those inaccuracies were

corrected during the segment. Bayless correctly stated that “as yet [Favre]

has not been criminally charged,” and he amended Sharpe’s one inaccurate

statement that Favre had not repaid the additional $1.1 million in TANF

funds by acknowledging that Favre had repaid everything but the interest on

$1.1 million. Sharpe also mentioned Favre’s assertion that he did not know

the source of the funds. Because Favre does not allege any remaining

statements in the broadcast were false, there were no actual inaccuracies.

Instead, the facts were fully disclosed to the listeners and contained no “clear

falsity of fact.” Ferguson, 448 So. 2d at 273.

It is understandable that Favre considers Sharpe’s statements to be

contemptuous. Nonetheless, the Undisputed program did not imply that

Sharpe was relying on any undisclosed facts. He instead relied only on facts

widely reported in Mississippi news and specifically in the just-released

Mississippi Today article. Though there was no claim by Mississippi Today that

Favre had committed a crime, there also was no implication from Sharpe’s

statements that he was relying on information from other sources when he

said Favre “stole money” and took from the “underserved.” At the time

Sharpe made the statements, the facts on which he was relying were publicly

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There, the Second Circuit considered “whether the evidence at trial was sufficient for Palin

to prove that the defendants published the challenged statements with actual malice, as

required for public-figure defamation plaintiffs.” Id. at *7. That is not the issue before this

court, and we do not find the opinion relevant to the resolution of this case.

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known, and Sharpe had a right to characterize those publicly known facts

caustically and unfairly. Sharpe’s statements were his “strongly stated”

opinions “based on truthful established fact[s],” and thus nonactionable.

Trout Point Lodge, 729 F.3d at 493 (quotation omitted).

AFFIRMED.

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