Brett Favre ramps up defamation charges against Pat McAfee

Outside of failed third-down conversions, quarterbacks and punters don’t often cross paths. But the most famous punter of this generation is on a collision course with one of the most famous quarterbacks of the prior one, and the free-speech ramifications could extend far beyond the NFL.

Brett Favre, the Super Bowl-winning Hall of Fame quarterback known for his on-field tenacity and durability, is among three dozen people being sued by the state of Mississippi for mishandling of welfare funds through the state’s Temporary Assistance for Needy Families program. Favre is not facing criminal charges, but he has already paid back $1.1 million in speaking fees that he received without performing the speeches.

When the news of Favre’s connection to the Mississippi welfare scandal broke, Pat McAfee, former punter-turned-multimedia creator, was one of many in sports media who went on the offensive against Favre. In November 2022, on his podcast, "The Pat McAfee Show," McAfee contended that Favre was “stealing from poor people in Mississippi,” and repeated similar statements on Twitter.

In February, Favre responded by filing a defamation suit against McAfee, as well as Fox Sports commentator (and fellow former NFL player) Shannon Sharpe and Mississippi state auditor Shad White. Favre is seeking unspecified punitive damages against all three, among other costs. Last week, Favre’s attorneys ramped up the case against McAfee, indicating the degree to which they contend he showed “actual malice” in his comments regarding Favre.

“Every time [Favre’s] name gets brought up,” McAfee said in November 2022, according to Favre’s complaint, “we have to mention that he tied the hands of the poor people and took money right out of their pockets.”

“There is no basis for these outrageous falsehoods,” Favre’s attorneys said, “which McAfee made knowing that they were false or, at a minimum, with reckless disregard for the fact that they were false.”

In their motion to dismiss, McAfee’s attorneys submitted more than 1,300 pages of exhibits to the court from a range of sources, including McAfee’s show, Favre’s own texts and, most notably, a series of investigative reports in Mississippi Today documenting the widespread welfare scandal. One, entitled “‘You stuck your neck out for me’: Brett Favre used fame and favors to pull welfare dollars,” noted, via the use of Favre’s own text message, the deep connections between Favre and government and nonprofit officials involved in the scandal.

Defamation suits involve damage to the reputation or image of an individual or corporation, and as such can be extraordinarily tricky to prove. Virtually all defamation suits end in a settlement.

“It’s the nature of defamation suits that they rarely ever get to trial,” says Bob Fisher, a former public relations executive who has served as an expert witness in defamation cases as disparate as the Duke lacrosse case and the current battle between Dominion Voting Systems and Fox News. “It’s a game of chicken. You go right up to the date of the trial and decide if it’s worth the money to spend on more litigation.”

The bar for what constitutes defamation is much higher for public figures than it is for private ones. In that case, “actual malice” — that is, knowingly making statements that are defamatory — must be proven. That angle is at the heart of the amended complaint that Favre’s attorneys filed in Mississippi District Court on Friday.

“Statements by McAfee were defamatory, libelous and slanderous and in making the statements, McAfee acted with actual malice,” Favre’s attorneys said. “Yet McAfee uttered the statements anyway, ultimately to cast Favre in the worst possible light and accrue the financial and other benefits of making such a scandalous accusation … His refusal to retract his false statements, and his doubling down on them, further confirm his actual malice.”

Defenses against defamation include truth and opinion. The line “truth is an absolute defense” stems from situations such as these; if someone speaks the truth about another individual, regardless of how harmful that truth may be, it’s not defamatory.

Opinion is also protected. For instance, saying a quarterback is a terrible player is an opinion, and thus not defamatory. Saying a quarterback committed a criminal act — a provable or disprovable statement, in other words — could be defamatory.

The fact that McAfee couched his statements as truth rather than opinion is proof of defamation, Favre’s attorneys contend. Because law enforcement has not charged Favre with a crime, he’s not guilty of “stealing from poor people,” and thus, they contend, McAfee’s statements don’t carry the protection of truth.

“McAfee knew that — or had a high degree of awareness of the fact that — he had no basis for his false statements that Favre had stolen money from poor people,” Favre’s attorneys said. “No reputable media report or official document has ever stated that Favre stole any money from poor people in Mississippi or from anyone else, anywhere else.”

However, McAfee's use of the word "steal" doesn't automatically make his speech defamatory. “Suing this case on a technical, legal definition of ‘stealing’ may make for a good case on falsity and, depending on the facts, actual malice,” says Taylor Wilson, an attorney with Wade, Grunberg & Wilson in Atlanta specializing in defamation cases. “But Mr. McAfee has meritorious First Amendment defenses beyond falsity and actual malice, including that he did not actually accuse Mr. Favre of theft but, in context, employed common literary devices associated with humor or satire.”

In addition, Wilson notes, the public nature of the welfare scandal, as well as Favre’s existing connections to it, could pose a problem for proving defamation.

“Because of all of the chatter about Mr. Favre and pre-existing litigation regarding the subject matter of the alleged defamatory remarks,” he adds, “actual malice might present too high a burden for Mr. Favre to meet as a public figure or limited purpose public figure in the long run.”

“There’s an old saying in the PR business: ‘It takes years to establish a reputation, but seconds to destroy it,’” Fisher says. “Favre has two problems: first, he won’t necessarily be able to get to all the people exposed to the original negativity. Second, human nature: you can’t unring a bell. People always believe the worst in other people.”

That said, Fisher believes Favre had no choice but to take action.

“The bottom line is, you really have to file a lawsuit,” Fisher says. “If you don’t do anything, you basically validate what’s being said about you. It wouldn’t do any good to do a bunch of media interviews, then it becomes he-said, she-said. At least by going to court you can have it adjudicated.”

“In the long run and on summary judgment where McAfee can attack Favre’s actual malice allegations and detail his own fault defense, I expect McAfee to prevail because he’ll try to muddy the waters on the meaning of his statements and falsity, making actual malice a tough defense to survive,” Wilson says. “I’m not sure it is going to look like Vikings 2009 NFC championship game interception kind of problematic, but it might be and it will be in slow motion, rather looking like his Packers Super Bowl kind of win.”

While heavily favoring McAfee, Wilson has one notable caveat: “If Favre does get to a jury in Mississippi,” he says, “this has the makings of a coin toss.”

McAfee has until Friday to file a reply to Favre’s amended complaint.