Brett Favre is linked to a scandal in which $77 million was misappropriated from a Mississippi welfare program. A lawsuit accuses him of wrongfully receiving money from the program, and he sent texts seeking public funds for volleyball and football facilities at his alma mater.
But have media personalities and politicians gone too far in bashing the Hall of Fame QB?
Favre clearly believes the answer is yes. But proving that point is risky, particularly for a public figure who could be questioned under oath about sensitive topics.
Last week, Favre filed three defamation complaints in a Mississippi court against fellow retired NFL players Shannon Sharpe and Pat McAfee, and Mississippi Auditor Shad White. Favre, a Mississippi native and resident, wants a local jury trial for each suit. He seeks monetary compensation for “injury to [his] character and representation,” including his “ability to generate income through endorsements, appearances at events or on radio and television programs, or hosting his own radio or television program.”
Sharpe, whose brother Sterling Sharpe was a teammate of Favre on the Green Bay Packers in the 1990s, allegedly defamed Favre last September on FS1’s Skip and Shannon: Undisputed, when he said, “Brett Favre is taking from the underserved” and “[Favre] stole money from people that really needed that money.” Sharpe, the complaint says, also remarked, “you’ve got to be a sorry mofo to steal from the lowest of the low.”
That same month White told CNN “Favre not only knew that he was receiving money from this non-profit which was funded by taxpayer dollars. We know that the funding for that was a sham, and we know that he knows that too.” White, in a separate interview with ESPN, is quoted as saying “[Favre] knew that the money was flowing through a nonprofit which was designed to serve poor folks, designed to serve a public interest.” He also reportedly told WORLD, a Christian news outlet, that Favre engaged in “steal[ing] taxpayer funds and commit[ting] white-collar fraud.”
McAfee voiced similar sentiments while on his YouTube show last November. “Every time [Favre’s] name gets brought up,” McAfee reportedly said, “we have to mention that he tied the hands of the poor people and took money right out of their pockets … [Favre is] certainly in the middle of stealing from poor people in Mississippi right now.” In December McAfee tweeted that Philadelphia Eagles wide receiver DeVonta Smith was doing “The Favre” when Smith jokingly reached into a Salvation Army basket after scoring a touchdown.
Favre hasn’t been charged with a crime. He’s also repaid approximately $600,000 in welfare-fund money for speeches that he never gave, though payment came after White threatened Favre with a lawsuit. White (and other Mississippi officials) contend that Favre still owes $228,000 in interest. Last year the Mississippi Department of Human Services sued Favre, and 37 others, for unlawful payments, conspiracy and related accusations. The agency demands that Favre pay $3.2 million and his company, Favre Enterprises, pay $1.1 million.
Court documents, including those from embezzlement and fraud prosecutions of individuals with whom Favre collaborated, also paint Favre in an unflattering light. In 2017, Favre texted Nancy New, the former executive director of the nonprofit Mississippi Community Education Center, who later pleaded guilty to wire fraud, about payments for speaking engagements. Favre was supposed to redirect those payments to fund the construction of a new volleyball facility at the University of Southern Mississippi, where his daughter played on the volleyball team. “If you were to pay me is there anyway the media can find out where it came from and how much?” Favre wrote. “No,” New replied. “[W]e never have had that information publicized. I understand you being uneasy about that though.”
To prove defamation, Favre must first establish the statements made about him are both false and damaging to his reputation. This is problematic for a couple of reasons. First, even Favre seemed to acknowledge that redirecting money intended for the poor to paid speeches and building DI athletic facilities was, regardless of legality, unbecoming—particularly for someone who earned $138 million over 20 NFL seasons and many millions more in endorsements. Second, it’s not clear the allegedly defamatory statements were much different from what other commentators have said about Favre, who has been widely ridiculed. If Sharpe, McAfee and White merely “added to the chorus,” establishing they independently caused damages would be difficult.
Favre also faces the heightened standard of actual malice. As a public figure, he must demonstrate the defendants not only made false and hurtful statements but did so with knowledge that the statements were false or with reckless disregard as to whether they were true or false. To challenge Favre, the defendants could argue their remarks were reasonably based on the state government suing Favre over misuse of public money and by his own texts. They could also contend their remarks merely repeated, in sum and substance, what others have said about Favre. They might also maintain that Favre’s attorney, Michael Shemper, cherry picked quotes and that more extensive excerpts would show they used qualifying terms, such as “allegedly” or “accused of.”
To mitigate these hurdles, Favre describes Sharpe, McAfee and White as committing defamation per se. This category of defamation refers to false statements so obviously damaging to Favre’s reputation that they relieve him of having to prove damages. Falsely claiming another person committed a crime is a recognized category of defamation per se. Favre argues the three defendants “falsely state that [he] committed a crime by stealing from poor Mississippians.” But expect the defendants to say they weren’t using “steal” as a specific criminal reference—one can say another “steals” in an unethical or unlawful way, but not as a crime—and that, as Favre knows well, sports talk shows tend to use exaggerated language.
White likely has two other defenses unique to his circumstances. One is that, as a public official, White enjoys sovereign immunity, which holds that the government can’t be sued without consent. Mississippi’s Tort Claims Act limits sovereign immunity, but it still generally applies when a government employee acts within the scope of their employment. White could argue his remarks about Favre arose in the course of his official capacity while speaking with the media (anticipating that rebuttal, Favre says he is suing White in his “individual capacity”). The litigation privilege, which exempts otherwise defamatory remarks on account they arose in the course of, or contemplation of, litigation, is another defense for White. White and Favre have been at odds in legal matters since the controversy began a few years ago.
By suing, Favre could expose himself to additional legal woes. If his lawsuits advance, Favre will face pretrial discovery. He’ll be asked to give sworn testimony about the scandal and would risk perjury charges by knowingly lying. Favre will also be required to produce documents, including texts and emails, that could conceivably supply evidence leading to lawsuits or even charges.
Perhaps that risk was on McAfee’s mind when, while on his show last Friday, he addressed Favre suing him.
“Let’s ride this f—ker. I’m excited to see how it goes. I’ll see you in court, pal.”
