A New York federal judge has decided to kick a soccer ball manufacturer’s defamation claim against HBO to a jury.
Mitre Sports International filed the lawsuit back in 2008 over a segment of Real Sports With Bryant Gumbel that year entitled “Childhood Lost.” The complaint, which alleges tens of millions of dollars in damages, takes issue with a segment that was broadcast internationally depicting children stitching soccer balls in two Indian cities, Jalandhar andMeerut, for 5 cents per hour — or nothing at all — as bonded laborers working to repay loans given to their parents.
The lawsuit slammed HBO for “intentionally and maliciously perpetrat[ing] a hoax onMitre and the millions of viewers who watched the initial and subsequent HBO broadcasts and who have viewed the program on YouTube and other internet sites.”
During the Real Sports episode, Bryant Gumbel introduced the segment by stating, “We start with a sobering look at a practice that is clearly illegal, and was supposedly done away with years ago, and that’s child labor.”
Bernard Goldberg, a correspondent on the show as well as a media critic who often appears on Fox News, intoned, “In the slums of India, children as young as six spend their days crouched on dirt floors stitching soccer balls together.” The report also featured child rights advocate Kailash Satyarthi, who commented, “They have no childhood. They have no freedom.”
Pretty grave stuff, but under the close inspection of a six-year-old lawsuit, some faults with the segment were identified by Mitre, which is the exclusive ball of the English Premier League as well as Major League Soccer.
For one thing, under cross-examination, one of researchers that HBO had relied upon testified that she found “no children [under the age of 14] who could stitch footballs.” Further conversations with this researcher found that the children in India were helping their parents, attending school or doing only “very basic stitching.”
The question of whether children were really being bonded into service by a multinational soccer ball manufacturer appears to have come up in preproduction. HBO is said to have raised the question of whether the depicted activities are “a product of lndian society, not necessarily an evil soccer ball company looking for balls on the cheap.” And Goldberg wrote to the show’s coordinating producer, “I think this is unfair to Walmart andMitre.” Goldberg later testified that after the segment had been finalized, all of his questions had been addressed.
But there might have been other problems.
Harinder Singh, a bureau chief for a Hindi news channel and an HBO stringer, testified that the scenes of children stitching Mitre-branded soccer balls shown were “fabricated” or “dramatized.” Other witnesses raised similar issues about whether the scenes presented real stitchers. According to the judge’s recitation of facts setting up the decision to throw it to trial, “Children identified as stitchers of Mitre soccer balls gaveunrebutted testimony that they were induced to pretend to stitch Mitre balls on camera and that those scenes were staged.”
HBO is defending the claims by saying that the gist of the segment was “substantially true” and that Mitre hasn’t been able to identify any particular statements that conveyed defamatory meaning. At most, argues the defendant, the images of children stitchingMitre soccer balls may have given an implication in viewers’ minds, but if so, any suggested falsity was expressly contradicted by Goldberg’s thought at the end of the segment that he doesn’t “believe that Mitre wants it to happen, but that the subcontractors are a different story altogether.”
U.S. District Judge George Daniels can’t come to any conclusion. “Because there are no undisputed facts in the record that establish what statements, if any, are defamatory, this Court cannot make any determinations on this issue as a matter of law,” states the decision. “Rather, it is for the jury to determine first what the gist of the Segment is, and second, whether any statements therein are defamatory.”
The judge says that questions of fact remain whether the segment was “substantially true” or whether HBO was “grossly irresponsible.”
But on the path towards trial, the TV network suffers a huge setback on the question of whether Mitre is a “public figure,” a First Amendment standard that would have necessitated a showing of actual malice before Mitre could prevail. Here, the judge decides that the international sporting goods company is not a public figure.
“HBO has failed to offer clear evidence that Mitre has the general fame and pervasive influence required by Gertz,” writes the judge, referring to a 1974 Supreme Court decision that spelled out who qualifies as public figures. “Rather, the evidence shows that Mitre does not approach the status of being a household name or a celebrity in the community. First, Mitre has not sponsored any teams or leagues in the United States since 1999. Furthermore, Mitre’s sale and advertising of sports equipment is insufficient to make it a general purpose public figure.”
The judge then rules out Mitre being a limited-purpose public figure too, finding that old reports mentioning the company’s efforts to eliminate child labor in the manufacturing of soccer balls wasn’t enough to show that Mitre itself took an affirmative stance on child labor in a manner that aimed to influence the public’s views on the controversy.
As a result of the decision, HBO is now facing a jury trial with tens of millions of dollars at stake. No trial date has yet been set.