HBO, Mitre Give Closing Arguments in Defamation Trial

A jury finally gets to decide whether a broadcast report about child labor was responsible, as HBO contends, or a "pack of lies," as the sporting good brand asserts.
Courtesy of HBO

Nine years after HBO producers began research about child labor in India, a jury is now set to deliver a report card on whether the network conducted responsible journalism.

Mitre Sports International, one of the biggest soccer brands in the world, is suing HBO over a Real Sports With Bryant Gumbel report titled "Children of Industry" that aired in 2008 more than 100 times. The report was 22 minutes long and spotlighted young boys and girls stitching soccer balls for pennies or less, sometimes to pay off debts their parents had accrued.

The plaintiff has portrayed itself as a leader in the crackdown on child labor and says the report hurt its reputation and standing in the community. In closing arguments Thursday, Mitre's lawyer presented Time Warner's 10K showing more than $5 billion in revenue last year and made the suggestion that that the jury should award punitive damages to stop HBO from slandering those with good names.

The closing arguments Thursday — each side had three hours — presented competing versions of a story about exploitation, diligence and honor. At times, it almost seemed like the sides were arguing whether child labor was still a big problem rather than whether the HBO report was defamatory. Other times, the attorneys zeroed in on the report itself, meticulously deconstructing practically every image and word in a fashion that would (or should) give most journalists the shivers. As few national broadcasters ever go to trial on defamation, this proceeding has been the rare instance where the words "generic B-roll footage" has been spoken in a pejorative sense.

HBO lawyer Dane Butswinkas was the first to give his summation of a trial that has lasted almost a month in a lawsuit that has lasted almost six years.

He began with an attempt to turn the tables on his adversary, portraying Mitre as the entity that had failed to confront the truth about a child labor problem that would have been apparent had the sporting goods giant only opened its eyes and asked tough questions of its contractors. What's more, Butswinkas basically accused the defendant of being the real fabricators, pointing at one point to two young Indian girls who appeared in a YouTube clip that teased the HBO segment.

Shortly before HBO premiered "Children of Industry" in September, 2008, Mitre sent a stern letter about those girls, and with the help of the Sports Good Foundation of India (SGFI), a video was delivered to the network that showed the girls doing schoolwork, where they denied being stitchers and where they accused HBO's staff of forcing footage. Butswinkas contrasted this video by recapping evidence that the girls didn't actually know how to read and a 2010 deposition where one of the girls said, "Whatever they told me to say, I said that."

She's referring to SGFI, which Butswinkas attacked hard as the ones who failed to do their basic job of monitoring for child labor. "To say that the fox was guarding the hen house is too kind to the fox," said the attorney, adding later, "SGFI better stands for So Good for Industry."

When the YouTube clip appeared, but before the HBO segment aired, producers decided to take the girls out of "Children of Industry."

Butswinkas wondered whether it met the "litmus test" of bad reporting. "Is that gross irresponsibility or is that going the extra mile?" he asked the jury.

The question is important because to win the case, Mitre will have to show that HBO was indeed irresponsible, however the jury might define such a standard. Because the judge has ruled that Mitre isn't a public figure, the plaintiff need not demonstrate malice on HBO's part to collect punitive damages. So on the core issue of responsibility, Butswinkas emphasized that HBO producers took two years in its investigative efforts whereas SGFI only spent four days doing research once the HBO report aired.

But that's not HBO's only card to play. There's the potential substantial truth of the report, which Butswinkas aimed to show by playing video clips of kids stitching soccer balls and asking the jury whether it looked like the kids shown were doing it for the first time. And there's also the question on whether a viewer would reasonably understand Mitre to be the subject of any defamatory comments. On that point, Butswinkas broke down the report — walking the jury through one segment that was focused on Jalandhar, India, where Mitre balls are produced, and Meerut, India, where they are not. The worst child labor — where kids are subjected to "debt bondage" — happens in Meerut, and Butswinkas made a point to tell the jury that Mitre's name and image didn't come up in the Meerut segment of the report.

Butswinkas said it was shame that "the seriousness of the tragedy" of child labor gets lost in a defamation trial and finished his closing arguments by saying that Mitre brought the lawsuit "to shield themselves from negative publicity." He noted that the industry's rules about child labor changed in 2009 shortly after HBO aired its report. He thanked God that HBO had the courage to broadcast the report, but bemoaned that the lawsuit had interfered with a follow-up. He quoted Mitre parent company Pentland chairman Stephen Rubin as saying that legal action was taken out of worry that Real Sports would do another report on the subject. HBO never did. "It probably worked," said Butswinkas.

Mitre's lawyer Lloyd Constantine then got his turn and told the jury he was surprised that HBO would attempt such a defense and "insult your intelligence." He put on the screen the potentially damning memo from Zehra Mamdani, the associate producer on the segment, who outlined concerns about showing kids abused at the hands of corporations before telling her bosses the story was still “do-able, if it's done in a clever way.”

Constantine would spend the next hour defending the honor of his client as well as the SGFI, which he said was operating eight schools in India.

Finally, he got to the credibility of HBO and its employees. He accused Joe Perskie, producer of "Children of Industry" of lying to the jury in testimony where Perskie said he had bought a soccer ball on Mitre's website. (No such balls were sold there.) He attempted to connect this to the president of HBO Sports personally assuring Mitchell Modell that Modell's Sporting Goods wouldn't be shown in "Children of Industry." The thread contained a hint of motive on HBO's part — it was important for producers to show that child-stitched balls appeared in the U.S. to make American audiences care, but also important that the problem only be sourced to certain companies — but Constantine didn't spell it out very clearly.

Instead, Constantine walked the jury back over an HBO report that they had probably seen a hundred times in the past month, counting the two dozen times that Mitre was referenced, noting how and why other brands were not shown, and showing the jury images from Meerut that were broadcast during the Jalandhar section.

He also recounted some of the most problematic testimony for HBO at trial — where children said they were paid by HBO's India team to pretend they were stitchers, and where former U.S. deputy under secretary for international labor affairs Charlotte Ponticelli and Nobel Peace Prize winner Kailash Satyarthi raised hackles about how HBO had conducted their interviews. "To accept HBO's argument, all the stringers and children who testified, you have to believe they are all liars," said Constantine. "You've seen the evidence of staging."

Perhaps the most surprising element from Constantine's closing argument was the accusation that Real Sports had basically ripped off 60 Minutes. Mitre's attorney recounted evidence that HBO producers were attempting to mimic "minute for minute, scene for scene" a 1999 60 Minutes report called "Tobacco Slaves" about cigarettes made by bonded child labor in India. Constantine said HBO producers struggled to find what they needed to match 60 Minutes. In his best line, he said Real Sports producers "had abused kids" in its report "because they had abused kids."

After U.S. District Judge George B. Daniels gives jury instructions tomorrow morning, it will be time for deliberation on a verdict. The judge spoke very little in court today, but before closing arguments began, he chose to stress the larger picture.

"It doesn't matter what people did in the field," he said, talking about the two years of research that went into the piece. "It's the decision to broadcast, the decision to error ... The segment as a whole is what the jury should look at."