Undisputed Facts Sack Brett Favre’s Lawsuit Against Shannon Sharpe

Former NFL Quarterback Brett Favre just learned the hard way that free speech, like football, is a full-contact support.

Brett Favre and Shannon Sharpe are both Superbowl-winning NFL Hall of Famers, sharing nearly identical career win-loss ratios: .623 for Favre, and .637 for Sharpe. But it was Sharpe who came out ahead in a high-stakes legal skirmish.

A Quarterback? Try Five Million

In October of 2021, the Mississippi State Auditor’s Office announced that $77 million in federal Temporary Assistance for Needy Families (“TANF”) funds for underprivileged residents had been misused, spurring prosecutions. According to ESPN:

At the heart of the dispute between MDHS and Favre is a volleyball facility built in 2019 at Favre’s alma mater, the University of Southern Mississippi. Favre donated his own money and helped raise funds for the facility, and text messages, which have become public in legal filings as part of the civil lawsuit, show he pushed state officials for funding during the time his daughter was on the team. The university’s athletic foundation received $5 million in TANF funds.

According to the state audit and the civil lawsuit, Favre was also paid $1.1 million from TANF funds for speeches the auditor says Favre never made. He eventually paid the money back, but the auditor has demanded he also pay $228,000 in interest. Prevacus, a company developing a concussion drug in which Favre was the top outside investor and stockholder, also received TANF funds.

At the time, Sharpe was the host of the Fox Sports television program Undisputed.  Reacting to a Mississippi Today article recounting text exchanges between Favre and an individual who subsequently pled guilty to wire fraud, Sharpe was unsparing in his criticism, stating that “Brett Favre is taking from the underserved” and “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low.”

Flag on the Play or Agree to Disagree?

Favre, who was not accused of committing a crime, filed a defamation suit against Sharpe in Mississippi, then appealed when a federal judge dismissed it. On September 16, 2024, the Fifth Circuit Court of Appeals affirmed the dismissal.

At the crux of the case is the manner in which Sharpe’s accusations of criminal conduct – stealing from the poor – were couched. In order to prevail in a defamation case, a plaintiff must identify a provably false statement of fact. An opinion, no matter how overheated, is immune from liability as long as it is grounded in “truthful established fact.”[1] Therefore, opinion statements can be actionable only if they imply undisclosed – and false – facts. First Amendment jocks call this the Opinion Based on Disclosed Facts doctrine.

In recent years, this doctrine has seen increasing use. In 2020, the Third Circuit Court of Appeals affirmed[2] the dismissal of a lawsuit filed on behalf of a twelve-year-old Trump supporter. Newsweek had published an article titled “Trump’s Mini-Mes,” which stated: "These kids are being weaponized . . . they are defending raw racism and sexual abuse." Finding that no factual statements were challenged, the Court offered a robust defense of free speech:

Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric.

Adhering to this legal tradition, the Fifth Circuit concluded that Favre’s comments were not assertions of facts but rather “strongly stated opinions” explicitly premised on the Mississippi Today article. Anyone could have read the article and reached the same conclusions – or not.

 Sharpe Criticism

As Daniel Moynihan famously observed: “Everyone is entitled to his own opinion, but not to his own facts.” But facts are merely a jumping off point. As an ex-athlete, Favre is well aware that not all takes are created equal. In sports, the only objective reality exists in the box score. Everything beyond that is fair game. Shannon Sharpe has the right, like every other American, to characterize facts “caustically and unfairly.”

Favre v. Sharpe underscores a critical principle: the law is not responsible for distinguishing between fair, unfair, wise, or foolish opinions. Brett Favre should have known better than to sue. After all, as the Fifth Circuit once held: “nothing in life or our law guarantees a person immunity from occasional sharp criticism.”

[1] Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 493 (5th Cir. 2013)

[2] McCafferty v. Newsweek, 955 F.3d 352 (3rd Cir. 2020)