In a sweeping rebuke of ESPN anchor Sage Steele’s claims that the network violated Connecticut law by sidelining her after she made controversial comments about former President Barack Obama and COVID-19 vaccines, attorneys for the network blasted Steele’s claims as “meritless.” They also argued that her suit ignores ESPN’s authority to decide who it puts on the air, which content to air and what it tells the public about those choices.
ESPN filed a motion to dismiss Steele’s lawsuit last Thursday in a Connecticut Superior Court, contending that Steele—who the network praises as “an excellent journalist,” and who it did not fire, suspend or fine—didn’t suffer a kind of harm the law ought to remedy. Employment attorneys Raymond Bertrand and James de Han of Paul Hastings LLP wrote ESPN’s brief.
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In April, Steele sued ESPN for breach of contract, bad faith, infliction of emotional distress and violation of a unique Connecticut statute that makes it illegal for employers to discipline employees for constitutionally protected speech. The 49-year-old graduate of Indiana University insists that ESPN damaged her career by requiring she publicly apologize for questioning whether Obama should count as “black” since his father, Barack Obama Sr., largely did not raise him and for mocking ESPN’s workplace rule that employees be vaccinated against COVID-19.
Steele’s provocative remarks, which also included commentary linking harassment of women journalists to what they choose to wear, occurred in September 2021 when she appeared on former NFL quarterback and reality TV star Jay Cutler’s podcast “Uncut with Jay Cutler.”
After Steele apologized, ESPN issued a statement saying it “embrace[s] different points of view—dialogue and discussion makes this place great.” At the same time, the network cautioned, “We expect that those points of view be expressed respectfully, in a manner consistent with our values, and in line with our internal policies.” It added, “We are having direct conversations with Sage and those conversations will remain private.”
In her lawsuit, Steele described feeling ostracized by colleagues who were upset she expressed politically conservative positions. She also felt frustrated by supervisors who denied her marquee assignments while they were comfortable with hosts who openly ridiculed former President Donald Trump.
In its brief, ESPN insists that its statement about Steele and related actions qualify as protected speech under the First Amendment. The network cites case law supportive of the viewpoint that TV shows—and accompanying commentary about who and what is on those shows—engage in protected speech. ESPN also stresses that Steele is a public figure, noting that in her own complaint, Steele calls herself “one of ESPN’s most popular sportscasters.” ESPN maintains it is entitled to invoke Connecticut’s Anti-SLAPP statute, which calls for dismissal of a lawsuit when the defendant has exercised free speech.
ESPN also asserts that it lawfully engaged in “casting decisions” by deciding assignments for Steele and allegedly allowing a fellow host, Ryan Clark, to decline to appear on air with her. Casting decisions, the network maintains, are legally classified as acts in furtherance of protected communication.
“ESPN,” the brief charges, “has the right to decide who to put on the air. And it can require its talent meet certain conditions, such as publicly apologizing before they are allowed on the-air; especially when their presence would otherwise distract from the subject of the broadcast.” To that end, the network maintains, removing Steele from broadcasts, taking away potential assignments and denying her return until she apologized all fall under the umbrella of casting decisions.
Also, ESPN attempts to debunk Steele’s negative portrayal of remarks by ESPN executive Laura Gentile at the ESPNW Summit in October 2021. Gentile had informed the audience that Steele wouldn’t be speaking due to her controversial comments—a statement that Steele contends proves “ESPN was taking disciplinary action against” her. But in its brief, ESPN professes that Gentile’s remarks qualify as a communication under the Anti-SLAPP statute since, in part, she was addressing hundreds of attendees, including media, “tens of thousands” of people were watching online and the topic concerned broadcasting decisions.
ESPN further maintains Steele’s claim under the Connecticut statute forbidding employers from punishing employees over protected speech must fail since the statute only applies when—as the statute explicitly acknowledges—the employee’s speech “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
Additionally, ESPN stresses that Steele’s comments “disrupted her professional relationships.” The network illustrates this by claiming that Steele was scheduled to interview Academy Award winning actress Halle Berry at the 2021 ESPNW summit, but “the public relations team associated with Berry would not let her sit for that interview because of the controversy Steele’s comments created.” ESPN also claims that organizers for a V Foundation fundraiser “asked ESPN to take Steele off the event because they perceived her comments about the COVID-19 vaccine as ‘anti-science,’ and the Foundation’s mission is to raise funds for cancer research.”
ESPN also insists that Steele was neither “disciplined” as that word is understood by law nor suffered an actionable harm. Steele, ESPN stresses, wasn’t denied pay or benefits at any point, and while “she may be unhappy that her co-workers disliked what she said,” ESPN cites case law indicating that “personality conflicts at work that generate antipathy and snubbing by co-workers” doesn’t qualify as “discipline.”
Lastly, ESPN charges it could not have breached Steele’s contract because the contract only required ESPN to pay her salary and accompanying benefits. The contract, ESPN says, lacks any language obligating the network to use her services. It also doesn’t guarantee her high-profile or coveted assignments.
Attorneys for Steele will have an opportunity to reply to ESPN’s brief and counter its arguments.
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