A defamation lawsuit from Richie Incognito would likely go nowhere

Something very strange is happening on Twitter today. (Then again, it is a day ending in "Y.")

The lengthy ESPN.com story about former Dolphins tackle Jonathan Martin, in which Martin says he never believed he was bullied by former Dolphins guard Richie Incognito and others in 2013, has sparked repeated cries from Incognito that he was completely exonerated. It also has stirred up a hive of previously dormant Richie stans to cheer him on.

Among other things, they're telling him to sue everyone for defamation.

So let's consider how a lawyer who got his or her law degree from anything other than the bottom of a box of stale Cracker Jack would evaluate a potential defamation lawsuit from Incognito.

For starters, truth is an absolute defense to any claim of libel (spoken defamation) or slander (written defamation). And one fairly clear kernel of truth comes from the April 6, 2013 voice message that Incognito left for Martin — and that his father, Gus, played for Antony Olvieri of ESPN.com. As quoted in Olvieri’s story, Incognito said this: “Hey, wassup, you half-n----- piece of s---. I saw you on Twitter, you been training 10 weeks. I’ll s--- in your f---ing mouth. I’m going to slap your f---ing mouth, I’m going to slap your real mother across the face. F--- you, you’re still a rookie. I’ll kill you.”

The words from Jonathan Martin that brought this 12-years-dead corpse of a story back to life weren't that nothing ever happened and that he made it all up. Martin told Olvieri he never believed he was bullied, and that his parents pushed the issue.

The effort to push the issue resulted in the league hiring Ted Wells to investigate. Wells and his team did indeed investigate. They prepared and published a full report that contains specific factual findings about the things said and done, to Martin and others.

Now, is it possible that the Wells report was flawed? Roughly a year later, Wells's work on the #Deflategate investigation prompted many to suspect that Wells may have started with his client's preferred conclusion and worked backward to justify it. Maybe Wells did the same thing in the Martin-Incognito case.

Although the man who was accused of bullying Martin (but apparently not by Martin himself) is now using social media to bully members of the media into crying uncle on the notion that Incognito never engaged in any improper conduct, the truth is that he has a point regarding the Wells investigation. In August 2015, Incognito shared his lingering concerns about the Wells investigation with Bob Glauber of Newsday.

“Ted Wells came in with a mission against me,” Incognito told Glauber. “Ted Wells came in slanted against me and everything in his report was slanted against me. There were some things in there that would have helped my cause that were left out."

On the day that the Wells report was released in February 2014, lawyer Mark Schamel said the report was "replete with errors," that he would analyze the entire report, and that he would release a "thorough analysis" as soon as it was ready. We're still waiting for that analysis to be released.

If there was any defamation of Incognito, it came from Ted Wells. He's the one who made the various public statements about Incognito's behavior. The league also would have potential liability given that the report was prepared at its request. (Incognito's path to justice against the NFL likely would come from the Collective Bargaining Agreement, not the courts.)

While plenty of the members of #TeamRichie on Twitter are now rooting for lawsuits against various media outlets (ours included), we passed along the findings made by Wells and offered opinions about them. The media didn't lie about Incognito. The media reported on written statements made by Wells about Incognito in a report that was released to the public.

The far bigger problem for Incognito comes from the statute of limitations. In most jurisdictions, you've got one year to sue for defamation. In no jurisdiction does a plaintiff have 10 or 12 or 20 to sue for libel or slander.

All that said, and despite the fact that Richie will never accept anything other than a full-throated shout of "RICHIE NEVER DID NOTHING" in satisfaction of his current complaints, his concerns about Wells aren't unfounded.

Incognito never got a chance to test Wells's findings within the confines of the league's disciplinary procedures because the league never disciplined him. The Dolphins did, months before the Wells report was released. (That said, his lawyer could have released the "thorough analysis" of the Wells report at any time. In theory, the lawyer still could.)

Then there's this. Even if Wells could sue Wells or the NFL or Martin or anyone and even if Incognito could satisfy the "actual malice" standard for defamation against public figures and even if Incognito could prove that he was indeed defamed, the damages would be determined in large part by determining the impact of the defamation on his pre-existing reputation. That would make every questionable thing he ever did before the Martin case fair game for full investigation before trial and potential introduction into evidence.

The effort to determine his pre-existing reputation possibly would begin with his alleged harassment of a female volunteer at the team's charity golf outing in 2012. It prompted a police report, which alleged that he "used his golf club to touch her by rubbing it up against her vagina, then up her stomach then to her chest," that he "then used the club to knock a pair of sunglasses off the top of her head," that he "proceeded to lean up against her buttocks with his private parts as if dancing, saying 'Let it rain! Let it rain!'," and that he "finally finished his inappropriate behavior by emptying bottled water in her face."

Those are just allegations. But if Incognito were to sue anyone for defamation as to the things said about him in the Wells report, the defense surely would include a full exploration of his behavior during that golf outing from a year earlier. And the defense would argue strenuously for the jury in the defamation case to hear all about it.

Of course, that won't stop the XBros from chanting "Sue! Sue! Sue!" They're clueless, and they always will be. None of them will even bother to read this. It's too long. It requires reading comprehension and thought. And, most importantly, it undermines that which they choose to believe.

Which makes the resurrection of the Martin-Incognito case a perfect microcosm of the current state of our society. Truth isn't truth. Truth is what we believe, fueled by a stubborn refusal to entertain any facts that might contradict those beliefs.