          Case: 16-15692   Date Filed: 01/18/2018   Page: 1 of 37


                                                                    [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15692
                      ________________________

                   D.C. Docket No. 0:15-cv-61855-DPG



JAMES L. TURNER,

                                                         Plaintiff-Appellant,

                                 versus

THEODORE V. WELLS, JR.,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP,

                                                      Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                           (January 18, 2018)
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Before DUBINA and HULL, Circuit Judges and RESTANI, * Judge.

HULL, Circuit Judge:

       This appeal involves a law firm’s investigation of the Miami Dolphins

professional football organization. The National Football League (“NFL”) hired

the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and one of its

partners, Theodore Wells, to investigate allegations of bullying within the

Dolphins organization. After receiving Paul, Weiss’s report, the Dolphins fired

their offensive line coach, James Turner, in February 2014.

       Paul, Weiss’s investigation centered on the bullying of a football player,

Jonathan Martin, who abruptly left the Dolphins team midway through the 2013

season. At the time, Martin was an offensive lineman in his second year with the

Dolphins. After leaving a Dolphins facility on October 28, 2013, Martin checked

himself into a hospital for psychological treatment. Later, Martin explained that he

left the team because of persistent taunting from other Dolphins players.

       After several months of investigation, Paul, Weiss published a 144-page

report (the “Report”) which concluded that bullying by other Dolphins players

contributed to Martin’s decision to leave the team. The Report also included

several references to Coach Turner and opined that Coach Turner’s unprofessional

conduct played a role in Martin’s struggles.

       *
         Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.

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      After being fired, Coach Turner filed suit in federal court against Defendant

Paul, Weiss and Defendant Theodore Wells (collectively, “Defendants”), the

authors of the report, alleging defamation claims under Florida law.

      Turner attached a copy of the Report to his complaint. The district court

dismissed Turner’s complaint with prejudice for failure to state a claim, and Turner

appealed.

      After careful review, and with the benefit of oral argument, we affirm the

district court’s dismissal. We conclude that none of the challenged statements

contained in the Report are actionable for defamation. Further, no alleged

omission or juxtaposition of facts in the Report states a claim for defamation by

implication. We also hold that Turner is a public figure who has failed to

adequately plead that the Defendants acted with malice in drafting and publishing

the Report.

                               I. BACKGROUND

      We recount the relevant events as set forth in Turner’s complaint and the

Report attached thereto.

A. Coach Turner’s Career

      Coach Turner played college football at Boston College, where he served as

team captain during the 1987 college football season. After graduating, Turner




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began his coaching career at his former high school before serving as an offensive

coordinator for an English semi-professional team.

      In 1990, Coach Turner joined the United States Marine Corps, serving as a

platoon commander and operations officer for four years in the Middle Eastern,

Asian, and European theaters. Following an honorable discharge in 1994, Turner

returned to coaching football. Between 1994 and 2011, Turner held various

assistant coaching positions at Northeastern University, Louisiana Tech University,

Harvard University, Temple University, the University of Delaware, and Texas

A&M University before being hired as the Dolphins offensive line coach for the

2012 season. Coach Turner served as the Dolphins offensive line coach until his

termination in February 2014.

B. Martin’s Departure from the Dolphins

      At the beginning of the 2013 season, Jonathan Martin was a starting left

tackle on the Dolphins offensive line. The Dolphins drafted Martin in the second

round of the 2012 NFL draft. Martin played for four years at Stanford University.

By draft time, Martin had established himself as a talented offensive lineman. The

Dolphins immediately used Martin’s talents, starting him every game during the

2012 season. While his first year was challenging, Martin was pleased with his

overall performance.




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      As recounted in greater detail below, Martin’s fellow offensive linemen

subjected him to extensive taunting during his first year, referring to him with

crude and often racially-insensitive terms. Martin’s peers also disparaged his sister

and mother with sexually explicit remarks.

      Instead of fighting back, Martin decided to endure the harassment, believing

that the bullying would subside after his rookie season ended with the Dolphins.

But the taunting endured into the offseason, forcing Martin to realize that the

bullying would likely continue into his second year with the Dolphins team.

      According to Martin, the harassment continued and worsened during the

2013 season. Within a few months, Martin had had enough. On October 28, 2013,

Martin abruptly left a team dinner at the Dolphins practice facility. That same day,

Martin checked himself into a hospital seeking psychiatric treatment.

      Shortly thereafter, the national sports media began reporting that Martin had

“gone AWOL.” The story quickly gained national attention. Reports began to

surface that Martin had been a victim of locker room bullying and harassment by

his Dolphins teammates.

C. The Investigation

      On November 6, 2013, the NFL announced that it had retained Paul, Weiss

to conduct “an independent investigation into issues of workplace conduct at the

Miami Dolphins” and to “prepare a report for the commissioner.” The NFL stated


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that Paul, Weiss partner Theodore Wells would lead the investigation and that the

report would be made public.

      During the course of the investigation, Wells and other Paul, Weiss partners,

associates, and paralegals interviewed current and former Dolphins players,

Dolphins coaching staff and front office personnel, and Martin’s parents and agent.

Wells’s group also reviewed emails and text messages between Martin and his

teammates and coaches.

      Paul, Weiss interviewed Coach Turner twice during the investigation. The

first interview occurred in November 2013, with Wells accompanied by two other

members of his law firm. Turner did not bring his own attorney to the interview,

but a member of the Dolphins’ legal staff was present. In December 2013, Wells

and a member of his law firm interviewed Turner a second time via teleconference.

As was true during the first interview, a member of the Dolphins’ legal staff was

present. During the three month investigation, Paul, Weiss interviewed more than

one hundred witnesses and reviewed thousands of documents.

D. The Report

      On February 14, 2014, Paul, Weiss published its findings in a 144-page

report (“the Report”). The Report explained that Martin’s teammates subjected

him to “persistent harassment,” which “contributed to Martin’s decision to leave

the team.” The Report noted that Dolphins coaches and players created a culture


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that enabled the bullying by discouraging players from “snitching” on other

players. It concluded that “the treatment of Martin and others in the Miami

Dolphins organization at times was offensive and unacceptable in any

environment, including the world professional football players inhabit.”

      Five days after Paul, Weiss released its Report, the Dolphins fired Coach

Turner.

                          II. PROCEDURAL HISTORY

      In September 2015, Plaintiff Turner filed his complaint against the

Defendants, alleging that the Report defamed him. The district court interpreted

Turner’s complaint as advancing three claims of defamation under Florida law:

(1) defamation per se, (2) common law defamation based on actual malice,

recklessness or negligence, and (3) defamation by implication. Turner v. Wells,

198 F. Supp. 3d 1355, 1364 (S.D. Fla. 2016).

      In October 2015, the Defendants moved to dismiss Plaintiff Turner’s

complaint, under Federal Rule of Civil Procedure 12(b)(6), arguing that Turner

failed to state a claim for defamation or defamation by implication. The

Defendants contended that: (1) the Report consisted of opinions and therefore was

not actionable in a defamation suit; (2) Turner’s complaint misstated what the

Report actually said and failed to identify any false statement of fact in the Report;




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and (3) in any event, Turner was a public figure and failed to adequately plead

actual malice in his complaint.

      In July 2016, the district court entered a comprehensive order granting the

Defendants’ motion to dismiss. Turner, 198 F. Supp. 3d at 1355-81. This is

Turner’s appeal.

                         III. STANDARD OF REVIEW

      We review de novo a district court’s dismissal of a complaint for failure to

state a claim. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir.

2016).

      In analyzing Turner’s defamation claims, we apply Florida’s substantive

law. Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir.

2011). Where the highest court—in this case, the Florida Supreme Court—has

spoken on the topic, we follow its rule. Molinos Valle Del Cibao, C. por A. v.

Lama, 633 F.3d 1330, 1348 (11th Cir. 2011).

      Where that court has not spoken, however, we must predict how the highest

court would decide this case. Guideone Elite Ins. Co. v. Old Cutler Presbyterian

Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005). Decisions of the

intermediate appellate courts—here, the Florida District Courts of Appeal—

provide guidance for this prediction. See Bravo v. United States, 577 F.3d 1324,

1325 (11th Cir. 2009) (per curiam) (citing West v. Am. Tel. & Tel. Co., 311 U.S.


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223, 237, 61 S. Ct. 179, 183 (1940)). As a general matter, we must follow the

decisions of these intermediate courts. Id. at 1325-26. But we may disregard these

decisions if persuasive evidence demonstrates that the highest court would

conclude otherwise. Id.

      We first review Florida law regarding the tort of defamation. We then apply

it to passages in the Report that Turner claims are defamatory.

                                  IV. FLORIDA LAW

      Defamation under Florida law has these five elements: (1) publication;

(2) falsity; (3) the statement was made with knowledge or reckless disregard as to

the falsity on a matter concerning a public official, or at least negligently on a

matter concerning a private person; (4) actual damages; and (5) the statement must

be defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

      True statements, statements that are not readily capable of being proven

false, and statements of pure opinion are protected from defamation actions by the

First Amendment. Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 714–15, 717

(11th Cir. 1985) (applying Florida law); Blake v. Giustibelli, 182 So. 3d 881, 884

n.1 (Fla. Dist. Ct. App. 2016) (“Statements of pure opinion are not actionable.”);

Anson v. Paxson Commc’ns Corp., 736 So. 2d 1209, 1211 (Fla. Dist. Ct. App.

1999); Miami Child’s World, Inc. v. Sunbeam Television Corp., 669 So. 2d 336,

336 (Fla. Dist. Ct. App. 1996).


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      Under Florida law, a defendant publishes a “pure opinion” when the

defendant makes a comment or opinion based on facts which are set forth in the

publication or which are otherwise known or available to the reader or listener as a

member of the public. From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla.

Dist. Ct. App. 1981). Mixed expression of opinion occurs when an opinion or

comment is made which is based upon facts regarding the plaintiff or his conduct

that have not been stated in the publication or assumed to exist by the parties to the

communication. Id.; Stembridge v. Mintz, 652 So. 2d 444, 446 (Fla. Dist. Ct. App.

1995).

      Whether the statement is one of fact or opinion and whether a statement of

fact is susceptible to defamatory interpretation are questions of law for the court.

Keller, 778 F.2d at 715; Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1379 (S.D.

Fla. 2006); From, 400 So. 2d at 56-57. When making this assessment, a court

should construe statements in their totality, with attention given to any cautionary

terms used by the publisher in qualifying the statement. Keller, 778 F.2d at 717. It

is also the court’s function to determine “whether an expression of opinion is

capable of bearing a defamatory meaning because it may reasonably be understood

to imply the assertion of undisclosed facts that justify the expressed opinion about

the plaintiff or his conduct.” Stembridge, 652 So. 2d at 446 (quoting Restatement

(Second) of Torts § 566, comment c).


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      While the Report focused on the Dolphins’ players and coaches and the

team’s overall culture and workplace environment, the Report did make several

references to Coach Turner. And Turner’s complaint focuses primarily on four

specific passages in the Report. He asserts that certain statements in these

passages were false, defamed his professional reputation, and cost him his job. We

detail what the complaint says about each of the statements in the Report that

Turner claims defamed him. As we do so, we evaluate whether the specific

statement was defamatory under Florida law. We then turn to Turner’s claims of

defamation by implication and whether Turner was a public figure.

            V. THE “BLOW-UP” DOLL INCIDENT WITH PLAYER A

      The Report not only detailed the abuse that Martin endured, but also gave

examples of harassment suffered by other offensive linemen. One player—whom

the Report and the complaint anonymized as “Player A” or “Player 1,”

respectively1—was the subject of homophobic taunting. Fellow offensive linemen

often referred to Player A using homophobic slurs. Dolphins offensive linemen

also accused Player A of performing oral sex on men and would ask Player A

“where’s your boyfriend?” Player A’s peers acknowledged that Player A was not

actually believed to be gay but was spoken to repeatedly in this manner and

taunted about his supposed homosexuality. One Dolphins lineman acknowledged


      1
          We refer to this player as “Player A.”

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that Player A was spoken to in this manner “every day from everybody, high

frequency.”

       The Report claimed that Coach Turner “was aware of the running ‘joke’ that

Player A was gay, and on at least one occasion, [Coach Turner] participated in the

taunting.” The Report explained that, around Christmas 2012, Turner gave each

offensive lineman a gift bag. As the Report detailed, all of the gift bags contained

female “blow-up dolls” except for one gift bag, which contained a male “blow-up

doll.” Turner gave this gift bag to Player A. Martin told Paul, Weiss that he was

offended that Turner endorsed this humiliating treatment of Player A by

participating in it.

       According to the Report, when Paul, Weiss asked Coach Turner if he had

given a male blow-up doll to Player A, Turner replied “I can’t remember.” Paul,

Weiss found that Turner’s response was not credible. Rather, the Report found

that numerous persons confirmed, and no one disputed, that this incident occurred.

       According to Coach Turner, the Paul, Weiss investigators did not ask him

about the male blow-up doll incident during the first interview, but waited until the

second, “purposely confrontational and accusatory interview” to broach the

subject. When asked about the incident, Turner claims that he questioned its

relevance to Martin’s decision to leave the team and, in the face of the Paul, Weiss




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investigators’ aggressive tone, dismissed the questions about the male blow-up doll

incident as irrelevant and accusatory.

      On appeal, Coach Turner does not dispute that he gave the male blow-up

doll to Player A. Instead, he takes issue with how the Report categorized his

conduct. Turner claims that the gift of a male blow-up doll was a joke—a satirical

commentary on male Player A’s unsuccessful attempts at dating women. In his

complaint, Turner claims that the purpose of his gifts to the offensive linemen was

to encourage the players to work on their relationships with their significant others,

lest they end up alone, and that the particular gift to Player A “in no way expressed

cruelty or homophobia on Turner’s part.” Turner argues that Paul, Weiss

wrongfully concluded that he behaved inappropriately in giving the gift because

nearly everyone, including Player A, viewed the gift as a harmless prank.

      In his complaint, Coach Turner alleges that three statements within the

Report’s description of the blow-up doll incident were false and defamatory:

(1) the Report’s statement that Turner “participated in this behavior [homophobic

taunting] of Player A” by giving him the male blow-up doll; (2) the Report’s

statement that Turner’s male blow-up doll gift showed that Turner “endorsed the

humiliating treatment of Player A”; and (3) the Report’s statement that “Player A

regarded the persistent insults . . . as unwelcome.” In his complaint, Turner also

alleges that Paul, Weiss defamed him by implication by purposefully omitting


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from the Report the fact that several Dolphins players and one Dolphins coach

considered the male blow-up doll to be a harmless “joke,” as opposed to

homophobic taunting. Given the Report and allegations in the complaint, we agree

with the district court that none of these statements is defamatory.

        As to homophobic taunting, the Report outlined the many undisputed facts

upon which the Defendants relied in making the challenged statements. It is not

disputed (1) that linemen players engaged in persistent homophobic taunting of

Player A, (2) that Turner knew about that taunting, and (3) that Turner gave other

linemen a female blow-up doll, but gave Player A, and him alone, a male blow-up

doll.

        The first statement that Coach Turner challenges—that on at least one

occasion he participated in “homophobic taunting” of Player A—is an opinion and

not actionable in a defamation suit. This statement is the Defendants’ subjective

assessment of Turner’s conduct and is not readily capable of being proven true or

false. Michel v. NYP Holdings, Inc., 816 F.3d 686, 697 (11th Cir. 2016)

(explaining difference between statements of opinion and statements of fact, noting

that statements of fact are “readily capable of being proven true or false”).

Turner’s argument that another reader might come to a different conclusion upon

review of the facts—that the gift was a joke—does not make the Defendants’

assessment of Turner’s acts anything other than opinion.


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      Notably too, the Report included several cautionary statements that inform a

reasonable reader that the conclusions contained therein are opinions. Keller, 778

F.2d at 717. For example, the Report stated several times that it sets forth the

Defendants’ opinions, based on a lengthy investigation: “[t]he opinions set forth in

the findings and conclusions below and elsewhere in this Report are our own”;

“[i]n our opinion, the factual record supports the following findings”; “[t]he Report

presents the independent opinions of Mr. Wells and his colleagues.” Further, it is

well settled in Florida that commentary or opinion based on accurate facts set forth

in an article “are not the stuff of libel.” Rasmussen v. Collier Cty. Publ’g Co., 946

So. 2d 567, 571 (Fla. Dist. Ct. App. 2006); Zambrano v. Devanesan, 484 So. 2d

603, 606 (Fla. Dist. Ct. App. 1986); Hay v. Indep. Newspapers, Inc., 450 So. 2d

293, 295 (Fla. Dist. Ct. App. 1984). That is precisely the case here.

      As to the endorsement statement, the Report attributed that statement to

Martin. Specifically, Martin told the Defendants that he was surprised Turner

made this gesture to Player A and that Martin was offended that Turner “endorsed

the humiliating treatment of Player A by participating in it.” Turner takes this

statement out of context as it is what Martin said about Turner, not what the

Defendants said about Turner.

      As to the statement that Player A regarded the persistent insults as

unwelcome, Turner contends that this statement was false because it misleads the


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reader into believing that Player A was offended by the male blow-up doll gift,

when, according to Turner, he was not. But Turner also reads this statement out of

context. This statement comes after the Report detailed the repeated and persistent

homophobic taunting that Player A’s peers subjected him to, and does not clearly

pertain to any one incident in particular. As Paul, Weiss went on to note, “[i]n our

view, these incidents cannot be viewed in isolation” but were “part of a pattern of

abusive, unprofessional behavior.” In fact, the Report never addressed Player A’s

reaction to the male blow-up doll gift, instead focusing on the reaction of Martin

and how it impacted his decision to leave the team. Nothing in the Report about

Turner, the male blow-up doll, and homophobic taunting is defamatory.

          VI. DEMONSTRATED POOR JUDGMENT IN TEXTING

      The Report also concluded that it was inappropriate for Turner to text

Martin, an emotionally troubled player, and that Turner “demonstrated poor

judgment” in texting. Once again, the complaint and the Report set forth

undisputed facts about Turner’s texting Martin.

      On November 2, 2013—after Martin had left the Dolphins and begun to

receive psychiatric treatment—Coach Turner began to send text messages to

Martin concerning the media’s coverage of Martin’s departure from the team.

Specifically, Turner urged Martin to respond to the media’s treatment of Martin’s

teammate Richie Incognito. During the 2012 and 2013 seasons, Richie Incognito


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played alongside Martin as an offensive lineman. The Report categorized

Incognito as one of the “veteran leaders” of the Dolphins offensive line who was

often the “ringleader” in bullying Martin. At the time Turner sent his text

messages, the media were reporting that Martin was the victim of a protracted

bullying campaign led by Incognito.

      In his texts, Coach Turner encouraged Martin to make a public statement

defending Incognito. Martin replied, explaining that he wanted to defend

Incognito, but that he was being advised not to put out a statement. Without any

replies from Martin, Turner continued to ask Martin to make a statement. The text

message conversation is included in its entirety in the Report as follows:

      November 2, 2013

      Turner:      Richie Incognito is getting hammered on national TV.
                   This is not right. You could put an end to all the rumors
                   with a simple statement. DO THE RIGHT THING.
                   NOW.

      Martin:      Coach. I want to put out a statement. Believe me I do.
                   This thing has become a huge story somehow. But I’ve
                   been advised not to . . . And I’m not supposed to text
                   anyone either cuz last time I responded to a teammate
                   (Richie) I was intentionally manipulated and the
                   conversation was immediately forwarded to a reporter.

      Turner:      He is protecting himself. He has been beat up for 4 days.
                   Put an end to this. You are a grown man. Do the right
                   thing.




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      Turner:      John I want the best for you and your health but make a
                   statement and take the heat off Richie and the
                   lockerroom. This isn’t right.

      November 3, 2013

      Turner:      I know you are a man of character. Where is it?

      November 6, 2013

      Turner:      It is never too late to do the right thing!

      After reviewing the context of this text conversation, Paul, Weiss found that

Coach Turner “may have believed in good faith that Incognito was being unfairly

attacked by the media.” But Paul, Weiss opined that Turner “should have realized

that it was inappropriate to send such text messages to an emotionally troubled

player.” Paul, Weiss concluded that the text messages “demonstrated poor

judgment on Turner’s part.”

      In his complaint, Coach Turner alleges that Paul, Weiss defamed him by

stating that his text messages were inappropriate and that he demonstrated poor

judgment. But for the same reasons discussed in the blow-up doll analysis, we

hold that the Defendants’ conclusions of “inappropriate” and “poor judgment” are

pure opinion and nonactionable.

      In so concluding, we consider the full context in which these text messages

were sent.




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      Coach Turner undisputedly knew that Martin was emotionally troubled at

the time he left the team, had hospitalized himself, and had struggled with mental

health problems. Martin even responded to Turner’s first text telling Turner that

Martin had been advised not to issue a statement. Nonetheless, Turner continued

to text Martin three more times, pressuring and arguably berating him to be a “man

of character” and “do the right thing.” We have no trouble concluding that the

Report’s characterization of Turner’s conduct in this regard was nonactionable.

      VII. TURNER DID NOT STOP INSULTING COMMENTS

      Martin’s teammates subjected him to verbal taunts and made disparaging

remarks about members of his family. These remarks included sexually crude

references to Martin’s sister (a medical student) and mother. Martin told the Paul,

Weiss investigators that he was “particularly offended” by these comments but that

his obvious discomfort only increased the frequency and intensity of the remarks.

      According to the Report, Martin heard the insults about his sister

“throughout the Dolphins training facility—in the locker room, on the practice

field, in the showers, in the offensive line room (often before meetings got started),

even sometimes in the cafeteria.” As also noted in the Report, Martin told the

Paul, Weiss investigators that his teammates often made these comments “in the

presence of Coach Turner, who neither participated nor urged [Martin’s]

teammates to stop.”


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       In his complaint, Turner alleges that the Defendants defamed him by

including these two statements in the Report: (1) that Turner was “certainly aware

of some of the insulting comments directed to Martin” and (2) that “it [was]

undisputed that [Turner] never sought to stop the behavior.”2

       We readily reject Turner’s claim that the Report falsely defamed him by

stating that he was present when offensive linemen subjected Martin to insults but

failed to stop the abuse directed to Martin. First, the Report made clear that Turner

was aware of only “some of the insulting comments directed to Martin.” Even

Coach Turner appears to have indicated to the district court that he was in fact

aware of some of the disparaging comments directed towards Martin. Turner

acknowledges this again on appeal, arguing that “to the extent Turner was aware of

any comments directed at Martin, such comments were typical locker-room banter

among players and no different from what occurs in every NFL locker room.”

       As to this claim, Turner also cherry picks statements in the Report out of

context. A fuller picture of what the Defendants wrote in the Report exemplifies

how careful and balanced the Report was. The Report stated:

               Martin claimed that both of his offensive line coaches, Turner
       and Mosley, overheard some of the raunchy comments about his
       sister . . . According to both Martin and Incognito, Turner neither


       2
        In his complaint, Coach Turner also alleges that Paul, Weiss defamed him by
implication in this passage by omitting from the Report whether the insults traded among the
Dolphins offensive linemen were common among NFL players on other teams.

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      joined nor criticized the harsh language. Also, both Martin and
      Incognito said they thought Turner was a good coach.

            . . . Ultimately, however, both Martin and Incognito agreed that
      the bulk of the insulting comments were not made in front of Turner
      and Mosley, and both players were uncertain to what extent their
      coaches truly appreciated the nature of the conduct at issue.

             Based on the entire record, we find that Coaches Turner and
      Mosley were certainly aware of some of the insulting comments
      directed to Martin by Incognito, Jerry[,] and Pouncey, although we
      cannot determine the full extent of that awareness and whether they
      had any appreciation of how hurtful this language was to Martin. It is
      undisputed that these coaches never sought to stop the behavior.

      Indeed, Coach Turner does not argue that he was never present when Martin

was subjected to the insulting comments nor does he identify any action he took to

stop them. The challenged statements are true, and Turner’s defamation claim falls

short on this basis alone. Hallmark Builders, Inc. v. Gaylord Broad. Co., 733 F.2d

1461, 1464 (11th Cir. 1984) (under Florida law, “[a] false statement of fact is the

sine qua non for recovery in a defamation action.” (quoting Byrd v. Hustler

Magazine, Inc., 433 So. 2d 593, 595 (Fla. Dist. Ct. App. 1983)). Furthermore,

whether these types of insults occur routinely—as Turner alleges—in other NFL

locker rooms does not render false that Turner heard some of these comments here

and never sought to stop the behavior.

                VIII. THE EXISTENCE OF A “JUDAS CODE”

      In his complaint, Coach Turner accused Paul, Weiss of defaming him in its

discussion of the existence of the “Judas Code” and the fine system for snitches.

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We recount the facts about the “Judas Code” and the fine system that Paul, Weiss

reported and how that contributed to Martin’s reluctance to report the bullying and

taunting. The Report found, and it is undisputed, that Martin never reported the

abuse he suffered to the Dolphins organization. The question is why.

      As the Report explained, Martin believed that there was a general code in

football against “snitching” on fellow players, preventing him from disclosing the

bullying to his superiors. The Report noted that the Dolphins offensive linemen

enforced the general code against snitching through an internal fine system. The

NFL allows players to establish fine systems under certain conditions, including

the rule that any money collected must be put to a common, team-oriented purpose,

like a post-season party.

      At the start of the 2013 season, the Dolphins offensive linemen created such

a fine system and began to impose fines for trivial infractions such as being late to

meetings or wearing “ugly” shoes. The players also imposed fines for “acting like

a ‘Judas,’” which meant being a traitor or a snitch. As the Report explained, “if

Coach Turner, while watching game film footage, criticized a lineman for missing

an assignment, and that lineman pointed out that one of his teammates was actually

at fault, that lineman might be labeled a ‘Judas,’ which could result in a fellow

player imposing a fine.”




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      Paul, Weiss reported that several offensive linemen understood the “Judas”

rule and had told the investigators that Coach Turner previously discussed the

“Judas” concept with them. The Report noted that a former Dolphins coach

credited Turner with introducing the “Judas” concept to the Dolphins offensive

linemen. The Report, however, pointed out that Turner (1) denied ever hearing the

term “Judas fine,” or references to “Judas,” in the offensive line room, (2) denied

lecturing the offensive linemen on the meaning of the term “Judas,” and (3) denied

even knowing what the term “Judas” meant in the context of the Dolphins

offensive line.

      The Report did not credit Coach Turner’s denials and stated “[t]he evidence

show[ed], however, that Turner was aware of the ‘Judas’ concept and . . . that he

[had] discussed its meaning with a number of linemen, even explaining how the

biblical Judas had betrayed Jesus Christ and so became a ‘snitch.’” Ultimately, the

Report stated:

            We accept that the fear of being labeled a “snitch” or a “Judas”
      played a role in Martin’s decision not to report abuse from his
      teammates. Martin believed that going to his coaches or other
      authority figures meant risking ostracism or even retaliation from his
      fellow linemen.

      In the district court, Coach Turner contended that the “Judas Code” did not

exist and that the Report defamed him by falsely accusing him of establishing a

“Judas Code” and enforcing the code through a fine system. But Turner admits


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that he “occasionally used the term ‘Judas’ to describe situations in which one of

his players transferred responsibility for an on-field error to another player.” More

importantly, as the district court correctly noted, the Report never stated that

Turner established a fine system enforcing the “Judas Code.” Turner, 198 F. Supp.

3d at 1373-74. Instead, the Report expressly stated that the Dolphins offensive

linemen established and enforced the fine system on each other for a variety of

offenses (being late to a meeting, wearing ugly shoes, not providing candy) and for

acting like a snitch or “Judas.”

       As the district court also observed, Coach Turner’s claim was contradicted

by Martin’s statement in the Report that the “Judas fines” deterred him from telling

his superiors of his bullying and therefore “snitching.” Turner does not dispute

that is what Martin told the investigators.

       We hold that this claim fails as a matter of law for the reasons stated by the

district court. There is no false statement of fact here to support a defamation

claim. Turner, 198 F. Supp. 3d at 1373; see also Hallmark Builders, Inc., 733 F.2d

at 1464; Byrd, 433 So. 2d at 595.3




       3
        On appeal, Coach Turner argues (1) that the Report did not reflect the Defendants’
“genuine interpretation of the facts”; (2) that the Defendants published the prearranged and
“paid-for” conclusions of the NFL; and (3) that the district court therefore erred in finding that
the Report consisted of the Defendants’ nonactionable opinions. While Turner concedes that a
speaker’s “pure opinion” is generally protected from a claim for defamation, he argues that an
opinion that is not the speaker’s own opinion is excepted from this rule.

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                       IX. DEFAMATION BY IMPLICATION

       Even if none of the Report’s statements themselves are defamatory, Coach

Turner’s complaint alleges that the Defendants’ artful drafting in the Report

purposefully omitted certain facts and juxtaposed other irrelevant facts, thereby

suggesting that Turner personally fostered a culture of bullying within the

Dolphins offensive line.

A. Applicable Law

       Whether the defendant’s statements constitute defamation by implication is a

question law for the court to determine. Brown v. Tallahassee Democrat, Inc., 440

So. 2d 588, 590 (Fla. Dist. Ct. App. 1983); see also Hallmark Builders, Inc., 733

F.2d at 1464 (“A trial court . . . is not precluded from finding, as a matter of law,

that a publication is not defamatory.”). The inquiry turns on whether the “gist” of

the publication is false. Jews For Jesus, Inc., 997 So. 2d at 1107-08 (explaining

that liability attaches to a defendant who has the details right but the “gist” wrong).

Whether the publication is defamatory becomes an issue of fact for the jury only

where the publication is susceptible of two reasonable interpretations, one of which



        We disagree that there is such an exception under Florida law. For one, Turner fails to
cite any legal authority for this position, and we have found none. We therefore find no basis to
predict that the Florida Supreme Court would adopt Turner’s proposed exception to the “pure
opinion” doctrine. Second, Turner’s proposed exception does not center on the required falsity
element but on an element he invents wholecloth—genuineness. What Turner’s argument
ignores is that adopting and publishing another’s opinion does not, by itself, make that opinion
false.

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is defamatory. Hallmark Builders, Inc., 733 FF.2d at 1464; Miami Herald Publ’g

Co. v. Ane, 423 So. 2d 376, 389 (Fla. Dist. Ct. App. 1982).

      But even if the statements are defamatory by implication, a defendant is still

protected from suit if his statements qualify as an opinion: “[s]imply put, ‘if the

defendant juxtaposes a series of facts so as to imply a defamatory connection

between them, or creates a defamatory implication by omitting facts, he may be

held responsible for the defamatory implication, unless it qualifies as an opinion,

even though the particular facts are correct.’” Jews For Jesus, Inc., 997 So. 2d at

1108 (emphasis added) (quoting W. Page Keeton et al., Prosser and Keeton on the

Law of Torts § 116, at 117 (5th ed. Supp. 1988)).

      With this precedent as guidance, we address Turner’s defamation by

implication claims.

B. Defamation by Implication Claims

      Coach Turner’s first claim—that the Report implied a connection between

his use of the term “Judas” to the establishment of a “Judas Code” fine system—

fails in light of the express words in the Report, which assigned responsibility for

the fining system to the offensive linemen: “[a]round the beginning of the 2013

season, the Dolphins offensive linemen established such a system, and began to

impose fines on each other for a variety of trivial offenses” and “for acting like a

‘Judas,’ meaning a traitor or ‘snitch.’” According to Turner, the Report also


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falsely implied that he played a role in Martin’s emotional struggles and his

decision to leave the team. Like the district court, we are “hard-pressed to discern

what arguably defamatory statement could reasonably follow from the facts about

the fine system or the ‘Judas’ concept” when considering the Report’s actual text.

Turner, 198 F. Supp. 3d at 1376. We agree with the district court that “[n]o

reasonable person’s perception of the entirety of this discussion would be that the

Defendants defamed Turner by juxtaposing facts.” Id.

      Second, Coach Turner argues that the Report falsely accused him of

homophobic taunting. He argues that Paul, Weiss defamed him by implication by

omitting from the Report the fact that several Dolphins players—including

Player A—and one Dolphins coach, considered the male blow-up doll gift to be a

harmless joke. Turner also contends that Paul, Weiss implied that Turner

participated in the homophobic taunting of Player A by placing the discussion of

the male blow-up doll gift within the section concerning the homophobic taunting

of Player A.

      This claim fails because the Report’s conclusion that Coach Turner engaged

in homophobic taunting is a nonactionable opinion. To reiterate, the Defendants’

classification of Turner’s gift—a male blow-up doll given to a player taunted for

his supposed sexual orientation—as homophobic taunting is subjective and not

readily capable of being proven true or false.


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        Third, Coach Turner argues that the Defendants defamed him by omitting

from the Report a comparison of the Dolphins locker room to that of other NFL

teams and the fact that the type of insults traded among the Dolphins offensive

linemen were common among NFL players on other teams, especially in locker

rooms. As the district court did, we hold that this argument fails in deference to

the Defendants’ editorial discretion in what to publish in their Report. Perk v.

Reader’s Digest Ass’n, 931 F.2d 408, 412 (6th Cir. 1991) (“[Publishers] have no

legal obligation to present a balanced view of what led up to [the publicized

event].”); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985)

(concluding that Newsweek was not liable for omission of additional facts where

the omission did not make what was published untrue). As the district court

rightfully explained, “[t]he law of defamation is concerned with whether a

publisher reports a story truthfully, not generously.” Turner, 198 F. Supp. 3d at

1371.

        Additionally, this omission fails to support a claim of defamation by

implication under Florida law because it is irrelevant to the focus of the Report,

which was to assess the culture of the Dolphins. Hallmark Builders, Inc., 733 F.3d

at 1463 (upholding district court’s finding of no defamation after news broadcast

failed to compare plaintiff with other area builders and did not mention that

plaintiff was not the only home builder under investigation). Accounts of the


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environment in other teams’ locker rooms, which the Defendants chose not to

include, would not prove or disprove the Defendants’ opinion that Turner acted

inappropriately and demonstrated poor judgment.

      We also reject Turner’s argument that a different set of rules applies to this

Report because it involved a commercial setting in a private workplace and not a

report by a media organization. The First Amendment protects both media

(“freedom . . . of the press”) and non-media (“freedom of speech”) defendants.

U.S. Const. amend. I. Like media defendants, non-media defendants may then

choose the true facts to include in their publication. Turner lacks support for his

different-rules argument.

      Finally, we reject Coach Turner’s defamation by implication claim

concerning the Report’s description of his text messages to Martin. Turner argues

that, by failing to note that Martin and Incognito were close friends, and by

burying the factual context of Turner’s conduct, the Defendants created a false

impression about why Turner reached out to Martin. Turner argues that if the

Report explained that Martin and Incognito were friends, then Turner’s text

messages would have reflected Turner’s concern for Incognito’s treatment in the

media, not poor judgment. This argument fails, as the Report noted multiple times

that Incognito and Martin were considered by many to be friends, despite




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Incognito’s bullying of Martin.4 And any argument that the text messages were

taken out of context—making Turner appear callous to Martin’s troubles—also

fails, because the Report included the text conversation in its entirety, as Turner

concedes. Further, as explained above, the “poor judgment” statement is pure

opinion in any event.

                         X. TURNER AS A PUBLIC FIGURE

       We also affirm the district court’s dismissal order for one additional reason

not reached by the district court. Seminole Tribe of Fla. v. Fla. Dep’t of Revenue,

750 F.3d 1238, 1242 (11th Cir. 2014) (“[W]e may affirm the dismissal of a

complaint on any ground supported by the record even if that ground was not

considered by the district court.”). Because Coach Turner is a public figure who

has failed to adequately plead that the Defendants acted with malice in drafting and

publishing the Report, his complaint was properly dismissed.

A. Public Figure

       We have little difficulty predicting that Coach Turner would be considered a

public figure under Florida law. Mile Marker, Inc. v. Petersen Publ’g, L.L.C., 811

So. 2d 841, 845 (Fla. Dist. Ct. App. 2002) (stating that public figure status “is a


       4
         The Report discussed Martin and Incognito’s “odd but seemingly close friendship.”
(Report at 7-8; see also id. at 23 (“curious but seemingly close friendship”), 34 (“unique
friendship”), 40-42 (section titled “Martin’s Friendship with Incognito Does Not Excuse the
Abuse”), 93-95 (section titled “The Friendship Between Martin and Incognito” ), 102 (“the
closeness of [Incognito’s] friendship with Martin”), 123-25 (section titled “The Continuation of
the Friendship between Martin and Incognito”)).

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question of law to be determined by the court”) (quoting Saro Corp. v. Waterman

Broad. Corp., 595 So. 2d 87, 89 (Fla. Dist. Ct. App. 1992)).

      For one, Florida courts have found public figure status in circumstances

similar to this one. In Scholz v. RDV Sports, Inc., Florida’s Fifth District Court of

Appeal found that there was “ample record support” for the trial court’s conclusion

that the plaintiff was a public figure, because he was an assistant professional

basketball coach who previously had been a successful college basketball coach.

710 So. 2d 618, 626 (Fla. Dist. Ct. App. 1998). The Scholz court also noted that

he “drew public attention to himself and his employment status with the

[professional team] when he met with newspaper reporters at his lawyer’s office

immediately after he filed his lawsuit against the [professional team].” Id.

      This holding compares well with the precedent of other jurisdictions, who

generally consider coaches of professional and collegiate sports teams to be public

figures. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 154-55, 87 S. Ct. 1975, 1991

(1967) (college football coach and athletic director); Marcone v. Penthouse Int’l

Magazine For Men, 754 F.2d 1072, 1083 (3d Cir. 1985) (“[S]ports figures are

generally considered public figures because of their position as athletes or

coaches.”); Brewer v. Memphis Publ’g Co., 626 F.2d 1238, 1254-55 (5th Cir.

1980) (former college and professional football player); Time, Inc. v. Johnston,

448 F.2d 378, 380 (4th Cir. 1971) (former professional basketball player and


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current college assistant coach); Vandenburg v. Newsweek, Inc., 441 F.2d 378,

379 (5th Cir. 1971) (college track coach).

       Here, Coach Turner chose to put himself in the public arena. As the Report

noted, Turner was the focus of the 2012 season of Hard Knocks, an HBO

television program that “showcase[ed] Turner’s coaching style and featur[ed]

interviews and footage of him on the field and in the locker room.” 5 During his

coaching career, Turner was the subject of several articles discussing his career and

coaching philosophy. Turner was a prominent person on the closely followed

Dolphins professional sports team.

       Moreover, after the Defendants finished their investigation, Turner took

advantage of his familiarity with the media by commissioning a response to the

Report, which included Turner giving his conclusions as to why Martin left the

team. See, e.g., Silvester v. Am. Broad. Cos., Inc., 839 F.2d 1491, 1494-97 (11th

Cir. 1988) (finding the defendants to be public figures because they “had ready

access to the media for many years prior to the 1979 broadcast and they voluntarily

placed themselves in a position and acted in a manner which invited public


       5
         In determining Coach Turner’s public figure status, we take judicial notice of the
existence of videos produced or articles written about Coach Turner that were filed by the
Defendants. We do not, however, consider them for the truth of the matters they assert. U.S. ex
rel. Osheroff v. Humana, Inc., 776 F.3d 805, 815 n.4 (11th Cir. 2015) (explaining that courts
may take judicial notice of documents such as newspaper articles for a limited purpose, but not
for determining the truth of those statements).


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scrutiny and comment”); Mile Marker, Inc., 811 So. 2d at 846 (“[T]he level of

media access enjoyed by a particular claimant should be considered as part of the

public figure calculus.”); Friedgood v. Peters Publ’g Co., 521 So. 2d 236, 240-41

(Fla. Dist. Ct. App. 1988) (concluding that defamation plaintiff was a public figure

because she played a prominent role in the case and the attendant public

controversy).

B. General or Limited

       But our inquiry does not end here. Next, we must decide which type of

public figure Coach Turner is, “general” or “limited.” Saro Corp., 595 So. 2d at

89. General public figures are individuals who, by reason of fame or notoriety in a

community, will in all cases be required to prove actual malice. Id. Limited public

figures, on the other hand, are individuals who have thrust themselves forward in a

particular public controversy and are therefore required to prove actual malice only

in regard to certain issues. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323,

94 S. Ct. 2997(1974)).

       If the existence of a public controversy is established, as it is here, 6 the court

must apply a two-part test to determine if a specific individual is a limited public

figure for the purpose of that controversy. First, the court must determine whether

the individual played a central role in the controversy. Friedgood, 521 So. 2d at

       6
       Coach Turner conceded to the district court that the Report and the “bullying scandal” it
concerned amounted to a public controversy. We agree.

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239 (citing Gertz, 418 U.S. at 347, 94 S. Ct. at 3010). Second, it must determine

whether the alleged defamation was germane to the individual’s role in the

controversy. Id.; see also Saro Corp., 595 So. 2d at 89.

      We disagree with Coach Turner’s contention that he cannot be considered a

limited public figure because he did not attempt to influence this public

controversy. When Turner took the job as the offensive line coach for the

Dolphins NFL team, he thrust himself into the public limelight inherent in

professional sports and well within the public controversy arising from Martin’s

bullying. Even if Turner’s players were mainly responsible for the bullying, and

therefore the scandal, this does not prevent Turner from becoming a public figure.

Friedgood , 521 So. 2d at 239 (“[I]t may be possible for someone to become a

public figure through no purposeful action of their own.”). Furthermore, Turner’s

text messages to Martin—pushing him to make a statement to the press defending

Incognito—and his commissioning a response to the Report show that Turner

inserted himself into the controversy even after it had made national news. Turner

also agreed to be interviewed by the Defendants, becoming a central figure in the

Report.

C. Malice

      Because Coach Turner is a public figure, he must establish “actual malice”

on behalf of the author or publisher in order to maintain a defamation action.


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Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. 1984) (citing New York Times Co.

v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 726 (1964)). This Court held

previously that the Twombly/Iqbal “plausibility pleading standard applies to the

actual malice standard in defamation proceedings.” Michel, 816 F.3d at 702.

Thus, to plead actual malice, Turner “must allege facts sufficient to give rise to a

reasonable inference that the false statement was made ‘with knowledge that it was

false or with reckless disregard of whether it was false or not.’” Id. (quoting

Sullivan, 376 U.S. at 280, 84 S. Ct. at 726). This is a subjective test, focusing on

whether the defendant “actually entertained serious doubts as to the veracity of the

published account, or was highly aware that the account was probably false.” Id. at

702-03.

      Coach Turner’s complaint alleges malice, but most of his allegations are set

forth in a conclusory manner. Throughout his complaint, Turner alleges that the

Defendants “knowingly and recklessly” ignored or deliberately avoided learning

information when drafting their Report, but the complaint does not set forth facts

demonstrating that the Defendants acted in these ways. Those portions of the

complaint do not allege sufficient relevant facts to support a claim of actual malice.

Id. at 703-04.

      Coach Turner does allege, however, that the Defendants were aware of

certain information that would have portrayed him in a better light, but


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purposefully decided to omit it in order to comply with the NFL’s prearranged

conclusions. But curiously, most of the examples given by Turner are actually

included in the Report: Martin and Incognito’s relationship, Martin’s participation

in making crude remarks about other teammates, Martin’s displeasure with football

as an additional motivation for leaving the team, that Turner’s players thought well

of him, and that Turner did not establish the fine system for players acting as a

“Judas” or snitch. And most of this information cuts against the Defendants’

general conclusions, allowing readers to decide for themselves what to conclude

from the Report, making any allegation of actual malice less plausible. Id. at 703

(“[R]eporting perspectives contrary to the publisher’s own should be interpreted as

helping to rebut, not establish, the presence of actual malice.”).

      Some of the other information—such as comparisons to the locker rooms of

other NFL teams or how other Dolphins players viewed the male blow-up doll

gift—is simply irrelevant to the focus of the Report, which concerned Martin’s

reaction to his experience as a Dolphins player.

      Ultimately, many of Coach Turner’s allegations center on the Defendants’

failure to properly analyze certain information. But these allegations also fail to

allege malice, because they do not give rise to a reasonable inference that the

Defendants knowingly or with reckless disregard published a false statement of

fact. If anything, these allegations attack the reliability of the Defendants’


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opinions, and we have explained above why these types of claims fall outside the

scope of a defamation suit.

        We therefore affirm the district court’s ruling on this additional ground as

well.

                                 XI. CONCLUSION

        For all of the above reasons, we affirm the district court’s dismissal of

Turner’s complaint.

        AFFIRMED.




                                           37
