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Overturning a jury’s $10.7 million verdict in a libel suit, a federal appeals court ruled Wednesday that there was insufficient evidence that Sports Illustrated acted with “actual malice” when it published an October 1993 article that said boxer Randall “Tex” Cobb had agreed to “fix” a fight and had used cocaine after the fight. A unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals found that the magazine conducted a “comprehensive” investigation to corroborate the allegations and therefore cannot be held liable for recklessly disregarding the truth. “The jury’s verdict cannot stand without significantly infringing on the ‘breathing space’ that the [Supreme] Court has carved out for the freedom of speech,” Judge Cornelia G. Kennedy wrote. Cobb’s lawyer, George Bochetto of Bochetto & Lentz in Philadelphia, argued that Sports Illustrated‘s writers purposely avoided learning the truth and that they should have interviewed the referee and the ringside officials. But Kennedy found that such evidence was not enough to clear the high hurdle of the actual malice standard. At best, she said, Cobb proved that the magazine “might not have acted as a prudent reporter would have acted. But the actual malice standard requires more than just proof of negligence. It requires a reckless disregard for the truth.” In an interview Wednesday, Bochetto said he and his client “absolutely intend to appeal” — either by asking the full 6th Circuit to rehear the case or heading directly to the U.S. Supreme Court. Bochetto said the appellate panel “overstepped” its authority by “literally redetermining the facts” and ignoring some of the jury’s critical findings that supported a verdict under the actual malice standard. The jury, Bochetto said, specifically found that the allegations were false and was properly instructed on the issue of actual malice. In the suit, Cobb claims the magazine destroyed his career and threw him into a depression by falsely stating that he had agreed to “fix” a bout between himself and Paul “Sonny” Barch and that he used cocaine with others after the fight. Bochetto argued that the magazine’s writers ignored Barch’s criminal record and other aspects of his story that should have put them on notice that he was too lacking in credibility to be the sole source for such damaging accusations. Although Cobb admits he once had a cocaine problem, he insisted that he had been in recovery for four years at the time. At trial, in U.S. District Court in Nashville, Tenn., a psychiatrist testified that Cobb was disabled by rage “almost of psychotic proportions” and that for nearly a year after the article, “he lived in his car — driving around the city to control the intensity of his anger.” And an economist calculated that the article cost Cobb $5 million to $15 million in lost income through lost movie and television opportunities. Beginning in the mid-1980s, Cobb had appeared in a series of movies, including several that were box office hits, such as Eddie Murphy’s “Golden Child” and the Coen brothers’ “Raising Arizona.” As a character actor, Cobb was earning $100,000 per year for roles in such films as “Ernest Goes to Jail,” “Police Academy 4,” and “Ace Ventura, Pet Detective.” But economist Robert Thornton noted in 1994 that those offers had dwindled to just one offer for $10,000 in the past year. The Sports Illustrated article, titled “The Fix Was In,” focused on several boxing matches involving boxing promoter Rick “Elvis” Parker in which the outcomes were allegedly prearranged. The primary example was the September 1992 match between Cobb and Barch in which the magazine said the two boxers had agreed that Barch would “take a dive,” and that Parker, Cobb and Barch had used cocaine together the night before the match and again shortly after the match. The jury returned a verdict in favor of Cobb for $8.5 million in compensatory damages and $2.2 million in punitive damages, and U.S. District Judge Robert L. Echols later issued a pair of opinions that upheld the verdict. But the appellate court found that Cobb — who conceded he was a public figure — had failed to meet the actual malice standard. Kennedy, in an opinion joined by Judges Karen Nelson Moore and R. Guy Cole Jr., found that Sports Illustrated conducted an investigation before publishing the article and that, while it wasn’t perfect, it was enough to prove that the magazine had not acted with reckless disregard for the truth. Kennedy noted that Barch’s story was significantly corroborated by Don Hazelton, the executive director of the Florida State Athletic Commission, who had attended the bout and told the magazine that he, too, believed the fight was fixed. Hazelton said he first grew suspicious when Parker substituted Barch at the last minute for boxer Tim Anderson, who was originally scheduled to fight Cobb. Hazelton said Parker told him that he preferred Barch because “he couldn’t trust Anderson” and because Anderson was refusing to fight unless he got paid more than $2,500. The story didn’t check out, Hazelton said, because he later spoke to Anderson, who said he was willing to fight for $2,500 or less. Hazelton also told the reporter that he had spoken with the ringside officials about the fight, and that they were of the opinion that the fight had been arranged. Immediately after the fight, Hazelton had Cobb and Barch submit to a surprise drug test. Barch tested positive for cocaine, and Cobb tested positive for marijuana. Kennedy noted that the magazine also assigned three of its journalists to repeatedly view the videotape of the Cobb-Barch fight, and they concluded “that Cobb was fighting in a contrived fashion.” Although the magazine’s investigation “was by no means exhaustive,” Kennedy found that it was enough to prove that the magazine made efforts to corroborate the story and had not simply relied on Barch. “A failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard,” Kennedy wrote. “Instead, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Thus, the failure to investigate, alone, will not support a finding of actual malice, but the purposeful avoidance of the truth may do so.” Sports Illustrated was represented in the appeal by attorney Floyd Abrams of Cahill Gordon & Reindel in New York.

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