SALT LAKE CITY — The Utah Court of Appeals has refused to reinstate a defamation lawsuit against the Utah Jazz and NBA star Russell Westbrook.
The unanimous ruling, published Saturday night, upheld a lower court's decision to dismiss the case. Shane Keisel sued after he was banned for life from Utah Jazz games following the 2019 confrontation with Westbrook, who was playing for the Oklahoma City Thunder.
Keisel and his girlfriend, Jennifer Huff, were attending the game when the confrontation began.
"In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase 'on your knees.' Westbrook responded profanely and aggressively, and his response was caught on video and then circulated on social media before the game had concluded," Judge Ryan Tenney wrote.
Westbrook told reporters following the game that he believed the remark was "racial." The Utah Jazz investigated the confrontation and ended up banning Keisel from the arena. At another game, then-Utah Jazz owner Gail Miller stood on the court and urged fans to behave better, declaring "we are not a racist community."
That prompted Keisel and Huff to sue, alleging defamation. Keisel's attorney argued in a hearing in June that his client lost his job, received death threats and was on the receiving end of online abuse.
But in their ruling, the three-judge panel of the Utah Court of Appeals rejected all of Keisel and Huff's claims. They declared Westbrook's comments about the altercation were protected opinion because it was how the comment was taken.
"Indeed, Keisel himself implicitly acknowledged the fluid nature of interpretation while speaking with General Counsel [for the Utah Jazz] the day after the altercation. There, Keisel agreed that his statement to Westbrook could have been construed as being derogatory in a sexual sense. According to Keisel, Westbrook 'could have taken it as, oh, yeah I was telling him that he was going to suck some dick or whatever. I get that there could be sexual type of things. But racism? Come on, man,'" Judge Tenney wrote.
"The thing that would make this statement susceptible to a sexual connotation, however, was its attendant context—where the statement was made, who said it, who the comments were directed at, and what sorts of cues were implied by culture or circumstance. But if the implicit subtleties of context could allow Westbrook to understand this as a sexual slur, they could also allow Westbrook to understand it as a racial slur. And this is why Westbrook’s assertion that Keisel’s comment was 'racial' can’t be proven to be true or false. Simply put, if beauty is in the eye of the beholder, ugliness is too."
Judge Tenney wrote that Westbrook's opinion that he believed the comment was "racial" in nature still enjoyed a constitutional protection.
The judges of the Utah Court of Appeals also rejected Keisel and Huff's claims against the Jazz. The two accused the team of defamation for putting out a press release referencing Keisel's ban and Gail Miller's remarks at a later game.
"According to Keisel, when Miller then publicly said on March 14 that '[w]e are not a racist community,' she thus implied that the Jazz had learned through their investigation that Keisel had said something 'worse' to Westbrook, such as 'the 'N' word.' In Keisel’s view, the Jazz thus defamed him by not fully informing the public about the results of their investigation, while a full disclosure would have cured the allegedly defamatory implications that the public might otherwise draw from Miller’s statement," Judge Tenney wrote.
But the panel judges rejected Keisel's arguments, saying "we don’t see anywhere in the press release, Miller’s statement, or any other place in the record where the Jazz reasonably implied that their investigation had uncovered evidence that Keisel had said anything worse than what had already been publicly reported."
"Given all this, we believe that Keisel’s proposed defamation-by-inadequate-disclosure claim stretches the record too far. The Jazz told the public that they had investigated, and then, as was the team’s constitutional right, the Jazz reacted publicly. But by that point, the details of that altercation had been widely discussed, and those publicly discussed details had already prompted Westbrook to assert that Keisel had said something racial. Read in context, Miller’s statement was a reaction to both that and the controversy that had followed," Judge Tenney wrote. "We see no place where the team reasonably implied that it had uncovered evidence that Keisel had said anything else that was worse than the public already knew let alone something so particularly pointed as 'the N word.'"
The Court also rejected Keisel's claims of intentional and negligent infliction of emotional distress arising from the confrontation with Westbrook when the NBA star shouted during the confrontation: 'I swear to God, I’ll f— you up, you and your wife, I’ll f— you up, . . . I promise you on everything I love, on everything I love, I promise you." Keisel and Huff said they felt threatened, the court noted, but the judges dismissed that the incident occurred in an arena filled with security and several rows of specators between the two. Keisel and Huff remained in the arena to watch the rest of the game, too, which "belies any suggestion that they really thought there was a 'real risk that Westbrook would make good on his threat.'"
"We certainly don’t condone what Westbrook said. Sports and society alike would be better off without such language. And for that matter, the other fans who were sitting nearby deserved far better from both Westbrook and Keisel," the ruling said. "These two adults could and should have found a way to disagree better."
Read the court's ruling here:
