If Jerry West is charged with ‘winning time’, a legal case could be an uphill battle

HBOs winning time begins with a warning: “This series is a dramatization of certain facts and events. Some names have been changed and some events and characters have been fictionalized, altered, or composed for dramatic purposes.”

A version of this disclaimer appears in other movies and shows based on real events. They are meant to tell viewers that parts of what they see are true, while other parts are dramatized or completely made up. But how are people supposed to tell the difference, especially when filmmakers have increasingly blurred the lines between truth and fiction for the sake of drama?

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Jerry West says most viewers now believe he is what his attorney called a “out of control, intoxicated rage aholic,” based on his portrayal in winning time, adapted from a book by Jeff Pearlman describing the rise of the Los Angeles Lakers dynasty in the 1980s. West, who was the team’s coach and general manager during this period and is now the director of the Los Angeles Clippers, demanded in a letter to Warner Bros. Discovery, HBO and series producers Adam McKay and Kevin Messick.

“Into the Jerry West” winning time doesn’t look like the real man,” his attorney Skip Miller wrote. “The real Jerry West prided himself on treating people with dignity and respect. winning time is a baseless and malicious attack on Jerry West’s character. You’ve reduced the legacy of an 83-year-old legend and role model to that of a vulgar and unprofessional bully – the opposite of the real man.”

West takes issue with the series’ characterization of him as a bully, borderline alcoholic, and incompetent coach who shied away from drafting Magic Johnson. On the show, Jerry Buss, owner of the Lakers, tells West in one scene: “I drank a lot of bourbon. I switched to vodka. You smell it less. Just a tip.” West argues that the show defamed him, regardless of the two-sentence disclaimer that appears before the series’ first episode.

West is right that a show can still defame someone, even if it has a disclaimer on it. If he chooses to sue, part of the court’s analysis of whether the warning served its intended purpose will be whether the show presented itself as true and whether viewers recognized his character in the series as him. .

Recent cases of defamation over the use of disclaimers are not beneficial to the producers of winning time† In a lawsuit by Georgian chess champion Nona Gaprindashvili, who says she appeared in an episode of The Queen’s Gambit, a judge declined to dismiss the case because she felt Gaprindashvili proved she likely triumphed in her defamation charge, despite a disclaimer being issued that the show was a work of fiction. The judge distinguished the use of the disclaimer in the show from a disclaimer that appears in the laundry service, a Netflix film starring Gary Oldman about the Panama Papers. In that case, the court ruled that no reasonable viewer would believe that the film was asserting objective facts rather than dramatizing events.

“Here the series contains a similar disclaimer, but the line looks more like one of those factual details included in the series for believability than the main plot devices,” wrote U.S. District Judge Virginia Phillips. She concluded that the streaming giant acted with a “reckless disregard” for the truth, rejecting arguments that it cannot be prosecuted for defamation of real people in fiction.

Particularly disturbing at this point in winning time is a scene with Buss where he breaks through the fourth wall in typical McKay fashion to tell viewers, “Jerry West, Head Coach of the Lakers, considered a true gentleman of the sport to anyone who doesn’t know him.” Miller argues that the scene implies that the series depicts the ‘real’ West.

Alexander Rufus-Isaacs, a defamation lawyer representing Gaprindashvili in her lawsuit against Netflix, said the scene would cause trouble for the show’s producers for voicing their portrayal of West.

“That would be a huge hurdle for the producers to overcome,” says Rufus-Isaacs. “If the screenwriter is impeached, he will have a very hard time denying that he wanted the public to believe that he is showing the real Jerry West. That’s a very good fact for West’s side and very bad for the producers.”

He emphasizes that the makers of winning time did not add composite characteristics to West’s character, such as changing his name, identifying characteristics, or position with the Lakers so that viewers would not be misled into believing the character was an actual representation of the NBA Hall of Famer .

Media attorney Daniel Novack agrees the scene will be a problem for the makers of winning time if they are charged and the court considers whether a reasonable viewer would believe the show is a true representation of the events.

“You’re literally telling the audience that this is the real West,” Novack says. “When they break through the fourth wall, they’re basically saying, ‘Trust us. This is real.'”

In recent years, numerous defamation lawsuits have been filed against docudramas producers for allegedly false and misleading portrayals of characters and events. Disclaimers appeared not to have shielded them from liability in most of those cases.

Still, West will likely have a hard time getting on top of his lawsuit, if he chooses to pursue one. This is because cases of defamation are notoriously hard to win for people in the public interest.

There is a huge protection of free speech that allows people to criticize elected officials and other public figures. Such people in the public interest face a higher burden in defamation cases as they have to prove that the alleged defamatory statements were made with actual malice, defined as the intent to cause harm with the foreknowledge that what was said is actually false used to be. Mere negligence is not enough.

The norm has been the downfall of several defamation lawsuits, including those of Donald Trump, Sarah Palin, and one who sued for his portrayal in The Wolf of Wall Street

“A plea that says he isn’t like that isn’t good enough,” says Novack. “Where’s the smoking gun that” [the showrunners] knew better? Where were they notified?”

West’s letter to the makers of winning time includes statements from Lakers personnel challenging his portrayal in the series as false.

Charlene Kenney, executive assistant Lakers owner Jerry Buss for more than 20 years, wrote, “I’ve seen the HBO show winning time and the character they portray as Jerry West is nothing like the man I knew. I never heard Jerry yell or yell at me or anyone else. I never even heard Jerry raise his voice in the office. He was always a gentleman and he treated me and others within the Lakers organization with respect and professionalism. I’ve never heard Jerry West use swear words or swear words in the office either. And I’ve never seen Jerry throw or break anything in anger. Nor have I ever heard Jerry curse or rant about anything in a diatribe. Finally, I have never seen Jerry drink alcohol in the office, nor have I ever seen Jerry drunk in the office.”

Probably anticipating an actual defense against malice, Miller emphasizes that the supposedly defamatory scenes of West’s temperament do not appear in Pearlman’s book. He points to a longtime Lakers employee who refused to consult on the show because of its inaccurate portrayal.

Gary Vitti, who spent 32 years as a head coach for the Lakers, said the show was “a total mischaracterization of Jerry West.”

“You were aware of the falsehood, but you were still released winning time knowing it was false and misleading,” Miller wrote. “This is the epitome of malice.”

Kareem Abdul-Jabbar has also criticized the show for its “deliberately unfair” portrayal of West. So is Arn Tellem, vice president of the Detroit Pistons.

Rufus-Isaacs believes that a lawsuit from West may be one of the few cases to get past the firing, as Pearlman’s book largely portrays West in a flattering light. He says, “Unless the writer had good reason to believe the book is flawed, there’s a good chance he’s winning on purpose.”

As part of the review, the court will determine whether the show’s creators had sources confirming their portrayal of West. As long as one of them said West could be known for acting like he did on the series, that might be enough for the producers of winning time to escape an accusation of defamation.

While he doesn’t think West should or will file a lawsuit, Novack questions whether recent docudramas have gone too far in blurring the line between fiction and reality.

“They want to have all the benefits that the show is real, but they also want to amplify and dramatize it,” notes Novack. “To me dramatizing means turning the amp from a six to an eight. If someone has a three, you can’t raise it to 10. It’s a fine line. How do you do that without going too far?”

HBO did not respond to requests for comment.

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