FORTSON

v.

COLANGELO

SELTZER, United States Magistrate Judge.

This cause is before the Court upon the Motion and Supporting Memorandum of Law of Defendant NYP Holdings, Inc.¹

for Summary Judgment (DE 27) and Defendant, Jerry Colangelo’s Motion for Summary Judgment and Supporting Memorandum of Law (DE 45). The Motions were referred to the undersigned pursuant to the consent of the parties. Having carefully reviewed the papers in support of and in opposition to said Motions and being otherwise sufficiently advised in the premises, it is hereby ORDERED that the Motions are GRANTED.

I.

INTRODUCTION

On October 25, 2004, Plaintiff Danny Fortson filed a Complaint in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, asserting a slander claim against Jerry Colangelo and libel claims against the

New York Post

(hereinafter, the

“Post,”)

and Peter Vec-sey.

2

See

Complaint (Ex. A to Notice of

*1373

Removal (DE¹)). Defendants thereafter removed the action to this Court.

The Complaint alleges that on November 26, 2003, Fortson, a professional basketball player for the Dallas Mavericks, pushed Phoenix Suns player Zarko Cabar-kapa while defending a basket; the push resulted in Cabarkapa being thrown off balance, falling, and breaking his right wrist.

Id.

¶¶ 8, 10, 11 (DE¹); Fortson’s Statement of Undisputed Material Facts ¶ 4 (DE 40). The slander claim arises out of oral statements about Fortson made by Colangelo immediately following the game, and the libel claims arise out of written statements about Fortson made in a column by Vescey and published by the

Post

four days after the game.

Colangelo and the

Post

now move for summary judgment (DE 27 and 45, respectively). Fortson has responded to the motions (DE 41, 46), and Colangelo and the

Post

have replied thereto (DE 44, 48). The matter is now ripe for decision.

II.

UNDISPUTED FACTS

A. THE LITIGANTS

Danny Fortson has played professional basketball for several National Basketball Association (“NBA”) teams since 1997. Fortson Dep. at 51. Fortson was playing for the Dallas Mavericks at the time of the incident giving rise to this action.

See 2001-05 Official NBA Guide

at 92, 166, 275, 290, 304, 315.

3

By his own admission, Fortson has garnered a poor reputation for his physical style of play. In April 2003, he told a reporter for the

San Jose Mercury News:

‘You get a reputation — on court, I don’t back down from anybody .... So I guess people think I’m a bad guy. But I’m not a bad guy.” Fortson Dep., Ex. 17. In August 2003,

The Dallas Morning News

published an article entitled, “Fortson Eager to Get on Court; He’s Out to Prove His Reputation as a Bad Guy is Undeserved”; the article discussed Fortson’s reputation as a “bad guy” and Fortson’s seeming commitment to change that reputation.

Id.,

Ex. 19.

League statistics provide insight into the reasons for Fortson’s reputation. During his career, Fortson has ranked among the league leaders in personal, technical, and flagrant fouls.

4

See 2001-05 Official NBA Guide

at 92, 166, 275, 290, 304, 315. For example, during the 1998-99 season, Fort-son led the league not only in personal

*1374

fouls (212), but also in game disqualifications (9).

Id.

at 166. In addition, Fortson has been fined significant sums and suspended (without pay) on repeated occasions.

5

Fortson has acknowledged committing “a lot of flagrant fouls over [his] career”; by his own admission, he has “colleet[ed] rebounds as quickly as [he has] amassed fouls.” Fortson Dep. at 173, 190. And Fortson has conceded that even before the foul on Cabarkapa, an individual considering his history of flagrant fouls and fines could conclude that he is a “rough player.”

Id.

at 386.

At all pertinent times, Colangelo was the Chairman and CEO (“owner”) of the Phoenix Suns.

See

Colangelo Dep. at 7. Colan-gelo has 40 years of professional basketball experience as a player, coach, and manager. Id.

at 54. As an owner, Colan-gelo has served as Chairman of the NBA Board of Governors, as well as Chairman of the Rules Committee.

Id.

at 23, 29.

Defendant NYP Holdings, Inc. is the publisher of the

Post,

a daily newspaper distributed primarily in the New York metropolitan area.

See

Post’s Motion at 1, 6 (DE 27); Vecsey Decl. ¶ 1. At the time of the events giving rise to the Complaint, Peter Vecsey was the NBA columnist for the

Post.

Vecsey has more than 40 years’ experience as a professional sports journalist; for most of that time he has covered professional basketball exclusively. In addition to writing for the

Post,

Vecsey has written for the

New York Daily News

and for

USA Today.

Vecsey Decl. ¶¶ 7-11. Vecsey has also worked as a television and radio commentator; he has provided on-air commentary for NBA games, anchored half-time shows, and moderated NBA-related programs for several networks, including: CBS, NBC, Turner Network Television, Fox Sports Network, SportsChannel, USA Network, Madison Square Garden Network, NBA Entertainment Television, and ESPN radio.

Id.

¶¶ 12-23.

At the

Post,

Vecsey writes a column

6

(the “Column”) entitled “Hoop du Jour” three times a week during the professional basketball season.

Id.

¶¶ 30-31. Vecsey explains that the Column “is dedicated to [his] thoughts, opinions, and reactions regarding the league” and “is meant to enlighten and entertain readers.”

Id.

¶ 31. Vecsey describes his style as “colloquial and informal”; he “often us[es] slang

*1375

terms as they are used by basketball players and avid basketball fans.”

Id.

¶ 52. And he uses language that is deliberately hyperbolic to convey his strongly held opinions.

Id.

¶ 56. Yecsey is frequently critical of NBA management, and his criticism is sometimes directed at the NBA’s discipline of players for fouls or misconduct.

Id.

¶ 32;

see also id.

¶¶ 33, 35, 36, 37 (sampling of articles directed to league’s disciplinarians and disciplinary decisions).

B.

THE FLAGRANT FOUL AND ITS FALLOUT

On November 26, 2003, the Mavericks and the Suns met in an NBA game. As reported by game officials, with slightly less than³ minutes remaining and the Suns holding a 24-point lead, Suns rookie Zarko Cabarkapa received the ball on a fast break and elevated to the basket. While Cabarkapa was in the air, Fortson extended his arms and (without making any effort to play the ball) pushed Cabar-kapa on the chest, knocking him to the ground. The Suns rookie landed on and broke his right wrist; the injury sidelined Cabarkapa for a considerable period of time.

7

Fortson was immediately called for a flagrant foul (level two), ejected from the game, and escorted by security personnel out of the arena.

8

In addition, the league fined Fortson $1,000 and suspended him for three games without pay, a suspension that by NBA standards is “on the high side.” Fortson Dep., Ex. 31; Jackson Dep. at 119-20. The three-game suspension without pay cost Fortson $198,606. Fortson Dep. at 181.

Fortson offered this account of the foul:

Well, first of all, I shouldn’t have been in the game at that particular moment. Was like two, three minutes left, the game was over. I’m not loose and I was on

a

— we were one — I was on the bench, the game was already decided. And running back on defense and I, I don’t know, the ball went over the top of my head, I don’t know, guarding my man, I happened to turn around and look and this guy is flying in the air. I have no choice but to put my hands out to stop him from jumping over the top of me or,

*1376

you know, stop him from the layup or the dunk or whatever he was doing. The guy being so light, any little thing that I did, he’s going to bounce off me and he just landed pretty bad.

Fortson Dep. at 151. When asked in a follow-up question whether he had “pushed Zarko [Cabarkapa] to the floor,” Fortson responded: “The way it looked, maybe. But for me personally, I thought I just was trying to push him to stop him from, you know, making a basketball play. But it wasn’t — the push wasn’t, you know, intentionally trying to hurt anybody.”

Id.

at 162. Fortson, however, did acknowledge that it was “a bad play” and that he “knew it could be ugly” when he put his hands on Cabarkapa. And he apologized, adding: “I wouldn’t want to be hit like that.”

Id.

at 175 (affirming statement in newspaper article).

Following the game, Colangelo stated of Fortson: “He’s a thug. He always has been and is.” Fortson Dep., Ex. 23. Co-langelo further remarked: “He should be put down for every day that [Cabarkapa] is out. I’ll do everything in my power to see that happens. With the game over, there’s no excuse for that.”

Id.,

Ex. 23.

9

Colangelo’s statements were broadcast and published by the media. Fortson’s Response at 2 (DE 46). In the days that followed the incident, television stations throughout the country showed video footage of the incident, and the print media reported on it as well.

See

Vecsey Decl. ¶ 46. The incident triggered outrage not only in the teams’ home-town newspapers,

see The Fort Worth Star Telegram

and

The Arizona Republic

articles attached as Exs. 25 and 27 to Fortson Dep., but in out-of-town newspapers as well. Writing in the

New York Post

a few days later, Vec-sey spoke out about the incident and, in particular, what he considered to be the NBA’s inadequate response to Fortson’s foul. Vecsey’s November 30, 2003 Column, entitled “Stern Warnings Are Not Enough,” expressed his view that NBA Commissioner David Stern should have suspended Fortson for the same amount of time that Cabarkapa required to heal.

See

Column, attached hereto as Ex. A. This viewpoint appears beneath a photograph of Cabarkapa after the foul as he lay on the floor writhing in pain.

See id.

The photograph is accompanied by a caption that summarizes the pertinent facts.

See id.

The Column contains the following passages, which include the allegedly defamatory words (underlined below):

10

1. As long as

thugged out

players are permitted to recklessly endanger the limbs and lives of helpless opponents without being suitably punished, David Stern’s puffed-up campaign to eradicate violence from the NBA is a charade. (“Statement A.”)

2. There’s only one fool-proof method to prevent

vacant lots

like Danny Fortson from randomly

mugging

defenseless rivals like Zarko Cabarka-pa: Suspend his

meaningless mass

for as long as it takes the broken right wrist of the Suns rookie to heal completely. (“Statement B” and “Statement C.”)

3. Why should other gangstas or wankstas be the least bit subdued

*1377

about submarining a superstar if Fortson is eligible to maim and mangle for the Mavericks a week from now while his victim is shelved six-to-eight? (“Statement D” and “Statement E.”)

4. After 25 years of rule, can it be Stern (and obtuse advisers) still doesn’t grasp the potential danger of

maliciously destabilizing a player in mid-flight?

Can it be the commissioner doesn’t comprehend that Cabarkapa could’ve been injured far more seriously late in the fourth quarter of a 30-point Phoenix blowout when Fortson

maliciously shoved

him with two hands while he was airborne? (“Statement F” and “Statement G.”)

5. What’s he saying?

Attempted murder

is no problem; you have to murder somebody on one of my courts before I’ll outlaw the brazen disregard for the safety of the susceptible? (“Statement H.”)

See id.

(emphasis added).

III.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment where the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue is “genuine” if a reasonable jury could return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it must be decided to resolve the substantive claim or defense to which the motion is directed.

Id.; Hairston v. Gainesville Sun Publ’g Co.,

The moving party bears the burden of establishing the absence of a genuine issue as to any material fact.

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the movant has satisfied its initial burden, the non-moving party must then go beyond the pleadings to rebut any facts properly presented; it may do so through affidavits or other evidence showing the existence of genuine issues of material fact for trial. Fed.R.Civ.P. 56(e);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);

Adickes,

398 U.S. at 160, 90 S.Ct. 1598.

Summary judgment is appropriate when, after adequate time for discovery, the non-moving party cannot establish an essential element on which it bears the burden of proof.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.”

Id.; accord Earley v. Champion Int'l Corp.,

907 F. 2d 1077, 1080 (11th Cir.1990).

In considering the motion, the Court must construe the evidence and the inferences drawn from the underlying facts in the light most favorable to the non-moving party.

United States v. Diebold, Inc.,

369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Furthermore, facts asserted by the party opposing summary judgment must generally be regarded as true if supported by affidavit or other evidentiary material.

Coke v. Gen. Adjustment Bureau, Inc.,

640 F. 2d 584, 595 (5th Cir.1981) (quoting 10C Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure

§ 2727 at 524-30 (1973)).

*1378

IV.

LEGAL FRAMEWORK

Fortson alleges the common-law torts of slander and libel against Colangelo and the

Post,

respectively.

11

“To recover for libel or slander under Florida law, a plaintiff must demonstrate that: 1.) the defendant published a false statement; 2.) about the plaintiff; 3.) to a third party; and 4.) the [plaintiff] suffered damages as a result of the publication.”

Thompson v. Orange Lake Country Club, Inc.,

224 F. Supp. 2d 1368, 1376 (M.D.Fla.2002) (citing

Valencia v. Citibank Int’l, 728

So. 2d 330, 330 (Fla. 3d DCA 1999)). The first element of the claim, “[a] false statement of fact[,] is the

sine qua non

for recovery in a defamation action.”

See Hallmark Builders, Inc. v. Gaylord Broad., Co.,

733 F. 2d 1461, 1464 (11th Cir.1984) (quoting

Byrd v. Hustler Magazine, Inc.,

433 So. 2d 593, 595 (Fla. 4th DCA 1983));

see also Milkovich v. Lorain Journal Co.,

497 U.S. I,²³, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (Brennan, J., dissenting) (“I agree with the Court that ... only statements that are capable of being proved false are subject to liability under state libel law”).

Here, Fortson argues that the complained of words are false statements of fact, whereas Colangelo and the

Post

argue that the words are not statements of fact, but rather expressions of opinion, more specifically, pure opinion and/or rhetorical hyperbole. “Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article 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. 1st DCA 1981);

see also

Restatement (Second) of Torts § 566 (1977) (describing pure opinion as “a comment as to the plaintiffs conduct, qualifications or character”). “Pure opinion is sometimes characterized as ‘rhetorical hyperbole.’ ” Laura G. Pula et a!.,

Florida Torts

§ 25.03 (2006). The Supreme Court has used various phrases to describe “rhetorical hyperbole,” including “imaginative expression” and “loose, figurative, or hyperbolic language.”

12

Although rhetorically hyperbolic statements may “at first blush appear to be factual[,] ... they cannot reasonably be

*1379

interpreted as stating actual facts about their target.”

Standing Comm, on Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman,

55 F. 3d 1430, 1438 (9th Cir.1995);

accord Milkovich,

497 U.S. at 20, 110 S.Ct. 2695 (noting protection accorded “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual”). Where rhetorical hyperbole is employed, the language itself “negatefs] the impression that the writer was seriously maintaining that [the plaintiff] committed the [particular act forming the basis of the alleged defamation].”

Id.

at 21, 110 S.Ct. 2695.

13

The distinction between fact and pure opinion/rhetorieal hyperbole is a critical one; to be actionable, a defamatory publication must convey to a reasonable reader the impression that it describes actual facts about the plaintiff or the activities in which he participated.

See Ford v. Rowland,

562 So. 2d 731, 735 (Fla. 5th DCA 1990).

It is for the Court to decide, as a matter of law, whether the complained of words are actionable.expressions of fact or non-actionable expressions of pure opinion and/or rhetorical hyperbole.

See Colodny v. Iverson, Yoakum, Papiano & Hatch,

936 F.Supp. 917, 923 (M.D.Fla.1996) (“[W]hether the alleged defamatory word is a[] non-actionable expression of pure opinion or an actionable expression of pure fact ... is a question of law for the Court.”) (citing Florida cases). In determining whether an allegedly defamatory statement is an expression of fact or an expression of pure opinion and/or rhetorical hyperbole, context is paramount:

[T]he test to be applied in determining whether an allegedly defamatory statement constitutes an actionable statement of fact requires that the court examine the statement in its totality and the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.

From,

400 So. 2d at 57 (citation and internal quotations omitted);

accord Horsley v. Rivera,

292 F. 3d 695, 702 (11th Cir.2002) (“In determining whether [the defendant’s] statement is entitled to protection as rhetorical hyperbole, we must consider the

*1380

circumstances in which the statement was expressed”).

V.

ANALYSIS

A. THE COLANGELO STATEMENTS

Fortson alleges that Colangelo slandered him following the November 26 game by stating that Fortson is “a thug and I want him out of here” and that Fortson has “always been a thug.” Complaint ¶¶ 13, 14 (DE¹). According to Fortson: “An average reader or listener or member of the public could easily draw the conclusion from Colangelo’s statement that Danny Fortson was in fact a ‘thug’ as used in the common dictionary definition of the word (the Random House Webster Collegiate Dictionary) defines ‘[T]hug’ as, ‘[A] vicious criminal or ruffian.’

Id.

(Sixth Edition page 1392) ....” Fortson’s Response at 5-6 (DE 46). Colangelo counters that although he uttered the challenged words in anger shortly after witnessing the injury to his player — a “heat of the moment response ... to what had transpired” — his words are nonetheless protected expressions of opinion. Colangelo Dep at 10; Colangelo Motion at 1-2 (DE 45).

Preliminarily, the Court notes that at least one court has held that calling an individual a “thug” is not defamatory. In

Garrett v. Kneass,

482 So. 2d 876, 879 (La. Ct.App.1986), the court held that “ ‘thug’ is a name that does not impute any particular crime to the plaintiff.” Certainly in the instant context, this Court would agree that the term “thug” cannot be construed as imputing any particular crime to Fort-son. According to Vecsey, the term “thug” is frequently used in the basketball community to refer to those players who try to intimidate people by acting tough.

See

Vecsey Decl. ¶¶ 56, 57. Indeed, by Fortson’s own admission, he plays a “physical game of basketball” and is “an enforcer on [his] team.”

14

Fortson Dep. at 349, 351.

Further, given Fortson’s well-publicized history of overly aggressive play (fouls, ejections, fines, and suspensions), coupled with the tone and timing of allegedly defamatory remarks (an angry remark following a game in which Fortson sidelined a Suns player for an extended period), no reasonable listener could conclude that Colangelo’s invocation of the term “thug” was anything but hyperbolic.

See Hors-ley v. Feldt,

304 F. 3d 1125, 1132 (11th Cir.2002) (noting that heated nature of discussion and its temporal proximity to traumatic event as factors probative of rhetorical hyperbole).

15

The term conveyed Colangelo’s opinion. — predicated on personal observation and 40 years of professional basketball experience — of Fort-son’s inappropriate style of play. Significantly, Colangelo did not imply that he

*1381

had access to any facts beyond those that were already known to the basketball audience.

See id.

at 1133 (citing undisputed nature of facts in support of finding protected speech). To paraphrase the

Feldt

court: “[T]he inflammatory words that [Colangelo] used hyperbolically accused [Fortson] only of that actual conduct” that the audience had already witnessed.

Id.

In that context, no reasonable listener of any sports program that broadcast Colan-gelo’s statement, and no reasonable reader of any sports section that printed it, could draw the inference suggested by Fortson — “that he was a vicious criminal of some sort.” Fortson’s Memorandum at 5-6 (DE 46).

B.

THE VECSEY STATEMENTS

1.

The context in which the statements ivere published undermines Fort-son’s claim.

The context in which the Vecsey statements were published is of critical import. Fortson would have the

Post

held liable for statements in Vecsey’s “Hoop du Jour” Column (not in an article), which appears regularly in the newspaper’s sports section. The Column holds itself out as containing subjective content and is a vehicle through which basketball fans can read of Vecsey’s thoughts and opinions on the NBA. Because the challenged statements were made through a medium that fosters debate on basketball issues and that routinely uses figurative or hyperbolic language, a reasonable reader is more likely to regard its content as opinion and/or rhetorical hyperbole.

See, e.g., Colodny,

936 F.Supp. at 924 (holding that statement published in “Commentary section” of newspaper is opinion);

Hay v. Indep. Newspapers, Inc.,

450 So. 2d 293, 295 (Fla. 2d DCA 1984) (statements in letter to editor published in newspaper section entitled “The Forum, Opinion,” were statements of opinion).

16

Indeed, courts have recognized that sports commentaries in particular are likely to contain statements of opinion, rather than fact, because they serve as a “traditional haven for cajoling, invective, and hyperbole.”

Stepien v. Franklin,

39 Ohio App.3d 47, 528 N.E. 2d 1324, 1329 (1988) (citations and internal quotations omitted);

accord Time, Inc. v. Johnston,

448 F. 2d 378 (4th Cir.1971) (noting that term “destroyed,” as applied to opposing basketball player, was mere hyperbole).

Further, the issue that the Column sought to address — the (in)adequacy of the NBA’s response to violent fouls — is a controversial one about which there has been ongoing debate. Here, Vecsey took NBA Commissioner David Stern to task for suspending Fortson for only three games, while Cabarkapa would be sidelined for a far longer period of time. Vecsey’s solution, also articulated by Colangelo following the game, was to suspend Fortson and similar offenders for as long as it took their victims to heal, a proposal opposed by many in the league.

See

Colangelo Dep. at 26-28. Where an issue is controversial, evoking strongly held views, statements relating thereto are more likely to be deemed rhetorical hyperbole.

See, e.g., Old Dominion Branch No. 196 v. *1382

Austin,

418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (“strong disagreement” between union members and opponents of unionization supported finding that challenged statements were protected).

And, the placement and timing of the challenged words undermine Fortson’s contention that they could reasonably be read as assertions of fact. The Column appears under the headline, “Stern Warnings Not Enough.” Above the headline appears a photograph of the injured Ca-barkapa, grasping his wrist and writhing in pain. The caption under the photograph states: “SLAP ON THE WRIST: Suns Forward Zarko Cabarkapa broke wrist after flagrant foul by Mavericks’ Danny Fortson on Wednesday. Fortson got three-game suspension. Cabarkapa could be out up to eight weeks.”

See Byrd,

433 So. 2d at 595 (“When words and pictures are presented together, each is an important element of what,

in toto,

constitutes the publication.”). Hence, the facts that form the basis of Vecsey’s Column— that Fortson flagrantly fouled Cabarkapa, broke Cabarkapa’s wrist, sidelined Cabar-kapa for up to eight weeks, and received a three game suspension — are set forth in the caption. Moreover, those facts had already been widely disseminated through the print and electronic media in the days immediately following the incident.

See, e.g.,

Fortson Dep., Exs. 23, 25-28. Because Vecsey’s commentary was predicated on facts set forth in the caption and/or otherwise known or available to the basketball community, it falls squarely within the legal definition of pure opinion.

See From,

400 So. 2d at 57 (defining “pure opinion”).

2.

The statements themselves are not defamatory.

Fortson alleges that the

Post

libeled him through eight statements in the Vecsey Column. Statement A is Vecsey’s reference to Fortson as a “thugged out” player.¹⁷

According to Fortson:

[T]he nexus between the physical activity on the court and the characterization of Fortson leaves a reader with the clear understanding that Fortson is a thug ... in his off the court life. Thugs ... do not exist on NBA courts — they are found on street corners threatening, robbing and injuring citizens. The clear meaning of Vecsey’s comments are that after taking off his basketball uniform, Plaintiff engages in physically violent criminal activity.

Fortson’s Memorandum at 4-5 (DE 41). The Court does not agree. “Thugged out” is a slang phrase that Vecsey invoked in reference to those players (including Fort-son) who he believes try to act tough and intimidate players on the court.

See Gold v. Harrison,

88 Hawaii 94, 962 P. 2d 353, 360-62 (1998) (finding in favor of defendant who had used term “rape” in its non-literal, slang sense to convey feelings about court awarding easement over his property);

see also Mr. Chow of N.Y. v. Ste. Jour Azur S.A.,

759 F. 2d 219, 226 (2d Cir.1985) (stating that courts “must ... look at the language itself to determine if it is used in a precise, literal manner or in a loose, figurative or hyperbolic sense”). And when “thugged out” is read against the backdrop of the broader context in which it appears, no reasonable reader of Vecsey’s Column would construe “thugged

*1383

out” in its literal sense — robbing helpless individuals on street corners — as Fortson suggests. Vecsey clearly indulged in rhetorical hyperbole, and his language is therefore protected.

Statement B is Vecsey’s reference to Fortson as a “vacant lot” and an individual that needs to be stopped from “mugging” defenseless rivals.

18

Veseey’s use of the phrase “vacant lot” cannot conceivably be read as a statement of fact — that Fort-son is what the statement literally describes, an unimproved parcel of real property. By describing Fortson in terms that are not physically possible, Vecsey’s phrase negates any implication that he is actually asserting facts.

See Pring v. Penthouse Int’l, Ltd.,

695 F. 2d 438, 443 (10th Cir.1983) (holding that article was rhetorical hyperbole because it described physical impossibility). Vecsey simply used colorful language — invective—to denounce Fortson; and Vecsey’s readership could not have interpreted it any other way. Similarly, no reasonable person would take Vecsey’s passage about the need to prevent Fortson “from randomly mugging defenseless rivals like Zarko Cabarkapa” to be an assertion of fact about off-the-court criminal activity. Rather, Vecsey exercised his constitutional prerogative to invoke slang — ’“mugging”—in lieu of a more literal phrase to describe the manner in which Fortson knocked Cabarkapa to the ground.

See Moldea v. N.Y. Times Co.,

22 F. 3d 310, 313-14 (D.C.Cir. 1994) (“Sports columnists frequently offer intemperate denunciations of coaches’ play-calling or strategy, and readers know this and presumably take such railings with a grain of salt ....”).

In Statement C, Vecsey called upon the league to “[s]uspend [Fortson’s]

meaningless mass

for as long as it takes” Cabarka-pa’s wrist to heal. As used here, the phrase “meaningless mass” was nothing more than an epithet, invoked by Vecsey to express his contempt for Fortson and his tactics. Like the phrase “vacant lot,” “meaningless mass” cannot reasonably be read as an actual assertion of fact, the

sine qua non

of a libel claim.

See Haberstroh v. Crain Publ’ns, Inc.,

189 Ill.App.3d 267, 136 IlLDee. 771, 545 N.E. 2d 295, 298-99 (1989) (holding that challenged language was non-actionable “name-calling”). Even Fortson acknowledged that, to him, the phrase “meaningless mass” simply means “[s]omebody that’s just a big nothing. A vacant lot, so to speak.” Fortson Dep. at 314.

Statement D — “gangstas or wankstas”

19

— are descriptive terms that Vecsey, by implication, applied to Fortson. As he did with respect to the term “thug,” Fortson argues that the phrase “gangstas or wankstas” is defamatory because “gangsters do not exist on NBA courts — they are found on street corners threatening, robbing and injuring citizens.” Fortson’s Memorandum at 4-5 (DE 41). However, a “gangsta” is not a “gangster”; it is a slang term from the world of Hip-Hop.

See

Vecsey Decl. ¶ 60. As Vecsey explained, he used the terms “gangsta and wanksta” as they are defined in that world: “[a] gangsta is someone [who] walks with a

*1384

swagger, talks ‘smack’ on the court and acts tough”; “[a] wanksta on the other hand, is a want-to-be-gangsta.”

Id.

But even without the benefit of Vecsey’s (post-filing) explanations and definitions, a contextual reading of the passage does not support an inference that Fortson was an actual gangster — a member of a criminal enterprise or otherwise engaged in a life of crime. Rather, Vecsey asked rhetorically why NBA players who might be similarly inclined to engage in overly aggressive tactics — players whom he labels “gangstas or wankstas” — would be deterred from harming other players when they see that the NBA suspended Fortson for far less time than would be required for Cabarka-pa to heal.

Statement E — “maimfing] and mangl[ing]” — are additional terms that Fortson alleges to be libelous. As he did with the term “mugging,” Vecsey chose slang — “maimfing] and manglfing]” — to express his opinion of Fortson’s inappropriate style of play — committing hard fouls and intimidating opponents.

Statement F — “maliciously destabilizing a player in mid-flight”

20

— and Statement G — “maliciously shoved” — are additional phrases that Fortson alleges to be libelous. Although Fortson maintains that his actions were inadvertent, he does acknowledge that he “pushed” Cabarkapa, see Fortson Dep. at 162, which knocked Cabarkapa to the ground and broke his wrist. Fortson takes issue only with Vec-sey’s use of the terms “maliciously” and “shove[d].”

21

See id.

at 162-63, 322, 324-25, 361. Yet, Vecsey had ample facts upon which to opine that Fortson acted “maliciously” and “shoved” Cabarkapa: Fortson is an experienced (and frequently sanctioned) professional who (admittedly) understands the danger of using two hands to push an opposing player in mid-air,

see

Fortson Dep. at 362; Fortson made no visible effort to block the ball; Fortson broke Cabarkapa’s wrist; and Fortson’s pushing Cabarkapa on the chest could not have served any legitimate purpose, particularly given the scant time remaining and the Suns’ insurmountable lead. By invoking the terms “maliciously” and “shoved” to characterize Fortson’s actions, Vecsey merely offered readers his judgment — albeit, a harsh one — based upon facts that were known or available to them. Vec-sey’s language, therefore, was nothing more than a textbook expression of pure opinion.

Statement H — “attempted murder”

22

— is the final phrase with which Fortson takes issue. Fortson argues that “the average reader can very easily draw the inference from the article that Plaintiff

*1385

was

actually trying to kill

another player.” Fortson’s Memorandum at 5 (DE 41) (italics in original).

23

The Court does not agree. Fortson’s assumption that reasonable people read words in a vacuum, according to their dictionary definition, is ill-founded. As the law recognizes, reasonable people read words contextually.

See, e.g., Rivera,

292 F. 3d at 702. And as reasonable people read the Vecsey Column, they do so mindful of the events upon which the Column is based. Hence, reasonable readers of the Vecsey Column were no more likely to have believed that Fortson had actually tried to kill Cabarka-pa than reasonable readers of the late 1920s were to have believed that “Murderer’s Row” — Ruth, Gehrig, and their Yankee teammates — had actually slayed opposing pitchers. In Fortson’s context, as with the Yankee legends, the term “murder” was obviously applied hyperbolically; and it was understood by the reasonable reader in that manner. VI.

CONCLUSION

As in

Johnston,

Colangelo and Vecsey invoked “phrases of some vividness, used them in a figurative, not literal, sense, [and they] used a form of hyperbole typical in sports parlance.” 448 F. 2d at 384. To foreclose the use of hyperbole, under the threat of civil liability, “would condemn [sports commentary] to an arid, desiccated recital of bare facts.”

Id.

Such a result would ill-serve the interests of the First Amendment in “assur[ing][the] unfettered interchange of ideas” among the American people.

Roth v. United States,

354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

For the foregoing reasons, the Motion and Supporting Memorandum of Law of Defendant NYP Holdings, Inc. for Summary Judgment (DE 27) and Defendant, Jerry Colangelo’s Motion for Summary Judgment and Supporting Memorandum of Law (DE 45) are GRANTED. Simultaneously herewith, the Court will enter a Judgment in favor of all Defendants.

*1386

[[Image here]]