The reasons why Peyton Manning, others probably won't sue Al Jazeera over report

A.J. Perez | USA TODAY Sports

Denver Broncos quarterback Peyton Manning initially said he’d “probably sue” over the allegations leveled by Al Jazeera America in Sunday’s documentary on performance-enhancing drugs, although Manning added Wednesday that no decision has been made.

Philadelphia Phillies first baseman Ryan Howard also threatened legal action.

Pittsburgh Steelers linebacker James Harrison --- who was also linked to banned substances in the heavily-criticized report --- talked it over with his legal team didn't make the same proclamation.

"I've looked into it, and it seems that it may cost more than what it's worth," Harrison told WPXI-TV this week.

Los Angeles-based lawyer Arthur Whang told USA TODAY Sports that beyond spending thousands in legal bills, athletes soon find another downside to litigation: discovery, which often include depositions.

"It can be dangerous to sue because a defendant can probe into actual allegations," Whang said. "That's because truth is a defense. Al Jazeera could use the litigation to probe the accusations which plaintiffs may not want."

Plus lawsuits are also rarely successful, Whang added.

“You often hear a lot of bluster about suing and then they learn what it will cost,” Whang said. “Actual malice is hard to prove."

The "actual malice" standard was set by the U.S. Supreme Court in 1964. Justices cited First Amendment protections when it ruled in New York Times Co. v. Sullivan that public figures must not only prove a claim is false but also show there was “actual intent to harm or recklessness disregard” for an outlet to be held liable. Some states even bar punitive damages --- the big payout in civil cases --- in defamation cases.

Charlie Sly, a former pharmacy intern in an Indianapolis anti-aging clinic, was the lone source that said Manning’s wife received shipments of human growth hormone. Sly also said he supplied other athletes with a banned anabolic agent. He recanted his allegations even before the documentary, The Dark Side, ran on the network Sunday night.

One way outlets can shield themselves in defamation cases is by a running a retraction.

Last year, Anaheim Angels slugger Albert Pujols dropped his lawsuit against former major leaguer Jack Clark last year after Clark retracted his allegation Pujols used performance-enhancing drug. (Clark made the statement on his sports talk radio show in 2013.) Clark was fired shortly after he made the statement.

In 2005, the Inland Valley Daily Bulletin, a newspaper in Southern California, apologized and retracted a story that alleged former two-sport star Bo Jackson used steroids. Jackson continued to pursue a defamation case, but it was dismissed.

Al Jazeera hasn’t retracted its allegations, and Ari Fleischer, the former White House press secretary whom Manning hired, said in an email to USA TODAY Sports that Manning’s camp hasn’t asked for one.

“Before it ran, we did urge them not to run it pointing out its many flaws,” Fleischer said. “They decided to run it anyway, obviously.”

Both Manning and Fleischer said a decision to file a lawsuit against Al Jazeera America wouldn't happen until after the season.

Deborah Davies, the lead reporter in the story, defended the documentary on NBC’s Today show on Tuesday, although she tried to downplay the links to Manning that the piece reported was Sly’s “most astonishing allegation.”