Bernie Fine Will Sue ESPN, Claiming Defamation

Former Syracuse assistant coach Bernie Fine is preparing a lawsuit against ESPN, and will claim the network defamed him when it reported claims of child sexual abuse lodged by two former ballboys.

The summons, which can be found below, was filed in New York State Supreme Court in November but not uncovered until yesterday. It names as plaintiffs ESPN, reporter Mark Schwarz, producer Arty Berko, and ESPN co-owners Hearst and Disney. Bernie Fine's wife, Laurie Fine, filed her own lawsuit last spring (part of which was dismissed last month).

ESPN's original story, released in November of 2011 at the height of the Penn State scandal, contained claims from Bobby Davis and his stepbrother Mike Lang that Fine had abused the two repeatedly from the 1970s into the '90s, and reported that Davis had gone to police in 2005, sparking an internal Syracuse investigation.

The Fine allegations turned into something of a circus. A third man, Floyd Van Hooser came forward to say Fine had abused him, but later recanted. A fourth accuser, Zach Tomaselli, proved entirely unreliable, and federal authorities dropped an investigation, saying Tomaselli's claim had insufficient evidence to back it up.

Lacking actionable evidence, the story ran dry. Fine has holed up in Florida. Now comes the lawsuit, which will likely echo Laurie Fine's filing: that ESPN "knowingly overlooked" credibility issues, and published the story "to boost television ratings...despite having serious doubts" about its truth.

This picture of a fact-discarding news organization only out for blood doesn't hold up. ESPN was approached by Bobby Davis in 2003, but chose not to run with the allegations then. Only in 2011, when Lang stepped forward as a second accuser, and Davis produced an audio tape of he and Laurie Fine that appeared to make reference to abuse, did Outside The Lines publish. (To be certain, Sandusky-mania played its part in the timing.)

Part of that phone call, recorded in 2002:

Laurie: What did he want you to do? You can be honest with me.
Bobby: What do you think? What he always does.
Laurie: He wants you to grab him? Or blow him?
Bobby: He tried to make me grab him. But first he’d try to grab me and start touching me. ...
Laurie: Right. But when he gave you the money, what did he want for that? He wanted you to grab him or he wanted to do you?
Bobby: He wanted to do me. He wanted me to touch him. He tried to make me touch him a couple of times. He’d grab my hand and then I’d pull away. Then he’d put me in your bed and then, you know, put me down. And I’d try to go away. Then he put his arm on top of my chest. He goes, If you want this money, you’ll stay right here. I’d try to leave and he’d grab me real hard. You know what he does — I told you about this before, right? He’d grab you if you tried to walk away and he’d say, I’ll pull it off or something like that.
Laurie: Right, right.
Bobby: I told you that before.
Laurie: But you never had any oral sex with him?
Bobby: No. I think he’d want to.
Laurie: Of course, he would. Why wouldn’t he?

(Syracuse fired Bernie Fine after the tape was released. Laurie Fine acknowledged that the conversation took place, but claimed parts of it had been doctored.)

Davis and Lang did go to the police with their story multiple times before contacting ESPN. The investigation that found Zach Tomaselli's allegations baseless did not address Davis's and Lang's claims—the statute of limitations had expired.

The local prosecutor has called Davis and Lang credible but said the alleged crimes occurred too long ago to pursue.

ESPN did not pronounce Bernie Fine guilty; it accurately reported claims against him. From the reporters' point of view, they had one accuser whose story hadn't changed in eight years. They had a second who was willing to corroborate the claims. They had hard evidence that pointed to something unseemly taking place. They likely found Davis and Lang as credible as local law enforcement did. If ESPN, Schwarz, and Berko are guilty of anything, it's trying to horn in on the Sandusky prize with a fuzzily similar collegiate scandal. They're not guilty of libel.