ALBANY, N.Y. — Almost three years after two former Syracuse University ball boys sued Jim Boeheim over his comments that they were lying about being sexually abused to get a payday, oral arguments held Tuesday in New York state’s high court seemed to focus on one question.

“Is it opinion or fact?” Chief Judge Jonathan Lippman of the New York Court of Appeals said.

“He clearly stated our clients lied about being sexually abused,” said Mariann Wang, an attorney for Bobby Davis and Mike Lang, the two former ball boys who allege former associate head men’s basketball coach Bernie Fine abused them.

An attorney from each side had 10 minutes to present their argument to the court. Wang said the “reasonable reader” could conclude Boeheim was referencing facts others would not know and, thus, his statements defending Fine were not opinions protected under free speech. Arguing for Boeheim and SU, Helen Cantwell said Boeheim was upset at the allegations against Fine and was trying to protect his reputation following the Pennsylvania State University scandal.

SU fired Fine on Nov. 27, 2011. He has denied all wrongdoing and was not charged after an almost yearlong federal investigation.

Here’s how we got here:

• Shortly after Davis and Lang filed their lawsuit on Dec. 13, 2011, a judge approved SU’s motion to move the case from New York City to Onondaga County. There, state Supreme Court Justice Brian DeJoseph on May 11, 2012, threw out the lawsuit, ruling in a 30-page decision that Boeheim’s comments were opinions protected under free speech.

• An intermediate state appellate court in Rochester on Oct. 4 upheld the decision to throw out the lawsuit 3-2.

• The two dissenting appellate judges wrote Boeheim’s comments could be considered “mixed opinion” — meaning it was implied his statements were based on “insider knowledge.” With “mixed opinion” statements, someone can be found liable for defamation in New York state. Wang appealed six days later.

On Tuesday, Chief Judge Lippman called the case at 2 p.m. — pronouncing Boeheim’s last name “Bah-heim” — opening up the approximately 25-minute hearing that seemed contentious at times in the ornate courtroom adorned by portraits of more than 100 former Court of Appeals judges.

During Wang’s arguments, the judges repeatedly asked if the Penn State scandal affected the context of Boeheim’s comments.

Wang said Boeheim made “factual statements” that could be proven wrong and were defamatory — including when Boeheim said Fine did not abuse them and they had sought money several times. By doing so, she said, Boeheim suggested the two had committed extortion as well as falsely reporting abuse.

“How is that fact and not opinion?” said Senior Associate Judge Victoria Graffeo, who then asked whether the “reasonable reader” could conclude Boeheim was worried about the reputation of his “football program.”

Chief Judge Lippman then asked if Boeheim’s reaction was normal given the situation and at what point comments like these would become defamatory. But it does not matter if Boeheim was emotional and felt he was on the defensive, Wang said, as that does not allow someone to defame another person.

Cantwell, arguing on behalf of Boeheim and SU, said he was emotional when the allegations arose.

Several judges asked about Boeheim’s decision to issue a statement and give four separate interviews. A few also questioned why his comments were very specific, including that one of the stepbrothers only traveled when they babysat Fine’s children.

Boeheim has a reputation for “bluntness,” Cantwell said. And in every article about his response to the sexual abuse allegations against Fine, she said, the Penn State scandal is also mentioned.

“The question on everyone’s mind is, ‘What does Jim Boeheim know?’” Cantwell said. “Is he Joe Paterno?” she added, referring to the former Penn State head football coach. The hearing in the defamation lawsuit, coincidentally, came one day after the NCAA announced it was lifting its sanctions against Penn State.

At the end of the arguments, Wang was given several minutes for rebuttal. Judge Robert Smith asked, using her argument, whether someone would have to “keep their mouth shut” if allegations were made against a friend.

She said the case would be different if Boeheim had simply expressed disbelief about the allegations and said he stood by Fine.

“If he had just said that, I don’t think we’d be here,” Wang said.

Published on September 9, 2014 at 6:32 pm

Contact Dylan: dmsegelb@syr.edu | @dylan_segelbaum