Russell Westbrook and Utah Jazz Defeat Heckling Fan on Appeal

It’s been nearly five years since Utah Jazz fan Shane Keisel and then-Oklahoma City Thunder guard Russell Westbrook exchanged insults during a game at the Delta Center in Salt Lake City, but the litigation from the incident lives on.

On Friday, the Utah Court of Appeals affirmed a lower court’s granting of summary judgment for Westbrook and the Jazz, which Keisel and his girlfriend (now wife), Jennifer Huff, sued for defamation, intentional and negligent infliction of emotional distress and related claims.

Writing for a three-judge panel, Judge Ryan Tenney said Westbrook and the Jazz suggesting Keisel made a racist remark is not grounds for defamation. Asserting that someone made a racist remark is an opinion, and opinions are protected speech.

“One of the elements of a defamation claim is that the statement at issue must be false,” Tenney wrote. “By extension, a statement can only be actionable as defamation if it is capable of being proven to be true or false.” A statement of opinion can’t be proven right or wrong. 

The exact wording during Keisel and Westbrook’s exchange remains a source of dispute. During the second quarter of a March 11, 2019, game, Westbrook was sitting on the bench. He had a wrap around his knees at the time.

Keisel, who was seated in the third row with Huff near the Thunder bench, said he told Westbrook, “Bro, sit down and ice your knees.”

However, one fan seated nearby recalled Keisel saying, “Get on your knees like you always do to service your teammates.” Another heard Keisel tell Westbrook he was “used to being down” on his knees. Eyewitnesses described the remarks as offensive and possibly homophobic. Arena security didn’t toss Keisel but issued him a warning card to stop engaging in verbal abuse.

Meanwhile, a fan recorded Westbrook’s response on a cell phone. Westbrook said, “I swear to God, I’ll f— you up, you and your wife, I’ll f— you up.” Keisel testified he heard Westbrook say: “This is heat. This is heat. Know what the f— you’re talking about if you’re going to talk to me.”

After the game Westbrook claimed the incident started when a “young man and his wife” started heckling him “to get down on my knees like you used to, and for me that’s just completely disrespectful . . . I think it’s racial.”

The next day, the Jazz investigated the incident. A team attorney conducted a phone interview with Keisel, who claimed he only told Westbrook to get his knees ready to play later in the game. However, Judge Tenney noted Keisel also admitted that Westbrook “could have taken it as, oh, yeah, I was telling him that he was going to suck some d— or whatever. I get that there could be sexual type of things. But racism? Come on, man.’”

The Jazz permanently banned Keisel from their area for violating the NBA and Jazz code of conduct on account of “inappropriate, obscene and offensive statements.” A team attorney testified the Jazz didn’t determine if Keisel’s comments were racist and/or homophobic.

On March 14, 2019, the team emailed season ticket holders saying it will enforce the code of conduct with “zero tolerance” for “hate speech, racism, sexism or homophobia.” At a game that night, then-owner Gail Miller addressed the crowd before the game in which she addressed “the unfortunate incident.” She said: “This should never happen. We are not a racist community.”

Keisel lost his job from a car dealership after it received threatening phone calls on account of employing Keisel. Huff lost work as a house cleaner and furniture refinisher.

But the couple’s lawsuit failed to persuade multiple judges. As the district court wrote, “whether a person is racist or whether a statement is racial is a matter of opinion which cannot be verified as true or false.” 

The couple’s contention that Westbrook caused them severe emotional distress also fell short. Westbrook’s threatening statements were made during an NBA game where he wasn’t very close to Keisel and Huff. There were many security personnel nearby, too. Judge Tenney acknowledged Westbrook’s statement amounted to a “profane outburst” but stressed it occurred during “a professional sporting event, a place where society has unfortunately come to expect some amount of intemperate behavior.”

The judge also underscored that Westbrook’s outburst wasn’t “unprovoked.” To that point, Keisel “admitted that Westbrook was responding to an initial statement from Keisel that could have been understood as a sexual if not homophobic slur.”

The court found Miller’s pregame statements, where she arguably linked Keisel to her statement, “We are not a racist community,” harder to assess since the parties debated if she was referring to Keisel. But even if she was, Tenney wrote, Miller would have been making a statement of opinion. 

“Like Westbrook,” Tenney wrote, “Miller and the Jazz had a constitutionally protected right to express their opinion about Keisel’s earlier statements.”

Westbrook, 35, currently plays for the Los Angeles Clippers. He is in his 16th NBA season. Despite periodic knee troubles, the nine-time NBA all-star and former league MVP has played in more than 1,200 regular season and playoff games.