Last week, we looked at Butch Carter’s weird defamation lawsuit against Marcus Camby. Well, it ain’t the only weird NBA defamation lawsuit! Today, we’ll look at the litigious aftermath of a hard foul a few years later. On November 26, 2003, the Mavericks lost to the Suns in a blowout, 121-90. With about three minutes left in an already decided game, Phoenix’s Zarko Cabarkapa drove to the rim for a dunk when Dallas forward and rebounding monster Danny Fortson shoved Cabarkapa who landed on his right side. Cabarkapa would fracture his wrist on the play but the true fireworks came later. Let’s break it down with a little background first….
A Bit of Background on Fortson
Fortson was an archetypical tough guy/rebounding specialist power forward. He was only 6’7 but weighed 260 pounds. His offensive game was minimal and his man-to-man defense wasn’t actually great but he was super strong and twice led the NBA in TRB%. In his 2002 Basketball Prospectus, John Hollinger wrote about Fortson: “the classic one-trick pony. Despite being undersized and not terribly athletic, Fortson is the most ferocious rebounder the league has seen since Denis Rodman. He has an uncanny knack for positioning and tracking missed shots, he’s extremely strong, and he goes after every ball….[Still, Fortson and Antawn Jamison] had to be the worst defensive forward combination in the league….” An unskilled and slow rebounding specialist wouldn’t really play in the 2021 NBA but, even in 2003, he was a more of a luxury item than a necessity.
Fortson was known as a rough player before the Cabarkapa incident. A March 2002 Sports Illustrated profile about Fortson was titled “Relentlessness Personified” and discussed his style of play: “[t]hough Fortson is only 25, the referees respect him enough to let him get away with tricks usually pulled by veterans. ‘Damn near every rebound he gets,’ says Lakers forward Robert Horry, ’he has two hands on your back and he’s pushing you.’ Fortson says his tactics are nothing compared with those of Bad Boys Rodman, Rick Mahorn and Bill Laimbeer, whose work he has long admired. ‘Those guys played dirty,’ Fortson says with an appreciative grin. ‘They were stepping on toes, pulling your shorts down. There’s no way you’re getting away with that stuff now.’”
In December 2004, Fortson was considered a key part of a surprisingly good Sonics team that relied on shooting guards (Ray Allen and Flip Muuray) and a bunch of hustlers (including Forston). Sports Illustrated, again, detailed Fortson’s style of play: “Fortson rumbles around the half-court offense like a bumper car, slamming into opponents as he sets (occasionally legal) screens to spring shooters. He then plows toward the basket, where he has an uncanny knack for timing offensive rebounds, which he either tips in or otherwise takes to the hoop in the least graceful manner possible–think construction worker attempting a jeté–usually drawing a foul.”
Sports Illustrated prose aside, there were definitely plenty of players who did not like Forston’s grit. One example came from April 2002, when Fortson elbowed Denver forward George McCloud in the eye. McCloud told The San Francisco Gate that the hit was a “cowardly type shot.” The paper wrote that McCloud said that the league should review the play and diplomatically pointed out that “[i]f they don’t [look at the play], then they shouldn’t take a look at it when I punch him in the face next season. The league can fine me or whatever. I’m going to get Danny Fortson back.” According to the article, Fortson had already been suspended four games due to prior flagrant fouls, including on Shaq which ain’t easy to do.
Background on Zarko
Cabarkapa was a 6’11 rookie from Serbia (17th pick overall) and the Suns were hopeful he could be a solid scoring forward. At the time of the Fortson incident, Zarko hadn’t played much (6.5 ppg in 13.1 mpg) but that game against Dallas was his best pro game to date (17 pts, 9 rebs in 29 minutes). He missed about two months with the wrist injury but was the same bench player when he returned.
We set the scene above but, to review, the average Suns team (7-7) blew out a pretty good Dallas team (10-5, with peak Dirk Nowitzki, Steve Nash, and Michael Finley). Fortson had started but played only 13 minutes. Zarko was going in for a dunk late in the blow out when Fortson pushed him in the chest, causing Cabarkapa to fall on, and fracture, his right wrist. Forston was ejected for his take down on Zarko and suspended for three games (Dallas went 2-1 in those games) and he barely played the next two games upon his return. I couldn’t find footage of the foul online but I recall it being pretty reckless.
The Odessa American report of the game quoted Suns owner Jerry Colangelo angrily criticizing Fortson: “He’s a thug, and I want him out—at least as long as our guy is going to be out. He’s always been a thug. I’ll do everything in my power to see that he pays for it.” Mavs owner Mark Cuban responded that “[i]t’s fine for Jerry to vent and be upset. What Danny did wasn’t smart, but he wasn’t intentionally trying to hurt Zarko. He rightfully got a flagrant and was ejected.”
Fortson admitted he screwed up: “[i]t was a bad play. I wasn’t frustrated with the blowout. I was more concerned about getting in trouble with my defensive position. By the time I put my hands on him, he was flying through the air and I knew it could be ugly. There was no evil intent. But consider it’s me, I expect the worst. I’ve had a lot of flagrant fouls in my career. But I do apologize. I wouldn’t want to be hit like that.”
ESPN reported that: “Cabarkapa was in tears in the Suns’ dressing room, but later composed himself and said through a translator, ‘I can’t comprehend it. I don’t know exactly what happened. I just know I was trying to drive to the basket and Fortson pushed me.’” Perhaps even angrier because of Zarko’s injury and anguish, Colangelo vowed to try to get Fortson suspended longer than the usual amount for a flagrant foul.
Ultimately, the NBA fined Fortson $1,000 and suspended him three games without pay (which cost him $198,606). The punishment was considered light and several papers criticized the NBA. Peter Vecsey wrote a column for the New York Post ripping the NBA particularly hard with the following specific statements:
“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.”
“There’s only one fool-proof method to prevent vacant lots like Danny Fortson from randomly mugging defenseless rivals like Zarko Cabarkapa: Suspend his meaningless mass for as long as it takes the broken right wrist of the Suns rookie to heal completely.”
“Why should other gangstas or wankstas be the least bit subdued 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?”
“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?”
“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?”
Man, I miss the invectives in Vecsey’s columns! He’s active on Twitter but his long form rage was fun.
Fortson was apparently quite angry about being called a thug and all that other stuff and sued Colangelo, The New York Post, and Vecsey. The odd thing was the lawsuit was not filed in the heat of the moment like the Carter-Camby beef. No, Fortson’s complaint was not filed until October 25, 2004, nearly a year after the shove. Fortson was no longer on the Mavs and things were going pretty well for him in Seattle. You would have thought that everyone had forgotten about the incident by then but, for some reason, Fortson thought this lawsuit was necesssary.
On its face, the lawsuit seemed silly too. Calling Fortson a thug wasn’t nice but it was opinion-based and Fortson wasn’t exactly in the NBA for his finesse. Thug might be strong but his role was to be physical. In his own deposition testimony, Fortson admitted he played “physical” and that he is “an enforcer on [his] team.” Also, what’s the harm to Fortson’s reputation? Fortson didn’t lose his job and, if anything, suing the owner of an NBA team might be more harmful to future employment prospects and reputation.
Well, the courts agreed. In 2006, the action was dismissed. In so holding, the court gave detailed analysis of the issues and found the following:
– Colangelo’s “thug” comments: Colangelo argued it was his opinion that Fortson was a thug but that the statement was made in the “heat of the moment” anyway and not calculated to imply that Fortson was literally a criminal. The court agreed and noted that “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.”
-Vecsey column: The court found that “[t] he context in which the Vecsey statements were published is of critical import…. [Vescey’s Hoop du Jour] 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.” For that reason, no one obviously would conclude that Vecsey thought Fortson had really acted criminally.
Amusingly, the court did a thorough analysis as to why phrases like “thugged out,”“meaningless mass,” “gangstas or wankstas,” and “attempted murder” were not defamatory. Not shockingly, the court wasn’t buying the argument that Vecsey was accusing Fortson of literal attempted murder of Cabarkapa. I also found it sort of funny that NBA VP Stu Jackson had to be deposed to explain the NBA’s disciplinary decisions for this case. I’m sure he was not happy about a deposition in such a silly case.
The court also repeatedly noted the elephant in the room. Specifically, that there was no real dispute Fortson did not play with a light touch. The opinion wrote an extensive footnote on samples of Fortson’s disciplinary incidents:
-January 31, 1998: flagrant 2 for “a rough tackle of Shawn Bradley”
-January 2, 2002: flagrant 1 for “elbowing Brian Skinner in the head”
-March 14, 2002: flagrant 2 for “grabbing Shaquille O’Neal around the throat and flagrantly fouling Rick Fox”
-March 29, 2002: flagrant foul for hitting Ben Wallace
-February 10, 2005: This one is interesting enough to quote the court at length: “two game suspension for throwing a chair into the air following a game ejection, which, in turn, followed a verbal altercation with Chris Webber; incident resulted in Jackson speaking to Fortson’s coaches and team management about his over-aggressive style of play.” (Not a great idea for Fortson to throw chairs while he had a lawsuit pending premised on the argument that he was a clean player).
The court dismissed the case by pointing out that sports and hype are natural bedfellows: “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. To foreclose the use of hyperbole, under the threat of civil liability, would condemn [sports commentary] to an arid, desiccated recital of bare facts.” The First Amendment clearly should protect this type of speech but there is middle ground between bare fact reporting and accusing Fortson of “attempted murder.” Still, the court’s point is definitely correct.
Postscript on Zarko and Danny
Fortson did have a few more suspensions after the lawsuit:
–He was suspended two games in December 2005 for berating an official and failing to leave the court timely.
–In March 2007, the Sonics suspended him two games for blowing off practice. The UPI write up of the incident indicated that Fortson’s knees were chronically sore and he was barely playing. He retired after the 2006-07 season.
In all, Fortson played three more seasons after the Zarko shove and Forston was paid about $19 million over that time. His career did not end because he hit Zarko but because of injuries and his limited skill set. He did not appear to pay any price for the lawsuit, though I’m sure Colangelo wouldn’t have signed him.
As for Cabarkapa, Phoenix traded Zarko to the Warriors early in the 2004-05 season and he was moderately effective for GS. Cabarkapa regressed in 2005-06 because of a severe back injury and he retired from basketball (with the exception of a brief return to a team in Montenegro in 2008). He currently works in management of a Turkish basketball team.
Sound and Fury Signifying Thuggery?
So, what did this all mean? In the end, this lawsuit was silly but had no real effect on any of the parties, except for some attorneys who probably were paid quite a bit to litigate the key issue of whether “thug” and “wanksta” were defamatory.
It’s tough to determine whether Fortson passionately wanted to file the ill-fated lawsuit or whether he was talked into by some other party. Or perhaps the entire lawsuit was a pretense to depose his nemesis Stu Jackson. Whatever the case, to Fortson’s credit, the court seemed to agree that Fortson didn’t specifically intend to injure Cabarkapa, though Colangelo never quite said that anyway. Fortson would’ve been just as well letting incident fade away from public consciousness but emotions were still raw. Nearly 20 years later, Fortson can take solace in the fact that he still has quite a few fans. But, yes, the lawsuit was not a great idea.