Michael Rapaport vs. Dave Portnoy: Defamation and Contract Claims

Michael Rapaport’s lawsuit against Dave Portnoy and Barstool Sports ended in a complete loss for Rapaport: a federal judge threw out his defamation and fraud claims in March 2021, both sides walked away from their competing breach of contract claims by stipulation in September 2022, and the Second Circuit Court of Appeals affirmed the defamation dismissal on January 9, 2024. The case is closed.

How the Dispute Started

Portnoy recruited Rapaport in 2017 to bring his podcast I Am Rapaport under Barstool’s umbrella. The two sides signed a “Talent Agreement” on June 17, 2017, hiring Rapaport as an independent contractor for one year. The deal paid a $600,000 guarantee in four installments plus 60 percent of revenues from his podcasts, videos, and merchandise. Barstool also committed to “good faith efforts” to land him a weekday SiriusXM radio show worth another $375,000.¹

The partnership lasted about eight months. In February 2018, Rapaport accused Barstool employee Adam Smith of using steroids for an amateur boxing match, then told a Barstool fan online: “If you call yourself a fucking stoolie for real, you’ve already lost in life.”¹ Portnoy fired Rapaport by text on the morning of February 18, 2018, and posted a video announcing the termination, citing a contract clause allowing dismissal for conduct bringing “himself or Barstool into public disrepute.” Barstool had paid Rapaport $400,000 of the $600,000 guarantee by that point.

Rapaport then posted a photoshopped image on Twitter depicting himself sodomizing Portnoy.²³⁴

What Rapaport Sued Over

Rapaport and his production company, Michael David Productions, Inc., filed suit on September 25, 2018, in the U.S. District Court for the Southern District of New York (case 18-cv-08783).⁵ He named Barstool, Portnoy, and three employees: Adam Smith, Kevin Clancy, and Eric Nathan. The initial complaint alleged breach of contract and fraud; a 2019 amended complaint added defamation.

The defamation claim challenged roughly 80 statements across Barstool’s blogs, social media, and video content, and Rapaport sought more than $15 million in damages.⁶⁷ The contract claim argued the firing was pretextual and that Barstool failed its good-faith obligations to promote his content and secure the SiriusXM show. Barstool counterclaimed, seeking to claw back the $400,000 it had already paid minus Rapaport’s 60 percent revenue share, on the theory that the termination was for cause.

Why the Defamation Claims Failed

U.S. District Judge Naomi Reice Buchwald issued a 64-page opinion on March 29, 2021, granting summary judgment to Barstool on the defamation and fraud claims.⁸ She never reached the actual-malice standard that usually governs public-figure defamation cases, because the challenged statements didn’t clear an earlier threshold: they weren’t actionable assertions of fact.⁹

Buchwald found that labels like “racist,” “hack,” “wannabe,” “liar,” and “fraud” are subjective evaluations that can’t be objectively proven true or false. The statements appeared on sports talk radio, blogs, and social media, platforms where audiences expect opinionated content, and they came during an acrimonious public dispute. The publications were, in her words, “largely laden with epithets, vulgarities, hyperbole, and non-literal language and imagery.”

The herpes, stalking, and domestic abuse claims were harder cases, because those accusations can, in principle, be proven or disproven. Rapaport even submitted a negative herpes test. But Buchwald held that the surrounding content, including insults such as calling him a “10 gallon drum of curdled milk,” made clear no reasonable reader would take the accusations as literal reporting.⁶ The fraud claims were dismissed as duplicative of the contract claims.

How the Contract Claims Ended

Buchwald let the breach of contract claims from both sides proceed toward trial, finding genuine disputes over whether the firing was truly for cause and whether Barstool met its promotional obligations. The trial never happened. On September 9, 2022, Rapaport and Barstool filed a stipulation dismissing their respective contract claims and counterclaims.¹⁰

The stipulation was not described as involving any financial settlement. It did preserve Rapaport’s right to appeal Buchwald’s defamation ruling, which was the point of walking away from the contract fight.

The Second Circuit Affirmance

Rapaport took the defamation dismissal to the Second Circuit Court of Appeals. Oral argument was held November 15, 2023, and on January 9, 2024, the panel issued a summary order affirming the district court in full. The ruling was non-precedential.¹¹

The panel concluded that “no reasonable reader or listener could have viewed any of the challenged statements to be conveying any expressed or implied facts about Rapaport.”⁷ “Racist” and “fraud” lacked a clearly defined meaning in this context and were rhetorical hyperbole. The herpes, stalking, and abuse accusations, though theoretically provable, arose in what the court described as a “hostile, vulgar and hyperbolic feud” and would not be understood by any reasonable audience as factual reporting.¹² The court called the whole episode “the internet’s version of a schoolyard brawl.”³

The mandate issued January 30, 2024. No further proceedings have been filed.¹³

The 1998 Harassment Conviction That Shaped the Stalking Ruling

Barstool’s “stalker” accusation drew on real history. In 1997, actress Lili Taylor filed a police report saying Rapaport, her ex-boyfriend, repeatedly called her and showed up at her apartment in the middle of the night after their breakup. In May 1998, Rapaport pleaded guilty to aggravated harassment, admitting he called Taylor 21 times in four days and banged on her window around 1 a.m.¹⁴ A judge issued a protection order and required a year of twice-monthly counseling.¹⁵

When Barstool called Rapaport a stalker, it displayed the news article about that conviction alongside the accusation. The Second Circuit noted this specifically: a reasonable viewer would read the “stalker” label as commentary on disclosed public facts rather than an assertion of hidden information, which is one reason that particular accusation fell on the opinion side of the line.¹²

1
Heitner Legal. MSJ Order in Rapaport v. Barstool
2
The Hollywood Reporter. Barstool Sports, Michael Rapaport Drop Claims in Bizarre Defamation Dispute
3
Courthouse News Service. Barstool Sports’ Tasteless Effort to Lampoon Did Not Defame Michael Rapaport, Appeals Court Affirms
4
Bricker & Eckler LLP. Ranting Rapaport No Match for Barstool Sports El Presidente Dave Portnoy
5
CourtListener. Rapaport v. Barstool Sports Inc.
6
Above the Law. Barstool Sports Survives Saying Michael Rapaport Had Herpes in This Incredible Federal Opinion
7
Greenberg Glusker. Greenberg Glusker Litigation Team Secures Victory in Second Circuit for Client Barstool Sports in Defamation Case
8
Bloomberg Law. Barstool Sports Trims Michael Rapaport’s Firing Defamation Suit
9
The Hollywood Reporter. Barstool Sports Beats Michael Rapaport’s Defamation Claims
10
Bloomberg Law. Michael Rapaport Drops Suit Against Barstool Sports Over Firing
11
Bloomberg Law. Michael Rapaport Fails to Revive Suit Against Barstool Sports
12
Second Circuit Court of Appeals. Rapaport v. Barstool Sports Inc., Summary Order
13
CourtListener. Rapaport v. Barstool Sports Inc. (Appellate Docket)
14
Page Six. Before Barstool, Michael Rapaport Pleaded Guilty to Harassment
15
Deseret News. Actor Ordered to Stay Away From Girlfriend He Harassed