By Amy Feldman

By Amy E. Feldman

PHILADELPHIA (CBS) – When the Yankees played their archrivals the Boston Red Sox in April, most fans couldn’t take their eyes off the game. Not so for one sleepy fan, who was caught fast asleep by the TV cameras causing commentators Dan Shulman and John Kruk to wonder how he could sleep amongst 45,000 screaming fans and prompted discussion of whether, based on his girth, he might be related to the tubby Kruk.

The fan was not amused. He has filed a $10 million defamation lawsuit against ESPN and the commentators.

Ok, they were a little snarky. But could he win? Uh, no.

First of all, he was in a very public place so he’s got no right to privacy. As for defamation, that’s a wrongful act in which someone makes a false misstatement of fact about someone, which harms his reputation or ability to earn a living. And while his reputation as the best Yankee’s fan is likely tarnished, there’s nothing false about showing him sleeping, a fact he doesn’t deny.

Discussion about his size might be a little mean, but it’s not a false statement of fact, so no defamation.

If that fan wants to see what true taunting is like, he should try putting on a Santa suit and going to a Phillies game.

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