In the first episode of “Winning Time,” the HBO series about the nineteen-eighties ascent of the Los Angeles Lakers, we meet Jerry West, the former player turned Lakers head coach, early on. “Your cocksucking, motherfucking, buttfucking billboards don’t play the game of fucking basketball,” he screams during a round of golf, snapping a club over his knee. West, played by Jason Clarke, is addressing the team’s incoming owner, Jerry Buss (John C. Reilly), who wants to draft Magic Johnson, in part because his smile would look good on a billboard. Later, West delivers another expletive-filled rant in his office, and Buss advises, “Listen, I used to drink a lot of bourbon. I switched to vodka. You can smell it less. Just a tip.” At the end of the episode, after Buss recruits Johnson, West hurls his M.V.P. trophy through a window.
Last month, a lawyer representing the real West, who is now eighty-three, delivered a scorching letter to the show’s executives, claiming that the series “falsely and cruelly portrays Mr. West as an out-of-control, intoxicated rage-aholic” who “bears no resemblance to the real man” and demanding a retraction, damages, and an apology. The angry golf game: “fabricated.” Drinking at work: “never happened.” Throwing trophies: “Jerry would never throw anything in anger.” The forty-six-page document contains testimonials from former colleagues, including an executive secretary (“I never heard Jerry yell or scream at me or anyone”), a former player and assistant general manager (“Jerry is soft spoken and does not like confrontation”), and Kareem Abdul-Jabbar (“Instead of exploring his issues with compassion as a way to better understand the man, they turn him into a Wile E. Coyote cartoon to be laughed at”).
HBO responded that the show is “based on extensive factual research and reliable sourcing” and that it ”stands resolutely behind our talented creators and cast.” Days earlier, Jeff Pearlman, who wrote the book on which the series is based, had defended the show against complaints about its verisimilitude. “Are the characters exact fits? No,” he tweeted. “They’re (wait for it) actors using (wait for it) scripts written by (wait for it) writers.”
In recent years, prestige docudramas that retrace events from the not-too-distant past have flooded television. You can even break them down into overlapping subgenres: true crime (“American Crime Story: The People v. O. J. Simpson,” “When They See Us”), grifter tales (“The Dropout,” “Inventing Anna,” “WeCrashed”), dramatizations of hit documentaries (“Joe vs. Carole,” “The Staircase”), redemption narratives for publicly maligned women (“Impeachment: American Crime Story,” “Pam & Tommy”). Drawing from the recent past is also a staple of movies (“King Richard,” “I, Tonya,” “Spotlight”), and television networks churned out movie-of-the-week schlock throughout the eighties and nineties. But the need for content in the age of peak streaming has created a boom for up-to-the-minute docudramas, starring famous people as other famous people. Is Jerry West about to tear it all down?
“I’d be worried, honestly, if there were a series of wins,” Jean-Paul Jassy, a litigator who has worked on many cases involving the First Amendment and entertainment, told me. “Because what happens is, it inhibits the robust telling of stories and the way in which people can express and recount events.” But, if West decides to sue, he’d have an uphill battle. Defamation law provides lots of leeway for screenwriters to take dramatic liberties, as Hollywood has proudly done for the past century. In many states, so-called anti-SLAPP (strategic lawsuits against public participation) laws help block lawsuits that are designed to intimidate activists, news organizations, and filmmakers from exercising their First Amendment rights—say, a suit filed by a politician who doesn’t want to be investigated for corruption. As Bruce Rosen, another First Amendment lawyer, explained, defamation plaintiffs have to prove not only falsehood but “actual malice,” which is “a subjective state of mind of the writer, the broadcaster, whoever, that tells you that they knew or should have known that what they were publishing was false.”
In his letter, West’s lawyer, Louis R. Miller, argues that the show’s “extreme departure” from the source material demonstrates malice, since Pearlman’s book “Showtime” doesn’t include the tantrums shown in the series. But the screenwriters may well have consulted other sources that pointed to West’s temper, of which throwing a trophy would be a metaphorical, if not a literal, illustration. “Look, did someone throw a trophy through a window, or did they not throw a trophy through a window?” Jassy reasoned. “He says he never did that. But is the show trying to portray that as something he actually did, or is it trying to portray that as a dramatic version of what was happening at that time and what his state of mind was?”
Aggrieved real-life figures can’t win on petty inaccuracies. In 2017, the Hollywood legend Olivia de Havilland, just before her hundred-and-first birthday, sued FX Networks and Ryan Murphy Productions over “Feud: Bette and Joan,” in which she was played by Catherine Zeta-Jones. Among her complaints was that her fictionalized counterpart described her sister, Joan Fontaine, as a “bitch.” In reality, de Havilland, whose rivalry with Fontaine was notorious, called her sister a “dragon lady.” As one judge asked, “Is there a substantial difference between calling someone a ‘bitch’ and calling her a ‘dragon lady’?” (Her lawyer said that there was: “In my household, if you say the word ‘bitch,’ you get your mouth washed out.”) A California appeals court halted the suit, which finally ended in 2019, when the U.S. Supreme Court declined to intervene. (De Havilland died the next year, at a hundred and four.) West’s lawyer writes, “Winning Time’s misrepresentations are not a matter of slight inaccuracies, as was the case in De Havilland v. FX Networks, LLC.” What constitutes a “slight inaccuracy” is subjective, though. Did West ever use the f-bomb? How much? “If they made him into a stone-cold killer and say that he buried all these bodies under the Forum, I guess that might take you there,” Rosen said.
“Winning Time” does include a disclaimer, alerting viewers that some things have been “modified or composited for dramatic purposes.” But Jassy warned that disclaimers are not “the silver bullet that’s going to win the case” for the show. He pointed to a lawsuit over “The Queen’s Gambit,” the Netflix miniseries about a mid-century female chess champion. Although the story is largely fictional, it does characterize a real person: Nona Gaprindashvili, a former Soviet chess star. In one episode, an announcer describes her as a “female world champion” who “has never faced men.” Gaprindashvili, now eighty-one, found the line “sexist and belittling,” not to mention wrong: by 1968, when the episode takes place, she had competed against at least ten male grandmasters. She sued for five million dollars. In January, a California court denied Netflix’s motion to dismiss the suit, clearing a major hurdle. (It’s currently being appealed.) In his letter, West’s lawyer includes that judge’s order, which considered “The Queen’s Gambit” ’s disclaimer and let the suit move forward regardless.
Rodney A. Smolla, one of the two lawyers representing Gaprindashvili, told me that West would have a chance to win if he went forward. “He’s got as good a shot as when he beat the New York Knicks from sixty-five feet in the playoffs—but he’s got a shot,” Smolla said. Much of the case would rest on the audience’s expectations: “Do they think that what is being depicted is what actually happened with the Lakers?” (As evidence that “Winning Time” was harming West’s reputation among credulous viewers, his lawyer cites tweets calling him “a full-fledged psycho” and “a drunk ass hater who didn’t want Magic.”) Stylization is also a factor. Adam McKay, a producer of “Winning Time” and the director of the pilot episode, is known for hyperbolizing, as when Dick and Lynne Cheney break into Shakespearean dialogue in “Vice.” “Winning Time” is similarly full of bells and whistles, which might hint at viewers not to take it literally. On the other hand, Smolla noted, the breaking of the fourth wall could hurt HBO. In the golf scene, Buss turns to the camera and says that West is “considered a true gentleman of the sport—to everyone who does not know him.” “Well, that’s making me think that I’m getting the inside dope,” Smolla said.
