United States Court of Appeals

for the Fifth Circuit ____________

No. 23-60610

____________

Brett Lorenzo Favre, 

Plaintiff—Appellant, 

versus

Shannon Sharpe, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 2:23-CV-42

______________________________

Before Southwick and Duncan, Circuit Judges, and Kernodle, 

District Judge.*

Leslie H. Southwick, Circuit Judge: 

This suit is between two former professional football players. The 

defendant ex-player was a co-host of a sports talk show during which he said 

the plaintiff stole funds from a government program meant for those living in 

poverty. The plaintiff sued for defamation, but the district court categorized

the talk-show comments as hyperbole for which there was no liability. The 

_____________________

* United States District Judge for the Eastern District of Texas, sitting by 

designation.

United States Court of Appeals

Fifth Circuit

FILED

September 16, 2024

Lyle W. Cayce

Clerk

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court dismissed the suit on the pleadings. We apply a different doctrine that 

also protects the comments and AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Brett Favre is a Mississippi native. He was a star football player for 

the University of Southern Mississippi (“USM”) and then had a lengthy 

professional career, primarily with the Green Bay Packers of the National 

Football League. He was named three times as the NFL’s Most Valuable 

Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame. 

Much more recently, his public image has been somewhat tarnished by his 

connection to individuals who were convicted for the misuse of government 

welfare funds and his alleged receipt of some of those funds.

We start with an explanation of the misuse of funds.

1 In October 2021, 

the Mississippi State Auditor’s Office determined more than $77 million in 

federal Temporary Assistance for Needy Families (“TANF”) funds 

intended to help impoverished Mississippians were used for illegal purposes 

across the state. To date, six individuals have pled guilty to state and federal 

felony charges related to their involvement in this scandal. Favre has not 

been criminally charged. Mississippi’s Department of Human Services 

(“MDHS”) filed a civil suit in May 2022 against Favre and numerous 

_____________________

1 Both parties submitted documents to the district court that go beyond the four 

corners of Favre’s complaint to provide details on the welfare scandal. Although a “district 

court generally must not go outside the pleadings,” it “may consider documents attached 

to a motion to dismiss that are referred to in the plaintiff’s complaint and are central to the 

plaintiff’s claim.” Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010)

(quotation marks and citations omitted). The district court took judicial notice of 

documents and facts related to the welfare scandal, finding them “integral to Favre’s 

claim.” See id. We will not explore the reach of judicial notice but will set out some of 

these details because neither party objected to their use by the district court. 

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persons, seeking to recover TANF funds that were unlawfully diverted 

between 2016 and 2019. 

MDHS initially sought to recover $1.1 million in TANF funds Favre

received from the non-profit Mississippi Community Education Center, Inc. 

(“MCEC”) in 2017 and 2018 for speaking engagements that he never 

performed. Favre had repaid the funds prior to MDHS’s suit. MDHS 

amended its complaint to recover $5 million in TANF funds Favre allegedly 

arranged to be used to fund the construction of a new USM volleyball facility. 

According to MDHS, Favre was unable to encourage sufficient donations for 

the facility’s construction, so he turned to the non-profit MCEC to help 

secure the $5 million in funding. TANF funds were ultimately used on the 

project. 

Local and national news outlets continued to cover developments in 

the welfare scandal and Favre’s alleged involvement. During that time, two 

events occurred that gave rise to this lawsuit. The first was a September 13, 

2022, article in an online news source called Mississippi Today. The article 

detailed the MDHS’s recent filing of a civil suit against Favre. The article

included text messages between Favre and one of the six individuals later 

convicted in the scandal, Nancy New, that discussed the construction 

funding of USM’s volleyball facility and how it was likely the media would 

not determine the source of the funds.2 According to the Mississippi Today 

article, these texts were proof that Favre worked with New to orchestrate 

MCEC’s use of the $5 million in TANF funds for the volleyball facility. The 

article stated the separate $1.1 million was a way to receive more funds for 

_____________________

2 New is the former president and CEO of the MCEC non-profit, which received 

and illegally disbursed TANF funds. She pled guilty to 13 felony counts related to the 

scandal. 

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the project. It also acknowledged Favre denied knowing the money received 

for the project came from the TANF program. 

The other event underlying this suit occurred the day after the 

Mississippi Today article appeared online. The defendant, Shannon Sharpe, 

along with Skip Bayless, hosted a nationally broadcasted sports talk show

called Undisputed. Sharpe also had an exceptional professional football 

career. He played 14 seasons in the NFL, was on three Super Bowl winning 

teams, and was inducted into the NFL Hall of Fame. The relevant segment 

opened with the moderator briefly summarizing the Mississippi Today article 

and then asking Sharpe for his thoughts about its impact on Favre’s legacy. 

Sharpe and Bayless then engaged in an eleven-minute discussion about 

Favre, the welfare scandal, and MDHS’s civil suit. The hosts provided 

colorful and derogatory views on the article, calling Favre “a sleazeball,” 

“shady,” “gross[],” and a “diva,” and accusing Favre of “steal[ing],” 

“egregious” behavior, and “illegal activity.” 

Favre viewed three of Sharpe’s statements as defamatory:

1. “The problem that I have with this situation, you’ve got to 

be a sorry mofo to steal from the lowest of the low”;

2. “Brett Favre is taking from the underserved” in 

Mississippi; and

3. Favre “stole money from people that really needed that 

money.” 

Favre sent Sharpe a letter demanding he retract these statements, 

apologize, and cease and desist from making any “further defamatory 

falsehoods against Favre.” Sharpe refused. Favre sued for defamation in a 

Mississippi state court. Favre alleged in his complaint that these three 

statements injured his reputation, falsely accused him of serious crimes, and 

were defamatory in nature. 

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Sharpe removed the case to the United States District Court for the 

Southern District of Mississippi based on diversity jurisdiction. He then filed 

a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Favre’s 

complaint for failure to state a claim. Sharpe argued (1) the challenged 

comments are “a classic example of the kind of rhetorical hyperbole and 

loose, figurative language” protected by the First Amendment, and (2) 

Mississippi law protects Sharpe’s critical comments because they discuss a 

matter of public concern and are drawn from official proceedings. 

The district court granted Sharpe’s Rule 12(b)(6) motion because

Sharpe’s comments were “mere rhetorical hyperbole,” which made the

comments “unactionable.” The court concluded that “no reasonable person 

listening to the Broadcast would think that Favre actually went into the 

homes of poor people and . . . committed the crime of theft/larceny” because 

“[l]isteners would have recognized Sharpe’s statements as rhetorical 

hyperbole.” Favre timely appealed. 

DISCUSSION

We review a Rule 12(b)(6) dismissal de novo. Allen v. Hays, 65 F.4th 

736, 743 (5th Cir. 2023). To survive a Rule 12(b)(6) motion, “the complaint 

must contain sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Id. (quotation marks and citations 

omitted). “A plaintiff need not provide exhaustive detail to avoid dismissal, 

but the pleaded facts must allow a reasonable inference that the plaintiff 

should prevail.” Mandawala v. Ne. Baptist Hosp., 16 F.4th 1144, 1150 (5th 

Cir. 2021). We take the factual allegations in the complaint as true but 

disregard conclusory allegations and legal conclusions. Id.; Allen, 65 F.4th at 

743. We resolve “[a]ll questions of fact . . . in the plaintiff’s favor.” Lewis v. 

Fresne, 252 F.3d 352, 357 (5th Cir. 2001).

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The district court ruled only on Sharpe’s rhetorical-hyperbole 

argument when it concluded Favre’s defamation claim failed as a matter of 

law. It did not analyze Sharpe’s other grounds, which were that his 

statements were protected under Mississippi law as opinions based on 

disclosed facts or as reports of official proceedings. This court may affirm a 

district court’s dismissal of a suit for failure to state a claim “on any basis 

supported by the record.” Ferrer v. Chevron Corp., 484 F.3d 776, 780–81 (5th

Cir. 2007). A different ground raised as a defense provides the clearest 

ground on which to rule. We therefore do not analyze rhetorical hyperbole 

and instead analyze whether the statements were protected opinions based 

on disclosed factual premises.

Our analysis does not turn on the mere labeling of a statement as 

“fact” or “opinion.” Roussel v. Robbins, 688 So. 2d 714, 723 (Miss. 1996) 

(discussing Milkovich v. Lorain J. Co., 497 U.S. 1 (1990)). “[A] statement, 

even if phrased as an opinion, will not enjoy constitutional protection if the 

court concludes that its substance or gist could reasonably be interpreted as 

declaring or implying an assertion of fact.” Franklin v. Thompson, 722 So. 2d 

688, 693 (Miss. 1998) (quotation omitted). Instead, “[t]he relevant inquiry 

is whether the statement could be reasonably understood as declaring or 

implying a provable assertion of fact.” Id. (quotation omitted); see also 

Milkovich, 497 U.S. at 21–22. 

Mississippi recognizes that “a defamatory communication may [be] 

. . . in the form of an opinion,” and “[o]pinion statements are actionable only 

if they clearly and unmistakably imply the allegation of undisclosed false and 

defamatory facts as the basis for the opinion.” Ferguson v. Watkins, 448 So. 

2d 271, 275–76 (Miss. 1984); see Restatement (Second) of Torts

§ 566 (Am. L. Inst. 1977). Further, “offensive insults and opinion 

statements” “generally are not actionable in Mississippi” unless they meet 

the Ferguson standard. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 493 

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(5th Cir. 2013). This is because “nothing in life or our law guarantees a 

person immunity from occasional sharp criticism,” and “no person avoids a 

few linguistic slings and arrows, many demonstrably unfair.” Id. (alterations 

and citation omitted). Thus, “strongly stated [opinions] . . . based on truthful 

established fact . . . are not actionable under the First Amendment.” Id.

(quoting Texas Beef Grp. v. Winfrey, 201 F.3d 680, 688 (5th Cir. 2000)). The 

Mississippi Supreme Court has described such “[c]austic commentary” 

based on disclosed facts as “fair comment[s].” Ferguson, 448 So. 2d at 276.

Sharpe argues his statements are protected opinions and editorial 

“fair comments” on a publicly known matter, and “even ‘contemptuous 

language’ and ‘unfair’ criticism regarding reported facts cannot be 

defamatory.” He asserts the Undisputed broadcast clearly stated its factual 

basis was Favre’s widely reported involvement in the welfare scandal and 

that involvement was a matter of public concern. Because Sharpe expressed 

his views on these “truthful established fact[s],” he argues he was entitled to 

voice his “sharp criticism” of Favre’s conduct. 

Favre disagrees and argues that, even if Sharpe’s statements are

considered protected opinions, those statements are still actionable because 

Sharpe did not provide a correct and complete recitation of “the facts upon 

which he base[d] his opinion” and the statements “imply a false assertion of 

fact.” See Milkovich, 497 U.S. at 18–19. According to Favre, “the factual 

basis for Sharpe’s purported opinions was incorrect and incomplete”

because the Undisputed broadcast omitted facts from the Mississippi Today

article about Favre’s contributions to USM and about who initiated the 

funding process for USM’s volleyball facility.

3

_____________________

3 After briefing concluded, Favre submitted a 28(j) letter to notify the court of a 

recent Second Circuit opinion that vacated a Rule 50 judgment and jury verdict. See Palin 

v. New York Times Co., __F.4th __, No. 22-558, 2024 WL 3957617 (2d Cir. Aug. 28, 2024). 

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Sharpe’s statements — in response to facts widely reported in 

Mississippi news and specifically in the just-released Mississippi Today article

— could not have been reasonably understood as declaring or implying a 

provable assertion of fact. Hisstatements are better viewed as strongly stated

opinions about the widely reported welfare scandal. As for the supposed 

factual inaccuracies with which Favre takes issue, those inaccuracies were 

corrected during the segment. Bayless correctly stated that “as yet [Favre] 

has not been criminally charged,” and he amended Sharpe’s one inaccurate 

statement that Favre had not repaid the additional $1.1 million in TANF 

funds by acknowledging that Favre had repaid everything but the interest on 

$1.1 million. Sharpe also mentioned Favre’s assertion that he did not know 

the source of the funds. Because Favre does not allege any remaining 

statements in the broadcast were false, there were no actual inaccuracies. 

Instead, the facts were fully disclosed to the listeners and contained no “clear 

falsity of fact.” Ferguson, 448 So. 2d at 273.

It is understandable that Favre considers Sharpe’s statements to be 

contemptuous. Nonetheless, the Undisputed program did not imply that 

Sharpe was relying on any undisclosed facts. He instead relied only on facts 

widely reported in Mississippi news and specifically in the just-released 

Mississippi Today article. Though there was no claim by Mississippi Today that 

Favre had committed a crime, there also was no implication from Sharpe’s 

statements that he was relying on information from other sources when he 

said Favre “stole money” and took from the “underserved.” At the time 

Sharpe made the statements, the facts on which he was relying were publicly 

_____________________

There, the Second Circuit considered “whether the evidence at trial was sufficient for Palin 

to prove that the defendants published the challenged statements with actual malice, as 

required for public-figure defamation plaintiffs.” Id. at *7. That is not the issue before this 

court, and we do not find the opinion relevant to the resolution of this case.

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known, and Sharpe had a right to characterize those publicly known facts 

caustically and unfairly. Sharpe’s statements were his “strongly stated” 

opinions “based on truthful established fact[s],” and thus nonactionable. 

Trout Point Lodge, 729 F.3d at 493 (quotation omitted).

AFFIRMED.

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