Former Syracuse basketball ball boys Bobby Davis and Mike Lang have returned to the court system to appeal the dismissal of their slander suit against Syracuse University and men’s basketball head coach Jim Boeheim.

In the original suit, filed in December 2011, Davis and Lang argued that Boeheim was out of line when he called the stepbrothers liars and accused them of trying to get money. Boeheim’s comments came after the pair’s assertion that Bernie Fine, former associate men’s basketball coach, had sexually abused them while they were ball boys at SU.

The university was included in the suit as “vicariously liable for Boeheim’s defamatory statements as his employer,” according to the brief of the appeal.

A judge dismissed the suit last May, ruling that Boeheim’s statements were opinion, not fact, and therefore protected by the First Amendment.

The appeal, which was filed with the Appellate Division of the state Supreme Court last month, argues that Supreme Court Justice Brian DeJoseph erred in throwing out the case, The Post-Standard reported Tuesday.

“(Dismissing the case) violated the most basic rule of civil procedure by viewing the facts in the light most favorable to the Defendants,” the appeal brief stated.

The judge failed to analyze Boeheim’s actual words, which included factual assertions that can be proven true or false, according to the brief. Therefore, these words do not qualify as the hyperbolic or opinionated statements the courts found them to be, according to the brief.

Claiming someone is a liar is actionable under New York state law if an ordinary listener would credit the statements as true, according to the brief.

In addition, the appeal brief states, the lower court placed too much emphasis on the context in which Boeheim made the statements and Boeheim’s “apology,” in which he stated he regretted any statements that were insensitive or inhibited a full investigation.

In a response to the appeal, filed on behalf of SU and Boeheim last Wednesday, Boeheim’s and SU’s lawyers argued the dismissal was correct and should be upheld, The Post-Standard reported. In particular, the response states the court correctly took into account the context in which Boeheim spoke: in “heated public debate” and in “impassioned defense of his long-time friend and himself.”

A reasonable person could determine Boeheim was using sarcasm, rhetoric and hyperbole to express his opinion, according to the response. Therefore, the “false facts” do not change how someone would have understood his statement, according to the response.

Given this context, the use of the word “liar” indicated disagreement with Lang’s and Davis’ accusations, and not a fact, according to the response.

In addition, the response stated Boeheim has a reputation for outspokenness, which indicates his statements were not fact, but opinion.

“Boeheim is a well-known figure both within the Syracuse community and nationally, recognized not only for his record as a basketball coach but also for being opinionated, outspoken and loyal,” according to the response.

Federal prosecutors closed their investigation into the Fine allegations last year and declined to charge Fine due to insufficient evidence.

Published on April 23, 2013 at 6:20 pm