CHARLOTTE, N.C. (AP) – Outsports is being sued by a North Carolina man who said the website defamed him by running his picture in a photo gallery from the 2004 Los Angeles Marathon. Outsports is contesting the suit.

Chris Harbinson, a resident of Wake County, N.C, filed the suit in North Carolina Superior Court in July. The suit is seeking damages in excess of $10,000, along with punitive damages and legal fees.

On March 7, Outsports photographer Brent Mullins, who was credentialed to photograph the marathon, took the picture of Harbinson stretching prior to the start of the event. On March 22, Outsports ran Harbinson’s photo as part of a gallery of 150 images from the event, but did not use his name.

In his suit, Harbinson claims he is not gay and that his picture on Outsports caused him to suffer “extreme embarrassment, public humiliation, mental agony and damage to his name and reputation.”

The suit added that Outsports “knew or should have known that false depiction of Plaintiff as gay could subject Plaintiff to the general community’s ridicule, contempt and disgrace (regardless of Plaintiff’s being gay or otherwise), and to the gay community’s ridicule, contempt and disgrace (as Plaintiff was not gay.)”

Outsports, which has been regularly credentialed to photograph public sporting events, from major league baseball and the NFL to international swimming and water polo, did not run captions with any of the marathon photos, and nowhere on the site did it say or imply that Harbinson was gay.

“We believe this lawsuit is frivolous and without merit,” Outsports said in a statement. “We have published thousands of images of athletes from the famous to the obscure, and are appalled that in 2004 someone would argue that their mere presence on our site would be defamatory.

“In addition, we were credentialed to shoot the event, which took place on public streets in Los Angeles, and were well within our First Amendment rights. It would be chilling if gay-oriented publications were subjected to different standards than the rest of the media when covering the same event.”

Harbinson further contends that use of his image on the Outsports home page as a link inside to the marathon story and gallery took advantage of him for commercial purposes. Outsports also denies this charge.

On April 14, Harbinson’s attorney, Aaron C. Hemmings of Durham, N.C., served Outsports with a cease-and-desist order to remove the runner’s picture. Outsports complied, honoring its policy to remove anyone’s photo if requested for any reason. In answering the demand, Outsports’ California attorney, Devan Mullins, wrote to Hemmings: “Mr. Harbinson willingly had his photograph taken and chose to participate in this very newsworthy and public event. … He was not in any way defamed, portrayed in a false light or negligently harmed. Thousands of athletes, gay and straight, have had their pictures appear on the Outsports.com website. Athletes are bound together by their particular interest in sporting events and not their particular orientation. We would like to think that you and your client are tolerant, fair and support the Constitution as much as we do.”

Libel attorney C. Amanda Martin is representing Outsports in North Carolina, with assistance from Atlanta-based attorney Cynthia Counts and from the National Center for Lesbian Rights.

Outsports has set up a legal defense fund through their website to fight the suit.