- Lester Munson, Legal Analyst
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Sshhhhh. Don't tell anyone. Especially your attorney. Keep this a secret, just between us. But as we'll see Friday in the view from our Courtside Seat, lawsuits -- those things that make lawyers rich -- aren't always well, advisable. (You have to keep that quiet because, as you know, the person who's whispering this little secret to you is a lawyer. Not a rich one, mind you, but we don't want to have to answer to our lawyer friends who like nothing better than filing every lawsuit in sight.) Anyway, today we start with
The downside of anger
He is serious about the $14 million. It isn't one of those publicity-seeking fantasy numbers frequently found in lawsuits demanding money damages. For Edwards, it's real money, a replacement for an offer of guaranteed free-agent contract money that was withdrawn when bouncers at the restaurant told police that Edwards was involved in a brawl on Aug. 1.
The bouncers' description of his participation in the brawl, Edwards says in his lawsuit, are "false, misleading, and/or negligent." He insists that he is innocent of all wrongdoing and was merely trying to leave the establishment as the brawl began. But when an unnamed NFL team learned of the bouncers' description of the brawl, Edwards claims, the team withdrew an offer "with guaranteed money of $15,000,000."
With the allegations about the brawl hovering over him, Edwards signed a $1 million contract with the 49ers, a net loss of $14 million.
Edwards and his lawyers assert that the restaurant and its bouncers are guilty of "slander," "extortion," "malicious prosecution" and the "infliction of emotional distress."
If it happened the way Edwards says it happened, it's easy to see why he is so indignant. But before he spends any of the $14 million for which he's asking, he might want to consider what happened to Roger Clemens and Daniel Snyder when, feeling similar rage and indignation, they filed lawsuits over incidents in which they thought they'd been wronged.
Clemens and Snyder filed some of the same charges -- slander, defamation and various other claims known in the law as "torts." A tort is negligent or deliberate conduct that results in harm to another person. They have spent hundreds of thousands of dollars on attorneys' fees, but neither Clemens nor Snyder has collected anything.
Clemens sued Brian McNamee in federal court in Houston, accusing his former trainer of, among other things, defamation and slander over McNamee's claims that Clemens had used performance-enhancing drugs. Even in Clemens's hometown, the lawsuit went nowhere. It was quickly dismissed. Clemens appealed to a higher court, and it was dismissed again. His attempt to interest the U.S. Supreme Court in his plight fell on deaf ears, too.
Even worse for Clemens, and something else Edwards might want to consider, is the counter-attack lawsuit that McNamee fired back at Clemens in Brooklyn, N.Y., accusing Clemens of filing his original case "with malice and in bad faith" and labeling the Clemens lawsuit as a "perversion of justice." McNamee's counter-suit remains pending and is being held in abeyance until the conclusion of Clemens's trial on obstruction of Congress charges in Washington, D.C.
My guess is that if Clemens and his attorney, Rusty Hardin, were awarded a do-over, they would be unlikely to re-file their rage and indignation lawsuit.
Snyder reacted in rage and indignation over a lengthy Washington City Paper article headlined "The Cranky Redskins Fan's Guide to Dan Snyder from A to Z." The comprehensive and hilarious look at Snyder's tenure as Redskins owner listed his problems alphabetically, including "S" for Snyder's "Sports Jerk of the Year Award" in the comic strip "Tank McNamara" and "V" for the vanilla ice cream that Snyder twice left to melt in former defensive coordinator Mike Nolan's office to advise the coach that Snyder thought his defensive schemes were simplistic.
In a letter to the hedge fund that owns the City Paper, Snyder threatened its existence, suggesting that defending itself against Snyder "would not be a rational strategy for an investment fund such as yours," and explaining that "the cost of litigation would presumably quickly outstrip the asset value" of the paper.
He then filed the lawsuit, first in New York, where it floundered, then again in Washington. He has now withdrawn his case (are you listening, Braylon?) without collecting a dime in damages.
Snyder's decision to withdraw his lawsuit came after attorneys for City Paper demanded that the court dismiss the case under what is known as an "anti-SLAPP" law. The acronym stands for strategic lawsuit(s) against public participation, and the law punishes those who file lawsuits as a weapon against public critics, "not to win the lawsuit but to punish the opponent and (to) intimidate them into silence."
If Snyder had persisted with his claim against the City Paper and lost, he would have faced the prospect of paying the attorneys' fees for the paper, as well as his own.
After knee surgery this week, Edwards has some time on his hands. He might want to question his lawyers about what happened to Clemens and Snyder and what might happen to him in his case against the restaurant.
Edwards claims in a sworn statement in his lawsuit that the police "cleared" him after an interview. A spokesman for the Birmingham (Mich.) Police Department disagrees. "It is an ongoing investigation, and we have not cleared anyone," he said this week.
Edwards must also be able to prove that he had an offer of $15 million in guaranteed money from some NFL team. His lawyers, David Russell and Richard Zecchino, refused to comment to ESPN.com. And his agent, Ben Dogra of CAA, ignored calls from ESPN.com. Was there an offer? Although various reports indicated that several teams were interested in Edwards (Cardinals, Bears, Seahawks), there has been no report of any $15 million offer to a volatile receiver who has had his share of problems.
As Clemens and Snyder might have learned, it's a long way from the filing of a lawsuit to collection of the money damages. It takes more than rage and indignation. There's a lesson in here somewhere for Edwards.
Is it possible? Are we reaching a level of public disgust with college sports that could result in actual reform? My compatriot Jeff MacGregor offered up that suggestion in response to The Atlantic article earlier this week by civil rights historian Taylor Branch that compares the NCAA to slave masters, and he might be onto something.
But that massive and definitive article is one in a cluster of three recent developments in the last several days that have escalated the debate over "student-athletes" to a new level of intensity. The other two are a creative class action lawsuit that offers a plan of treatment and compensation for victims of concussions and a surprising study that defines the economic value of Division I football and basketball players.
Published in the October issue of The Atlantic, Branch's look at the NCAA (The Shame of College Sports) is easily the most important writing on the issues in a generation. Tracing the history of the NCAA in exquisite detail, Branch concludes that the "two noble principles" that "justify the existence of the NCAA" -- "amateurism" and the "student-athlete" -- are "cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes."
Branch's gravitas as one of America's great journalists -- his three-volume chronicle of the civil rights movement won a Pulitzer Prize -- and his months of research on the NCAA and its problems make the article impossible to ignore. It will be the starting point now for anyone who begins to analyze the culture and economics of big-time college sports.
The recent class action lawsuit for concussion victims was filed too late to be included in Branch's work, but -- as with a series of antitrust lawsuits, including the Ed O'Bannon suit over the use of players' images, that are detailed in The Atlantic article -- it is the kind of litigation that could help force the NCAA to change its ways.
Filed in federal court in Chicago, the lawsuit describes what it calls the NCAA's "pattern of negligence and inaction" on concussions. The NCAA, it claims, ignores injuries "while profiting immensely from those same student-athletes."
With former Eastern Illinois University linebacker Adrian Arrington as the lead plaintiff, the lawsuit demands that the NCAA establish a trust fund for concussion victims whose symptoms and disabilities develop after their college playing days. Arrington and his attorney, Joseph Siprut, have a long road to travel, but their claim raises interesting and novel theories that could push the NCAA to provide care for former players, an action it has long resisted.
Within days of the publication of the Branch article and the filing of the concussions class action came a provocative study from the National College Players Association and a professor at Drexel University that analyzes the economic value of college football and basketball players.
Although there might be questions about the study's methodology, the researchers concluded that most football and basketball players are subsisting below the poverty level even though they are producing enormous revenue for their universities.
Using collective bargaining agreements from the NFL and the NBA, the study's authors conclude that the average fair market values of an average college football and basketball player are, respectively, $120,048 and $265,027.
The numbers may be a bit contrived, but they highlight the egregious predicament of current athletes whose scholarships, according to this study, fall short of annual expenses by $3,220. The main value of the study may be that it will allow college administrators to conclude that any payment to student-athletes would be a bargain when compared to their value to the school.
It makes the suggestion from Steve Spurrier and six other SEC coaches to pay their players $300 per game out of their own pockets seem like the least anyone should do for the athletes.
With these three developments in a matter of a few days, are we reaching a point of critical mass that could change an industry as massive as college sports? Maybe. But probably not. We do know that Saturday hundreds of thousands of Americans will arise early in the morning and travel to college football stadiums, and we know that millions more will be watching on television. And very few of them will be talking about Taylor Branch or concussions or the value of a college player.
An 'all-around' presumption of guilt
This is not a good time for due process at The Ohio State University.
When Olympic gold medalist Paul Hamm, an assistant gymnastics coach for the Buckeyes, was arrested on Sept. 3 over a drunken attack on a cab driver, the OSU authorities did what they were supposed to do: They issued a statement saying they were aware of the situation and would allow the legal system to conclude its work before taking any action on Hamm.
But less than 48 hours after they promised to wait for due process -- and three days before Hamm's first court appearance -- they fired him.
Athletic director Gene Smith, who has been busy trying to explain lots of things lately, announced the sudden dismissal, explaining that, "We have high standards for our coaching staff and unfortunately Mr. Hamm failed to meet those standards."
Hamm, who graduated cum laude from OSU in 2007, is a two-time Olympian and three-time medalist, including the first gold medal ever for an American in the men's all-around in 2004.
Hamm, whose salary was $38,000 per year, was arrested after refusing to pay a $23 cab fare and assaulting the driver. Police reports described Hamm as "very drunk," and a video showed eight minutes of his arguments with the arresting officers.
Hamm was so combative, police reports say, that the arresting officers were unable to take fingerprints or make mug shots. The case has a status hearing scheduled Oct. 6.
There might have been a time when Hamm would have enjoyed some due process, a time when he could have settled with the cab driver, made peace in the courthouse and kept his job. But at Ohio State, this is not that time.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
Courtside Seat flips though the legal files surrounding Braylon Edwards' lawsuit, NCAA reform and Paul Hamm.