RBR Reading Room: Fumble

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This week, Roll Bama Roll has invited T. Kyle King from the SB Nation blog covering the Georgia Bulldogs, Dawg Sports, to review, Fumble, James Kirby's book on Coach Bryant's legal battle with the Saturday Evening Post.

On September 13, 1962, University of Georgia athletic director Wally Butts placed a telephone call to University of Alabama head football coach Paul "Bear" Bryant. Their conversation apparently was overheard by an Atlanta insurance agent named George Burnett due to a telephone malfunction known as a "cross-connect."

The incident became the heart of an expose published in The Saturday Evening Post on March 23, 1963. The resulting scandal led to a pivotal court battle in which the integrity of college football and the freedom of the press were put on trial.

Among the first-hand observers of that real-life courtroom drama was James Kirby, a distinguished expert in legal ethics and co-author of the 25th Amendment who served as a law professor at the University of Tennessee and Vanderbilt University. Kirby attended the trial at the request of Southeastern Conference commissioner Bernie Moore, and out of that experience came Kirby’s book Fumble: Bear Bryant, Wally Butts, and the Great College Football Scandal (1986).

Kirby compiled his short volume on the controversy with the meticulousness associated with a legal brief, and, while his pages sometimes suffer from the dryness of such documents, the nature of the accusations serves to spice up the material considerably. Unfortunately, the author’s attention to detail suffers occasional lapses which appear to demonstrate Kirby’s confirmation bias.

The underlying facts are simple enough, and doubtless are familiar to most fans of the Bulldogs and the Crimson Tide who are old enough to remember the scandal or knowledgeable enough to have studied the history of either program. The controversial call from Butts to Bryant came nine days before Alabama and Georgia were scheduled to meet in a season-opening night game at Legion Field.

Burnett claimed to have overheard a conversation in which Butts discussed details of the Bulldogs’ plays and formations, and the notes made by Burnett formed the basis for the Post article announcing the game had been "fixed." Lawsuits ensued, filed by both Bryant and Butts, and the trial of Butts’s case produced a landmark libel ruling and a substantial jury verdict that the former Georgia coach’s supporters considered a vindication of his protestations of innocence.

Kirby performs the valuable service of demonstrating in painstaking detail that the truth is more complex than we suppose. He debunks many persistent myths, including the oft-repeated claim that the Butts case killed off the Post; as Kirby shows, the immediate impact of the judgment for Butts was relatively minor. The author’s comprehensive knowledge of the case and its context cannot be gainsaid, but Kirby’s intimate familiarity with this chapter of legal and athletic history sometimes prevents him from finding the forest for the trees.

The author’s theme, unsubtly underscored in his title, is that "big-time college football, the law, and the press" were put to the test by the scandal, and "[a]ll three fumbled." In hammering home this point, Kirby portrays the trial of the Butts case as a comedy of legal and strategic errors by the Post defense team, but, here again, the reality is much murkier.

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The cover of the March 23, 1963 issue
of The Saturday Evening Post

The trial took place in federal court, which the Post preferred and which afforded both sides the benefits of broader discovery procedures. The reaction against Butts in the Peach State prevented the Atlanta venue from providing the plaintiff with any home court advantage. As Kirby acknowledges, "Butts was clearly the underdog" and his "reputation had sunk so low that no jury in the state of Georgia would return a verdict for him."

The jury included longtime Post subscribers and the defense team included Welborn Cody, a former University of Georgia athlete and accomplished trial attorney whose name still today remains prominent on the letterhead of a respected Atlanta law firm. Cody’s insurance defense practice had included his successful representation of ABC in a libel action shortly before the Butts trial. Kirby continually criticizes Cody for his supposed ignorance, but the competence of the Post’s counsel was beyond question.

The author emphasizes the absence of a handwriting analyst from the defendant’s list of witnesses, yet differences that were apparent to the jurors likely would have been equally evident to an expert. While flyspecking every error committed by the Post’s lawyers, Kirby focuses on the witnesses who were absent yet fails to stress the fact that Butts’s protégé and successor as head coach, Johnny Griffith, and the presidents of both of the universities that were implicated in the scandal all testified for the defense.

Kirby particularly faults the defendant’s lawyers for not calling to the stand any of the editors or reporters responsible for the "fix" article, but that supposed tactical error was a prudent judgment on the part of the attorneys. Consider the facts, as Kirby reports them:

The editor-in-chief of the Post was Clay Blair, Jr., who addressed the magazine’s financial difficulties by adopting an attention-grabbing journalistic approach he described as "sophisticated muckraking." Blair considered it a point of pride that, under his leadership, the publication was being sued in six separate legal actions at one time.

One of those lawsuits was filed by Bryant against the Post’s parent company and Atlanta Journal sports editor Furman Bisher over an article accusing the Alabama head coach of teaching brutality to his players. Burnett’s story came to the Post through its lawyers, and, as Kirby admits, some Post editors believed the attorneys pushed the story in an effort to harm Bryant’s pending case.

The article giving rise to Butts’s lawsuit was written in three days without the availability of either Burnett’s notes or an interview transcript, and the piece was augmented with quotations from three people, which were obtained by Bisher during a day’s investigation in Athens. While testifying against Butts at the trial, Griffith denied every statement attributed to him by Bisher.

The "fix" story was a rush job sent to press with little editing and was plagued by problems recounted with specificity by Kirby. The freelance writer commissioned to cobble the story together on short notice was Frank Graham, Jr., who was selected largely because he was the son and namesake of a famous sportswriter. (Frank Graham, Sr., would see his longstanding friendship with Casey Stengel strained by the publication of an unauthorized biography of the famed baseball manager, which had resulted from the younger Graham’s service as publicity director for the Brooklyn Dodgers.)

At the time he was hired to turn Burnett’s allegations into a sensational exposé, Graham had little football expertise and possessed a bias against college sports rooted in the northeastern basketball scandals of the 1950s. This prejudice of Graham’s tied in perfectly with Blair’s flair for the dramatic, and the two forged ahead with reckless abandon.

In so doing, they eschewed the caution urged on them by Post sports editor Roger Kahn, the distinguished author of The Boys of Summer who won or tied for the E.P. Dutton Award (given to the writer of the year’s best sports magazine article) six times over the course of his storied career. Kahn’s impeccable journalistic credentials receive scant attention in Kirby’s narrative.

In light of the foregoing facts, Kirby’s criticism of the Post’s defense team rings hollow. It is highly doubtful that Graham’s bias, Blair’s irresponsibility, and Bisher’s incentive to undermine a football coach by whom he was being sued in a separate legal action would have looked good to the jury after Butts’s lawyers finished cross-examining them.

Incidentally, the defense produced six character witnesses who testified to Butts’s poor reputation, including four members of the Georgia athletic board, the university treasurer, and the university president. Not one of them was cross-examined by the plaintiff’s lawyers, nor did Butts’s attorneys call attention to the bad checks in Burnett’s background. Kirby glosses over these important details and focuses instead on the errors committed by opposing counsel. Although the defense’s miscues are more evident in hindsight because the Post lost the trial, each side committed errors and no trial is flawless.

One-sided criticisms abound throughout Kirby’s narrative as the author overemphasizes minor legal points and ignores facts which do not suit his conclusion. His contention was that the Butts trial "was one of those rare cases" in which the jury’s "picture of the facts is 180 degrees removed from reality." In such a high-stakes litigation involving such important interests and distinguished attorneys, the more likely explanation is that the truth won out and simply was not to the Post’s liking.

The truth, after all, was that Butts was close to his successor on the Sanford Stadium sideline; he had coached Griffith as a player, twice hired him as an assistant, and loaned the younger man money. Despite his mentor’s support, Griffith had been unsuccessful as a head coach, posting a career record of 10-16-4 with the Bulldogs.

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Coach Paul W. Bryant

The lopsided 35-0 score by which Georgia lost to Alabama in Birmingham in 1962 was bolstered by a trash touchdown scored in the closing minutes with reserves in the game. Even with that late score, the margin of the supposedly "fixed" contest closely resembled those of Griffith’s other two meetings with the Crimson Tide; the Bulldogs lost to Alabama in Athens by scores of 32-6 in 1961 and 32-7 in 1963.

Bryant and Butts were friends with common business interests outside of football, and both men acknowledged that their September 1962 telephone conversation had included discussions of such financial matters, yet Burnett’s notes made no mention of this. Pregame conversations between opposing coaches were a common practice, as Florida State head coach Bill Peterson noted when pointing out that he had spoken to Butts the week before the Bulldogs’ 1962 game against the Seminoles. Peterson testified under oath that he and his staff gleaned no salient information from this call.

Butts had been excluded from strategy sessions by Griffith and he played no part in devising the game plan for the season opener against Alabama. At the time of the telephone call alleged to have been overheard by Burnett, the Georgia game plan was not yet in place and the Bulldogs’ goal-line offense was still days away from being determined. Following the conversation, Bryant made no changes to his team’s strategy and the game film did not show Alabama taking advantage of the information supposedly provided by Butts.

Burnett himself admitted that he would not have known how to bet on the game based upon the conversation he reported having heard. Griffith testified at the trial that everything contained in Burnett’s notes was either inaccurate or innocuous information already known to Bryant beforehand. The evidence of a fix was so flimsy that two Georgia assistant coaches, a Georgia trainer, and four Georgia players who had been involved in the 1962 season opener all testified in court on Butts’s behalf. Bill Hartman and Charley Trippi, two witnesses of unimpeachable character and unquestionable loyalty to the University of Georgia, attested under oath to the lack of utility of the information contained in Burnett’s notes.

Attempts to link Butts to gambling interests were offered by the Post’s lawyers at the trial and by Kirby in his chronicle of the scandal, but no such connection was ever established, much less with any evidence to explain why a native Georgian who had been with the athletics program in Athens since 1938 would betray the university by which he remained employed.

Butts’s poor public image and personal indiscretions were widely known and well documented before the jury, but this prejudicial portrayal of his private life fell far short of justifying a claim that he had fixed a football game. While Kirby places considerable emphasis upon the possibility that the fix might have involved covering the point spread rather than changing the foreordained outcome, he does not explain why a rigged contest would have featured a final touchdown scored at the end of the game by Alabama reserves. If Bryant had been a party to something as sinister as the Post claimed, would he have allowed a final margin that was critical to gamblers to be determined in such a random fashion by scrubs?

For all the lambasting of Butts, there was much in his reaction to the allegations that spoke to the sincerity of his insistence that he was not guilty of any wrongdoing. Although the Georgia athletic director had been scheduled to retire at the end of the fiscal year for pension purposes, he resigned early one day after being confronted with Burnett’s accusations against him. Butts put himself at a substantial financial disadvantage by doing so. One week after the Post article hit the newsstands, Butts filed his lawsuit. The former head coach whose pregame poor-mouthing had earned him the nickname "Weeping Wally" broke down in tears on the witness stand. Such bold maneuvers suggest either recklessness or innocence.

Innocence appears by far the more likely possibility, in view of the holes in Kirby’s case for the opposition. The law professor engages in a good deal of baseless speculation about Butts’s mixed motives while brushing over the lack of an adequate explanation for Burnett’s decision finally to speak up about the telephone call in January 1963; Kirby is content to shrug it off while asserting that this critical choice "apparently" was "spontaneous." The author likewise seems undisturbed that "[t]he exact route of Burnett’s notes through the Georgia hierarchy is not entirely clear."

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Wally Butts

What is entirely clear is that, when Burnett’s allegations surfaced, Carl Sanders sicced the state attorney general on Butts for political reasons. The former Bulldog coach had campaigned for an opposing candidate when Sanders ran for governor, and the state’s chief executive moved to settle the score by taking what Kirby acknowledges was "a rare action for a governor."

As a result of this vendetta, the attorney general’s report went to great pains to portray Butts in the least favorable light, yet the Peach State’s highest law enforcement officer had to conclude that there was no evidence that any laws had been violated. The attorney general’s report cited mistaken financial information and made erroneous assumptions about Butts’s income and assets, and the Post lent credence to these gaffes in assembling its story.

Such errors are a common characteristic of Butts’s accusers. Burnett’s affidavit and Graham’s article both were wrong about basic facts, including the date of the infamous phone call. Despite the author’s obvious efforts to be meticulous, even Kirby allowed a number of mistakes to slip through, referring to the 1949 Bulldogs as a bowl team (Georgia went 4-6-1 that year) and misspelling Charley Pell’s and Charley Trippi’s first names. (As William Safire pointed out years later, the 25th Amendment, which Kirby helped to draft, contains a typographical error referring to "executive department" in the singular rather than in the plural.)

While such oversights often concern minor matters, the inability of the Post and its defenders to get even fundamental facts straight undermines their claim that the jury somehow got it wrong. The untenable nature of this part of Kirby’s thesis forces the author to qualify extensively his claim that there was damning evidence against Bryant and, ultimately, reduces the law professor to taking cheap shots at Butts over his support for segregation and attempting to make hay out of Charley Pell’s indiscretions as a head coach two decades later.

In the end, while his motives are purer and his errors less harmful, Kirby sensationalizes the case much as the Post tried to do. After all the fuss, the author is compelled by candor to admit that he has made much ado about not very much. He credits Bryant with having "mellowed" following the scandal, and, after criticizing plaintiff’s attorney William Schroder for "vividly reinforc[ing] the jury’s mistaken belief in Butts’s total and eternal loyalty to Georgia" by describing the former coach "lying in his casket, draped in Georgia colors," Kirby states that Butts subsequently "lived an exemplary life." That exemplary life ended with the former coach’s burial in the shadow of Sanford Stadium and the affixing of his name to the Georgia athletic department building; evidently, Schroder’s closing argument was exactly accurate.

Finally, despite grousing that the coaches enjoyed "undeserved vindication in the public eye," Kirby states flatly that he "had no quarrel with the SEC’s decision" to take no action against Bryant. If the integrity of the game was as injured by the incident as Kirby supposes, why should it have mattered that such sanctions would have appeared excessive to a public he believed had been duped? The author’s righteous indignation dissipates when the rubber meets the road.

The scandal’s long-term impact upon college football may have been negligible, although its effect on the relationship between the Universities of Alabama and Georgia was substantial. The Bulldogs and the Crimson Tide met annually on the gridiron for 22 straight seasons between the mid-1940s and the mid-1960s, but the fallout from the Post story caused such meetings to become much more rare.

Between 1966 and 1982, Alabama and Georgia faced one another in football just four times. During that span, Alabama’s Bear Bryant and Georgia’s Vince Dooley were, respectively, the most and second-most successful coaches in the SEC. During those 17 seasons, the Bulldogs won or tied for six Southeastern Conference crowns and the Tide finished first in the league ten times. Alabama and Georgia shared the SEC championship in 1966 and in 1981; the teams did not meet in either season.

In all likelihood, had Alabama and Georgia continued to clash each autumn throughout the late 1960s, the ‘70s, and the early ‘80s as they had throughout the late 1940s, the ‘50s, and the early ‘60s, Bryant and Dooley would have developed one of the great rivalries in the SEC, if not in the nation. Moreover, the success of both coaches likely was augmented by the infrequency with which each was forced to face the other; more Alabama-Georgia games during Bryant’s and Dooley’s heydays almost certainly would have meant more losses in both coaches’ ledgers. The legendary status afforded the two men in Athens and in Tuscaloosa might well have been diminished at least slightly by regular affrays with one another.

If Alabama and Georgia derived some residual long-term benefit from the Saturday Evening Post scandal, though, both programs deserved it. The serious accusations leveled by the once-respected publication were offered hurriedly, irresponsibly, and without regard to journalistic standards or real-world consequences. James Kirby did the sport a great service by reconstructing the tale in detail, but his failure to provide an evenhanded account renders his ultimate judgments slanted, superficial, and dubious. Kirby’s presentation of the facts is informative and useful, but, regrettably, in offering his skewed and shallow conclusions, he, too, fumbled.

T. Kyle King is the proprietor of SB Nation's website covering the Georgia Bulldogs, Dawg Sports. He is also a practicing attorney, if you hadn't figured that out yet.

 

Next week: Namath and I can't wait for tomorrow...

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