As the allegations of sabotage in Super Bowl XXXVII grew, it was only a matter of time before former Raiders coach Bill Callahan addressed them. And address them he did, via a late-night statement suggesting that he has gotten himself lawyered up.
By uttering the “D” word (not the one that ends in “bag”), Callahan and/or whoever wrote the statement is making it clear to Tim Brown, Jerry Rice, and the persons who represent their legal interests that litigation is at least being contemplated.
But while a defamation lawsuit against one or both former players would become great theater, it would entail many challenges -- and cause significant collateral damage for Callahan, and possibly others.
1. The statute of limitations against Brown possibly has expired.
When pressed last night by Erik Kuselias of Pro Football Talk on the assertion of sabotage a decade after the game, Brown said that he has been talking about his suspicions on national television and Dallas radio for years. Which means that, if Brown is sued, his first defense will be that Callahan waited too long to sue.
In most jurisdictions, the statute of limitations is one year. It has been more than one year since Brown made his statements in a public setting.
I haven’t research the issue completely (which as I learned early in my legal career is standard lawyer code for “I don’t really know what I’m talking about”), so it’s entirely possible that, in whichever jurisdiction Callahan would sue, each utterance of the false statement sets the clock back to zero.
2. The difference between fact and opinion.
If a lawsuit is filed (and if it’s determined to be within the statute of limitations), the biggest challenge will be drawing a line between fact and opinion. False statements of fact can lead to litigation; uninformed or incorrect opinions based on actual facts are protected.
The factual assertion from Brown is that Callahan drastically changed the offensive game plan two days before Super Bowl XXXVII. Brown’s opinion is that Callahan was trying to sabotage the Raiders.
It’s a fine line, but Brown arguably has stayed on the right side of it. Even last night, when he was as candid as he’s ever been about his beliefs, Brown said, “I’m not necessarily saying he [changed the game plan] for that reason, but it happened.”
Rice may not have been as careful. “For some reason — and I don’t know why — Bill Callahan did not like me,” Rice said Tuesday on ESPN. “In a way, maybe because he didn’t like the Raiders, he decided, ‘Maybe we should sabotage this a little bit and let Jon Gruden go out and win this one.’”
3. Callahan is a public figure.
For ordinary citizens, any untrue statement of fact can provide the basis for a defamation lawsuit. For public figures, a higher standard applies.
Callahan will have to show that Brown and Rice knew the allegations were false, or that they acted with reckless disregard to the truth or falsity of their comments. That necessarily makes any case of defamation against a public figure like Callahan harder to prove.
In this case, it means that Brown and Rice would give detailed testimony on what they experienced that caused them to believe what they believed. They’ll surely say that something different happened before that game than anything they’d experienced in all their years of playing football, which caused them to believe that Callahan was up to something.
Against a private citizen, that may not matter. Against a public figure, that explanation could result in the case being tossed before it ever would be presented to a jury.
4. Callahan would expose himself to significant criticism.
If the case goes forward, many former Raiders players and coaches will be questioned under oath. And while they will have different perceptions and beliefs about the reasons for the decisions made and not made by Callahan, the questioning will rehash everything that happened in preparation for the game, including whether the game plan was changed and why the audibles and other terminology installed by Buccaneers coach Jon Gruden during his time as the Raiders coach wasn’t.
In other words, and as Kuselias framed the issue last night, Callahan was either corrupt or incompetent. By proving he wasn’t corrupt, Callahan could end up shining a bright light on the notion that he is incompetent.
5. Plenty of big names will be involved.
If it goes to trial, this lawsuit ultimately could top, from a media standpoint, every lawsuit ever filed or threatened by the late Al Davis. The parade in and out of the courtroom would be even more impressive than the Seinfeld finale, with guys like Rich Gannon and Tyrone Wheatley and Lincoln Kennedy and Bill Romanowski and Rod Woodson and Charles Woodson and Charlie Garner and maybe even Shane Lechler and Sebastian Janikowski making the walk to the witness stand, along with members of the 2002 Raiders coaching staff, including current NFL head coaches Marc Trestman and Jim Harbaugh.
Jon Gruden would likely make an appearance at some point, possibly along with members of the Buccaneers defense (which had guys like Warren Sapp, Derrick Brooks, and John Lynch), who would be able to shed light on whether or not Gruden seemed to know what was going to happen, and possibly why he knew that.
Current and former NFL head coaches like Rod Marinelli, Raheem Morris, and Mike Tomlin -- all members of the 2002 Buccaneers coaching staff -- also could be involved, along with former Bucs (and current Cowboys) defensive coordinator Monte Kiffin.
At one point during the game, Lynch told Tomlin, “Mike, every play they’ve run, we ran in practice. It’s unreal.”
Said Tomlin in response, “I know.”
The biggest name of all could be the guy who won’t be able to directly participate. If the game plan was indeed changed by Callahan, we continue to believe the most plausible explanation is that Callahan was ordered to do so by owner Al Davis. It would be fitting if the outcome of the lawsuit turns on whether a jury believes that Callahan was simply following the marching orders given to him by one of the most litigious owners in sports history.
6. What should happen next.
Though it would be fascinating to cover the litigation and any trial that would happen, the smart move in the short term would be for Brown and Rice to issue statements explaining clearly that they are merely stating their opinions, based on the facts that they experienced.
And then they should never discuss the situation publicly again.
While on one hand the issuance of statements would suggest that they fear litigation, on the other hand it would be a prudent way of both putting a bow on a story that has quickly taken on a life of its own and managing potential liability risks.
Either way, the ball is not back in Brown’s and Rice’s court.