If the facts are on your side, trial lawyers say, argue the facts to the jury. If the law is on your side, argue the law to the judge. And if you don't have either?XBaffle the insurer with your bullstuff.
Victoria Phillips doesn't know which approach won $1.1 million apiece for Dallas Cowboys Erik Williams and Michael Irvin to settle the players' libel, fraud, and invasion of privacy suits against Dallas NBC affiliate KXAS and its of-late-scarce reporter Marty Griffin. In fact, the 45-year-old receptionist at the Austin office of Jackson Walker L.L.P, site of the 11-and-a-half-hour mediation that produced the settlement late last month, doesn't much remember Marty Griffin.
"Was he the clean-shaven, dark-haired one?" Phillips asks. "I only remember him because he was talking about a Corvette he just bought."
Like several who attended the secret session, though, she was mightily impressed by the players. "Erik Williams was very shy," recalls Phillips, whose blond updo and 3-by-2-inch door-knocker earrings mask a sensible, down-to-earth personality. "And Michael Irvin was incredibly gentleman-like, polite, and cordial. He even paid me a compliment," says the miniskirted bodybuilder. "I wore a dress that was sleeveless. And he said, 'I do not want to offend you, but you really look nice. Where do you work out?' I remember he waited until his attorney was there. It was almost like he was asking approval to compliment me."
And Phillips recalls something else. For just a moment, she says, she felt sorry for the pair of sports-star millionaires. "I drew the blinds so they could have some privacy," she recalls. "But all day long, people would walk by the conference room and look in, and ask me, 'Is that who I think it is?' And I remember thinking--what must it really feel like to be that rich and famous, that you can't go anywhere without people staring and stopping you and asking for autographs?"
Irvin and Williams ended up plucking harder heartstrings than Phillips' that day. On paper, the settlement reached at the end of the mediation session is nothing short of astonishing. First, there's the amount: $2.2 million for the pair, or, to put it in perspective, $1.7 million more than the $500,000 Richard Jewell is reported to have received from NBC after being falsely accused of last summer's Olympic Park bombing.
Second, there's the speed with which the cases settled. The mediation took place July 22--just shy of seven weeks from the day Irvin filed his lawsuit. Though Williams' action had been on file five months, it was still early, in litigation time anyway. Only one witness, Cowboys star Nate Newton, had been deposed, and the initial discovery requests hadn't commanded paper enough to snuff a single tree.
Then there are the merits, or perceived lack thereof. At the time they were filed, both suits garnered a collective horselaugh. The players' cases were among the bits of legal flotsam bobbing around in the wake of last winter's Nina Shahravan rape-and-recantation episode. On December 30, Shahravan, a then-23-year-old makeup artist and erstwhile stripper, told police she had been raped by Williams and his friend, a former coach of Williams' at Central State College in Ohio. Shahravan further claimed that Irvin was present and acting as a sort of one-man porn studio--producing (holding a gun to her head), directing (telling her to "look like you're having fun"), and shooting footage (videotaping while holding the gun).
The story jumped the sports-crime pages to become front-page news across the land, thanks in no small part to both players' past peccadilloes. Last summer Irvin pleaded no contest to dope charges after he was discovered with 10.3 grams of cocaine at what seems to have been a regular Monday-night series of private lesbian-love shows, complete with kinky sex toys. Erik Williams' past problems included a drunken Mercedes-crackup and a prior rape accusation involving a 17-year-old stripper named Angela Russell. Though a grand jury had declined to indict Williams on the rape charge, it did so under rather smelly circumstances: Russell became a reluctant witness after someone paid her $110,000, ostensibly to settle a civil action she hadn't yet brought against Williams.
As many experts noted when the players' suits were filed, the law has a term for such plaintiffs: libel-proof. With their reputations, the argument goes, how can you do them any more damage?
Granted, this time around both men appeared to be innocent. Ten days after Shahravan made her outcry--not to police initially, but to KXAS reporter Griffin, who broke the story--she took it all back in a signed confession, leaving her to face perjury charges. Granted, too, some funny-looking business existed between Shahravan and Griffin. When Shahravan reported the "rape," the police said she had been "working with" Channel 5. When the media started asking questions, Channel 5 said Shahravan had been a "source" of Griffin's, but denied she'd been paid for her help.
On February 12, when Peter Ginsberg, Erik Williams' Washington, D.C.-based lawyer, brought suit against Griffin and his employer, Ginsberg said Griffin and KXAS "were effectively partners in" Shahravan's hoax. But the evidence of Griffin's complicity looked mighty slim. Griffin and the station claimed she was a straight-up source. Ginsberg claimed Griffin had been using Shahravan as Cowboy bait in some sort of drug-use story. Either way, it didn't necessarily follow that Griffin knew or should have known she made up the rape charge.
Moreover, the law was squarely on KXAS' side. Suing for invasion of privacy in Texas is hard, since Texas courts do not recognize several varieties of the tort. They do, however, permit libel defendants to delve into all aspects of a plaintiff's reputation, while the defendants are shielded from scrutiny. Charles "Chip" Babcock, Channel 5's lead lawyer, publicly salivated over the dirt-digging to come, as Cowboys coach Barry Switzer worried aloud about the "can of worms" the suit might open.
The heat would be so bad, pundits predicted, that Cowboys owner Jerry Jones surely would put the kibosh on the litigation. Jones didn't. In the end, the pundits had it exactly backward. Channel 5, Griffin, and the libel insurance carrier were the ones who yelled uncle. As for whether masterful lawyering, masterful bullstuff, or bad facts carried the day, the answer is: a little of all three.
In a series of exclusive interviews conducted throughout the five-month-long litigation, lawyers for both sides shared their strategies with the Dallas Observer. Together with a review of the transcripts and discovery exchanged in the cases, the interviews reveal how two tainted-but-determined Cowboys exacted a pound of flesh from Channel 5, with some thanks to Griffin's dubious undercover work.
According to sources present during the hush-hush legal horse-trading, the mediation began shortly after 11 a.m. At one end of the 12-foot mahogany-stained table sat Ginsberg, Irvin, and Williams; toward the other sat Babcock, KXAS General Manager Doug Adams, and Jay B. Brown, claims counsel for Employer's Reinsurance, the station's Kansas City-based libel insurer. Across from station management were Griffin and his lawyer from the Dallas firm of Hughes and Luce. (Because of the potential for conflict, the carrier provided Griffin and his employer separate counsel.)
Present, too, were parties from the related pieces of litigation: Ed Voss, the assistant city attorney fending off Irvin's and Williams' civil rights suits against the police department over the Shahravan affair; David Smith, the Dallas criminal lawyer defending Nina Shahravan; and the mediator, Sid Stahl.
The Playmaker spoke first. Clad in haute training camp chic--gimme cap, baggy shorts, tank top, white socks, black Tevas--Irvin rose from his cadet-blue leather chair and surveyed the setting of power and wealth, or its Bombay Company facade: the faux Queen Anne furniture, the expensive cerulean carpeting, the bad neo-Impressionist print. With grace, with elegance, with what has to be one of the world's most expressive foreheads, Irvin delivered what several people say was a stirring performance.
"The way he described it was, when he was growing up in the ghetto, he always wanted to walk into a conference room like this, with people dressed like this, and have respect," recalls one person present. "And there he was now--only he was having to fend off charges he raped a woman. And he talked about how, even though it wasn't true, people's perceptions became reality. He told this story about how the father of a friend of his had been accused of torching his business to collect the insurance. And it wasn't true, but he'd never gotten over how the perception became reality--until, on the father's deathbed, the son had to ask whether he did it. And he never got that out of his mind."
Williams, less articulate but unquestionably sincere, went next. In an almost comically small voice, the 6-foot-5-inch, 320-pound lineman said he was tired of being accused of things. Tired of having the cops assume he's guilty. Tired of being an easy mark for topless dancers and ambitious reporters.
Next up was Channel 5's Babcock, who attacked the players where he perceived they were most vulnerable--their reputations. Babcock, a former sportswriter for the Miami Herald and the Philadelphia Inquirer, trotted out the familiar images: Irvin's mink-before-the-grand-jury arrogance, last summer's cocaine-and-stripper follies, Williams' previous rape charge.
The players were not impressed. To them, it was all beside the point.
To the players, of course, fur coats, strippers, and arrogance don't damage reputations. And in the never-never land of the NFL, by union contract, drug use is a private matter--until you fail a third time, anyway.
But rape charges are different. Drugs, drunkenness, and promiscuity the players can shrug off, but a cry of rape pierces their macho hearts.
As one person close to Michael Irvin explains, "That was an attack on a whole different aspect of his being. I think he viewed the other mistakes as being personal mistakes. And then, frankly, the idea that he would ever have to attack a woman to get a woman was too much--that he would ever force himself on someone." (Or, as Nate Newton, the latest Cowboy to be accused of rape, so helpfully explained in deposition, "Well, you know, when I meant the word 'whores,' I was just talking about females. You don't have to go out and buy no women.")
But to lay it off on machismo alone would be a mistake. Both players, in fact, seem to have been genuinely anguished at being accused of a serious crime.
"My parents raised me right," explained Williams during a telephone interview with the Observer. "They never raised a rapist. To be accused of something so bad...
"The first time, it hit me hard. I wouldn't have made it through without my mother. That's taking something from somebody that can't be replaced. I just about couldn't take it. But everybody goes through something in this life. And if you're lucky, you harden. Now, I've been prepared for these types of things. Now, I can handle anything."
Oddly enough, the players never expected to make substantial money off their suits against Channel 5.
"Oh, no," says Dennis Carpenter, Irvin's business manager. "When we were talking to various lawyers, all told us, 'You should know one thing: A media company will go bankrupt before they'll pay. It will take years. It will be a tremendous drain on your finances. You'll have to appeal.'"
Instead, both players sued the station primarily to aid their case against the City of Dallas--where they do expect to score--and in order to make a few points.
"Erik and Michael were primarily concerned with sending a message to the press, the police, and the people of Dallas," says lawyer Ginsberg. "They want to be respected as people. They have the same interest in being treated decently as anyone else." In other words, both men believe they are entitled to a zone of privacy upon which the media intrude at their own peril.
On the one hand, as Victoria Phillips' response indicates, that argument has a certain surface appeal. But on the other, celebrities--especially sports stars--aren't like anyone else, so it's hard to say whether they have any reasonable expectation of privacy. The terms of their employment require submission to indignities that would make most people shudder: They strip before hundreds of strangers, have their bodies, their injuries, their weight gains and losses, even their psyches dissected on national television. They submit to routine drug screening. They sleep with video cameras pointed at their beds.
Humiliating? You bet. Yet for this, the men are well compensated. Indeed, it is only by virtue of television--the most intrusive of media--that they earn their astronomical salaries. Millions of dollars in revenue and endorsements, whole seasons, ride on a failed drug test. Of course reporters lie awake nights, conjuring ways to catch them flunking out.
The question is: Was Griffin using fair means to do it? (Griffin declined Observer requests for an interview.)
The players thought not, and they were willing to spend their own money to make the point. Ginsberg says that both players were billed monthly for his time--and that some months, the bills ran between $20,000 and $30,000. Ginsberg says he also received a contingency bonus based on the outcome of the case. Neither he nor the firm will name a figure.
Beyond that, Erik Williams had another point to make.
The first clue that Williams had an axe to grind over the handling of his 1995 rape charge came during his initial news conference denying Shahravan's charges. Though few reporters knew what to make of it at the time, Williams' agent, Alan Herman, made an astounding assertion: Williams had not paid a cent to Russell, the 17-year-old who had accused him of rape.
According to reports published in June 1995, Russell received a substantial sum to drop a threatened suit against Williams and Roderick Carson, another Williams house guest who found himself one moment in congress, the next in the pokey. A week later, Russell decided not to press charges.
For those who stopped to ponder Herman's statement, however, the implication was clear enough. If not Williams, then someone else had paid off Russell. It didn't take Sherlock Holmes to spot a likely suspect.
"It was a complicated situation," recalls Herman. "Jerry [Jones] wanted to get it over with and to get back to football. I think Erik would have preferred a court-type situation. So, even though it cost him not a dime to settle, he would have preferred it to be litigated, no matter what the cost."
Williams won't finger his employer, but during a conference call with him and Ginsberg, Williams did say he believes the Russell incident was mishandled, and that the mishandling made him an easy mark for Shahravan. Williams also says that the incident was the primary reason he was willing to fund the litigation against Channel 5--and fund it out of his own pocket.
"Most definitely," Williams says. "Oh, yeah. Absolutely. I was willing to stand up for what was true. I wasn't willing to pay her [Russell] anything."
Sources in Williams' camp suggest that whoever paid off Russell wanted in part to buy Russell's silence on other matters involving the Cowboys--like the infamous "white house" and who was there. In Dallas, of course, "white house" refers to a villa used by players to rendezvous with women-not-their-wives. It was finally discovered--or reported on, anyway--in April 1996, shortly after Irvin's indictment on dope charges.
Russell's attorney, Charles Caperton, doesn't exactly pooh-pooh the notion. "Oh, yeah. She'd been to the house. I think every topless dancer for two counties had been there. And Erik Williams wasn't the only player who went there." Asked whether his client was about to go public with the white house story when the settlement was reached, Caperton merely chuckles. "Well, I don't think I have any comment on that," he says.
The settlement, which is between Russell, Williams, Carson, and Don Godwin--one of Jerry Jones' lawyers--contains a confidentiality clause. Jones declined to comment for this article, but during an interview last spring, Jones denied knowing about the white house until the press broke the story in 1996. During the same interview, he suggested that any payment by the Cowboys of Williams' legal bills could well violate salary cap restrictions. "It's a form of compensation," Jones explained.
The truth may never out. Channel 5 had sought information about the payment while preparing its libel defense, but the settlement between KXAS, Williams, and Irvin was reached the day before the Cowboys were to cough up any evidence of payment to Russell.
Channel 5 was not surprised to see Erik Williams' lawsuit.
In fact, on January 13, the Monday after Shahravan recanted her rape charges, Channel 5's lawyers were already debriefing Griffin and his news director. As usual, Channel 5's legal team was headed by Babcock, a 48-year-old shareholder at the firm of Jackson Walker. Babcock, who has represented the Observer, is much in demand as a media lawyer these days. For example, he is currently defending Oprah Winfrey in a suit brought by cattle breeders angry about a show questioning the safety of American beef in the age of mad-cow disease.
Since Babcock was spending much of his time on the Oprah suit, the day-to-day defense of Channel 5 fell to two other Jackson Walker partners, former Dallas assistant district attorney Leon Carter and Robert Latham, who began investigating the case immediately. As they knew, factors having little to do with the merits of any suits the players might bring had made Channel 5 an obvious target. First, in the aftermath of Shahravan's recantation, the cops were blaming Griffin, who they said had forced them to hold a news conference and reveal the names of the suspects. Channel 5, in turn, blamed the cops, who Channel 5 said had leaked word of search warrants to Griffin in order to publicize the rape charges. Second, in December of 1996, AT&T--the largest single shareholder in KXAS' corporate parent, LIN Television--had announced it was "reviewing" its investment. In other words, LIN was up for sale.
In the event of lawsuits, the lawyers knew the city would dump on Channel 5, and vice versa. And anyone researching LIN, they figured, would spot AT&T's statement and assume the station needed to clear its books of any pending libel suit. (Just last week LIN announced that it was being sold to Dallas-based Hicks, Muse--a deal that has been in the works since at least June 13.)
As they figured, Peter Ginsberg saw all the angles.
Ginsberg, the willowy son of a National Institutes of Health virologist and a female lawyer, is in many ways an unlikely champion of errant athletes. In fact, the mild-mannered 44-year-old, who doesn't watch sports and calls himself a card-carrying feminist, wanted to be a writer. "I think I've been to one football game in the last 15 years--a Redskins game," says Ginsberg, who grew up in Philadelphia. "And that was under duress."
Ginsberg, who earned degrees from the University of Pennsylvania, Columbia Law School, and the London School of Economics, made his way to a traditional training ground for elite litigators: the U.S. Attorney's Office for the Eastern District of New York. There, he demonstrated creativity and quiet chutzpah, pulling stunts like suing the Bonanno family, a branch of the mob, to confiscate its business fronts. In another case, a different organized crime family--the Unknown Drug Organization--put a contract out on his life; Ginsberg lived in a safe house from 1990 until 1991.
In 1992, Ginsberg decamped for the safer, greener climes of private practice, eventually affiliating himself with the Boston-based firm of Foley, Hoag & Eliot. Since then he's defended mob-connected gasoline bootleggers, Korean spies, the former chief of staff for late Commerce Secretary Ron Brown, and NFL Commissioner Paul Tagliabue. He's also built a growing sideline fishing NFL players out of bar brawls and failed substance screens. (He has represented Williams for "four or five" years, on matters he will not discuss.)
"I've been doing this for 17 years," says Alan Herman, who represents a number of football players in addition to Williams. "I found Peter about five or six years ago, and we'll never have a different attorney again. He's a very rare combination: utterly ruthless and at the same time very sensitive and compassionate. I've used him in a number of situations, and every time, I've gotten back every penny. People pay him just to go away."
After aggressively defending Williams against Shahravan's rape charges, Ginsberg sized up the situation. In late January he approached Channel 5 to see if the insurer would buy him off; the carrier declined. So, Ginsberg made a critical decision: He would sue everyone except Nina Shahravan, whom he saw as the key to the litigation. "I just thought she would make a better witness than a defendant," Ginsberg says.
It was a decision that paid off handsomely. Not only did Shahravan eventually go over to the players' side; when she did there were no messy settlements with them to make it appear as though she had been bought off.
Like Channel 5, however, the players' side had its pressures--Jerry Jones among them. Jones was busy disinfecting the team's image, and the last thing he needed was a legal crew digging up those secrets that had managed to remain interred. At first, say witnesses to Jones' arm-twisting, Jones was all solicitousness, bending the ears of agents, lawyers, teammates--even the players' families. When that didn't work, the tactics deteriorated. Witnesses at Valley Ranch, the Cowboys' headquarters, tell of increasingly heated confrontations between Jones and Ginsberg, even as the mercury in their letters plunged.
"There were certainly disagreements, in terms of the trail we were traveling," says Herman, Williams' agent. "Jones was very concerned about the sensitivity of the issues and the team's image. But we needed to protect Erik first. So we indicated our primary responsibility was to Erik and not the Cowboys."
From the start, Channel 5's theory was that Shahravan told the truth when she made the original rape allegations, and that police forced her recantation.
The station's lawyers set about trying to prove that Michael Irvin was indeed present during the attack--a theory they felt was not contradicted by the videotape of the "rape" that police confiscated from Williams' home.
The tape of Shahravan shows her having sex with two men, one identifiable as Williams, according to sources who have seen the video. It also includes the sound of more than one male voice. "We listened to that tape over and over," says one of Channel 5's lawyers, speaking on condition of anonymity. "Initially we heard three male voices. And the third voice sounded like it could be Michael Irvin's."
Not surprisingly, the prosecutor in Shahravan's perjury case, Clark Birdsall, disagreed. He thought only two male voices could be overheard, and audiotape experts said conclusively matching Irvin's voice to the tape would be tough.
"The expert said we would have to make Michael Irvin repeat those exact words in deposition, the same way and everything, before they could do the analysis," recalls the lawyer for Channel 5. And just getting Michael Irvin, or other Cowboys, to a conference room to be deposed was looking difficult enough.
In March, Channel 5 began the discovery process, and it looked like they weren't taking prisoners. They started with a vicious set of papers to Williams himself, requesting he admit failing drug tests and gambling on professional sports. They followed with deposition notices to the Pokes' party crew: Nate Newton, Leon Lett, Charles Haley, and Michael Irvin. (Among the items subpoenaed in the notices: Irvin's expenditures at topless clubs during the past two years, as well as "lewd novelty devices used by Erik Williams.")
They also began fishing to find out just who paid off Angela Russell in hope of showing that Williams had indeed paid her himself. They sent a deposition notice to the Dallas Cowboys, seeking "all documents related to any payments made by the Cowboys to Angela Russell...on behalf of Erik Williams." For good measure, they also subpoenaed the NFL's records regarding Cowboys drug use.
The discovery notices drew an impassioned protest from Ginsberg. He insisted that a protective order be entered before any discovery would take place. The protective order would prohibit any material produced in discovery from reaching the prying eyes of the media. This would have been a disaster for Channel 5, since bad press, and the resulting pressure of the players' coaches and peers, was a substantial hammer over the players.
The trick, however, was how to manage it. In theory, it shouldn't have been a problem; with certain rare exceptions, such as family disputes involving children, the theory of American justice has always been that America's courts are public, and if you invoke the dispute-resolving mechanism of the courts, all aspects of your case are public. As a practical matter, though, courts routinely aid litigants in hiding a great deal of information by approving private non-disclosure agreements between parties to lawsuits. Such agreements are so common--and so rarely challenged--that most judges assume that non-disclosure is the norm.
Dallas District Judge Jay Patterson, who was presiding over Williams' suit, certainly seemed to. With the I-am-not-Lance-Ito instinct common to the bearers of black robes these days, he seemed ready to seal it all up and ordered the parties to work something out.
Ironically, while Channel 5 needed press coverage, it's considered bad form for lawyers to encourage it. Also, there's the matter of cost. Fighting Ginsberg over the protective order would have added to the hefty legal bills for the station's insurer. Channel 5's lawyers were actually about to agree to a protective order rather than fight for access and free speech, but the settlement intervened.
"The judge is going to do it anyway," Babcock said at the time. "So why not go along, and look reasonable?"
Reasonable though it may have appeared, it sent a message to the other side: Attorneys' fees were a sensitive issue for Channel 5 and its insurance carrier.
Litigation is typically a war of attrition, and part of the game is to act like your team can last forever.
Ironically, it was Ginsberg's side that might well have had the most trouble holding out. Channel 5 had a $10 million libel policy at its disposal. And though the policy was a "wasting" one--meaning attorneys' fees came off the amount left over to satisfy any judgment--behind his cool exterior, Ginsberg was the one feeling a little toasty.
Williams and Ginsberg had been counting on a quick settlement to ease the strain of litigating on three fronts (against Channel 5 and the city while also keeping a close eye on the progress of Shahravan's criminal case). Though Williams makes $1.55 million a year in base salary alone, multi-front litigation could strain even his resources quickly. And the pressure at Ginsberg's firm was considerable, as well. Every hour billed at a reduced rate was an hour that put him in Dutch at the firm, where he was up for partner. (Ginsberg had cut his normal rate of $300 an hour.) Plus, the longer the litigation lasted, the less likelihood there was of a recovery that might dig both out of the hole.
Then, at a hearing in Shahravan's perjury case, things started looking up for Williams.
The hearing took place in May, after prosecutors subpoenaed all of Griffin's notes and tape recordings regarding Shahravan. Citing well-established law protecting reporters' notes from seizure by the authorities, Channel 5's attorneys moved to quash.
Birdsall, a scrappy lifetimer at the district attorney's office, was angered by the station's response. He should be the one to decide what the media had to turn over--not the media. To prove what Griffin knew, Birdsall trotted out Ross Salverino, the detective in charge of the original investigation into Shahravan's charges.
Channel 5's attorneys snickered over Birdsall putting his lead detective on the stand, a move they saw as less than shrewd since the district attorney's investigation was still ongoing. But in fact, Channel 5 had more to fear from Salverino than did the district attorney, for Salverino was a named defendant in Williams' suit against the City of Dallas. In other words, an enemy of Channel 5's enemy--but certainly no friend.
Salverino's testimony torpedoed Griffin and the station. Worse, Channel 5's attorneys didn't seem to see it, focusing instead on generating more bad press for the players. Under Birdsall's questioning, Salverino revealed that, on the night of the alleged "rape," Shahravan was carrying a tape recorder Griffin had given her. And while she didn't use it to tape Williams on the night of the "attack," she had used it previously to tape Williams, at Griffin's request.
Rather than just listening to Shahravan's tips, Griffin, it seemed, had been sending Shahravan out as an undercover spy. And worse, with presumably station-owned equipment.
Now Williams' case wasn't a straight-up libel suit anymore. It was beginning to look like last year's Food Lion case--in which a North Carolina jury popped ABC for $5.5 million after a 20/20 producer posed as a checker in an undercover investigation on spoiled food. True, Salverino hadn't testified that Shahravan was on assignment at Williams' house the night of the "rape." But Griffin's reporting techniques were beginning to look more than a little sleazy.
And there was collateral damage, as well. According to Salverino, Griffin might even have violated state wiretapping laws. "Ms. Shahravan told us that Mr. Griffin had taped a conversation between her and Erik Williams in regards to drug use by the Cowboys," testified the sergeant. "Ms. Shahravan provided the tape recorder and the tape of the conversation between she and Erik Williams."
Somewhat amazingly, Channel 5's attorneys seemed oblivious to the harm as they pressed to grab a headline. Wasn't it true, Babcock demanded, that on the tape Williams admitted that he or Irvin had failed a drug screen?
Au contraire. "Basically, what's on the tape is Ms. Shahravan, who called Erik Williams initially, and continued to ask Erik Williams over and over again what he knew about Michael Irvin flunking a drug test, and not making his probation in Dallas County. She continued to ask that question over and over again, and it appeared to me, trying to put words in Erik Williams' mouth to say yes. At no point did he say that Michael Irvin flunked the drug test."
But Channel 5's lawyers weren't going to quit.
Wasn't it true, they asked Salverino triumphantly, that Irvin and Williams were not cooperating with authorities in Shahravan's case?
At last, they'd found something that the police and the district attorney--no fans of the players--could agree on. Salverino and Birdsall agreed wholeheartedly. Channel 5 had their story after Babcock filed a motion in the civil case claiming Irvin was ducking subpoenas.
"The theory was, we thought they weren't cooperating because we thought Nina wasn't lying [when she made the original rape allegations]--that they had something to hide," explains one of Channel 5's lawyers. "And then, to be quite frank with you, we knew the Morning News guy would put that on the front page. We knew he'd think that was juicy."
"Channel 5 attorney says Irvin avoiding subpoena," The Dallas Morning News headline read a few days after the hearing.
The station got their headline, but it came at a price; it got them sued by Michael Irvin.
According to many people close to Irvin, the star was going through some soul-searching--and trying desperately to stay out of the papers. "I think he was kind of reflecting on his life, trying to understand everything that had happened to him," says Ginsberg.
And while Irvin's attorneys insist he wasn't dodging service, he clearly wasn't in any hurry to talk with anyone, either. "Michael just wanted to forget about it all," says Carpenter, Irvin's business manager. "But then when he found out he was going to have to talk about it anyway, he said, 'If I have to go on and sing, I might as well join the thing.' "
Channel 5, meanwhile, wanted to nail down Irvin's alibi, since they still believed the star receiver had been at Williams' house when an alleged rape had taken place. And to that end, they were engaged in that most traditional of litigation sports, obnoxious service.
"They actually tried to serve him at the maternity ward," says Carpenter. (Irvin's wife delivered a baby in May.)
But Irvin did have an alibi for the night in question.
He was with a woman that night--although, according to someone who knows the details, he was not fooling around. ("Not that night, anyway," says one of Irvin's advisors with a laugh.)
Though the hearing didn't much help Channel 5's defense, it did suggest an answer to one of last season's lingering mysteries.
Three weeks before the press descended on Valley Ranch to report Shahravan's rape allegations, there had been a dress rehearsal.
In the first week of December, less than a week after Leon Lett's suspension for drug use was announced, rumors swept Valley Ranch. Supposedly, Irvin and other players had also failed a drug test. Satellite trucks descended. The major papers parachuted in reporters. As usual, talk radio reported the rumors, while the rest of the press huddled in the locker room waiting for some sort of official word.
It never came.
Instead, Irvin indignantly denied the rumors. The press reported the denial, then slunk quietly away.
Williams and his lawyer lay the blame for the rumors at Griffin's and Shahravan's feet.
"Now we know where those rumors came from, don't we Erik?" asks Ginsberg, on the phone with his client.
"Yeah," answers Big E. "I feel like that was probably the source. I didn't know it at the time. I figured it out later."
In the meantime, Channel 5's theory of the case was falling apart.
"You know the truth of what happened that night, don't you?" asks one of Channel 5's lawyers. "Michael Irvin wasn't there. Someone from Nina's side told us."
According to several sources, in late June, with a July trial date rapidly approaching in her perjury case (the trial date was later postponed), Shahravan allied herself with the men she had once accused of rape. "I think that David Smith [her attorney] thought it was in Nina's best interest to get the [civil] case settled," explains one observer.
As a defense against perjury charges, Shahravan was planning to claim that she had been manipulated by Griffin and the police, but to do so she would have to testify, forfeiting her Fifth Amendment protection against self-incrimination in any and all litigation. Shahravan, whose story tends to shift depending on who is leaning on her at the moment, didn't welcome the prospect of being deposed by hostile lawyers in the libel case. So her lawyer in the perjury case indicated that, in exchange for charitable testimony from the players--the chief witnesses against her--Shahravan would be willing to help them.
On the afternoon of June 25, Irvin, Shahravan, Ginsberg, and Smith met in Dennis Carpenter's Northwest Dallas conference room. The meeting was not stenographically recorded, and sources refuse to say whether Shahravan gave a sworn statement. (Not surprisingly, sources close to Shahravan refused to confirm the meeting. "I'm highly upset that anyone commented that a meeting might have taken place," says one Shahravan advisor. "I'm going to deny it.")
It isn't hard to figure out what Shahravan and her advisors had to say. It's all right there, in Williams' third amended complaint, filed on July 15--one week before the mediation.
According to the papers, Shahravan claimed that Griffin was pushing her to create a story about the players--and she implied that he didn't much care whether it was true or not.
Specifically, she disputed Griffin's account of who contacted whom. Shahravan's story was that in September or October of last year, Griffin "appeared unannounced" at Nordstrom, where Nina was doing makeup, and "recruited her to participate in creating stories about the Dallas Cowboys." Griffin reputedly had learned that Shahravan knew Irvin while the reporter worked on an earlier Cowboys story.
According to Williams' amended complaint, she also said that, at Griffin's behest, she had recorded more than one conversation with Cowboys. She claimed that Griffin was pushing her to create a story, any story, and that Griffin knew facts suggesting that the rape story was false when he reported it.
Shahravan's sudden switch to the players' camp and their new-found sympathy for her raise questions, of course, but Ginsberg is unconcerned.
"I want to be clear about this," says Ginsberg. "Michael and Erik were never going to get themselves in a position where they said anything that wasn't absolutely true. It's just that the more everyone found out about what Nina had been through, the better it was for everyone."
It was brilliant, and ever-so-subtle. Unlike the ham-fisted Russell episode, there were no messy settlement papers or $110,000 checks to raise questions about who's telling the truth. Channel 5 and its carrier were faced with a Food-Lion fight over the legitimacy of using undercover spies. Worse, their undercover spy would contradict much of what Griffin said.
"I don't know for sure whether she flipped on Marty," says Babcock wearily, speaking from yet the latest rented room in which he has flopped this year, courtesy of the Oprah suit. "I got to thinking about it, and I don't think it would have mattered much. Someone has to be willing to sponsor her testimony [call her as a witness]. If she gets a 'not guilty' in the perjury trial, then you may be willing to sponsor her testimony; otherwise, she's a convicted perjurer."
But Shahravan could have been a far more damaging witness than Babcock is willing to admit. For the important question was not who would have to call her to the stand; it was who would have to call her a liar. Channel 5 would have to paint her, convicted or not, as a pathological liar--an approach that would not reflect well on Griffin's judgment.
During the mediation, Ginsberg told Channel 5 the bad news about what Shahravan would say at trial. Smith, her lawyer, backed him up.
Channel 5 was faced with a choice. The players had made a demand within the $10 million policy limits. Under the terms of the policy, if the insurer wanted to accept the offer--and it did--Channel 5 could choose to oppose the settlement. If they did so, the insurer would pay Channel 5 the amount of the demand--say, $2 million--less the remaining deductible. The station would then have a war chest just under $2 million with which to pay attorneys' fees.
The insurer would be relieved of liability. Channel 5 would assume the risk of a judgment.
The station chose to go along with the settlement.
The few sources at Channel 5 who are talking are trying to lay it off on the insurer. "The insurance company took the estimates [of attorneys' fees] through trial and basically said that anything under this number, we settle," reveals one person close to the settlement negotiations. "It's their money. What are you going to do?"
Though no one's coming completely clean, they do seem to have been mightily impressed by Irvin. "I think our guys were pretty impressed with his little speech," says one Channel 5 source. "I think he's got good ability as a communicator," says Babcock, sounding bone tired.
Griffin did not sign the agreement, although whether this is for appearance's sake or out of actual reluctance is anyone's guess. He did sign an agreement promising to cooperate with the players in their suits against the city. The case against him was dismissed, as it was against the station.
Nina Shahravan will either plead guilty or go to trial September 15 and hope that the jury will believe she was so badly manipulated that they simply must acquit. The shrinks will testify that because of her overwhelming need for approval, she didn't have a chance of standing up to her powerful puppeteers. And the chief witnesses against her will be all sympathy. "I just think that poor woman was so badly manipulated," says Ginsberg, in a preview of the testimony certain to come on September 15.
"I feel sorry for her," says Erik Williams. "I think she's got a problem. I think she needs help mentally."
And while Victoria Phillips doesn't know the details of what went down in the conference room she sits across from, she does have a pretty good grasp of the issues involved--issues that will now have to be fought out another day, in another suit.
Winning might have been easier than the media defendants thought. Remembering her brief moment of sympathy for the players, she laughs. "I got over it," says Phillips, who got to keep Irvin's cap as a souvenir. "I mean, I can understand that you want that privacy. But I'm sorry--there's just a price to be paid.
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