As
the trial date approached, the NCAA subpoenaed me to appear for a deposition and to turn over to the NCAA tape recordings
and notes of my 2001 conversations with former standout University of Texas defensive tackle Greg Ploetz, the player involved
in the lawsuit. The notification from Denver District Court was five pages long. I had hoped I'd at least get a trip to Dallas
out of it, but the NCAA's Texas law firms retained a Denver firm to deal with me.
Here's the start:
I pretty much
did what they asked.
I'll defend myself shortly, and fill in the background context.
So read the rest of this. It's lengthy.
When you're (finally) done reading this, your task is to answer:
-- Did I screw up? Did I betray
my craft?
--
What should I have done?
-- What would you have done?
-- As a journalist doing investigating reporting, and uncovering sensitive and important material,
how will you handle this sort of decision in your career?
-- Should a writer or reporter ever consent to turn over notes or material to
others as part of a legal proceeding? Or given journalism idealism and tradition, should the answer always be "no"?
No matter what?
-- Should there be an inviolable "shield' standard for journalists or writers?
Now, the context: Greg Ploetz was a major
figure in my 2002 book "Horns, Hogs, and Nixon Coming
Links to an
external site.Links to an external site.I interviewed him at length. As I did with all
the interviews for the book, I recorded I and transcribed them. (Blackie Sherrod of the Dallas Morning News wrote that I "must
have worn out a dozen tape recorders in the process.")
Greg wasn't your typical college football star and not only because he was only
5-foot-10 and 205 pounds -- a more typical size for a running back than for a defensive tackle. A fine arts major, he was
named the University of Texas' top art student one year. Instead of going to the NFL, he became a high school art teacher
and home rebuilder. He was hilarious in the book and blunt about the physical rigors the Texas players went through in the
standards of the time. After it was published, I stayed in touch with Greg and his wife, Deb, most notably when I was the
neutral keynote speaker at the joint reunion in Fayetteville of the 1969 Arkansas Razorbacks and Texas Longhorns, the two
teams in the book. (Scroll down for pictures.)
Greg began struggling with cognitive issues shortly after the reunion. It turned out that he was
dealing with frontal lobe brain damage and mixed dementia. At one point, Deb brought him to a memory-care facility in Arvada
so they could use marijuana products --then illegal in Texas -- in his treatment. I visited Greg in Arvada and wrote
a Denver Post storyLinks
to an external site.Links to an external site. about his battle that drew national interest. By then, he was unable to communicate and usually was combative with everyone,
sometimes even with Deb. I could not "interview' him again. However, I used some of the book interview material in the
Post story, including quotes from the tapes, to profile Greg. That's significant because in theory I could more credibly claim
journalist and freedom-of-the-press protections in connection with the Ploetz interviews.
After he died at age 66 in
2015, an examination of his brain determined Greg had Stage 4 Chronic Traumatic Encephalopathy, and that's severe as it comes.
Deb sued the NCAA, alleging
that college sports' governing body hadn't done enough to shield players of Greg's era from head trauma and brain injuries.
“After watching Greg’s
last years of decline, I can say with all confidence, he would not choose to play football if he knew he was going to suffer
and die like he did,” Deb told me after the lawsuit was filed in 2017. “He did not die from any other physical
malady like a stroke, pneumonia, heart attack, he died from CTE. He literally lost his mind and his life.”
Deb also told me that when
she drove by kids playing football, she wanted to pull over, get out of the car and lecture parents.
“I wanted
so bad to go tell them, ‘Do not let your son play football,'” Deb said.
Ploetz vs. NCAA was especially important because
it was going to be the first of many similar individual suits to make it through the legal labyrinth and go to trial. More
than 100 class-action suits involving multiple plaintiffs were pending against the NCAA at the time. To compare, the NFL's
2015 class-action settlement with former players was for more than $1 billion. If Deb won a major judgment from the NCAA on
her own, it seemed a safe bet many more individual suits from former players and families would follow, perhaps even threatening
the survival of the college game. (That might seem silly now, given what has happened since. Yet the concern was not outlandish.)
I considered not cooperating.
I considered not turning over
the requested material.
I realized that going along would cut against the grain of journalistic idealism.
And, yes, I still was an idealist.
The Ploetz material in my book
was a virtual transcript of the interviews. There weren't any surprises on the tape. In fact, although the Ploetz attorneys
hadn't also asked for a copy of the cassette, my impression was Greg's remembrances -- from the grave, so to speak -- about
such things as the Longhorns' often brutal practices would be more effective ammunition for the Ploetz case than the NCAA's
defense. I concluded the NCAA request was more precautionary and setting the net wide than reflecting a belief that anything
startling would emerge from the tapes.
This was a lawsuit, not a public agency seeking a reporter's work. The interviews in question
originally were for a book, not a journalism outlet or publication. I was told I might get away with refusing to cooperate,
but that the court also could also look at the information sought and decide if the information was protected or not.
Colorado does have a shield law which creates a qualified privilege for journalists.Links to an external site. "Qualified" means the protection gives way to compelling need. The shield law applies in civil as well as
criminal matters. Also, the Colorado shield law would have applied to me as a Coloradan served with the subpoena by a Colorado
court, even though the case was in a Texas court.
If a judge said I had to go along, and I refused, I could end up in the slammer.
I didn't think that could happen. I didn't think this came close to that "compelling" standard.
I decided to go along with
the NCAA requests.
I
felt guilty.
But
I reported to the Denver Westin on April 6, 2018, and met with Denver attorney Meaghan Fischer and others from her firm. I
brought copies of the Ploetz tape recording and my transcript of the talks. I explained I really didn't have anything else
about Ploetz that wasn't publicly available.
My "deposition" wasn't exactly a grilling. With a court reporter transcribing
on one of those fascinating keyed machines, I answered a few questions from the attorneys, and my vague recollection is that
it was mainly procedural. I affirmed that the tape and transcript were genuine.
It surprised me that I wasn't asked about what I thought of
Ploetz's mental and physical state, either at the time of the book interviews or when i saw him in ensuing years.
The trial opened June 10, 2018.
Less than a week into the proceedings, Deb
and the NCAA reached an out-of-court settlement. Although the NCAA paid Deb, the NCAA also “won," preventing the
case from going to the jury, where anything could happen and a huge award could be a precedent. nearly six years later, I
still don't know the amount of the settlement, but I'm guessing it was relatively modest. Deb had given up on crippling college
football. I don't know if my material would have come into play if the trial continued.
I have mixed feelings
about this. Ploetz played college football more than 50 years ago. My own father was the head coach at Oregon at the time.
Retroactive judgment or making blind assumptions that football and concussion issues led to the former players’ brain
maladies – whether dementia or, more specifically, Alzheimer’s – can be a slippery slope, at least before
post-death CTE diagnosis comes into play.
The football concussion “protocol” once was observation. Too often
the assessment was that you got your bell rung and, if possible, you went back in. The players thought that way, too. It’s
just the way it was. And not just in football. Apportioning blame now, both in this and the class-action settlement between
the NFL and former players, can lead to oversimplification.
I'm overdue to listen to Greg again.
Now go back up and tackle those questions at the top.
In the first photo from the 2004 joint reunion of the 1969 Texas Longhorns and Arkansas
Razorbacks, Greg Ploetz is at left; I'm second from right.
Also at the 2004 reunion, I'm signing a copy of 'Horns, Hogs, and Nixon Coming"
for Deb Ploetz, who ended up suing the NCAA.
Deb and Greg Ploetz at the memory-care facility in Arvada in
2014
