All That and a Bag of Mail

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Okay, here we go:

Bear writes:

“Does Rachel Nichols have legal standing to go after the employee that leaked the video with a lawsuit? By basically every metric (financially, reputation, etc) leaking that video permanently impacted her future earnings potential.”

She wouldn’t want to sue the employee who leaked the video because presumably that employee — even if it were possible to prove who it was — doesn’t have substantial enough assets to make the lawsuit worthwhile to her. (This is one reason the debate over legal immunity for police officers makes little sense. Most police officers don’t have substantial assets either. If you’re going to undertake the cost of a lawsuit, you want to be suing someone with substantial assets.)

Having said that, Nichols would have a good case, I believe, against ESPN. That case could be both rooted in tort and contract law. Let’s start with the contract law claim. Nichols said her contract gives her the right to host the halftime show of the NBA Finals. If that’s true, then ESPN breached her contract when they gave Maria Taylor the hosting duties and removed Nichols. Now I haven’t read Nichols’s contract, but this is based on her own comments. If she’s right about that, she could sue for a contractual breach and be entitled to substantial damages.

Nichols could also sue ESPN based on the tape being recorded and later released. That’s a bit complicated because her own failure to turn off the camera left it on, allowing the taping to occur, but it’s reasonable to believe that an employee, especially one quarantined in a hotel room, would believe she had a reasonable expectation of privacy to engage in private phone calls without being overheard and certainly without being recorded. There could even be a criminal angle at play here,+ depending on the law regarding taping of private phone calls in both Florida and Connecticut. (The Nichols call took place in Florida and was recorded, presumably, in Connecticut where ESPN is based.)

Nichols has spent her entire career covering the NBA. Now, potentially, she may be unable to do that job in the years ahead because of this call leak. If that’s true, then Nichols may have substantial damages as a result of this recording being made of her private conversation. (There are also a ton of details we still don’t know. How long, for instance, was the camera recording her calls? Depending on the length of the recording, why didn’t someone at ESPN call and notify her of this issue?)

I would bet ESPN will end up paying Nichols millions and millions of dollars, either via a contract extension that’s far in excess of what her value might be on the open market or as a settlement that effectively sidelines her as an ESPN employee but lets her walk away with a golden parachute.

I’m not sure she’ll actually file a lawsuit, but the mere threat that she might file that lawsuit, I’d think, would have ESPN rushing to settle this case for a ton of money.

The most astounding part of this story to me, honestly, is that ESPN executives were never able to squash this dispute. They had a full year to mediate this issue. And it sounds like they just hoped it was going to vanish. That’s a massive failure of management.

And the other story here, which few seem willing to discuss, is how Maria Taylor leaked this all in an effort to get more money. I mean, it’s just so transparent what’s going on here. Taylor leaked this story to pressure ESPN executives into paying her way more money than she’d otherwise make. And the New York Times wrote this story painting Taylor as the huge victim here without acknowledging that they were effectively being used as a negotiating tool.

It’s just so transparent.

I can’t believe that isn’t the top story coming out of all of this.

Jessica writes:

“You may have discussed this (probably have), but how do you think the NIL decision affects college football in the future? Does this take the fun out of recruiting when the schools with the most money get the best players? How do schools with fewer boosters stay competitive?”

The schools with the most money already get the best players, which is why I’ve argued for years that, even if there were no NCAA rules, the same schools would still get the best players. And I think that’s likely to remain the same with NIL.

What I do think could occur, however, is the bottom half, let’s say, of a top school’s recruits might start to go to “lesser” schools because they can make more money there as the top recruit than they can as the lower tier recruit at a better school.

Let me explain what I mean.

Let’s say you’re from Hattiesburg, Mississippi and you have the option to be the top recruit for Southern Miss or one of the five lowest ranked recruits for Ole Miss or Mississippi State. Might you decide to stay at Southern Miss, where you have been promised a car dealership will sign you to a deal, instead of going to Ole Miss?

Maybe.

So Southern Miss, thanks to NIL, could get a better player than they would have without NIL.

Remember, every college town has a Buddy Garrity.

Or let’s say you have the option to be the 15th best recruit at Ohio State or the best recruit at Purdue or Indiana, your hometown area school. Might you decide to stay home based on local finances?

I think so.

What about if you’re the top player in Kentucky and your final two are Alabama and Kentucky? Could you stand to make more money staying home? I think so. So, if anything, name, image and likeness may help to spread out talent more than it leads all the talent to go to the same schools.

With that in mind, however, I think smart college athletes are mostly going to focus on the best path to go pro. If you’re a top college football player, you get drafted in the first round and guarantee yourself tens of millions of dollars. Most college football players are going to be able to make $100k or less in name, image and likeness. And you’re going to spend a decent amount of time, energy and effort to make that money.

So where should you be focusing? On the massive payday as a pro or on the comparatively tiny amount you can make as a college kid?

I’d tell my own kids to focus on the life-changing money and not worry about the smaller dollars out there, especially when the smaller dollars out there — just wait for it — are going to come with complicated contracts that will inevitably end up in lawsuits. I’m telling you, there are going to be a ton of Don Kings out there trying to get college kids to sign lifetime marketing deals for pennies on the dollar.

I also think many of these kids starting companies selling t-shirts or other gear, for instance, are going to see how difficult it is to cut through the noise. Most of them aren’t going to make any real money off their own products.

What I’m waiting for, honestly, is a five star recruit to start a company selling a product, promote it on social media, and essentially let it be known that he’s going to sign with whichever fan base buys the most of that product. Think about it. What if the nation’s top recruit put his picture on a t-shirt and made it in the school colors of the top five schools he was considering. Then he said that whichever t-shirt sold the most was the school he’d attend, and he set up a daily tracker on a website he built to show you how many shirts he was selling.

How many fans would pay $20 for a t-shirt of a top recruit? I’d think a ton might do it.

That’s the ticket to making real money, I think.

I could see a five star recruit making hundreds of thousands of dollars based on a business like this. And I don’t think there’s any way, technically, for that to be stopped right now.

Tom writes:

“What is the sports media reaction going to be when a star player or a few sit out the 12 team College Football Playoff because of injury concern? It will happen.”

This may happen at some point, but I think it’s less likely than you believe.

Why?

I think many NFL teams would consider this to be quitting on your college team. And I think many NFL teams would knock a player down their draft board as a result of that decision, potentially costings the player millions and millions of dollars.

NFL teams are terrified that once college kids get tens of millions of dollars guaranteed, they’ll stop working as hard as they have to that point. That’s why they focus so much on whether a player loves football. The idea is if you truly love the game of football, your own competitive drive is going to keep you playing just as hard once you’re rich as you did when you were poor.

It would be better for a player to sit out an entire season, I think, than to quit once the playoffs arrive.

Dylan writes:

“With Japan allowing fans at baseball games, is Japan being too cautious by not allowing fans at the Olympics?”

I’m not an expert on Japanese sports attendance policies, but banning all fans from the Olympics isn’t justified by any data.

Most of these events are taking place outdoors, where we know COVID spreads much less efficiently.

By the way, how about the media going silent on how well masking works? Japan has been masking for over a year now, and suddenly the virus is surging in their country. How is this possible, if masks work so well? The data reflects that masking is almost entirely cosmetic theater.

John writes:

“If I set the over/under at 3-months before an NCAA athlete does a NIL deal with a company that offends someone and is blown out of proportion to the point the athlete issues an apology would you take the over or the under?”

I mean, I’d take the under on all issues of apologizing because there’s always some woke outrage circulating on the Twitter streets, and there’s always some chump who is willing to prostrate himself in front of the woke masses to issue an abject apology for violating the delicate sensibilities of Twitter losers.

But I think the more likely issues to arise with NIL are when rival companies sign athletes to endorse products that compete with school sponsors. What happens, for instance, if Adidas signs a top player from a Nike school? Or if Pepsi signs a top player from a Coke school? I think those are far more likely to create issues than a controversial sponsor.

With that in mind, however, I definitely think a college kid is going to end up endorsing a gambling company, a strip club, alcohol, something that is clearly outside the bounds of what a school would permit, and we’ll see a mini-scandal as a result of that.

Blue writes:

“I know you’re discussing this tomorrow on the radio show but how much longer do you think the United States should stay in Afghanistan? The US needs to focus on the betterment of their country not others.”

I think Afghanistan was my generation’s Vietnam.

We spent a trillion dollars there over twenty years, and within six months or a year of us leaving, it will be like we’d never been there at all.

I’m not even kidding about this.

Just about all of our money was wasted there. We might as well have lit it all on fire. And that doesn’t even count the lives we lost or the injuries our soldiers suffered.

I’m highly skeptical of American money being spent on other nation building, whether in Iraq, Afghanistan, or elsewhere.

Tom writes:

“Hypocrisy, Washington Post style: The Washington Post editorial board is calling on the Biden Administration to ‘get serious’ about the origins of the coronavirus pandemic after the paper previously declared the Wuhan lab-leak hypothesis a ‘debunked conspiracy theory.'”

Of course they are.

One of the media’s biggest tricks now is labeling anything that challenges the preferred or prevailing narrative as a “conspiracy theory.”

We’ve expanded the phrase “conspiracy theory” to now include “plausible hypotheses.” That expansion ends up as a massive issue.

Let me explain what I mean by conflating conspiracy theories with plausible hypotheses.

We have a brand new coronavirus that suddenly emerges in close proximity to a lab conducting gain of function research on coronaviruses. If I told you that information, it would be reasonably logical for you to immediately think, “Oh, it must have escaped from the lab.”

That’s what every single one of you would immediately think, just based on the information I shared with you. That isn’t remotely a conspiracy theory. It’s just a rational analysis of factual data.

Now if someone else argued it hadn’t come from the lab and had instead mutated from an animal and somehow transmitted itself to humans through a wet food market, I mean, that’s also a hypothesis, but to me it would be a less plausible one.

If anything, the animal to human idea feels more like a conspiracy theory. But what happened was a few top scientists called journalists and convinced those journalists anything other than the animal hypothesis was incorrect. And these journalists, most of whom have no real scientific expertise or knowledge, took what they were told, wrote it up, and turned it into the prevailing narrative of the virus’s origin.

From that point forward, anything that challenged this virus origin story was labeled a “conspiracy theory.”

I don’t look at this from a scientific perspective at all, but from a story perspective. When you try a case in front of a jury, just about every one of those cases ends up being a story contest. The attorney who can tell the most believable and plausible story wins. Every fact pattern has multiple plausible pathways to the truth.

For instance, if it snows during the night outside your house, you may not have witnessed the snow falling at all. That would mean there are no eyewitness to the snow falling. So your evidence is circumstantial. But if there’s snow all around your house and there wasn’t snow around your house when you went to sleep, it’s reasonable to assume the snow fell overnight.

The case seems pretty open and shut. If anyone tried to argue a snowblower was the cause of all the snow in your yard, they’d have a tough case to make. We wouldn’t call the snowblower a conspiracy theory though. We’d just call it a less plausible explanation. Because it could be true, it’s just less likely to be true.

But what if it suddenly emerges that your house got six inches of snow and all the neighbors got none?

Well, then, there has to be another explanation, right? Then the snowblower hypothesis might make a ton of sense.

My point is, as facts change, the plausibility of a variety of hypotheses become more or less likely. And what we’re often doing in stories like these is insisting on a definitive narrative and ignoring all countervailing explanations at the absolute outset of a story.

Imagine how much better of a COVID investigation we’d have now if we’d left open the idea that we didn’t know where COVID came from last year and had insisted on a rigorous investigation at the outset of this outbreak.

Almost every story has multiple plausible truths. What journalism today seems to insist on, almost at the outset, is certainty. Even in the face of massive uncertainty. And that certainty often follows the prevailing political narratives already in play. It has to fit the preferred fact pattern at the outset.

Lawyers are comfortable with uncertainty. That’s the basis, in fact, of the entire profession. Because every legal issue comes down to an analysis of probability. Who’s the judge, who’s on the jury, how good are the lawyers, how believable are the witnesses, how reliable are the facts? All of these, and many more issues, are uncertainties in every case. The best lawyers construct the best narrative to stitch together all the facts in a case into a believable story. But the truth is, there are always multiple believable stories.

Journalism, it seems to me, is now in the business of deciding there’s only one believable story. What’s more, the one believable story then becomes accepted truth and anything that challenges that story is labeled a “conspiracy theory.”

Our media needs to be more comfortable with uncertainty.

If we were, I think we’d do a better job of eventually reaching the truth.

Okay, as always, thanks for reading OutKick.

And I hope all of you have fantastic weekends.

Written by Clay Travis

OutKick founder, host and author. He's presently banned from appearing on both CNN and ESPN because he’s too honest for both.

2 Comments

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  1. The Japanese are a very compliant and community oriented culture. I’ve been in the group of 30-40 workers standing patiently at crosswalk waiting for the green light, when there was no traffic at least a HALF MILE in either direction.

    However, they’re also supposed to be well educated, so why a “spike” of 946 cases in a city of FOURTEEN MILLION PEOPLE causes any sort of reaction is beyond me. My suspicion is that the Japanese trust each other (hence baseball game crowds), they do not trust Gaijin (outsiders) which are presumably most of the Olympic crowds. But, this is the same country that asked, didn’t require, people that had been to Ebola hotspots to get a temperature check before going through immigration at the airport.

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