At 2:00 P.M. on September 12—after Eskenazi and the New York Times had apparently refused to respond to my earlier letter—I met with Tom Green who had tried to reach Becky Sinkler at the New York Times Book Review. However, she was on vacation. Her number two was out to lunch, so Green called the Times's general counsel's office.
As I sat in a chair in front of his desk, Green talked to a Times attorney and told him that he expected an official response to my letter from the Times—any kind of response. He said that if we didn't get an answer or if the reply was unsatisfactory, then we would sue.
Apparently, the Times attorney had not heard about the issue and promised to investigate. Green and the Times lawyer agreed to talk again the following day.
At 6:00 P.M., Green telephoned me, saying that the counsel for the Times had just called and asked that we give the newspaper until Monday for a decision. Green agreed.
On Monday, September 18, Green called me at noon and said that the New York Times counsel had told him that Eskenazi had been ordered to attend a meeting at 3:00 P.M. on Tuesday, September 19. He promised to telephone Green with a decision.
The next day, I flew to Hattiesburg, Mississippi, to present a campus‑wide lecture at the University of Southern Mississippi about sports gambling. Before the lecture, I received a message to call Green at his home. Doing so immediately, I asked him what the Times attorney had said.
Green told me that he had talked to him for an hour. As Green had predicted, the conclusion was that Eskenazi's review was "protected opinion." Therefore, the Times would issue no retraction and no corrections.
I was just getting ready to do my lecture and could not talk for very long. Green told me to call him when I returned to Washington.
Back in D.C. on September 20, I called Green, who gave me additional details of his conversation with the Times.
Green added that everything he had done for me to that point was free. Now, I was on the clock. For him to proceed further would require a detailed analysis of my book—after which he would make a final determination as to whether we really had a good, winnable case.
I told Green to do whatever was necessary. I wanted to know what my legal options were.
Soon after, I received a call from Marnie Inskip, a producer for a Fox‑TV program called The Reporters. She explained that while preparing her story about my book, her boss walked up to her, tossed the New York Times review of Interference on her desk, and said that the segment had been canceled.
On Sunday, September 24, in the midst of a mix of generally favorable reviews from journalists and customary unfavorable reviews from sportswriters, I received a positive review in the Los Angeles Times. The review was written by reporter Michael Harris. Too little, too late, Harris wrote: “Interference is like a hard‑nosed fullback . . . packed with names, dates and places, hitting the holes until the defense—one’s incredulity—gives way. The weight of evidence is overwhelming.”
On Monday, September 25, I flew to Des Moines, Iowa, for a Tuesday campus‑wide lecture at Des Moines Area Community College. While changing planes in Chicago, I checked my messages and had received one from Tom Green. When I called him back, he told me that he had completed his analysis of the review and my book. He explained that he no longer had any doubts: I had been clearly libeled by the New York Times. He suggested that we sit down and discuss the situation.
On Friday afternoon, September 29, Green and I had lunch at The Palm in Washington. Early in the meeting, Green handed me the New York Times's written response from its counsel.
When I looked at the letter, I nearly choked on my Gigi Salad. I immediately noticed that it had been written by Times's attorney David Thurm, the same attorney who had handled my 1987 complaint against John Corry.
Green saw my reaction and asked me if I had a problem. I recounted the story about how the Times had published an unsatisfactory correction to Corry's review. I explained that when the Times refused to make amends in that case, my attorney and I had bluffed litigation—a bluff David Thurm had called and won.
Now, in his letter to Green, Thurm had attempted to defend Eskenazi's review, taking my complaints and addressing each. In doing so, Thurm specifically misquoted the actual wording of my book, twisting what I wrote and didn't write. Thurm added:
The main thrust of your client's concern seems to be the characterization of the book as "sloppy journalism." From a legal viewpoint, this is clearly protected as opinion. The words are those of opinion and as such are not capable of being objectively characterized as true or false.
However, Green and I believed that Eskenazi's opinion had been based on a series of provably false facts cited in the review—such as Eskenazi's claim that I had written that Carroll Rosenbloom was murdered, when, in fact, I had clearly written that he "had died in a tragic accident and was not murdered."
Later, I came to believe that David Thurm's letter was the turning point in this entire dispute. Thurm and the Times had copped their position and became immovable. Thurm likely assumed that my attorney and I were bluffing again and would never file suit—while I really never believed that Thurm and the Times would ultimately stand by Eskenazi's error‑ridden review.
Thus, this entire situation was reduced to nothing more than a game of chicken. In effect, we were like two teenagers in fast cars, drag racing toward the edge of a First Amendment cliff.
Who, if anyone, would jump out first?
On Saturday, October 14, I called Alexander Greenfeld, whom I had met at the 1988 WIW Spring Writers Conference. Greenfeld, with whom I had become friendly, was a former legal counsel for the New York Times. Now, he was a professor at the University of Maryland's School of Journalism. I told him that I wanted his advice as to how to handle the Times.
He asked me to drop off a package of information for him to review before our scheduled luncheon meeting the following week.
Greenfeld, who personally knew Eskenazi from his days at the Times, called me later that afternoon. From the outset, he described Eskenazi as “a good sports reporter, an excellent writer, and a wonderful family man.”
But, after his examination of the facts of my case, Greenfeld—just like Sikorski and Green—expressed his legal opinion that I had been clearly libeled, based on the errors of fact and blatant misrepresentations in the review.
“Great damage has been done to you," the former New York Times attorney insisted. "There's no defense for opinion when it's based on a misstatement of facts or misleading facts. The general rule is that an opinion has to be supported by the facts and it cannot misrepresent facts. . . . I believe that the Times wants to be fair. [New York Times executive editor] Abe Rosenthal used to say that—and Max Frankel is the same way."
Also, he brushed off David Thurm's response as simply "boilerplate," predicting that I would prevail in court. The problem, he said, was that the lawsuit would take five years to litigate, and the Times would fight it all the way. However, he did reveal, “They have quietly settled a few cases from time to time.”
Greenfeld advised against litigation and advocated a "journalistic solution." He knew all of the top executives at the Times and told me that he might be able to negotiate some sort of settlement. I gave him the green light to do so.
But, soon after, Greenfeld called and told me that he had tried but failed to negotiate a peace for me with the newspaper.
In the wake of this final act of diplomacy, both Tom Green and John Sikorski gave me realistic but prohibitive prices for them to litigate against the Times. In other words, I was back to square one.
On the night of November 14, in a last‑ditch effort for a peaceful solution, I wrote another response to Becky Sinkler at the New York Times Book Review—along with a cover letter, asking her to print my defense against Eskenazi's review. I Federal Expressed the package to her the following day. However, the Times refused to publish my letter to the editor, never allowing me to defend myself.
As my eagerly anticipated war with the NFL degenerated into a dreaded conflict with the New York Times, the NFL team owners selected Paul Tagliabue, a prominent attorney with Covington & Burling in Washington and an outside NFL counsel, as their new commissioner, replacing Pete Rozelle. By coincidence, Tagliabue's younger brother, John Tagliabue, was the New York Times's bureau chief in Warsaw, Poland.
On December 10—as Paul Tagliabue settled into his new job and I fought for my personal and professional survival—Gerald Eskenazi wrote a major article for the sports page of the New York Times: "Game Day on the Sidelines: Frenetic World Come to Life."
The NFL had given Eskenazi an early Christmas gift, allowing the sportswriter to take an exclusive "behind‑the‑scenes" look at the exciting world of professional football.