clock menu more-arrow no yes mobile

Filed under:

Fulmer vs. Alabama -- Subpoenas fly at Media Days

Btn_football_medium Btn_book_medium

When I say "fly," I mean it literally.

I know most Kentucky fans could give a hoot about Phillip Fulmer getting a subpoena during media days, but it always intrigues me when legal stuff starts impinging upon sports.  I don't know why, but it does.  So naturally, me and a researcher's best buddy, Google, had an afternoon tête-à-tête to see if we could figure out who's on first.

Instead, I found a story that includes bribery, coaches acting as informants for the NCAA, conspiracy to commit racketeering, "structuring," and perjury.  All related, spanning many SEC schools, including Kentucky, Georgia, Arkansas, Ole Miss and Tennessee.  Now many people may know the story, but I have never paid close enough attention to SEC football until recently to care.  But this bizarre and sordid tale should probably one day be documented in all its glory for posterity.  However, since it is apparently still ongoing, we can't do that just yet.  Interested?  Read on after the jump.




Unfortunately, the entire chain of events is far too complicated for me to relate in a post of reasonable length, so I won't even try.  What I will do is place a list of related articles in the "related items" section of this post and you can read it for yourself.  But what we will talk about is the subpoena of Fulmer at Media Days, and speculate as to its nature and ultimate outcome.

What is the Fulmer subpoena about?  An Alabama booster named Wendell Smith, otherwise known in the NCAA finding in 2001 against Alabama as "athletics representative B," is suing the NCAA for defamation of character and invasion of privacy.  In the finding, Smith was accused by the NCAA of:

  • Offering to arrange a payment of $20,000 in cash to then-recruit Kenny Smith in 1995 to sign with Alabama;
  • Furthering that arrangement by driving Smith to meet with Logan Young, the money man (Logan Young's story is even more sad and fascinating, but too long to relate in its entirety here) on two occasions where the money was given;
  • After Smith failed to qualify academically and had to return to high school, Wendel Smith allegedly tried to bribe him again to sign with Alabama in 1996.

Smith and his attorneys claim this is defamation by the NCAA, and that he was never an Alabama "booster":

Wendell Smith said he has never contributed money to the Tide athletic program or purchased Alabama season tickets. He has said Kenny Smith was just one of many high school players he has tried to help over the years.

Smith's attorneys also claim, inter alia, that the NCAA violated it's own four-year statute of limitations on infractions, and that the finding was therefore impermissible under their own bylaws.

So what has all this got to do with Phillip Fulmer, coach of Tennessee?  Well, amazingly enough, it was Fulmer who identified Logan Young and some of the other actors in this drama to NCAA investigators.  Why did he do this?  Well, Fulmer claims he couldn't get any satisfaction from the SEC, so he reported the cheating directly to the NCAA.  But the record does not show that Wendell Smith was identified to the NCAA by Fulmer, at least not that I can find.

Adding to this soap opera, Fulmer's own program was under investigation for academic irregularities involving football players at about the same time.  Shortly after Fulmer began spilling his guts to the NCAA, the NCAA declared that they couldn't find any violations at Tennessee, and closed their investigation.  Tom Farrey at ESPN reported it thus:

Fulmer was an investigator's dream. In his first interview with Johanningmeier, he fingered Memphis businessman Logan Young as someone who had been paying for players dating back to the era of Paul "Bear" Bryant. He provided leads and phone numbers. He invited to the meeting three of his assistant coaches, who offered even more leads.

That interview was on March 9, 2000.

On March 20, less than two weeks later, the NCAA announced that Tennessee had been cleared in its academic probe.

"They dropped the investigation on Tennessee at that point," Gallion said. "They never did anything else to them and I'm saying it's a quid pro quo. I'm saying they cut a deal. You let us out of jail, we'll give you Alabama."

Such a beneficent sychronicity certainly does look suspicious, although the NCAA denies any connection.  But whether or not Fulmer was ethically bound to do what he did, Tide fans find it reprehensible.

Which brings us back again to the question -- why is this guy throwing subpoenas at Fulmer?  Is Wendell Smith truly a victim here?  No.  Here's why:

  • The NCAA statute of limitations -- The infractions committee specifically addressed this in Appendix B to the findings against Alabama.  The reasoning is utterly unassailable, and since they wrote the bylaws, it's impossible to argue persuasively against their interpretation of them, which is straightforward and compelling.
  • Wendell Smith not being a booster -- Well, there's this:
    Anyway, hurting Wendell's argument in this case is the fact that the Kenny Smith family recorded a phone call between Kenny and Wendell. In that conversation, Wendell -- the impartial, non-supporter -- urged Kenny to stay committed to the Tide and not sign with Tennessee.

    "You gonna be cared for," Wendell said, according to a transcript that appeared in the Tuscaloosa News. "(Former UA head coach) Mike DuBose won't be mad because I said so."
    That's mighty bold talk from " ... a poor old guy selling cars in North Alabama trying to make a living," as Wendell Smith's attorneys have described him.

But if you notice, we still haven't answered the question -- Why is Wendell Smith throwing subpoenas Fulmer's way?  Their rationale would be to discover if Fulmer ever made reference to Wendell Smith in his now-infamous conversations with NCAA investigators.  Those conversations were supposed to be forever confidential, but the "money man," Logan Young, was indicted and later convicted by federal prosecutors in Memphis for racketeering and structuring related to this scandal.  As a result of discovery in that federal trial the NCAA was forced to hand over all its notes regarding the Fulmer interviews, which you can read here.

But at least in my perusal of these documents, I can't find Wendell Smith's name anywhere.  Which brings us back to Fulmer.  Suppose the deposition does take place and Fulmer "fesses up" to mentioning Wendell's name to the NCAA investigators, and tying him to this mess.  Wendell is clearly guilty of what he has been accused of by the NCAA.  How does this help Wendell win his impossibly flawed case against the NCAA?  It doesn't, at least when it comes to the facts.

But oh, what it does for perception.  By tying Fulmer to Wendell Smith's misfortune, throwing subpoenas at him during a media circus and creating a firestorm of publicity, the attorneys for Wendell Smith have accomplished every law firm's dream -- tons and tons of free publicity which makes them look wonderful to rabid Alabama football fans, the very people they are trying to reach with advertisements and marketing.  These attorneys (who's firm will remain unmentioned here) obviously planned this affair for maximum media exposure.  Even if they have taken Wendell Smith's case on contingency, they just paid all their expenses on Thursday. 

Joel over at Rocky Top Talk alleges abuse of process, and I think he is right, but convincing an Alabama judge of that is likely impossible.  Why do I say that?  Another figure in the case, Ray Keller, sued the NCAA for defamation and won a $6 million dollar judgment from a Scottsboro, Alabama jury (the same place as Wendell Smith filed his suit against the NCAA) -- a judgment that was immediately overturned by the presiding judge:

Gordon, the presiding judge in Keller's lawsuit against the NCAA, ruled this week that the jury's verdict against the NCAA was not supported by trial evidence. Gordon also ruled that the amount granted to Keller must be thrown out because it was the "product of passion or prejudice" by the jury.

In other words, the jury decided based not on the facts, but essentially because of prejudice toward the NCAA, or anger with them.  This just happened a few months ago -- 6 years after Alabama was put on probation.

So can Wendell Smith win his case against the NCAA?  Absolutely he can, in Jackson County, Alabama.  Will it stand?  Very unlikely, but the attorneys will be hoping the NCAA won't want the expense of another legal fight and will offer to settle, or that the next judge will be just a bit less dispassionate and more of an Alabama football fan, forcing the NCAA to appeal should they lose.  In the end, though, the case prima facia has no merit at all.  Fulmer can offer nothing whatever to bolster Wendell Smith's case, given the record already out there, and his subpoena was just a mechanism to accomplish three things:  Prejudice the jury pool, publicize the lawsuit, and bolster the law firm's image among the likely buyers of their services.  But good luck proving abuse of process.

Finally, Senator Blutarsky of Get the Picture in a related post brings up my favorite scene in one of my all-time favorite movies -- Absence of Malice.  I can almost see the NCAA investigators trying to sort through this mess and a guy looking like Assistant U.S. Attorney General James A. Wells (Wilford Brimley).  Many of you youngsters out there have probably never heard of Absence of Malice.  Rent it somewhere -- You'll be glad you did.  Maybe the best movie Paul Newman ever made, and Brimley truly does steal the show in his big scene.


Before I even got this up, Joel at Rocky Top Talk has posted some further legal analysis.