Book Recalls 1960s Georgia-Alabama Football Scandal, Libel Case
"Fumbled Call" revisits a dramatic Atlanta trial involving big football and big lawyers.
May 08, 2018 at 12:18 PM
5 minute read
Today we worry about online pirates stealing personal information and nefarious foreign governments hacking into our democracy. So what happened in September 1962 to Wally Butts, the athletic director at the University of Georgia, and Bear Bryant, the legendary football coach at the University of Alabama, seems quaint.
Butts, who'd resigned under pressure as UGA's football coach in 1960, was visiting an Atlanta public relations firm when he placed a call to Bryant at his Tuscaloosa campus. At the same time, an Atlanta insurance salesman named George Burnett telephoned a friend at the same PR firm.
Burnett would testify that, instead of his friend on the other line, he heard unusual electronic noises, a long distance operator seeking “Coach Bryant” and then the voices of Butts and Bryant.
“Hello, Bear,” Butts said.
“Hello, Wally, do you have anything for me?” Bryant responded.
Burnett said that Butts had plenty for Bryant, whose Crimson Tide was hosting the Georgia Bulldogs the following week. Burnett said Butts advised that Georgia's pass defense was weak except for Blackburn, that the offense used his old “29-0 series” and a “left end out-15 yards” play and not to worry about quick kicks, because Georgia didn't have anyone who could pull off that surprise play. Bryant asked some questions to which Butts didn't know the answers, so Bryant promised to call Butts a few days later, which telephone records said occurred and lasted one hour.
Six months after Alabama trounced Georgia 35-0, The Saturday Evening Post reported Burnett's account as “The Story of a College Football Fix”—and Butts sued the magazine for libel.
“Fumbled Call” by David E. Sumner, a retired journalism professor at Ball State University in Indiana, examines the scandal and the libel trial that led to a splintered 1967 U.S. Supreme Court decision. Although the ruling was a loss for the magazine publisher, the case's significance was that it has been interpreted to hold that “public figures” such as football coaches must prove actual malice to prevail in libel cases. That is an expansion of the court's 1964 New York Times v. Sullivan decision that placed that heavy burden of proof only on “public officials.”
Sumner works mostly from transcripts and documents, which I initially thought gave the book a ponderous, academic feel. But one afternoon I was so engrossed in it on a MARTA train, I forgot to get off at my home station, so Sumner must be doing something right.
Burnett's predicament upon hearing the call—and taking contemporaneous notes—is particularly compelling. As Sumner writes, shortly after Burnett confided what he heard, “it took on a life of its own. This former war hero and shy insurance salesman was about to become trapped between the forces of big-time college football, big-time coaches, and big-time lawyers.”
Indeed, the lead lawyer for Butts was William Schroder of Troutman, Sams, Schroder & Lockerman, a predecessor to today's Troutman Sanders. (Co-founder Carl Sanders was governor of Georgia during the scandal; he ordered the state attorney general to investigate the Butts-Bryant call.)
Wellborn Cody of what was then Kilpatrick, Cody, Rogers, McClatchey & Regenstein—now Kilpatrick Stockton & Townsend—represented Curtis Publishing Co., the magazine owner.
Sumner takes us into the Forsyth Street courtroom of U.S. District Judge Lewis Morgan (who amazingly neglected to disclose that he attended the Alabama-Georgia contest that some claimed was fraudulent.)
There we see Schroder and Cody battle the case with varying degrees of skill and success. Despite Burnett's damning testimony backing the magazine article, Cody doesn't know football like Schroder, who gains ground with star witnesses like Bryant and Butts. The coaches make statements that conflict with earlier reports about their interactions, but, as Sumner reports, they dazzle the jurors with arcane football talk during discussions about whether any information gleaned from Butts would have made a difference in the game.
Cody also suffers from the actions and omissions of his clients at The Saturday Evening Post. No one from the magazine came to Atlanta to testify, and their defense statements in affidavits and depositions paled in comparison to Schroder's live gridiron heroes.
Worse, Sumner notes, the article was rushed to print, without typical fact-checking. Although Burnett's testimony more than suggested something was very wrong, the situation didn't match a “fix” trumpeted in the headline in which gamblers stood to profit from the inside information.
Certainly by today's standards, the Post committed two glaring no-nos: The magazine paid Burnett $5,000 for his story—and didn't disclose that fact to readers—and the magazine did not appear to ask Butts, Bryant or anyone else to comment on Burnett's claims. I was surprised that Sumner, a journalism professor, didn't take more note of these flaws.
As much as Sumner succeeds in bringing the scandal and the trial to life, he gives only three pages of analysis to the high court's handling of the case. I know the challenge of reporting a multiopinion, plurality decision of an appellate court, and I credit Sumner for boiling it down to a few pages. But, given the subtitle to the book is, “The Bear Bryant-Wally Butts Football Scandal That Split the Supreme Court and Changed American Libel Law,” I expected more.
Fortunately, there is a place to get more of this tale. There is video of the 2016 Georgia Bar Media & Judiciary Conference, which held a panel discussion on the case. I was on the planning committee of the event, which was moderated by former Atlanta Journal-Constitution managing editor Hank Klibanoff and featured Sumner and Emmet Bondurant of Bondurant Mixson & Elmore, who assisted Wellborn Cody on the matter.
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