- The Washington Times
Sunday, March 27, 2011

As Dan Snyder’s libel suit against the Washington City Paper works its way through the legal process, it might run helmet-first into a similar case - indeed, a landmark one - involving two long-ago NFL players. How funny (and fitting) would that be?

Ever hear of the time, back in the ‘30s, when Bill Fleckenstein, the former Chicago Bears lineman, sued Benny Friedman, the erstwhile New York Giants quarterback? Probably not. But the lawyers representing the City Paper undoubtedly have. In fact, the precedent-setting decision in Fleckenstein v. Friedman might very well be their first line of defense against the Redskins’ owner.

A bit of background: Fleckenstein was one of the tougher customers in the early years of pro football, a guy who routinely tested the limits of legality. (And those limits were fairly broad; for instance, there was no such thing as roughing the passer.) Friedman, meanwhile, was the game’s first great quarterback - and is now enshrined in the Hall of Fame.

Near the end of his career in 1932, Friedman wrote an article in Collier’s magazine that cast Fleckenstein as a dirty player. When you crossed paths with the bully Bill, he said, “you quickly realized that his idea of play was loser take all - on the chin. The Cleveland Bulldogs [Benny’s first NFL team] were about unanimous after one meeting with Mr. Fleckenstein that he was a specialist at infighting during the scrimmages. As a committee of one I warned him about this before our next match. But Fleckenstein went on impartially pasting the boys when inspiration seized him. It just isn’t part of the code to call the attention of officials to a rough gent who’s discreet enough to slug under cover. We told Fleckenstein to his face. His reply was instant - sock upon sock.”

Fleckenstein, who by then was retired, took exception to this portrayal - as Snyder has to reporter Dave McKenna’s characterization of him in the City Paper - and asked for $12,500 in damages. Four years later, the trial finally got under way. It was well worth the wait. In one deposition, a former player recalled being down his stance, defenseless, when Fleckenstein “punched me in the face. … I was taken from the game. Blood was streaming down both nostrils in my nose; I was temporarily blinded. … It was Wednesday before my nose completely stopped bleeding.” (This, of course, was before facemasks became fashionable.)

Another ex-player testified that a run-in with Fleckenstein actually caused him to quit pro football. He was walking off the field after a game, he said, when Bill ran up to him and broke his nose with a well-placed fist.

The picture the witnesses painted of Fleckenstein was pretty incriminating. But his legal team argued that none of the testimony proved their client had punched anybody with “contempt” or when the officials weren’t looking, as the magazine article had suggested. The jury agreed with this reasoning and found Friedman guilty of libel - then awarded the plaintiff just six cents for the “harm” done to his reputation. Benny didn’t even have to pay Fleckenstein’s court costs.

The precedent established by Fleckenstein v. Friedman is that an alleged libel causes no damage as long as it has the ring of truth - that is, “if the published statement could have produced no worse an effect on the mind of a reader” than the actual facts of the matter (as one judge put it). Or to simplify it even further: The writer doesn’t have to be 100 percent right; he just has to be in the ballpark.

In the decades since, Fleckenstein v. Friedman has been frequently cited in libel cases - including Israeli Defense Minister Ariel Sharon’s 1984 suit against Time magazine and Penthouse magazine founder Bob Guccione’s 1986 suit against Hustler magazine. Why, it even came up again just last year when Home Box Office was sued for one of its “Real Sports” programs. (The show cast a harsh light on the use of child labor abroad to produce sporting goods.)

It’s something for Dan Snyder to think about as his case against the City Paper moves forward - with the speed of an Albert Haynesworth conditioning test. Does he really want to find himself double-teamed by Mr. Fleckenstein and Mr. Friedman? Is he willing to run the risk of getting stiffed by the jury? Remember: He plans to donate any winnings to charity. How would it look to hand somebody a big cardboard check with “6 cents” written on it?

• Dan Daly can be reached at ddaly@washingtontimes.com.

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