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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  October 17, 2007
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Topic category:  Other/General

Duke Case: Barry Saunders Defending Duke

It takes both sides to make a confidential settlement, of course. I abhor confidential settlements in cases in which society has an important interest in the truth becoming known I'm delighted that Coach Pressler is trying to rescind the one into which he entered and wish him a full and fair opportunity to bring forth the truth Duke wants to keep suppressed and to recover for the harm done to him.

Previously Barry Saunders, a staff writer for Durham's News & Observer, wrote an absurd (and anti-Catholic) piece suggesting the Duke Three be happy to take a fish sandwich, a YooHoo and a bus ticket out of town in compensation for what was done to them. (Many of the members of the Duke men's lacrosse team are Catholics, including all three who were wrongly indicted, so Barry's fish sandwich crack strikes me as his equivalent of the foolish "fine cotton shirt" remark made by one lacrosser after the unpleasantness began at that unfortunate spring break party.)

Coach Mike Pressler (another Catholic) filed a federal case against Duke University to have his confidential agreement with Duke rescinded, so Barry bashed him as a hustler in a piece titled "Pressler Calls the Tune."

Barry began: "One of the best - OK, most recognizable - songs from the 1970s was by a former porn queen turned disco diva named Andrea True. To the question 'How do you like your love?' she moaned incessantly, 'More, more, more.'"

Barry's idiotic idea: equating Coach Pressler with the moaning former porn star:

"Like many things from the once-disparaged disco era, the song is making a comeback, but now it's being sung by former Duke University lacrosse coach Mike Pressler. "Yo, Disco Mike: How much money do you think you can get from Duke this time?

"More, more, more."

Apparently there is an audience in the Durham area for such sliming and the North Carolina NAACP won't be demanding Barry be gagged like it demanded a gag order in the Duke case to protect the false accuser ex-convict stripper, Crystal Gail Mangum.

Barry went on to condemn Coach Pressler as "shameless": "The shameless Pressler has draped himself in a cloak of victimhood while peddling a one-sided tome about his firing and the incidents that led to it."

Interestingly, people who rushed to dress stripper Crystal in the victimhood mantle even though she was a victimizer and wistfully looked forward to her acquiring a fortune in a civil suit following the bogus prosecution have a big problem with Coach Pressler trying to set aside his confidential settlement with Duke.

Barry: "Duke inexplicably reached a confidential financial settlement with this cat in March, no doubt paying him to go away and perhaps choke on a hairball."

Those who find it inexplicable are woefully ignorant: Duke entered into confidential financial settlements with Coach Pressler and then some lacrosse players to avoid embarrassing discovery and trial. That should be obvious, Barry.

Premier Herman Melville scholar Professor Emeritus Hershel Parker: "Anyone who has read IT'S NOT ABOUT THE TRUTH and UNTIL PROVEN INNOCENT has to hope that Pressler pushes forward to and through the much-dreaded Discovery phase. Image the terror in Brodhead's office from the Discovery process in Pressler's suit and, almost simultaneously, from the Discovery process in the suit filed against Nifong, Durham, and certain members of the police department (where the interactions with Duke will demand investigation)."

It takes both sides to make a confidential settlement, of course. I abhor confidential settlements in cases in which society has an important interest in the truth becoming known I'm delighted that Coach Pressler is trying to rescind the one into which he entered and wish him a full and fair opportunity to bring forth the truth Duke wants to keep suppressed and to recover for the harm done to him.

Barry: "But just as happens when you feed any stray cat, Mr. Mike has come back for more."

Coach Pressler is a top lacrosse coach whose record speaks for itself. A three-time "ACC Coach of the Year," he is the 2005 recipient of the U.S. Intercollegiate Lacrosse Association's "F. Morris Touchstone Award" as the National Coach of the Year.

Yes, I do criticize Coach Pressler for slavishly doing the bidding of the self-interested Duke administration and telling his trusting young players not to talk to their parents and lawyers about what was happening when they should have been doing precisely that, but obviously he did so because he thought Duke would quickly and quietly resolve the situation without a bogus prosecution, not secretly cooperate with authorities unconcerned with the truth and sacrifice scholar-athletes on the altar of political correctness.

Barry: "The self-proclaimed shaper of men, who presided over the lacrosse team when some of its players caught underage drinking raps and when three of them were falsely accused of raping a woman, is trying to squeeze more moolah from the university because -- get this -- it hurt his wittle feelings."

Coach Pressler's complaint succinctly states his cause of action as follows:

1. On June 10, 2005, the defendant renewed the Coach Pressler's contract as the Duke Men's Lacrosse Coach, and the parties entered into a three-year employment contract, effective July 1, 2005.

2. In March 2006, Crystal Mangum, while substantially impaired and mentally unstable, false accused some members of the Duke Men's Lacrosse Team of assaulting and gang-raping her in a tiny, residential bathroom, despite the presence of other members of the team within the small home.

3. In a very public response to the media coverage, without any semblance of a fair hearing or any willingness to consider the truth, the defendant wrongfully fired Coach Pressler on April 5, 2006 and publicly and falsely suggested he bore responsibility for the alleged misconduct of members of the Duke Men's Lacrosse Team.

4. Upon information and belief, within one year preceding the filing of this Complaint, the defendant, acting through its agents, employees and representatives, made about Coach Pressler defamatory and disparaging statements.

5. The defendant's defamatory misconduct toward Coach Pressler following the wildly implausible, horribly false claims made against his players directly and proximately caused tremendous damage to the Coach Pressler's reputation and economic advantage.

6. On June 21, 2006, the parties entered into an agreement in which the defendant admitted that it had terminated Coach Pressler without cause and agreed to make this firing effective April 6, 2006.

7. In March 2007, the parties entered into an Agreement entitled "Confidential Agreement." Because of it's confidentially requirements, Coach Pressler has filed with this Complaint a motion to file the "Confidential Agreement" under seal.

8. At all relevant times, the defendant employed as its official spokesman, with a title of Senior Vice President for Public Affairs and Government Relations, John F. Burness (hereinafter "the defendant's official spokesman").

9. In the course and scope of his employment, the defendant's official spokesman made defamatory and disparaging statements against Coach Pressler that were published on April 9, 2007 in Newsday and later posted on a website, www.newsday.com.

10. The defendant's official spokesman falsely told Newsday that Coach Pressler was terminated because he had not adequately supervised his team. Specifically, the defendant's official spokesman claimed justification for the firing of Coach Pressler by stating. "One of the things we certainly have come to understand in this case is that the coaches in general in each of our sports are responsible for the behavior of their teams." The defendant's official spokesman further drew disparaging and defamatory contrasts between Coach Pressler and his recently hired replacement, saying that the difference between Coach Pressler and the new coach was "day an night," and quoting the defendant's President Richard Brodhead as remarking of this difference, "This guy's a mensch. This guy gets it."

11. The defendant's official spokesman's devastating and false assessments of the plaintiff were defamatory and dispraging, and breached an essential and dependent covenant of the Confidential Agreement.

12. On June 7, 2007, the defendant, again through its official spokesman, issued for national publication a statement to the Associated Press regarding the firing of Coach Pressler, claiming that "last spring it was essential for the team to have a change of leadership in order to move forward."

13. The defendant's devastating and false claim that Coach Pressler needed to be replaced in his capacity as the Duke Men's Lacrosse Coach was defamatory and disparaging, and it breached an essential and dependent covenant of the Confidential Agreement.

14. Upon information and belief, the defendant, acting through its official spokesman, agents, employees and representatives, has made about Coach Pressler additional defamatory and disparaging statements that breach an essential and dependent covenant of the Confidential Agreement.

15. The Defendant's repeated breaches of an essential and dependent covenant of the Confidential Agreement constitute a material breach of the Confidential Agreement.

Duke has Mr. Burness (and itself) to blame for putting Coach Pressler in position to rescind the Confidential Agreement and become free to speak and to pursue his settled claims if the settlement is set aside.

Barry: "Part of the agreement prevented both Duke and Pressler from revealing details of the settlement, but Pressler and his attorney apparently think it means the university can utter his name only with reverence."

That's NOT what Coach Pressler's complaint alleged, Barry.

Barry: "The lawsuit alleges that Duke spokesman John Burness violated the agreement when he made 'defamatory and disparaging statements against coach Pressler' in a Newsday article.

"Lawyer Jerome Trehy Jr. charged that Burness defamed and disparaged Pressler by stating, 'One of the things we certainly have come to understand ... is that the coaches in general in each of our sports are responsible for the behavior of their teams.'"

No, Barry. THAT statement is not defamtory. Barry's readers would be better off reading the complaint itself instead of Barry's mischaracterization.

Barry: "Burness also said the difference between Pressler and his successor was 'day and night.'"

He did, Barry.

Barry: "Trehy, who didn't return my call, called those and equally innocuous statements by Burness and Duke President Richard Brodhead 'devastating and false assessments' of Pressler."

More mischaracterization by Barry.

Question: why is it that when people reported FACTS about false accuser Crystal Gail Mangum, like her criminal record and employment, medical and marital history, the North Carolina NAACP demanded an unconstitutional gag order and you blithely dismiss Coach Pressler's former employer's defamatory statements about him, Barry?

Attacks on a person's professional character or standing ordinarily constitute "per se" defamation. That is, they are presumed to cause damage to the reputation of the person attacked.

The Confidential Agreement is still confidential, but it would not be surprising for it to include undertakings by each party not to disparage the other and some of the statements quoted in Coach Pressler's complaint hardly are "innocuous."

Mr. Burness's praise of Coach John Danowski was proven by subsequent events to be well deserved, as Coach Danowski held the team together under the most trying of circumstances and led them to the national college lacrosse finals.

BUT, that does not excuse the false statements to the effect that Coach Pressler was irresponsible and therefore unfit to serve as a lacrosse coach.

Barry:

"In the lawsuit, Trehy said Pressler has built a reputation 'as a dedicated, demanding disciplinarian for his players.'

"Yeah, the same way Britney Spears has built a reputation as a dedicated, demanding, disciplinarian for her kids."

Barry may get away with such sliming by asserting that Coach Pressler is a "public figure" and Barry is moronic instead of malicious, but I doubt the Confidentiality Agreement leaves Duke in position to invoke the "public figure" standard and, even if it does, actual malice may be provable.

Barry: "If Pressler wants to sue Duke for those indirect, mild assessments, I'd better withhold my true feelings about him -- lest he come after my assets, namely an autographed copy of 'Disco Duck' and an irreplaceable Z.Z. Hill album collection."

In wine, truth. In attempted humor, too. Snide Barry is "green"...with envy and trying to blacken Coach Pressler's reputation himself.

Barry: "To proceed with this lame lawsuit, he should also be required to return his initial settlement."

If the agreement is rescinded, Coach Pressler can sue for more than he received in settlement and he risks having to return what he received. Duke declared it will fight to preserve the confidential settlement.

Barry: "Far be it from me to try to protect the fiduciary interests of Duke. It has been said that when God needs a loan, he has Brodhead on speed-dial."

That's blasphemy.

Barry: "If Duke rolls over for this extortion effort, though, Pressler will eventually return, and before long, Duke may find itself calling on God -- and not just for a loan."

Accusing Coach Pressler and his attorney of the crime of extortion in print is libel, Barry.

GO, COACH, GO! And instead of settling confidentially again (and taking more Duke money paid to avoid the whole ugly truth from becoming known in discovery or at trial), let the truth prevail. (You can benefit, handsomely, if it does.)

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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