Silence is a Choice: Why the Eagles Might Remain Quiet Regarding DeSean Jackson

Rob Carr

[Ed. Note: Promoted from the FanPosts. Great perspective here from Dylan.]

Day 9, post-Jaccpocalypse. With not a peep from NovaCare, survivors become restless. Those remaining grasp at straws, rely on anonymous reports, and link the Eagles to a smear campaign that ran their favorite diminutive wide receiver out of town. "He is a saint!" six people loudly proclaimed.

Disclaimer: I am a lawyer. I am not your lawyer. I am not Bleeding Green Nation’s ("BGN’s") lawyer. The following is not legal advice, nor is it a definitive statement of events. The following represents my opinion, personally deduced and informed only by my studies and experience. The following is not BGN’s opinion or my employer’s opinion. In other words, it is my own, no one else’s, and it should be considered only speculative, not definitive. I will answer questions, but only if those questions are framed within the confines of the foregoing.

The Eagles’ silence is deafening. While cliché, it is no less true with the "Jaccpocalypse." But why? Why remain silent? Why not hold a press conference?

From a legal perspective, there is quite a lot to consider. After published its article discussing DeSean and his friends, several individuals cited sources claiming that the Eagles were scared of what they "did not know." Allegedly, this fear contributed to his release, as the Eagles could not possibly trade a player with the specter of the unknown hanging over their heads. Yet, the fans—no, the survivors—did not buy this excuse behind DeSean’s release in lieu of a trade.

Should they?

Absolutely. The NFL is an incestuous organization, run by ownership that may or may not collude to maintain an overwhelmingly profitable status quo. If the Eagles traded DeSean for a pick to a team without disclosing its fears or speculative belief, some could view the Eagles as "misrepresenting" the traded asset (DeSean). Misrepresentation, like other concepts related to "fraud," is a rather flexible concept linked to "reasonableness." Even if the Eagles did not know about DeSean’s gang ties (or whatever else is applicable), an argument exists that the Eagles probably should have known. As such, other GMs and owners could have a hard time trusting the Eagles in future dealings, as they misrepresented or omitted key facts in negotiations and dealings.

However, the Eagles did not trade DeSean, they released him; so again, why no statement? Well, as we can see from the 9 days or so since his release, some members of the public have linked the Eagles to a "smear campaign," allegedly calculated to cover their tails and provide public justification for the release over a popular player in his prime. This allegation represents the very reason why the Eagles remain silent.

Remember DeSean’s statement post-release? Remember how "he" misspelled Andy Reid? While funny, I find it hard to believe that DeSean had little more than fleeting personal input into that statement. No, a DeSean representative, either an agent or a lawyer, crafted that statement. That statement included a clear shot across the bow: there will be no further discussion, formal or informal, of DeSean’s alleged gang affiliations.

Even if DeSean hangs out with such persons when they are on "good behavior."

Here are some illustrative quotes:

. . . I would like to address the misleading and unfounded reports that my release has anything to do with any affiliation that has been speculated surrounding the company I keep off of the field.

I am not a gang member and to speculate and assume that I am involved in such activity off the field is reckless and irresponsible.

It is unfortunate that I now have to defend myself and my intentions. These reports are irresponsible and just not true.

The emphasized language is purposeful, no doubt being included at a lawyer’s firm insistence. Focus on the word "reckless." DeSean is unquestionably a public figure, and thus, in an action for defamation, he would have to clear difficult evidentiary hurdles that you, me, or other "private" figures do not. As established by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (and its progeny), a public figure must prove "actual malice" to establish a claim for defamation. This standard establishes a very high threshold, one that DeSean (or his representatives) attempted to superficially meet with "his" statement. Actual malice has two components. First, the publisher of the defamatory statement knew of the statement’s falsehood. Second, if the publisher did not know of the statement’s falsehood, the publisher acted with reckless disregard of the statement’s truth or falsity. This is exactly what DeSean’s statement was calculated to achieve: an inference of falsity and of reckless disregard.

However, application of the actual malice standard only occurs if a potentially defamatory statement exists. Here, what statements in the article, if any, are potentially actionable? Well, as it turns out, probably none of them. The article never said DeSean was a crip; it merely established his off-the-field relationship with gang members. Those facts and statements are true, and that truth is further supported by Stephen A. Smith’s bewildering inability to correctly question DeSean on the topic last night. DeSean never said he did not hang out with these gents, but rather, he hung out with them only when they were not doing "negative things." That, in and of itself, helps support the article, as truth is the ultimate defense to defamation.

Nonetheless, the truly pertinent issue for the Eagles is the swirling public opinion that they leaked or otherwise helped this article come to fruition., to its credit, has denied this. But still, the public narrative is such that "the Eagles needed to cover themselves and thus, the article was born." Unfortunately, while I cannot confirm the existence of extra-terrestrial biological entities, I can confirm that I have yet to see the Eagles release or otherwise publish a statement that affirmatively links DeSean to gangs, through affiliations or otherwise. Without a clear, false statement, a defamation case against the Eagles should be dead on arrival. Case closed.

Still, the risk of facing potential legal action or grievance procedures is evident. For some, legal work and the accompanying process is a cost/benefit or risk/reward analysis. Is the risk of losing an action, or the cost of legal fee accrual, less than the benefit of bringing of an action, defending an action, and/or the potential rewards resulting from a victory?

For the Eagles, we can only speculate about their risk/benefit analysis. At all times during this process, the Eagles have maintained a superior information advantage over the public and, presumably, other NFL teams. If further negative history exists between DeSean and the Eagles, DeSean and others, etc., the Eagles probably have that information while others do not. If the Eagles relied on that information to support their decision, then releasing such information presents a risk: even if true (and thus, not defamatory), is it worth it to go through a process defending a potential challenge? What about public or league-wide reputation? However, what if the Eagles’ information is not true; what if the Eagles have information based purely on speculation? Perhaps they cut DeSean in order to eliminate a "future" threat based on inferences gleaned speculative information? Again, is it worth it to defend a grievance or lawsuit? Just to satiate fans?

Probably not.

Since the season ended against the Saints, Chip has largely maintained complete radio silence. He famously puts in 16-hour days, working on football and only football. Mr. Mark Saltveit wrote a tremendous book about Chip, "The Tao of Chip Kelly." In it is an anecdote about efficiency—"feed the tuna mayonnaise"—from an unfortunately forgotten Michael Keaton film, "Night Shift." The thrust of this anecdote is such: what is the most efficient way to accomplish your end goal? Some folks like tuna fish salad, which is comprised of canned tuna, mayonnaise, spices, and vegetable odds and ends. Putting the mayo directly into the can is one way to achieve greater efficiency in tuna fish salad preparation. But what about feeding live tuna mayonnaise, so the tuna fish salad is ready to go upon slaughtering? Is that not the ultimate "efficiency" for tuna fish salad aficionados? While this anecdote represents an impossible situation, Chip’s mentality is exceptionally informative: he wastes no time and/or no resources.

(But hey, we knew that already—"no huddle, no mercy!")

Ultimately, it appears from my perspective that Chip, Howie, and Lurie all deemed further discussion of DeSean, his potential gang affiliations, and the disclosure of any/all reasons contributing to DeSean’s release to not be in the "best interests of the team." To them, perhaps further discussion is simply not worth the risk, the cost, and other unknown future consequences. Perhaps it will be at some point. But considering the brass essentially eulogized Jason Avant, I would not hold my breath.

The Eagles' silence may not please the fans—or the beat writers—but it is a safe way to operate. Ultimately, this situation gives Eagles fans another opportunity to understand how Chip operates; that is, with deafening silence and ruthless efficiency. I, for one, appreciate that warlike mentality. Let us hope it pays off.

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