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September 20, 2018

STAY TUNED: Fair Play (with Sally Jenkins)


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Sally Jenkins writes about sports for the Washington Post. She talks with Preet about Serena Williams’s controversial U.S. Open final, the surprising history of the NFL, and the value of fairness on and off the field.

Plus, Preet’s take on Brett Kavanaugh’s future.

Do you have a question for Preet? Tweet them to @PreetBharara with the hashtag #askpreet, email [email protected], or call 669-247-7338 and leave a voicemail.



Preet Bharara: Sally Jenkins, thank you so much for being on the show.

Sally Jenkins: Thanks for having me.

Preet Bharara: So, this is a little bit different. You’re the first sort of person from the world of sports, a sportswriter, to be on the show. But I want to mention to the audience that you and I have met before. And the first time that we met was in my office when I was US Attorney, and you were the one asking the questions. But it was in March of 2015, and you wrote in the Washington Post, you know, a fairly thorough, I thought, pretty fair profile of me as a US Attorney. And you wrote the following. And so, I think your prose is excellent. Very good mastery of the language.

So, you describe me like this: “The most powerful prosecutor in the country, the US Attorney for the Southern District of New York occupies a foursquare chamber flooded with relentless government ceiling light, which makes his charcoal suit all the darker, and his white shirt, so stiff it could pour itself a glass of water, all the water.” Okay. So, how the hell does a shirt pour itself a glass of water? [Laughter] Could you explain the metaphor? Because I’ve been trying to understand. Like, I get it. It sounds cool.

Sally Jenkins: Well, it just—I felt like your shirt—

Preet Bharara: But that doesn’t make any sense.

Sally Jenkins: I felt like your shirt could have stood up on its own and walked across the room.

Preet Bharara: So, why don’t you tell the audience, how stiff is my shirt today?

Sally Jenkins: You’re very relaxed. The minute I walked in, I told you. I said, “You’ve lost ten years—

Preet Bharara: Yeah, black t-shirt.

Sally Jenkins: —since you stopped being a prosecutor.” Very rock’n’roll.

Preet Bharara: Right. Well, let’s rock’n’roll then. So, the other thing that I wanted to mention that I want to blame you for is, you know, we became friendly after meeting, and I had some thoughts about writing a book. And you’ve written a number of books, and you encouraged me to do it. And so, I did. So, I want to say I’ll never forgive you.

Sally Jenkins: [Laughs] That’s right, because writing is breaking rocks with a shovel, really. It’s difficult. So, first of all, congratulations, and—

Preet Bharara: Well, it’s not—you know, it’s not published yet. [Laughs]

Sally Jenkins: I know.

Preet Bharara: And I’m not done editing it.

Sally Jenkins: But as I told you when we first brought this up, I’ll read that book. I mean, that’s why I wanted you to do it.

Preet Bharara: Oh, I hope so. I’m counting on it. And if all the guests of the show read the book, that’s like 40 books I get to sell. [Laughter] It’s pretty good, right? It’s more than zero. And you write about a lot of things, not just sports. Is sports inherently easier to interest people in because the nature of it is interesting?

Sally Jenkins: I think so. It’s a highly emotional, you know, volatile subject for people, as the Serena Williams match demonstrated. I mean, that’s probably one of the best-read things I’ve ever written at any level, book or magazine or newspaper. A couple million people read that piece, just—

Preet Bharara: In real time, so.

Sally Jenkins: In real time, yeah. So, yeah, it’s easier to immediately engage people on something they’re already feeling pretty hot about. The engine’s already running pretty hot in the first place.

Preet Bharara: And why was a sports columnist assigned to write a profile of the US Attorney?

Sally Jenkins: Because it was my idea, first of all.

Preet Bharara: It was?

Sally Jenkins: It was. You know, I write a lot of things outside of sports. I’ve written political profiles over the years for the Washington Post.

Preet Bharara: So, it wasn’t because of my perceived tremendous athleticism?

Sally Jenkins: It was because of your perceived—

Preet Bharara: Because I thought that’s what it was.

Sally Jenkins: I mean, I live in New York, for one thing, even though I work for the Washington Post, so you were, at the time, and remain a very intriguing figure.

Preet Bharara: Oh, nice with the ‘remain.’ [Laughter] I saw that. You edited yourself in real time. You were—

Sally Jenkins: And still are an intriguing figure.

Preet Bharara: It was a very definitive past tense usage. I saw it. [Laughter] And then you added the parenthetical.

Sally Jenkins: I did.

Preet Bharara: Look, right? Look, I don’t care. It’s fine.

Sally Jenkins: Very adroitly, I might add.

Preet Bharara: It’s fine. But I want you to know that I totally caught it.

Sally Jenkins: Very nimbly.

Preet Bharara: Yes.

Sally Jenkins: It was an athletic move.

Preet Bharara: No, no, no. All right. And once again maybe in the future, I’ll be interesting. But today, you’re the interesting one. And so, let’s talk about that match. So, it was the US Open. It was the final. And it was Serena Williams, who’s won many times in many different venues. And she’s playing the relatively unknown Naomi Osaka. And before we get to what happened in the match, I want to talk about the writing of this piece that you put together. What made you write that piece so immediately and so quickly? Were you hot about it?

Sally Jenkins: Well, yeah.

Preet Bharara: Or you just thought it was interesting?

Sally Jenkins: First of all, I thought it was unique and unprecedented in my personal experience to see a Grand Slam final end the way that it did. So, that’s news. And I called the office immediately and said, you know, “I think I have to write, don’t you?” And they were like, “Well, we’d love it if you would.” So, I started typing. It took about 90 minutes, probably.

Preet Bharara: So, let’s set the stage. So, Serena Williams is in the file with Naomi Osaka. Serena Williams gets beaten pretty badly in the first set, right? She’s down 6-2, and now it’s the second set. And there are a series of calls made by the chair ump, Carlos Ramos, three in particular that resulted in a fairly harsh penalty against Serena. Tell us what those were.

Sally Jenkins: So, it begins when he calls her for coaching, which is a pretty ticky-tacky technical call to make. Coaching is a subject in tennis that has been debated for a long, long time. It’s something that is called disproportionately against women, actually. Men don’t get called for it nearly as much. There’s the—

Preet Bharara: And what’s the violation?

Sally Jenkins: So, the rules are fairly incoherent, actually. In women’s tennis, you can be coached at certain stages of the match but not at others. The rules are different in men’s tennis. In a Grand Slam final, the rule is basically, no coaching in a Grand Slam final. But it’s a scrambled egg policy, basically, to start with. Her coach did try to signal something from the box. She claims, first of all, that they don’t have preset signals, and therefore, even had she seen what he was doing, she would not have understood what he meant by it.

Preet Bharara: But it is technically true—

Sally Jenkins: Technically true, yeah.

Preet Bharara: —because he admitted it.

Sally Jenkins: Yes.

Preet Bharara: He said he was engaging in coaching.

Sally Jenkins: Correct. So, the first violation is coaching.

Preet Bharara: But what do you make about that? And part of the reason I’m asking this question is, you know, we spend a lot of time on the show, and I have in my life—

Sally Jenkins: Yeah.

Preet Bharara: —talking about what’s fair in the courtroom, what’s fair in politics, and whether rules should be followed, and what the discretion is of the person who’s gonna bring about the penalty. So, it’s a rule.

Sally Jenkins: It is a rule.

Preet Bharara: It was admitted that the rule was broken.

Sally Jenkins: Correct.

Preet Bharara: And we’ll get in a moment to whether or not it was selectively enforced.

Sally Jenkins: Correct.

Preet Bharara: But any unfairness in calling that infraction?

Sally Jenkins: So, discretion is the key word here. The chair umpire has a lot of latitude. He, for instance, could have warned her. He could have leaned down from the chair and said, “Hey, your guy’s trying to signal you. Tell him to knock it off.” Right? I mean, that’s one option that he had. He’s a known stickler. He called it.

Preet Bharara: I saw Alan Dershowitz on television talking about this. It was one of those rare occasions he wasn’t defending the legal strategy of Donald Trump. And he said—you know, it kind of sat with me a little bit—that the unfairness of the calling of coaching was similar in the law if you imposed a penalty on a client for an infraction by the lawyer.

Sally Jenkins: Correct.

Preet Bharara: And it was the coach who was engaging in the bad conduct. And harm should not have been visited on the player. Do you agree with that?

Sally Jenkins: I do agree with that. And Billie Jean King said that very thing. Part of the problem with the way the rule is written is that the player absorbs the penalty for something that the coach is doing. Serena Williams, in the middle of a Grand Slam final, has no control over the people in her box, right? And so—

Preet Bharara: Right. So, the first thing happens.

Sally Jenkins: Yes.

Preet Bharara: Okay. Then the second thing happens. What’s that?

Sally Jenkins: So, the second thing happens, and he has to call this. She breaks her racket. Cut and dried. No real discretion there, although, you know, some—chair umpires have an enormous amount of latitude. There are some chair umpires who might have issued a warning rather than what they call a code conduct violation. So, she breaks her racket. That’s two strikes, essentially. What we’re working up to is a third strike.

Preet Bharara: Right. And the significance of the third strike is?

Sally Jenkins: The significance of the third strike is that it’s a mandatory deduction of a full game. So, when she breaks her racket, it’s the second violation. He deducts a point. Because he’s already called her for coaching, it’s a second strike against her, and therefore, it deducts a point. And so, now she’s had a point taken from her in a critical game in a critical stage of the match. Now, Serena Williams has come back— she’s a notorious slow starter. She’s come back from a set down in more Grand Slam finals than we could probably count on four hands. This is part of what she does. She fuels herself competitively with a certain amount of competitive anger. And so, now what he’s done is he’s walked her up to the edge of a cliff. And it’s the third call that I have a problem with.

Preet Bharara: Although inarguably, Serena walked herself up a little bit, because she broke the racket.

Sally Jenkins: She certainly walked herself, yes.

Preet Bharara: And her coach did the thing, right?

Sally Jenkins: Correct. You know, I don’t condone her conduct across the board, and I don’t think anybody does, and I don’t think she defends her conduct across the board. It’s the third call that Carlos Ramos makes that is really where he had the most latitude and the most discretion, and he makes the strangest call of the match. And it happens to be the one call that in my mind, an umpire, or an official, or a sentencing judge, or a prosecutor really doesn’t make. This is what takes the entire match situation from a normal skirmish between athlete and chair umpire or athlete and referee and tips it over into the truly unprecedented, ugliest situation I’ve ever seen in a Grand Slam tournament, and I’ve covered a number of them.

Preet Bharara: Which is what? So, Serena Williams does what?

Sally Jenkins: Serena Williams is arguing with him. There’s no audible obscenity, which is a rule. There is no threat. Back in 2009, she threatens a lineswoman and says, “I should shove this ball down your throat.” I wrote in 2009, she should have been suspended for that.

Preet Bharara: So, you think that merely calling—because I think she called him a thief.

Sally Jenkins: Right. She said, “You stole a point from me.”

Preet Bharara: You stole a point, and I think called him a thief.

Sally Jenkins: Yeah. “You’re a thief. You stole a point from me.”

Preet Bharara: But there was no profanity?

Sally Jenkins: There’s no profanity. There’s no threat.

Preet Bharara: And there was no suggestion of having him swallow a piece of sports equipment.

Sally Jenkins: Exactly. She’s arguing in a fairly controlled, at least from my point of view, watching at home with the rest of the TV audience, where you could hear every word. The people in the arena couldn’t hear, actually, what was going down on the court. But at home watching on television, you actually could hear every word she was saying.

Preet Bharara: Right. And what’s your demeanor during this time? Because—and we’ll talk about this, because I think it’s interesting—

Sally Jenkins: Angry.

Preet Bharara: —whether there’s a double standard—

Sally Jenkins: Yeah. Angry.

Preet Bharara: —between men and women.

Sally Jenkins: Mm-hmm. Argumentative. Strident.

Preet Bharara: Would you use the word ‘emotional’?

Sally Jenkins: Certainly.

Preet Bharara: But you also, I think, used the word ‘controlled’,

Sally Jenkins: Controlled, yes.

Preet Bharara: And that makes a difference.

Sally Jenkins: Yes. I mean, she was very careful, for instance, not to use foul language and not to use threatening language. You know, she’d been in this situation before in 2009 when she was a younger player with a lot less self-command. She had behaved really brutally, in a brutally ugly fashion, and I think has worked pretty hard to get a grip on that sort of behavior on the court.

Preet Bharara: But again, technically, he was within his rights to call it.

Sally Jenkins: I don’t think he was within his right to call her—what he calls her for, he calls her for verbal abuse, which, first of all, is an incredibly vague term anyway, you know. I—

Preet Bharara: But it’s in the rule.

Sally Jenkins: It’s—there is a rule against verbal abuse.

Preet Bharara: Right. It seems to me there’s a lot of problems with these rules.

Sally Jenkins: Yeah. It’s—we’re talking about a pretty archaic rulebook anyway. Verbal abuse—I mean, I didn’t hear anything abusive in what she was saying. I mean, I just didn’t. To this—I don’t think—

Preet Bharara: But it’s supposed to be an objective standard of abuse? Like, if he felt abused. Part of what you wrote is that the chair ump decided to make it about himself.

Sally Jenkins: Yes.

Preet Bharara: And look, I’ve seen that in courtrooms too, where a defense lawyer is making an argument, and for some reason, the judge thinks—you know, many judges would not find it offensive. A particular is maybe sensitive about it, finds it offensive, and begins to rule against one side, which I think is unfair. But it is within the discretion of that judge. So, was it incumbent on the judge, in this case, the chair ump, to control himself; or, knowing the stakes and being the professional athlete, maybe the best in the sport that we’ve ever seen, up to her to control herself?

Sally Jenkins: I think nobody likes it when a judge of any sort inserts themself into a situation where things appear to be working themselves out. No member of the audience and no competitor wants the final score to be determined by the guy in the striped shirt, or the person in a blazer sitting in a chair ten feet above the action on the court or the floor.

Preet Bharara: Or like the Supreme Court with a presidential election. [Laughs]

Sally Jenkins: Or a judge in Paul Manafort’s trial, okay?

Preet Bharara: Right.

Sally Jenkins: People were a little uncomfortable with the way the Virginia judge kept inserting himself, right?

Preet Bharara: Right, right. That’s a great analogy, right?

Sally Jenkins: You know, so when you feel that someone is tilting the floor, particularly when a judge is tilting the floor—that chair umpire tilted the court, okay? So, it’s difficult now to know whether Naomi Osaka was going to beat Serena Williams in two straight sets and win the US Open championship, because this judge dropped a game and a point on her side of the court. This is one of the great philosophical debates in sports, you know? Do you call the foul in the final second of the NCAA championship game or the NBA final?

Preet Bharara: Yeah.

Sally Jenkins: Do you call holding on the last play of the Super Bowl, or interference? Do you let them play and potentially commit physical violations out there, or do you step in?

Preet Bharara: If it’s on the fence. In the case of a clear and serious violation in any sport or in the real world outside of sports, you call it. What you’re saying is, I think, there’s more of a debate about whether or not, in a close situation, do you become the deciding factor?

Sally Jenkins: Right. Do you become the deciding factor? And so, a lot of times, audiences get very frustrated, or sportswriters, or, you know, whomever particularly, competitors get very frustrated when a ref or a chair umpire calls something that could be called at any stage of the game. Again, you go back to common violations that early in the game are not decisive factors, but in the final 30 seconds, obviously create an unequal situation.

Preet Bharara: Right. Like Jim Comey sending the letter nine days before—

Sally Jenkins: [Laughs] Right. So, I mean, it’s all about—so this is—

Preet Bharara: We’re gonna exhaust, by the way, all the parallels between Serena Williams—

Sally Jenkins: And sentencing. Yeah.

Preet Bharara: —and everything else that’s going on in the world.

Sally Jenkins: So, here’s what it looked like to me. So, what happens when Carlos Ramos calls that third code conduct violation and slaps an entire game penalty on her, basically [?sics] the third strike on her—you know, says three strikes, you’re out, basically game, set, match, over, I’m taking the entire US Open away from you. So, what that looks like to me and a bunch of other people is, you know, you get pulled over for speeding and you wind up in handcuffs in a jail cell, okay?

Preet Bharara: Okay.

Sally Jenkins: It feels like an incredibly disproportionate sentence in comparison to the events.

Preet Bharara: But is it partly—but is it—so, just to push back a little bit and figure out what the principles are here, Serena was down. She’d lost the first set. And I know you say that she’s one of the greatest comeback players of all time. But she was only down a further game. In other words, is it—was the breaking point for her, she could have come back and won the entire match if it had remained 3-2, I think it was? Or because this one additional game was taken away from her, then it was game over? Or is it a combination of that and what this did to her mental state?

Sally Jenkins: So, I think it was the combination. I think it was the three code conduct violations in a row, which were incredibly disruptive, I think to both players and the audience. But also, again, it’s the stage of the match. It was a combina—it was the confluence of about three or four different factors—

Preet Bharara: Right.

Sally Jenkins: —that I think were so upsetting to the audience, to her, to Osaka.

Preet Bharara: Right. You mentioned the audience a few times.

Sally Jenkins: Mm-hmm.

Preet Bharara: And should an umpire in this situation step back a little bit and let the players play because it’s entertainment only, or does it need to be as principled and rule-oriented as any other thing we engage in?

Sally Jenkins: Well, I think that’s a great question, and I think the answer is the former. I think that understanding context, situational awareness is really critical for umpires and referees. And I think the really good ones in the game understand exactly who they are and where they are. And part of my issue with the way Carlos Ramos umpired that match was that he had no situational awareness, absolutely no sense of time and context. And, you know, really, there was a significant cost to both players, even though it is sport. You know, athletes are incredibly ephemeral creatures. They only get a few cracks at all-time greatness at US Open finals. So, there was a real sense that he had deprived both players of something quite important, even though it is just a tennis match. You know, there was $3.5 million at stake.

Preet Bharara: Yeah.

Sally Jenkins: [Laughs] So, there’s a certain amount of—you want a certain amount of justice there. And more importantly, you know, for Naomi Osaka, it was her debut as a Grand Slam champion, and it’s really kind of forever marred.

Preet Bharara: What level of blame do you put on Serena Williams?

Sally Jenkins: Oh, plenty. But again, you know, it’s the disproportion that is distressing in this situation.

Preet Bharara: Then what did you make of—so, then the game is awarded to Osaka and Serena gets—now she gets very upset. Describe what she did.

Sally Jenkins: She calls for the tournament supervisor, which she had every right to do. The tournament supervisor can overturn the decision of the chair umpire. In this case, they didn’t.

Preet Bharara: So, you think the chairman abused his authority.

Sally Jenkins: I think he overstepped, and I think he overreached, and I think he wasn’t going to be spoken to that way. And I think he let his emotions get the better of him. And, you know, look, your job in that situation is to warn her, which is what most chair umpires would have done. They would have said, careful, you’ve got two code conduct violations. Don’t make me give you a third one, because then I’ll have to take a game away from you.

Preet Bharara: Was it that he didn’t like being talked to in a certain way by a woman, by a black woman, and that he was being in some ways misogynist in his umpiring?

Sally Jenkins: You know, I don’t know about the misogyny, but I do think that the evidence is absolutely clear that male players behave that way all the time without those kinds of penalties. And I’ll give you an example. And I’ve seen ump team matches—

Preet Bharara: Yeah.

Sally Jenkins: —where male players broke rackets, swore. In one instance, probably the worst instance I ever covered, and I really like Andre Agassi, and he’s grown into just a wonderful man, and he outgrew this incident. But he was playing a match against Petr Korda at the US Open, and he “Eff you”-ed the empire, called him an SOB, and then spit at him on the changeover, and played on without penalty.

Preet Bharara: Right. No penalty.

Sally Jenkins: In fact, the chair ump tried to penalize him. Agassi called for the tournament supervisor. The tournament supervisor and overturned the chair umpire, and basically let Agassi play on in the match. He was the biggest star in the men’s game.

Preet Bharara: But you know what? “Everyone does it” is not an honorable defense.

Sally Jenkins: Certainly not.

Preet Bharara: And there’s a little bit of, you know, what people refer to as “what about”-ism. So, you’re caught—

Sally Jenkins: Which I loathe. I loathe “what about”-ism. Yeah.

Preet Bharara: Right. And isn’t this a little bit of that?

Sally Jenkins: No. Here’s why. Because if you look statistically at the number of times any player, male or female, has been penalized an entire game—

Preet Bharara: You mean that huge penalty—

Sally Jenkins: That huge penalty.

Preet Bharara: —that Serena Williams got.

Sally Jenkins: Yeah. Once in 3,500 matches. One other time in 3,500 matches. You can’t find—people have tried to analyze statistically whether women get penalized like this more than men. The fact is, nobody gets penalized the way she did. Nobody. So, you know, what that suggests to me is there was a clear bias on the part of this chair umpire. It was an unprecedented penalty.

Preet Bharara: Do you think this chair ump should continue to be in the game?

Sally Jenkins: You know, I do. I don’t think you’ve drove this guy out of the game.

Preet Bharara: You’re being pretty harsh.

Sally Jenkins: No, I’m saying I think he did—committed a real disservice, and I think he let his bias get the best of him on the court. Now, what sort of bias it is? It could have been purely personal. I happen to think it was bias towards women behaving that way on the court, because he has presided over other matches where he didn’t penalize Rafael Nadal for a full game, and Rafael Nadal came after him verbally. Said, “You’ll never”—Rafael Nadal told him at the French Open, “You’ll never sit in the chair in another one of my matches,” which is almost verbatim one of the things Serena Williams said to him—

Preet Bharara: Right.

Sally Jenkins: —in the US Open final.

Preet Bharara: So, then the match ends, and it’s chaos, and everyone’s upset. So, then they come out for the ceremony. Why don’t you describe the scene?

Sally Jenkins: Well, essentially, you’ve got both players distraught and in tears. The crowd is livid.

Preet Bharara: Right. The loser and the winner.

Sally Jenkins: The loser and the winner are both crying. The crowd is booing. The boos are raining down on the court. And—

Preet Bharara: Right. And Osaka is waiting for her chance to speak, because first, Serena speaks. And Naomi has her visor—

Sally Jenkins: Right.

Preet Bharara: —which she pushes down, and she’s wiping tears away, even though she has just—

Sally Jenkins: Won the Open.

Preet Bharara: —done the most extraordinary thing of her entire life, of her entire career—maybe the most extraordinary thing she will ever do, and the moment’s ruined for her.

Sally Jenkins: The moment is ruined for her because of the intensity, the intensity of the anger and the emotion in the arena from the crowd. You know, no one wanted to see it end that way. Look, that moment is so complex and so loaded, because Osaka is sick because she didn’t want to win a match that way. She didn’t want anything given to her. She wanted to beat Serena Williams in the US Open final. Serena Williams is sick at what’s been taken away from her, but I think also probably, I presume, fairly sickened that she’s helped ruin this moment for this great new young player. The crowd is sick for both players and furious at the chair umpire for having created the situation in the first place. I mean, tennis is a fairly undemonstrative—is a very hushed sport, so that level of noise and emotion was pretty extraordinary.

Preet Bharara: But then what happens?

Sally Jenkins: Well, and Serena Williams puts her arm around Naomi Osaka and leans over and says, “I’m very proud of you. They’re not booing you.” And then she also tells the crowd, “No more booing. This is her moment. You know, let’s make this the best moment we can for her.” And no official and no announcer was gonna get a grip on that crowd. Serena Williams at that moment is the only person who can do it, and she knows that, and I think took responsibility for herself in that moment and did exactly the right thing.

Preet Bharara: My last question to you on this match: What was the angry reaction to your article? The people who were upset with your view, what was their motive?

Sally Jenkins: Because it really—it hits a nerve, you know? I think the match itself hit a nerve. People respond in intensely emotional ways to sporting events. They’re trigger events, sports events, because people—when you root for somebody, part of what you’re rooting for is you want to be right, okay? You don’t want to be wrong about them. So, the stakes get a little high, rooting for sports figures or sports teams. There have been a million psychological studies that show that people take the successes and failures of sports teams or sports figures as very personal successes and failures. It’s about your judgment, right? But the second part of it is, you know, Serena Williams provokes real discussion. She has set out, actively sought the platform to provoke discussion about gender and race. And it makes people uncomfortable, it makes them defensive, and it makes them resentful sometimes.

Preet Bharara: Is it appropriate for her to do that?

Sally Jenkins: Sure.

Preet Bharara: Or is it up to each individual person?

Sally Jenkins: It’s up to each individual person. It’s not inappropriate. You know, Billie Jean King chose to do it. Arthur Ashe chose to do it. LeBron James has made a whole different range of social activist choices than Michael Jordan did. You know, some athletes do, and some athletes don’t. And it’s not incumbent—you know, I asked Billie Jean King that question once. I said, “Are athletes supposed to be activists? Do they have a responsibility?” And she said, “No, it’s a choice.” She said, “I wanted it. I wanted to be that. But I would never impose that on an athlete who didn’t feel comfortable with it,” so.

Preet Bharara: That’s a great segue to talk about football.

Sally Jenkins: Yes.

Preet Bharara: And kneeling during the anthem.

Sally Jenkins: Mm-hmm.

Preet Bharara: And Colin Kaepernick. And you’ve written about this. And a preliminary question, which you address, is why does it make people so crazy, the issue of somebody protesting in a particular way? And you have said, with respect, I think, to the Colin Kaepernick controversy, and his decision to protest not the anthem, not the flag, but police brutality and inequality in various sectors of the country. And you have said that in part, it’s because people view that as a denial—

Sally Jenkins: Of American exceptionalism.

Preet Bharara: —of American exceptionalism.

Sally Jenkins: Mm-hmm.

Preet Bharara: What does that mean?

Sally Jenkins: Well, it’s interesting, because the NFL on Sundays has become a form of civil religion. You can find a whole lot more people in this country at football games on Sunday than in church.

Preet Bharara: Right.

Sally Jenkins: And the NFL has quite actively sought to wrap themselves in the flag. And also, there’s a certain amount of wrapping themselves in a religious-liked fervor. And—

Preet Bharara: But is that based on adherence to religion, or is that about money?

Sally Jenkins: Well, it’s both. I mean, it’s not pure artifice. But they did set out to wrap themselves in the flag. During the 1960s, Pete Rozelle even said, you know, they basically were gonna turn themselves into, you know, this sort of patriotic institution in the middle of the Vietnam War. What was really pretty craven about the whole thing was that NFL owners were protecting their players and their financial investments in their players by helping them stay out of the draft. They were funneling them into National Guard units, local National Guard units. If you went to Green Bay, Wisconsin, and you’re a young man trying to get into your National Guard unit as opposed to getting shipped out to Vietnam, you couldn’t get in because it was full of Green Bay Packers.

Preet Bharara: [Laughs] Right.

Sally Jenkins: Same thing in Dallas.

Preet Bharara: Right.

Sally Jenkins: Okay? The Dallas Cowboys filled up all the National Guard units. So, in fact, it became a bit of a scandal. Life Magazine did an exposé on it. The NFL has had this coming for quite a long time.

Preet Bharara: Why—and why the NFL, as opposed to Major League Baseball or the NBA? Was it just a particular decision that could have been made by any sports?

Sally Jenkins: They’ve been more aggressive in marketing themselves that way. You know, football is a war without death game. Look, early—

Preet Bharara: Not always without death.

Sally Jenkins: Not always without death. In fact, particularly in the Victorian era. So—I mean, I’ve written an entire book about this subject called The Real All Americans. The birth of American football follows closely on the closing of the frontier and the end of the Indian Wars. I mean, basically, college football was essentially founded about six months after Little Bighorn. The frontier is closed, the Transcontinental Railroad is finished, and there’s really nothing else left to conquer. The wilderness is conquered, right? And there’s this fear in Victorian America that American men are becoming feminized and over-civilized. There was a fear, and we have it today, by the way. It governs a lot of how we look philosophically at sports. There is this neurosis, American neurosis, this fear that the human body is being outstripped by our technology. And when that happens, we get a little funny about our sports in this country.

Preet Bharara: So, this controversy about the kneeling during the anthem, what’s interesting about that in part is I feel like a lot of people assume that it’s always been  that way—that the players come on the field during the anthem. Players only started coming out on the field during the National Anthem in—

Sally Jenkins: 2009, I think it was.

Preet Bharara: 2009.

Sally Jenkins: Yeah.

Preet Bharara: So, not even ten years ago. So—

Sally Jenkins: So, there was a moment in the ‘60s where Pete Rozelle, I think for one of the Super Bowls, basically sent a memo that said, you know, I want everybody standing on the sidelines with their helmet under the arm, standing at attention. But that’s fairly brief. As soon as every game becomes televised, they didn’t want the audience watching the National Anthem before NFL games. They wanted them watching commercials.

Preet Bharara: Right.

Sally Jenkins: I mean, the anthem wasn’t even televised, particularly. It’s only when the NFL makes a deal with the Pentagon to start using the NFL as a marketing vehicle or the US military that you start getting this—the anthemizing of the NFL.

Preet Bharara: Do we do too much of that, at baseball games too?

Sally Jenkins: Sure. I asked Rocky Bleier—Rocky Bleier was a great Super Bowl champion for the Pittsburgh Steelers who had actually—he was the—one of the few NFL players who did not get out of the draft, the Vietnam draft. He ended up going to Vietnam as an infantryman, got shot and blown up, had shrapnel in his legs. Almost didn’t come back and play football. Worked his way back and wins a couple Super Bowls with the Pittsburgh Steelers. And I asked him—not too long ago, I was doing an interview with him—and I said, you know, “Why do you think people feel so strongly about this whole anthem thing in stadiums anyway?” And he said, “I don’t know. Guilt?” Right?

Preet Bharara: Right.

Sally Jenkins: If you talk to servicemen, and if you talk to football players who’ve served, those guys, like a Rocky Bleier, is a little uncomfortable with the fact that if you look in any football stadium on Sunday, maybe one percent of the people in that stadium have any relation to the armed services. Maybe. I mean, that’s what it is in this country today, right?

Preet Bharara: Yeah.

Sally Jenkins: The people who serve are—comprise about—they come from about one percent of our population, as opposed to Vietnam, when during the draft, I mean, it was significantly higher. American families had personal relationships to servicemen during the Vietnam era, and we don’t anymore. And that’s a fact. And so, that’s a weird neurosis to me. You know, what is this thing that we are doing as an audience that we are so captivated by this issue with the flag and service? If you look at NFL players—I’ve studied the NFL player population for their relationship—the League is loaded with guys whose parents served, who have brothers or sisters serving. Some of them married women who’ve served. I mean, they actually probably have a stronger relationship to the military personally—

Preet Bharara: Than the average person.

Sally Jenkins: Certainly than you or me.

Preet Bharara: Yeah, right.

Sally Jenkins: You know.

Preet Bharara: You use this other phrase to describe what’s going on and the pressure to behave in a certain way and not behave in a certain way as “enforced patriotism”. Is that what you think it is?

Sally Jenkins: Involuntary patriotism is not patriotism. It’s North Korea, you know? It’s that simple, right? Involuntary patriotism is—it’s a contradiction in terms.

Preet Bharara: And do you think it’s heightened because the president gets involved?

Sally Jenkins: Certainly. Of course. Look, presidents have gotten involved with football since Teddy Roosevelt.

Preet Bharara: Sure.

Sally Jenkins: You know, Woodrow Wilson. Woodrow Wilson’s wife at one point said, “It’s a good thing that, you know, Princeton won the football game, because I don’t think Woodrow could have taken, you know, losing a football game and an election.”

Preet Bharara: Right. [Laughter]

Sally Jenkins: Right.

Preet Bharara: But it’s interesting to me how much of this, like just beneath the surface, just beneath the surface, is about economics.

Sally Jenkins: Yes.

Preet Bharara: And about profit. And now we have the issue of Nike. So, this whole time, people thought Colin Kaepernick, you know, was sacrificing a lot, and I think he has. And then there was a controversy because Nike has this new ad campaign. And a lot of people began burning Nike shoes and saying they were gonna boycott. And then it turns out sales spiked by 31 percent.

Sally Jenkins: Yeah.

Preet Bharara: So, is this about business, or is this about patriotism?

Sally Jenkins: Well, they’re intertwined when it comes to—

Preet Bharara: That’s the American way.

Sally Jenkins: Yeah, that’s the American way. Exactly.

Preet Bharara: [Laughs] Right.

Sally Jenkins: Exactly. Yeah. But it’s funny because, you know, I’ve always thought that Colin Kaepernick’s message was incredibly muddled. You know, I applaud him for social activism. I applaud him for giving a lot of money to causes he believes in that—you know, part of this to me stemmed from an imprecision of language. The NFL players who are still wanting to kneel on the sidelines, they get infuriated when— they say it’s not about patriotism. It’s not about the anthem. And you’re like, well then, why are you doing it during the anthem? I mean, the problem here is—

Preet Bharara: Right. But he’s not protesting the flag. That’s what people get very upset about, when they hear the description of this as protesting the flag. How do you resolve that linguistic issue?

Sally Jenkins: To me, the players’ movement—again, which I applaud and which I defend. But as a language person, I think that they muddled the message initially. I knew what Tommy Smith and John Carlos wanted from the 1968 Olympics. I knew what Muhammad Ali wanted as a conscientious—

Preet Bharara: And when you refer to them, you’re talking about people who won medals.

Sally Jenkins: Raised black-gloved fists on the medal. Gave up their—actually ended up surrendering their medals. They had a very clear written agenda, a set of social justice issues that they had very clearly stated, had very clearly thought out. Muhammad Ali, again, had a very clear set of beliefs and an agenda. Billie Jean King always knew exactly what she was fighting for. I feel like Colin Kaepernick, I personally feel like he has lacked the sort of diamond cutter’s clarity that some of those other activists had in terms of reaching people.

Preet Bharara: Well, can that be fixed?

Sally Jenkins: Sure.

Preet Bharara: Or is it too late?

Sally Jenkins: I think it could be fixed.

Preet Bharara: The message can be fixed?

Sally Jenkins: Yeah. But, you know, when’s the last time you heard Colin Kaepernick talk?

Preet Bharara: Yeah, a long time.

Sally Jenkins: I mean, it’s been, what, a couple years?

Preet Bharara: Yeah. He might sound like Jared Kushner. I have no idea.

Sally Jenkins: That’s the thing. I haven’t heard Colin Kaepernick. I really haven’t. I haven’t heard—

Preet Bharara: Do you think Nike told him not to talk? That’s an interesting point. Like, why not?

Sally Jenkins: I’m not sure. I really don’t know. Because no one can reach—I mean, it’s not a criticism. It’s more expressing a certain curiosity about his method. There’s a murkiness here that is interesting to me.

Preet Bharara: So, how does this get defused or resolved? Or is it gonna be a continuing issue, so long as some people think there’s something that’s wrong in society and worth protesting? We’re gonna have these two camps that are very polarized into the future?

Sally Jenkins: Well, so Colin Kaepernick has a collusion case against the NFL, so we’ll have a legal resolution—

Preet Bharara: True.

Sally Jenkins: —to whether or not he was in fact blacklisted or blackballed from the League. That will be a critical outcome and turning point. You know, at some point, I do think that Kaepernick is gonna have to be something more than a cypher that people are projecting onto. He lacks the hard edges that other great athlete activists have had, to me.

Preet Bharara: Okay. I get that.

Sally Jenkins: Mm-hmm.

Preet Bharara: Do you think that football will exist in its current form, given documented cases of concussions and other deterioration of people physically after playing the game for a while? Do you think that football will exist in anything like its current form in 50 years?

Sally Jenkins: I do, because I think the American public has decided in 800 different ways that it wants it, whether it’s giving huge tax breaks to billionaire owners and devoting huge amounts of city budgets to their stadiums.

Preet Bharara: So, we’re not gonna get rid of it. You actually called it once.

Sally Jenkins: No. I actually think what’s gonna happen is they’re going to have to do—because I do think that injury, and particularly the concussion and neurological issue in football, is the black lung. They have a black lung problem.

Preet Bharara: Yeah.

Sally Jenkins: And so, I think what’s gonna happen is what happened to the coal industry in this country, where they’re gonna have to establish a fund, a large, ongoing fund. And the price of doing business as an NFL owner is going to be to contribute to the lifelong medical care of your employees.

Preet Bharara: But football will continue because—you put it—I could just quote you back to yourself over and over again. I think you once wrote, “Football has become the liturgy of empire.”

Sally Jenkins: Yes.

Preet Bharara: That sounds very grand.

Sally Jenkins: Well, it’s true. I don’t think those were my words. I think I was quoting a better writer.

Preet Bharara: Oh, yes. You were quoting someone. [Laughter] It sounds like you. You could have written that.

Sally Jenkins: It’s a great phrase. I mean, I’ve quoted it because I believe it. You know, look, football is about taking—it’s about moving other bodies out of the way to take territory, right?

Preet Bharara: Right. [Laughter] That’s very American too.

Sally Jenkins: It is.

Preet Bharara: What about boxing? Will boxing exist?

Sally Jenkins: I mean, boxing doesn’t exist, in some—boxing’s already been . . . It exists, but on a much smaller scale than it did when I was a kid. The NFL has a staying power. Again, I don’t think you can underestimate the degree to which politicians want it. The NFL commits all sorts of transgressions, and they get let off the hook in a lot of ways by law enforcement, by regulatory agencies, by city governments, by the federal government. It’s very interesting. We support that league in ways that we don’t support any other American business.

Preet Bharara: Yeah, that’s fair.

Sally Jenkins: And so, I do think it’s gonna stick around. But as I say, it’s a workplace hazard. It’s a hundred percent injury rate in that league.

Preet Bharara: Yeah. So, you had a professional relationship with another legendary athlete named Lance Armstrong.

Sally Jenkins: My friend Lance Armstrong.

Preet Bharara: Your friend Lance Armstrong. You wrote two books with him.

Sally Jenkins: Yes.

Preet Bharara: He didn’t write any of the words, right? You wrote them all?

Sally Jenkins: I wouldn’t say that. That’s not how that works.

Preet Bharara: [Laughs] All right. Like an 80/20?

Sally Jenkins: I wrote the good ones. [Laughs]

Preet Bharara: You wrote the good ones. Did he say that “[f]ootball has become the liturgy of empire”? I don’t think that was him.

Sally Jenkins: He did not say that, no.

Preet Bharara: Okay. And I don’t want to re-litigate his doping and everything else, but you know, you once wrote, after you came to understand and believe that he’d engaged in this conduct and had doped, to use the parlance—

Sally Jenkins: Which is a bad term, by the way.

Preet Bharara: It is, but I’m gonna use that term for now because I don’t want to get into a debate about what it—

Sally Jenkins: They use the word “dirty”, too.

Preet Bharara: About what it means.

Sally Jenkins: Dirty athletes, right?

Preet Bharara: But he did a thing that got him in trouble.

Sally Jenkins: Mm-hmm.

Preet Bharara: And then you wrote a piece saying, you know, you’re trying to find your anger towards Lance Armstrong, and you can’t find it.

Sally Jenkins: I’ve never found my indignation against Barry Bonds, or Marion Jones, or—I mean, I just don’t have it. I mean, if I’m amoral, then I’m amoral on that subject. But I don’t have it. I’ve never had it. Long before I met Lance, I didn’t have it against Marion Jones.

Preet Bharara: But is it because of the nature of that transgression or because, you know, you don’t put them on a pedestal, and you look at them for what they have done, either in fighting against cancer or in achieving something in sports that no one has ever achieved before? And so, if they have this other thing that they were doing, that doesn’t bother you so much?

Sally Jenkins: No. What doesn’t bother me about it is that I feel like we have as a society done a profoundly bad job of working through the philosophy of medicine, doping, performance enhancement. We have—again, as a language person, we’ve done an incredibly poor job of defining what performance enhancement is, why it’s wrong. There was a study in 2016 from some Dutch scientist who gave EPO to some cyclists riding up Mont Ventoux, which is a stage in the Tour de France. They took a bunch of highly trained cyclists, and they gave half of them EPO, and they gave half of them a placebo. And the riders on the EPO rode actually slower. We actually don’t know—there’s very—the science is shoddy.

Preet Bharara: An EPO? EPO is?

Sally Jenkins: EPO is erythropoietin, which is a medicine that they give cancer patients to help build their red blood cells back. Athletes have used it to build red blood cells in competition.

Preet Bharara: Right.

Sally Jenkins: You know, so, we—first of all, we’ve done a really poor job of defining these substances. And the easiest thing for everyone to do is demonize.

Preet Bharara: Well, but let me ask you this, and—because I come from, you know, a law and order background.

Sally Jenkins: Yeah.

Preet Bharara: And there are rules.

Sally Jenkins: Mm-hmm.

Preet Bharara: And with respect to some things, you can say, well, the rules are not clear, and there was no intentionality.

Sally Jenkins: Mm-hmm.

Preet Bharara: But are you saying—or maybe you’re not saying this—that with respect to all of the people you mentioned, like Barry Bonds, Lance Armstrong, Marion Jones—with respect to any of them, did they know there was a rule?

Sally Jenkins: Sure.

Preet Bharara: And did they knowingly violate the rule?

Sally Jenkins: Certainly. Of course.

Preet Bharara: So, why can’t we be upset with them for that?

Sally Jenkins: We can. Yeah.

Preet Bharara: Okay, but you are not.

Sally Jenkins: I think we can be upset with them. Upset with them to the level of making them pariahs of society—

Preet Bharara: Okay, so now we’re talking about—

Sally Jenkins: —taking away millions of dollars, and sicing the federal government on them?

Preet Bharara: So, now we’re talking about quality of punishment.

Sally Jenkins: Again, proportionality.

Preet Bharara: Right.

Sally Jenkins: What I’m saying is that I don’t have the heart to judge an athlete who has one skill and one skill only, is an incredibly ephemeral creature, and is using something to recover from an injury or to get back on the bike to ride up another Alp on another day in a three-week bike race through terrain that car transmissions have a hard time getting up. It’s just never made sense to me personally to sort of judge those people as, you know, the worst members of our society.

Preet Bharara: Right.

Sally Jenkins: I mean, it just doesn’t add up to me.

Preet Bharara: Well, you know, is part of the problem that we put these people on pedestals?

Sally Jenkins: Yes.

Preet Bharara: And so, we get incredibly disappointed.

Sally Jenkins: Yes.

Preet Bharara: We do it with politicians sometimes too. And we view them as heroes.

Sally Jenkins: We demand a purity from them that we do not demand from any other member of our art, of our science, of our—

Preet Bharara: Or the White House.

Sally Jenkins: Or the White House. But I’ll give you another example. Why is it that the founders of Snapchat can go to Stanford, make millions and millions of dollars exploring entrepreneurial opportunities, but NCAA basketball players, if they take a free pair of sneakers or a meal, they’re called criminals? Why is that? In the law, we spend a lot of time revising laws, understanding that our standards change from era to era in some ways. I am concerned with the degree to which we make athletes live in our epochs while we all move on. [Laughter]

Preet Bharara: Right.

Sally Jenkins: So, in other words, an NCAA player, the terms of his scholarship are exactly the same as they were in 1960. Meanwhile, NCAA revenue—TV revenue alone has gone from $550 million a year to a billion. It’s almost becoming an equal justice under the law situation in the NCAA because we’re really creating a separate class of citizens.

Preet Bharara: Last thing.

Sally Jenkins: Mm-hmm.

Preet Bharara: Because your career spans all sorts of amazing interviews, and I hope and presume that you’ll eventually get Kaepernick to talk to you. But you were, I believe, the last person, the last journalist, to interview Joe Paterno.

Sally Jenkins: Mm-hmm.

Preet Bharara: Who was the head coach, head football coach, at Penn State. And, you know, opinions vary about him and what he did or did not know.

Sally Jenkins: My opinions vary about him, you know?

Preet Bharara: Yeah. But I don’t want—you know, we don’t have time to go through that horrible series of events and the abuse that took place at Penn State. The question is, though, how did it feel to interview him when he was basically on his last breath? He was dying of cancer. He was not well. And just describe what that was like, given the complexity of that person.

Sally Jenkins: Well, it was profoundly difficult and heartrending, because, you know, he was surrounded by his family. He was also flanked by lawyers. It was in some ways awkward.

Preet Bharara: Why do you think he agreed to do it?

Sally Jenkins: Because I think he was fighting for his legacy, his posthumous legacy, and I think he felt that he had a chance with me to get some nuances and some subtleties across, which I think were legitimate explanations of his behavior. You know, I think he had some mixed motives, you know? I think he was justifying him—some things to himself, too. I mean, it was—part of it was calculated strategy, and part of it, I think, was he was talking to himself as much as to me.

Preet Bharara: Do you worry about that? Do you have to be worried about people who are trying to burnish their legacy and engage in—

Sally Jenkins: Sure. Yeah.

Preet Bharara: —self-aggrandizing publicity through you?

Sally Jenkins: Legendizing. Self-legendizing.

Preet Bharara: I tried to do that, and you did the whole starched shirt thing with me. [Laughter] So, I clearly sucked at that.

Sally Jenkins: Well, you know, my dad is a sportswriter, so I grew up at the knee—and he’s a great sportswriter.

Preet Bharara: Yes.

Sally Jenkins: And of a certain type. And he spent a lot of time bursting the pretensions of a lot of the people that he covered. Dan Jenkins was known as a really—as always been known as a very truthful sportswriter, who quoted athletes talking the way they really talk, saying the things they really say, and not writing children’s literature, which is what a lot of sports writing can devolve into if you’re not really careful. You know, fables, right?

Preet Bharara: Right. Right.

Sally Jenkins: And, um, I like talking—

Preet Bharara: People like fables.

Sally Jenkins: You know what? You know what I really love talking to athletes most is when they’re older and right on the cusp of retirement, because they want to be understood. Athletes who have spent years in basic silence, holding the media at bay, they hit like 38, 39, 40 years old, and they start wanting to kind of talk to somebody, and they want someone to understand the sacrifice or the inner drive that pushed them to do these extraordinary things. That’s when they’re at their most interesting. The easiest mark in the world for someone really a good interviewer is a great, legendary athlete turning 40. [Laughter]

Preet Bharara: Final question, then. Who is the athlete who is still playing today in any sport that you would like to interview when they’re at the cusp of retirement?

Sally Jenkins: What’s fun is to find someone who hasn’t been fully cracked open yet; someone who’s been very reserved for a long, long time, and then to try to get them to tell you a little bit about what they do.

Preet Bharara: Would Tiger Woods be interesting in the way you’ve described to interview if he was gonna be forthcoming on the cusp of retirement?

Sally Jenkins: Sure. Any time someone lifts the lid on the Ferrari, you know, you really want to stare down into the engine and say, okay, well, how did that work? You know, what really drove you? You know, Serena Williams, I’ve—Serena did an autobiography back in 2009. But she was just becoming a great player in 2009, and now she’s an important player. And as a—that’s a big difference. And so, I would be really interested in talking to her over the couple of years as she winds down.

Preet Bharara: Do you think every great player—this is an interesting distinction. Do you think every great player longs to be an important player?

Sally Jenkins: Yes. Absolutely. Some of them are more—

Preet Bharara: And what does that—what does that mean?

Sally Jenkins: So, some of them are more suited for it than others. Christ Evert was a great player. Became an important player in a very, very subtle way through the sheer unbroken grace of her conduct, and her sort of ethic on the court became translated into a larger ethic. I think people found her an incredibly ethical champion. I mean, she gave back a point once in a Grand Slam final when the chair umpire missed the call. She didn’t want it. She gave it back to the opponent. And she said, “No, the ball was out.” That sort of thing. Whereas Billie Jean King and Martina Navratilova were important—politically important, you know? Chris Evert wasn’t political, but she was important in other ways. So, they all—you know, but they all long for importance. They long to believe that what they’re doing matters and is meaningful for something more than ego.

Preet Bharara: They’re just like everyone else.

Sally Jenkins: Yes. And it is important, just sometimes not in the ways that they think.

Preet Bharara: On that note, I can say you have already achieved importance. [Laughter] So, you’re good. Not just greatness, but importance.

Sally Jenkins: Thank you. High praise.

Preet Bharara: Sally Jenkins, thanks for being on the show.

Sally Jenkins: Thank you.

[End of Audio]


STAY TUNED: Fair Play (with Sally Jenkins)