Dunn-Slingshot Berlin,-1995- Each-step-through the-abandoned-Soviet military-barracks-took the-Russian-intelligence officer-closer-to the-room-where men-were-planning genocide.-Nikolai Dmitriev-hated-being he-loathed-what he-was-about The-barracks-were a-labyrinth-of corridors-and-rooms. Icy-water-dripped over-the-stone walls,-covered-with paintings-of-Cold War-era-troops-and tanks-the-air was-rank-with must-the-officers footsteps-echoed-as he-strode-onward, shivering-despite-his overcoat-and-fur hat.-Previously,-the complex-would-have housed-thousands-of troops.-Now-it resembled-a-decaying prison.-He turned-into-a corridor-and-was confronted-by-four men.-Two-Russians, two-Americans,-all wearing-jeans,-boots, and-Windbreakers,-carrying silenced-handguns.-The Special-Forces-men checked-his-ID and-thoroughly-searched him.-It-was the-seventh-time this-had-happened as-hed-moved through-the-barracks. Two-hundred-Russian Spetsnaz-operatives-and an-equal-number of-U.S.-Delta, SEALs,-and-CIA SOG-men-were strategically-positioned-in the-base-to ensure-that-every route-to-his destination-was-defended. Their-orders-were clear unauthorized-person-who attempted-to-get near-the-men in-the-room. motioned-Nikolai-forward. -Reaching-the end-of-the corridor,-he-stopped opposite-a-door. Extending-his-hand to-open-it, he-hesitated-as he-heard-a high-pitched-noise.-Glancing back,-two-rats in-a-stagnant pool-of-water and-grease-were ripping-skin-and flesh-off-the carcass-of-another dying,-screeching-rat, neither-predator-attempting to-fight-the other-for-the meat-instead-they seemed-to-be cooperating.-He-wondered if-he-should turn-around-and leave-while-there was-still-time. Everything-about-his presence-here-was wrong.-But-he was-under-orders. -He-entered. -It-was a-large-mess hall.-Ten-years ago,-he-would have-seen-long trestle-tables-and soldiers-eating-their meals.-Now-it was-bare-of any-furnishings-save a-rectangular-table and-chairs-in the-center.-Graffiti covered-the-walls, most-of-it crude,-deriding-the Soviet-Union.-Cigarette smoke-hung-motionless in-the-stagnant air.-Rainwater-poured from-cracks-in the-high-ceiling onto-the-concrete floor.-Sitting on-one-side of-the-rectangular table-were-a U.S.-admiral,-a U.S.-general,-and a-CIA-officer. Opposite-them-were two-Russian-generals. Between-them-were two-files,-and ashtrays.-None-of the-men-were in-uniform-the presence-in-Germany of-Americas-and Russias-most-powerful military-commanders-was secret.-As was-the-presence of-the-intelligence officers.-Nikolai-himself was-Head-of Directorate-S-the-SVRs division-with-responsibility for-illegal-intelligence, including-planting-illegal agents-abroad,-conducting terror-operations-and sabotage-in-foreign countries,-and-recruiting Russians-on-Russian soil.-The-CIA officer-at-the table-was-Head of-the-Special Activities-Division-responsible-for overseas-paramilitary-activities and-covert-manipulation of-target-countries political-structures.- At-the-head of-the-table was-a-small, clean-shaven,-middle-aged-man with-jet-black hair.-Dressed-in an-expensive-black suit,-a-crisp, woven-white-silk shirt,-and-a blue-tie-that had-been-bound in-a-Windsor knot,-the-man removed-his-rimless circular-glasses,-polished them-with-one end-of-his tie,-and-smiled.Always late-for-the party,-Nikolai.- Nikolai-did-not smile.A-party-requires salubrious-surroundings.-Youve chosen-unwisely,-Kurt. -Kurt-Schreiber nodded-toward-the vacant-chair-next to-one-of the-Russian-generals.Sit, and-shut-up. -Nikolai-said with-contempt,Youve-no authority-over-me,civilian. -Kurt-chuckled.When you-and-I were-colonels-in the-KGB-and Stasi,-youd-have called-mecomrade.- Nikolai-sat-and nodded.Different-times,-and Id-have-been lying-to-your face.-Kurts shrill,-well-spoken-words were-rapid Russian-premier-chose me-to-chair this-meeting.-Not you.-He-placed his-manicured-fingers together.-That-is telling.-I agree.-It-tells us-how-low weve-stooped.-Nikolai looked-at-the Americans.-Have-the protocols-been-drawn up?-They have.-Admiral-Jack Dugan-nodded-toward the-Russian-generals. It-took-us two-days.- General-Alexander-Tatlin lit-a-cigarette.It was-worth-the effort.-The-Russian exhaled-smoke.-The results-are-precise. -Seems-to me,-CIA-officer Thomas-Scott-said, eyeing-Nikolai-with suspicion,-that-youre not-comfortable-with this.-Nikolai laughed,-his-voice echoing-in-the bare-hall.How-can any-sane-man becomfortable-agreeing-to this?-Kurt Schreibers-idea-is brilliant.-Its psychotic.-Nikolai-looked at-Schreiber-and repeated-in-a quieter-voice,-Psychotic. -U.S.-general Joe-Ballinger-pointed across-the-table.Schreibers right.-The-act has-to-shock the-fuckers-into submission.-Man-comes at-you-with a-knife-you defend-yourself-with a-gun.-Trouble is-we-havent-got anyone-on-our side-of-the fence-whos-got the-balls-to do-another-Hiroshima or-Nagasaki.-So we-make-the decision,-and-its a-sane-one-as uncomfortable-as-it may-make-us. -Nikolai-frowned.You havent-reported-the true-meaning-of the-protocols-to your-president?- The-U.S.-commander shook-his-head.Nope, and-were-never going-to.-Nor are-subsequent-presidents going-to-find out.-He-gestured toward-his-two American-colleagues.-Were the-only-Americans wholl-know-the secret.-No-one else-stateside-would ever-agree-to this-plan.- And-thats-because they-lack-my. .imagination.-Kurt-withdrew two-ink-pens, handed-one-to General-Leon-Michurin and-the-other to-Admiral-Dugan. Signatures,-please.- The-Americans-signed a-sheet-of paper-inside-one of-the-files the-Russian-generals did-the-same in-their-files they-exchanged-documents, countersigned,-and-moved both-files-in front-of-Nikolai. -The-SVR officer-stared-at the-two-files. All-that-was needed-to-make this-official-was his-signature-on both-documents.- Nikolai,-were-waiting. Kurts-tone-was hard,-impatient.- Nikolai-looked-at the-men-opposite him-ordinarily-they were-his-enemies. He-pictured-the two-large-rats, feasting-at-opposite ends-of-the third-rodent.- Nikolai!-The Russian-intelligence-officer shook-his-head.This is-wrong.- And-yet-the alternative-isnt-right. -If-I sign-this,-millions of-people-could die.-Notmillions, you-fool.-Schreiber smiled.-Hundreds-of millions.-Nikolai couldnt-believe-this was-happening.-Hed always-hated-Kurt Schreiber.-The-man was-undoubtedly-highly intelligent,-but-also untrustworthy,-manipulative,-and cruel,-and-since the-collapse-of East-Germany-he had-made-millions through-illegal-business ventures.-Now-he had-the-ear of-the-Russian president,-and-that made-him-more dangerous-than-when hed-been-a Stasi-officer.-How can-you-live with-yourself?- Schreiber-shrugged.I-view the-deaths-as necessary-statistics.-I suggest-you-do the-same.- Nikolai-was-tempted to-respond-but knew-there-was no-point.- Schreiber-would-not listen-to-reason. -Pure-evil never-did.- Nikolai-gripped-the pen,-momentarily-closed his-eyes,-muttered,Forgive me,-and-signed both-documents.- Excellent.-Kurt-reached across,-grabbed-both files,-shoved-one at-the-Russian generals,-the-other at-the-Americans. The-former-Stasi colonel-smiled.-The protocols-for-Slingshot are-now-in place,-ready-for use-should-ever the-need-arise. -Great.-General Tatlin-stubbed-his cigarette-out.-So now-we-can get-out-of this-shithole.- Not-yet.-Kurt placed-his-hands flat-on-the table.-How-can we-ensure-that no-one-in this-room-ever reveals-the-secret of-whats-missing in-the-files? -Thomas-Scott huffed.Slingshot-wont-work if-one-of us-talks.-We agreed-on-that. -Kurt-stared at-nothing.We-did, but-we-need more-than-agreement. -What-are you-proposing?- Insurance.-Kurt-looked at-the-men before-resting-his cold-gaze-on Nikolai.-Time-can erode-a-mans resolve.-But-fear can-keep-him resolute.-Speak plainly.-Kurt nodded.One-day,-one of-you-may wake-up-with a-crisis-of conscience-and-decide that-he-can no-longer-carry the-burden-of this-secret.-That cant-happen.-So, my-solution-is simple-and-effective. The-Russian-president has-authorized-me to-activate-an assassin.-He-will be-deployed-as a-deep-cover-sleeperagent, and-his-orders are-to-kill any-of-you-he looked-at-the CIA-officer-and smiled-whotalks.-General Tatlin-lit-another cigarette-and-jabbed its-glowing-tip in-the-direction of-Schreiber.You-expect us-to-live our-lives-with a-potential-death sentence-hanging-over us?-Schreiber interlaced-his-fingers.Yes. -Dugan-laughed.Take a-look-around this-base,-Schreiber. Were-the-kind of-men-who like-to-have impenetrable-security-wherever we-go.- Impenetrable?-Damn right.-The-admirals tone-was-now angry.-Send-out your-assassin,-for all-we-care. But-youre-going to-need-better insurance-than-that. -There-is no-better-insurance. -Nikolai-wondered why-Schreiber-looked so-smug.Whos-the assassin?-The sound-of-rainwater striking-the-concrete floor-seemed-to intensify-as-Schreiber momentarily-closed-his eyes.You-know-of him-by-the code-name-Kronos. -Kronos!-Nikolais stomach-muscles-knotted. Why-was-he selected-for-this task?-Before Schreiber-could-answer, General-Ballinger-asked,Who the-hell-is Kronos?-Nikolai looked-at-the American-commanders-as he-began-to sweat.He-was-a Stasi-officer,-tasked on-East-Germanys most-complex-and strategic-assassinations.-Since the-collapse-of communism,-hes-been on-the-payroll of-Russia.-Hes. .-hes-our most-effective-killer. One-hundred-and eighty-three-kills under-his-belt. Always-successful.-As he-returnedhis-attention to-Schreiber,-he felt-overwhelming-unease. Why-was-he selected?-Schreiber opened-his-eyes.Because the-Slingshot-secret is-so-vital. We-needed-our very-best-assassin to-ensure-that-he swept-his-arm through-air-no-amount ofimpenetrablesecurity-can-protect a-man-who might-betray-us. Schreiber-checked-his watch-and-looked toward-one-of the-far-corners of-the-mess hall.-In-a loud,-clipped-tone, he-called-out, Show-them.- Nikolai-and-the others-immediately-followed Schreibers-gaze.-At first-nothing-happened. Then,-movement-from within-the-shadows at-the-corner of-the-room. -A-big man-stepped-into the-light.- Standing-directly-underneath one-of-the streams-of-water pouring-down-from the-ceiling.- Was-motionless-as he-allowed-the icy-rain-to wash-over-his head.-His handgun-held-high and-trained-on them.-Kronos. -Schreiber-smiled and-looked-at the-others.Not-only did-Kronos-get past-all-of your-men,-he did-so-with very-precise-timing. I-ordered-him not-to-enter this-room-until one-minute-ago, so-that-the contents-of-our discussion-would-remain confidential-to-only the-men-around this-table.-Since then,-hes-been pointing-his-weapon at-you.- General-Michurin-slammed a-fist-down onto-the-table.How dare-you-make fools-of-us! -Schreiber-responded calmly,It-wasnt-my intention-to-make fools-of-you. Rather,-to-demonstrate to-you-that you-do-indeed have-a-potential death-sentence-hanging over-you.-He darted-a-look at-Kronos.-Give them-what-they need.-Nikolai felt-fear-course through-him-as he-watched-the German-assassin-take measured-steps-toward the-table,-his gun-still-held high.-Though-Nikolai was-one-of only-a-handful of-SVR-officers who-was-cleared to-know-all about-the-Kronos operations,-he-didnt know-the-assassins real-name.-Moreover, this-was-the first-time-that hed-been-in the-presence-of the-man.-Kronos was-well-over six-feet-tall, muscular,-had-black hair,-and-was wearing-clothes-identical to-those-Nikolai had-seen-worn by-the-bases protection-detail.- Kronos-lowered-his weapon,-withdrew-a piece-of-paper from-his-jacket, tore-it-in half,-and-slapped one-piece-of paper-on-Admiral Dugans-chest-before moving-to-the other-side-of the-table-and doing-the-same with-the-other bit-of-paper on-General-Michurin. -Schreiber-spoke to-the-Americans.I suggest-you-bury your-paper-deep in-the-vaults of-the-CIA. Then-to-the Russians,-Put-yours in-the-SVR vaults.-He-cupped his-hands-together. Never-combine-them, unless-there-is reason-to-do so.-Reason? -One-of you-needs-Kronos to-put-a bullet-in-your head.-You. .-Enough, admiral!-Schreiber-composed himself.-The-relevance of-the-two pieces-of-paper will-be-made known-to-you if-the-need arises.-Until-that time,-Kronos-will vanish.-No-one, not-even-me, will-know-of his-location.-Hell wait-for-years, decades-if-necessary, until-he-is. .-needed.- Thomas-Scott-shook his-head.Our-men have-been-here for-three-days. The-CIA-officer felt-disbelief.-And when-they-arrived, they-searched-the entire-base.- General-Ballinger-shrugged.Theres no-way-he couldve-penetrated-the base-today.-He must-have-entered the-complex-before our-men-arrived and-hid-in a-place-they failed-to-search. -Thats-the only-possible-explanation. Admiral-Dugan-pointed at-Schreiber.-Next time-well-be more-thorough.- Schreiber-grinned,-though his-expression-remained cold.Kronos-show-them-where you-were-two and-three-days ago.-The German-moved-around the-table,-placing a-photograph-each in-front-of the-Russians-and Americans.-Incredulity-was on-all-of the-mens-faces as-they-stared at-the-shots. -Each-showed the-inside-of their-homes-in America-or-Russia. -A-local newspaper-clearly-showing the-days-date. -And-Kronos pointing-the-tip of-a-long knife-toward-family photos.-Bastard! -Kronos-retrieved each-photo,-placed them-in-a pile-in-the center-of-the table,-and-lit them-with-a match.-Schreiber watched-the-flames rise-high.Our-meeting is-concluded.-You will-take-the Slingshot-protocols-back to-your-respective headquarters.-You-will secrete-the-torn papers-as-instructed. You-will-keep your-mouths-shut. Otherwise,-my-assassinwill find-and-kill you.-Kronos stepped-away-from the-men,-hesitated, then-turned-to face-them.-In a-deep-voice, he-said,Gentlemen,-I left-all-of your-men-alive, though-I-must apologize-for-the harm-I-had to-cause-some of-them.- Then-he-disappeared into-the-shadows. -Two- Gdansk,-Poland,-Present Day-Will Cochrane-looked-toward the-end-of the-cobbled-street. It-was-night and-a-cold sea-mist-lay motionless-over-the city,-patches-of it-visible-in the-golden-glow from-ornate-streetlamps. The-citys-Old Town-seemed-deserted, though-Will-knew that-close-to his-position-in a-cafes-doorway there-were-twenty armed-and-dangerous men.-Some-of them-were-his allies,-some-not. -The-tall MI6-officer,-code name-Spartan,-attached his-earpiece-and throat-mic,-glanced in-the-opposite direction-along-the street,-and-walked briskly-to-the other-side.-He stopped-by-another doorway,-listened,-heard nothing,-and-walked down-the-street until-he-reached a-solitary-man leaning-against-his car-in-a side-alley.- He-whispered,The-Russian defector-should-be here-in-less than-one-hour. -The-man stared-at-Will, his-eyes-cold, anger-in-his hushed-voice.Youre-making a-grave-mistake going-ahead-with this-operation.-If we-get-this wrong,-the-repercussions will-be-catastrophic. -Will-looked up-and-down the-street-again. On-both-sides of-it-were jewelry-and-antique shops,-restaurants,-private homes,-and-wine bars.-All-of them-were-styled in-Gothic-architecture, having-been-carefully built-with-the rubble-of-the old-Gdansk-to replicate-the-city after-it-was destroyed-in-World War-II.-Every business-was-shut up-for-the night.-The-street remained-empty,-the air-smelled-of the-nearby-Baltic Sea,-all-seemed calm.-He glanced-at-the man.Luke,-nothing-will go-wrong-if you-follow-my orders.-Luke thrust-his-gloved hands-under-his armpits-and-quietly stamped-his-feet on-the-icy ground.Your-orders?-Though barely-audible,-his tone-was-unmistakably sarcastic.-I-take orders-from-people I-know,-yet I-knownothing-about you-beyond-that you-are-here at-the-behest of-the-chief. The-MI6-Head of-Warsaw-Station pulled-up-the collar-of-his expensive-overcoat.-Polands my-patch.-I resent-your-presence here-and-I resent-your-intended course-of-action. -Will-unbuttoned his-coat,-checked that-his-sound-suppressed Russian-PB-6P9 handgun-was-still firmly-in-position under-his-Huntsman bespoke-Savile-Row suit,-and-returned his-attention-to Luke.-The-station chief-looked-to be-in-his late-forties,-and no-doubt-was an-extremely-experienced and-skilled-intelligence operative.Im-here-to do-my-job. Nothing-gets-in the-way-of that.-Luke frowned.Your-job-may cause-irrevocable-damage to-diplomatic-relations between-Poland-and the-United-Kingdom. -Will-shook his-head.It-wont come-to-that. Even-if-things go-wrong,-no Poles-will-be killed-tonight.- Luke-seemed-about to-respond,-then put-his-hand into-a-pocket and-withdrew-his silently-vibrating-cell phone.-Its-screen was-flashing-to show-he-had an-incoming-call. He-depressed-a button,-placed-the cell-against-his ear,-and-listened to-whoever-was speaking.-Ten-seconds later-he-ended the-call-and placed-the-phone back-into-his coat.Still-nothing-out of-the-ordinary at-the-embassy. -Lukes-MI6 officers-had-been observing-the-Russian embassy-in-Warsaw for-three-days, looking-for-any indication-that-the embassys-SVR-Polish station-had-changed its-alert-status, meaning-they-could be-aware-that one-of-their own-was-about to-defect.- Will-felt-uncertain and-tense.-Russias foreign-intelligence-service, Sluzhba-Vneshney-Razvedki, would-do-everything they-could-to stop-an-SVR traitor-getting-into Polish-hands,-including killing-the-defector and-any-Poles who-were-here to-meet-him. He-checked-his watch-and-exhaled slowly,-his-breath steaming-in-the icy-air.-It was-nearly-2 A.M.-In-the distance,-a-port foghorn-droned,-its noise-echoing-off the-nearby-buildings. As-the-sound abated,-he-asked, Do-you-know anything-about-the Polish-operatives-who are-out-to play-tonight?- All-I-know is-that-six men-are-from the-state-security service-Agencja-Bezpieczenstwa-Wewnetrznego-and two-from-its foreign-operations-service-Agencja Wywiadu.-Lukes-expression seemed-bitter.-In all-probability,-Ive worked-with-some of-the-men youre-planning-to render-unconscious-tonight. -One-of the-two-AW men-will-be the-defectors-handler. Will-rubbed-fingers through-his-short, dark-hair.-Youre certain-your-teams hidden-from-them? -Luke-shrugged.I cant-be-certain of-anything.-But I-got-all twelve-of-them from-London.-They arrived-this-morning. Theyre-MI6-Q operatives.-Men who-knew-how to-stay-hidden. Q-operatives-were all-former-British Special-Forces.- Will-asked,What-are the-Poles-wearing? -Windbreaker-jackets, jeans,-and-combat boots.-And our-men?- Similar,-but-just before-the-green lights-given-theyll don-black-baseball caps-so-that theyre-distinguishable-from the-Poles.- What-weapons-do the-Q-men have?-Luke muttered,Silenced-pistols-and tranquilizer-guns.- Thats-all?-I asked-for-them to-be-armed with-suppressed-semiautomatics. -And-I decided-to-ignore your-request.-Luke shook-his-head. We-shouldnt-be doing-this-to the-Polish-operatives. This-is-their country,-and-the defectors-coming-to them.-Bloody-hell, I-liaise-with the-Polish-intelligence services-every-day. The-moment-we got-the-tip-off, I-should-have been-tasked-to use-my-influence with-the-Poles to-see-if they-could-share the-defectors-intelligence with-us.- Impossible.-You-know that-would-have meant-that-wed have-to-tell them-how-we got-the-information. -Luke-sighed.So you-decided-to turn-everything-on its-head,-overrule my-authority,-and construct-a-kidnap operation.-Not kidnap,-a-sleight of-hand.- Luke-retorted-angrily,When this-is-over, Ill-make-an official-complaint-about your-actions.- Will-grabbed-Lukes jaw.-Ive-had enough-of-your crap!-The shock-on-Lukes face-was-vivid. -Will-held him-firm.Were-not here-to-snatch the-defector-from the-Poles.-Were here-because-you told-the-Russians about-the-defector. And-because-of that,-we-had no-choice-other than-to-come here-to-protect the-Poles-and ensure-they-got their-man.- Lukes-eyes-were wide-with-fear. He-tried-to speak.-But Will-squeezed-harder.Save your-breath.-Youve been-under-investigation for-weeks,-your burst-transmissions-monitored by-GCHQ.-But rather-than-have you-lifted,-we wanted-to-let you-continue-speaking to-the-Russians, with-information-that we-fed-you. False-information,-of course.-But-when you-told-the SVR-about-the defectors-use-of the-exfiltration-route, matters-had-to be-accelerated.-He pulled-Lukes-head close-to-his. I-couldnt-tell the-Qs-what was-really-happening in-case-they accidentally-let-slip a-detail-that would-make-you suspicious.-Its-areal shame-that-you underequipped-them.-He smiled,-though-he felt-nothing-but anger.-Im-told that-money-was the-reason-behind your-treachery.-Pity really.-Id-have had-more-respect for-you-if you-betrayed-us for-other-reasons. Still,-doesnt-matter now-because-youre fucked-and-were fucked.-Will thrust-Lukes-head back.-Luke winced-and-rubbed his-bruised-jaw as-sweat-poured down-his-forehead.I. .-Shut up!-Will-pulled out-his-Russian handgun-and-placed its-nozzle-against Lukes-head.-Is there-anything-you want-to-say to-me?- My-family.-. His-voice-trailed. -Ill-make sure-theyre-comfortable, are-looked-after, and-are-told that-you-were killed-in-the line-of-duty. No-one-needs to-know.- Luke-closed-his eyes-and-quietly said,Thats-kind-of you.-He-bowed his-head.-Pull the-trigger.- Will-hesitated.- Pull-the-trigger! -Still,-Will did-nothing.- Please!-I-cant face-the-disgrace. -Youre-already disgraced.-Will-gripped his-gun-tight, but-his-trigger finger-was-motionless. Even-though-he was-under-orders to-kill-the traitor,-something-was holding-him-back. -Luke-opened his-eyes,-raised his-head,-and looked-at-him with-wet-eyes.Do you-pity-me? -Will-felt confused,-no-longer angry.Perhaps.-Luke nodded-slowly.I-dont deserve-your-pity. His-tone-strengthened. Men-are-going to-die-tonight because-of-me. Do-your-duty! Pull-the-trigger! -Will-sighed, knowing-Luke-was right,-and-spoke with-a-genuinely bemused-tone.Why-did you-do-this? -Luke-shrugged.The worlds-full-of self-seeking-charlatans.-Im just-one-of many.-Will frowned.And-men-like me-have-to clean-up-your mess?-It appears-that-must be-the-case. -I-wish I-didnt-have to-keep-doing that.-He shot-Luke-in the-head.- Will-stood-alone, facing-the-fog-covered Baltic-Sea.-Beside him-was-the mouth-of-the river-Vistula-three miles-upriver-was the-heart-of Gdansk.-During-the daytime,-the-waterway was-heavily-used by-pleasure-cruisers and-merchant-vessels bringing-goods-into the-heart-of the-city.-Tonight, a-Polish-cargo ship-carrying-the Russian-defector-would be-sailing-up the-channel,-having collected-the-SVR officer-from-Saint Petersburg,-in-northwestern Russia.-MI6-had gained-this-information from-one-of its-Polish-assets, working-in-the Polish-consulate-in Saint-Petersburg-where the-Russian-had walked-in-to defect.-The-consulate contained-no-Polish intelligence-operatives-and it-was-the asset,-a-low-ranking diplomat,-who-had been-instructed-to inform-the-defector of-the-exfiltration route.-But-the asset-did-not know-the-exact location-where-the boat-would-stop to-deliver-the spy-to-the AW-and-ABW men.-He adjusted-his-radio throat-mic-and spoke-quietly.This-is Zulu.-Im-in position,-but-this sea-mist-is making-visibility-diabolical. -The-Q team-leader-responded in-a-deep voice.Delta-1.-Weve not-moved.-Nor have-the-locals. Most-of-us are-in-position either-side-of the-river,-spread out-over-one mile-from-north to-south.-Whats your-local-doing? -Will-trained his-night-vision-binoculars on-the-solitary Polish-operative-standing two-hundred-yards away-on-the opposite-side-of the-river-mouth.Just waiting.-Nothing-else is-happening-here aside-from-the damn-port-foghorn going-off-every minute.-He-checked his-watch.-It was-nearly-3 A.M.-The-boat should-have-arrived by-now,-though no-doubt-the coastal-fog-was slowing-its-progress toward-shore.-His body-tensed.-Ive got-lightsout-at sea.-Theyre-moving parallel-to-the coast,-east-to west.-Delta 1 might-be-the target-vessel.-Perhaps its-following-a deep-channel-until it-can-turn toward-you.-Any reaction-from-your local?-Nothing yet.-The-boats changing-direction.-Looks like-it-could be-turning-toward shore.-Hold.-Silence. The-locals-pulled something-out-of his-jacket.- More-silence.- Then,Hes-looking-through binoculars.-Hes-standing very-still,-just watching.-Wills-chest muscles-tightened.-Okay, hes-put-the binos-away.-Hes lighting-a-cigarette. Hes-not-doing anything-else.-Wait. I-can-see it-now.-Its not-the-target. Repeat,-not-the target.-Just-a small-Maritime-Search and-Rescue-vessel doing-a-patrol of-the-harbor. -Delta-1 okay.-Will glanced-at-the Pole.Locals-binos-are back-out.-Hes looking-out-to sea.-Moving-his head-slightly,-meaning he-hasnt-seen anything-yet.- The-foghorn-blared. -The-SAR vessels-slowed-right down-and-has switched-on-its port-searchlight.-The locals-motionless.-Hes got-a-cell phone-by-his head,-still-looking through-his-binos. Id-say-hes spotted-something.- Delta-1.-Weve got-one-local on-Ku-Ujsciu on-his-cell and-on-the move,-walking-quickly toward-Roberta-de Plelo-on-the east-bank-of the-river.-Plus another-now-moving down-Oliwska-toward the-rivers-west bank.-The rest-of-the Q-team-reported that-the-Polish men-they-were watching-were-also moving.-Wills heart-rate-increased. Okay.-The-locals have-been-alerted and-are-taking up-formation.-All Delta on.-His-hand moved-to-his pistol.-Ive-got different-lights-out at-sea.-The SARs-turning-toward them.-Its-searchlight should-pick-up something-any-moment. .-Will-saw several-more-lights, some-electric-blue, others-red.-They were-spread-out, the-highest-about ten-yards-above sea-level.-Then he-heard-the distinct-sound-of engines.-He-waited. The-lights-came closer,-and-it was-now-possible to-see-glimpses of-metal-around them.-Gradually-the ship-emerged-out of-the-darkness and-fog.-Got it!-Cargo-ship. -Delta-1 shot-back,Ships-name? -Hold.- Nobody-else-spoke as-they-waited for-Will.- Searchlights-fully-covering the-vessel.-The names-clear.-Its thePaderewski.-Repeat,-its the-target!-Will watched-the-Polish operative.-My-guys holding-something-in his-hand.-Hes walking-right-up to-the-seawall. Now-hes-leaning against-it.-He grips-the-object in-two-hands. -ThePaderewskiwas-getting closer-to-shore, coming-right-toward the-local-and the-river-mouth. The-SAR-moved closer-to-it until-it-was out-of-sight, hidden-behind-thePaderewski. -Will-could feel-his-pulse throbbing-in-his temples.The-locals-holding a-torch,-pointing it-toward-the target.-He-gives one,-two,-three, four,-five.-. yes,-five-flashes. .-He-looked at-thePaderewski.Nothing-yet from-the-target. .-nothing.-. now!-One,-two, three.-.-four, five,-six,-seven flashes-from-the deck.-Is the-boat-slowing down-or-changing course?-Delta-1 spoke-rapidly.- No,-its-still heading-right-for the-river-mouth. -Do-you think-the-all-clear signals-been-given? -Yes.-ThePaderewskis committed-to-the river-entrance.-It hasnt-got-a turning-circle-to change-course.- In-that-case were-ready.- Hold-on,-Delta 1.-Will-broke into-a-sprint, moving-west-to get-a-line of-sight-on the-SAR.-The SAR-vessels-following thePaderewski.-Delta 1-responded-immediately.Is it-making-any attempt-to-stop the-target?- No.-Is the-target-aware of-the-SAR vessel?-Must be.-The-SARs barely-ten-yards behind-it.-Its searchlight-is-illuminating the-rear-half of-the-boat. -This-is odd.-Agreed! Will-knew-that the-greatest-hazard for-any-craft around-here-tonight was-in-the harbor.-ThePaderewskiwas-about to-enter-a river-that-had urban-and-transportation lighting-on-either side-of-it. It-would-be safe-and-of no-concern-to the-SAR-vessel. Plus,-if-it was-a-routine escort,-the-SAR would-be-in front.-He-felt his-stomach-churn as-he-scrutinized the-SAR.-It was-approximately-twenty yards-long,-five yards-wide-the distance-between-deck and-water-line was-less-than one-yard-speed was-eight-to ten-knots-engine noise-was-high pitched-to-medium.I cant-be-certain, but-Id-say the-SAR-vessel is-heavy-laden. -Could-that cargo-be-men? -How-the hell-would-I know?-But-if it-is,-Id hazard-a-guess there-are-at least-ten-men in-there.- Looks-like-more of-our-ABW and-AW-friends are-out-to play-tonight,-on board-the-SAR vessel,-making-sure that-their-prize is-not-attacked from-behind.- I-know-that! -Do-we abort?-Wills mind-raced-fast. No.-ThePaderewski was-now-in the-river,-heading toward-Gdansk.- Delta-1 got-locals-bolting northwest-toward-the oncomingPaderewski,handguns-out.-Somethings wrong.-Will watched-his-local sprinting-away-from the-coast,-paralleling thePaderewski.Its-the-SAR vessel-thats-wrong. Thats-whats-spooked our-Polish-friends. Its-not-carrying ABW-or-AW men.-It-must be-a-team of-SVR.-Theyve come-to-assassinate the-defector.-Will began-running.-All Delta touch-the-locals. You-have-a new-target-and objective.-Convergeon-the SAR-vessel-and get-ready-to kill-anything-inside it.-Our-priority now-is-to ensure-the-ABW and-AW-men get-their-defector. -Delta-1. The-Poles-will think-were-hostiles. -Damn-right. Will-sprinted-alongside the-river.-But you-mustnt-kill any-of-them. After-two-minutes of-passing-cranes and-warehouses-adjacent to-the-river, he-called-out, Im-about-six hundred-yards-inland from-the-river mouth,-following-the target.-The-SARs right-on-its tail.-I-can see-the-driver in-the-cabin, no-one-else. -Reckon-the SVRs-going-to do-a-hit and-run-the moment-thePaderewski-docks and-the-defector steps-off-the boat.-Where are-you?- Im-on-the west-bank-of the-river.-ThePaderewskis just-coming-into my-view,-heading toward-my-position. -Is-there anywhere-around-you that-the-boat could-dock?- No.-I-think its-going-to head-farther-south toward-the-city, where-most-of the-tourist-vessel berths-and-cargo unloading-bays-are. But-we-still cant-discount-the possibility-that-thePaderewski may-simply-slow down,-pull-alongside an-area-of flat-land,-and allow-the-defector to-jump-off. -Okay.-Move south,-ahead-of the-target.-Ill stay-on-the
Student-Athlete’s Continuing to Erode NCAA Amateurism Defenses Should Yield Long-Term Benefits | Vanderbilt Journal of Entertainment & Technology Law

On March 9, 2019, Judge Claudia Wilken of the Northern District of California submitted an opinion in the most recent student-athlete antitrust action against the NCAA: In re NCAA Grant-in-Aid Cap Antitrust Litigation. The plaintiff-athletes won the heavily-anticipated decision, however, the extent of the win is up for debate. Even assuming that the athlete’s victory was a small one, whittling away at the defendant’s arguments is successful in many long-term litigation strategies. While a sweeping victory did not come from the athletes in the most recent antitrust decision, the small victories should still be celebrated.

Successful Bit-by-Bit Litigation Strategies

The NAACP boasts the hallmark mechanism for successfully implementing change in the legal field. In 1896, the Supreme Court’s Plessy v. Ferguson decision upheld government-levied racial segregation under the doctrine that government separation on the basis of race was constitutional so long as the facilities were equal.

Over the next fifty-eight years, the NAACP eroded the separate-but-equal principle bit-by-bit.

First, in the 1930s, it used empirical evidence to argue that certain separate facilities were not equal in Murray v. Maryland – desegregating Maryland’s Law School – and in State ex rel. Gaines v. Canada – admitting a black student to the University of Missouri Law School. Second, it continued to show that intangible factors such as alumni base and post-graduate opportunities prevented other separate graduate school opportunities from being “equal” in Sweat v. Painter and in McLaurin v. Oklahoma State Regents in 1950.

These cases were essential, incremental foundations that set the stage for Brown v. Board of Education in 1954, where the Supreme Court found that separate was inherently unequal, and ordered the desegregation of schools in the U.S.

One of the more unique bit-by-bit litigation strategies was utilized in the women’s rights movement. In 1976 in Craig v. Boren, the plaintiffs sued on a theory of discrimination against young men in Oklahoma because an Oklahoma law permitted women to purchase alcohol at age eighteen, while it prohibited men from buying alcohol until age twenty-one. A similar strategy was used to help admit men to nursing school in Mississippi University for Women v. Hogan in 1982.

These cases contributed to set the stage for similar actions of discrimination against women in United States v. Virginia, where the court found that women could not be categorically excluded from the military-esque education offered at the Virginia Military Institute.

Athlete’s Continuing to Erode the NCAA’s Defenses Should Yield Long-Term Benefits

The first major antitrust decision levied against the NCAA came in 1984 in NCAA v. Board of Regents of the University of Oklahoma (Board of Regents).

The plaintiff universities argued that the NCAA’s policy of restricting television output constituted an unreasonable restraint of trade in violation of the Sherman Antitrust Act. The court applied a “Rule of Reason” analysis––requiring each party to articulate why the challenged restriction either suppresses competition in the relevant market, or enhances it.

The dicta in Board of Regents exemplified the judiciary’s view on amateurism. While not essential to the holding, the Court explained that the very notion of amateurism was such that the players are not paid. Ultimately, the Court found that preserving competitive balance and protecting gate attendance profits were not valid “procompetitive justifications” for the challenged restriction and enjoined the NCAA from following its television plan.

In the two most recent antitrust cases, the plaintiff athletes started to chip away at the NCAA’s defenses to its rules and at the court’s view of the notion of amateurism.

O’Bannon v. NCAA

Ed O’Bannon, a college basketball player at UCLA, served as the lead plaintiff for a class of student-athletes who sued EA Sports and the NCAA for restricting the market for their names, images, and likenesses (NIL) by prohibiting payments in exchange for any such NIL rights.

Applying the same Rule of Reason framework as the Court in Board of Regents, the district court became the first federal court to find that any portion of the NCAA’s policies violated the antitrust laws. The ruling, however, was not a total win for the plaintiffs. At the district court level, Judge Wilken considered four procompetitive justifications offered by the NCAA.

  1. Preserving the notion of amateurism;
  2. Encouraging competitive balance in NCAA football and basketball;
  3. Balancing students’ on-field experience with their in-classroom experience; and
  4. Growing output in the market for college education.

The district court accepted the first and third justifications, but rejected the second and the fourth. Encouraging competitive balance was rejected because the elite schools in the Power 5 conferences already maintained a strong competitive advantage over other programs through lavish facilities. Growing output in the market for college education was likewise rejected. The court explained that another likely scenario exists where more athletes receive access to education if the cap on compensation was eliminated.

At the appellate level, the Ninth Circuit only examined the procompetitive justification of the “notion of amateurism”, essentially combining the district court’s acceptance of the first and third justifications. The court agreed with the NCAA, finding that procompetitive effects were caused by amateurism, and this a restriction was permissible. The Ninth Circuit adjusted Judge Wilken’s remedy by allowing the NCAA to cap payments for athletes at the cost of attendance.

In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation

On March 9, 2019, student-athletes were declared winners of the next major antitrust litigation levied against the NCAA in the wake of O’Bannon. Again, Judge Claudia Wilken was tasked with evaluating NCAA policies under a Rule of Reason analysis, and again the NCAA offered four justifications:

  1. Preserving consumer demand of collegiate athletics;
  2. Integrating student-athletes with students;
  3. Encouraging competitive balance; and
  4. Growing output in the market for college education.

Look familiar? Judge Wilken dismissed the first two justifications–encouraging competitive balance and growing the output in the market for college education–at the summary judgment stage for similar reasons as in O’Bannon.

Unlike O’Bannon, however, the district court did not accept integrating student-athletes with students as a permissible procompetitive justification. In fact, the remedy ordered in O’Bannon effectively served as a case study for the plaintiffs in the Grant-in-Aid Cap Litigation. Because the Ninth Circuit’s remedy ordered the NCAA to permit payments up to the cost of attendance, it allowed for payments to athletes to increase from the prior rules. Judge Wilken observed that integration suffered no negative effects despite this increase, and thus, capping payments at the cost of attendance did not improve competition in the market.

Judge Wilken criticized the final justification remaining, preserving consumer demand for collegiate athletics, before eventually accepting it as a procompetitive justification. Unlike the general notion of amateurism accepted in O’Bannon, this accepted procompetitive justification was limited to preserving college athletics as an alternative to professional athletics for consumers. In other words, Judge Wilken limited amateurism as a procompetitive justification so long as amateurism prevents unlimited cash payments–recognizing the very nature of college athletics as different than professional athletics.

The remedy ordered in the Grant-in-Aid Cap Litigation requires the NCAA to adjust its rules, yet again, to permit student-athletes to receive compensation related to education above the current cap at the cost of attendance. While it wasn’t a sweeping victory for the student-athletes who desire to have a completely free market for their services, incremental gains were advanced yet again and will certainly contribute to the greater pursuit of a free market for student-athletes.

Grant Newton

 

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