By Jeff Birren, Senior Writer
Some years ago, the NCAA made certain “findings” against former USC assistant football coach Todd McNair. Critics of the NCAA suggest this was driven by the NCAA’s desire to punish USC for transgressions by others, including a potential agent-turned-felon. The things that McNair actually did and the things that he actually said were of far lesser importance to the NCAA staff, according to the critics. They were willing to act on the suppositions of a felon as to what McNair must have known despite a lack of actual knowledge to that effect, they suggest. McNair, effectively driven from his chosen profession, sued the NCAA for a variety of torts, including defamation. These pages have previously discussed some of the remarkable pre-trial maneuverings in the case, and those items will not be repeated here in any detail. The prior articles are listed at the end.
On the eve of trial, Los Angeles Superior Court heard the NCAA’s motion for summary adjudication on two of McNair’s claims. The first part of the motion maintained that McNair could not sue the NCAA for breach of contract between the NCAA and USC because “there is no evidence” that the contract “was expressly intended to benefit McNair.” The second part of the motion claimed there was no material issues of fact concerning McNair’s claim for declaratory relief because the “one-year show-cause-penalty imposed upon McNair expired years ago” and thus would be a “retrospective, advisory opinion.”
The NCAA also filed a motion for a protective order, seeking to avoid the deposition of NCAA President Emmert. McNair, for his part, filed a motion to compel the deposition of the reluctant Emmert. The motions came before the Los Angeles Superior Court on March 22, 2018 and the Court’s ruling issued the following day, simply affirmed its tentative ruling. The NCAA lost everything.
The Court first looked at McNair’s potential status a third-party beneficiary of the NCAA-USC agreement. The Court noted that third-party beneficiary status need not be express, but may exist “as long as such an intent is apparent through the ordinary means of contract interpretation,” (McNair v. NCAA, Summary Adjudication Ruling, Los Angeles Superior Court Case No. BC462891, (March 23, 2018) at 1.)
The NCAA “has submitted to this court whether Plaintiff is a third party beneficiary of the NCAA Manual? But the NCAA has given the court little evidence to go on, in an inquiry that must of necessity involve extrinsic evidence,” (Id. at 2). The Court found that two of the four items in its Separate Statement “are unsupported by evidence (in violation of CRC Rule 3.1340) and are essentially legal conclusions,” (Id.).
The third “fact” was that McNair “was not expressly identified as a third-party beneficiary of the manual,” (Id.). That is obvious, but it was irrelevant to McNair’s claim as pled. Finally, the last of the supposed relevant facts asserted “a legal conclusion that the NCAA manual does not create any contractual benefits for college coaches. (Id. No. 4). In this motion, NCAA has the burden to produce evidence ‘showing the nonexistence of any triable issue of material fact,’” (Id.), (citation omitted). The NCAA had the burden of proof and “it is not enough for a defendant simply to point out that one particularly easy avenue to proving Plaintiff’s case is closed. …it must have been clear to the NCAA that that the third-party beneficiary question would turn on extrinsic evidence. Plaintiff is not going to argue an express provision where one did not exist. NCAA is therefor obliged to present at least some evidence regarding the circumstances surrounding the creation, adoption, and application of the manual. It has not done so. The Motion is DENIED on this ground alone,” (Id.), (italics and capitalization in the original).
The Court did not stop there, however. It stated that even if the NCAA had “carried its initial burden, the result would be the same. Plaintiff has presented evidence that, as a coach, he was integrated into the manual because his contract with USC expressly subjected him to NCAA regulation according to the provisions of the manual…Because Plaintiff was both subjected to the disciplinary authority of the NCAA and entitled to avail himself of the manual’s procedural protections, an inference can be drawn that the protections were put in place for his benefit. That is sufficient to create a triable issue of material fact in this case,” (Id. at 2/3).
In further support of its motion, the NCAA cited two irrelevant cases. College athletes, not coaches, brought both of the lawsuits. The first one dealt not with the NCAA manual but the then Pacific 10 Conference Constitution. In that case it was the Pacific 10 Conference, and not the NCAA, who punished the alleged transgressor, the University of Washington. In the second of the cited player cases, the player sued his school and cited the NCAA manual. However, the cited provision did not meet that state’s standard for a breach of contract claim. Thus, neither case involved a coach and neither case involved discipline by the NCAA, yet that is apparently the best that the NCAA could come up with to support its denied motion.
The second part of the motion was a closer issue. The penalty imposed on McNair by the NCAA “has expired and Plaintiff is no longer formally prohibited from engaging in any aspect of coaching at an NCAA member institution,” (Id. at 5). The NCAA argued that the declaratory relief cause of action sought to redress past harm and was thus an improper subject of such a claim. For his part, McNair argued “this cause of action falls into the category of cases capable of repetition yet evading review. Plaintiff is incorrect,” (Id.). McNair pointed to the various legal exceptions for mootness yet the Court determined that the claim “does not necessarily turn on mootness considerations,” (Id. at 6).
What the claim in fact sought was a declaration “that NCAA’s sanction is an improper restraint of trade in violation of Bus. & Prof. Code § 16600. Where an issue of constitutional or statutory interpretation has been raised by declaratory relief claim, the question should not be shunted to a different cause of action, unless one already exists with raises the same issue,” (Id.).
No such other cause of action existed in McNair’s complaint, and there “would be no point in dismissing a plaintiff out of court only to have him refilled a breach of contract action and start all over. Requiring an amendment would be a similar, albeit less, waste of time and judicial economy. In this case, an additional concern militates in favor of keeping the action alive. Plaintiff has no other theory on which he could cleanly raise this argument,” (Id. at 7). Therefore, “declaratory relief remains proper,” (Id.).
The more interesting aspect of the day was the NCAA’s effort to protect its president from deposition. To that end, the NCAA sought a protective order to prevent the deposition, while McNair sought an order compelling Emmert to appear for a deposition. After the NCAA Committee had released its report, Emmert had publically endorsed the report. As a direct consequence of his contemporaneous public statement, McNair sought to depose Emmert.
The Court spent a page reviewing the relevant judicial rules, and another page quoting from NCAA correspondence that sought to protect Emmert. The NCAA argued that this was an impermissible “apex” deposition. In response, McNair pointed out that Emmert had publicly endorsed the work of the committee that punished McNair and this was enough to justify the deposition. The Court was not overly impressed with either side’s position. “Neither party’s arguments are entirely persuasive,” (Id. at 10).
The fact that Emmert endorsed his committee did not necessarily imply that he knew anything special about it. It may simply have been part of his job. However, the situation was quite different from a case cited by the NCAA, because McNair “is alleging that the endorsement itself caused part of his harm. In other words, unlike the usual apex deposition, in this case Emmert is an active player in and a percipient witness to the alleged harm. For that reason, Plaintiff is entitled to depose him. NCAA argues that Emmert’s comments are not actionable; that may be but it is an evidentiary question for trial. Defamation claims turn largely on the knowledge and internal mental state of the person who made the statement inn issue (in this case, Emmert). No one has more direct evidence on that point than Emmert himself,” (Id. at 10/11). “Plaintiff is not required to navigate around Emmert or scrutinize every bit of circumstantial evidence in order to divine Emmert’s intentions. Plaintiff’s motion is GRANTED. Emmert is ordered to submit to deposition,” (Id.), (capitalization in the original).
Consequently, Emmert was scheduled to be deposed on Saturday, March 31, 2018, just ahead of the April, 2018 trial date. The curious will have to wait until the trial to find out how Emmert tried to explain away his contemporaneous endorsement of the Committee’s findings that finally, during yet another interview, the statement of a felon/disappointed agent that McNair “must” have known about the felon’s activities was so much more credible than McNair’s outright denial, or why, for that matter, it took the NCAA years and multiple interviews with the felon in order for the felon to become a mind-reader, such that the Committee could use the felon’s speculation about McNair’s knowledge in order to stick a spear through McNair so that they could punish USC. Fortunately, after years of waiting, McNair was finally going to have the chance to clear his name in a trial that was set to begin during on April 18, 2018.
Prior articles:
SLA, December 28, 2012: “Attorneys See Trouble for NCAA in Recent McNair Ruling”; SLA, February 20, 2015; “The Public Is Invited: The NCAA’s Filing Efforts to Seal Its Documents in the Todd McNair Case”; SLA, December 25, 2015: “Who Guards the Guardians? Todd McNair v. NCAA Resumed”; SLA, March 18, 2016: “McNair v. NCAA — An Update”; SLA, July 22, 2016: “Todd McNair v. NCAA, Part Three: Unable to Escape Court, the NCAA Seeks to Disqualify the Judge”; SLA, January 20, 2017: “Todd McNair v. NCAA: The NCAA’s Judge-Shopping Attempt Fails”.
Birren is the former general counsel of the Oakland Raiders.
