A California state court judge ruled on November 21 that the National Collegiate Athletic Association was “malicious” in its investigation of Todd McNair, a former assistant football coach at the University of Southern California, allowing the coach’s defamation suit against the Association to proceed.
McNair, who was an assistant to former coach Pete Carroll for six seasons, was implicated for his involvement in the Reggie Bush case. Specifically, the NCAA found that he knew about some of the gifts that were lavished on Bush’s family by two aspiring sports agents, who coveted Bush as a client.
McNair appealed the ruling, arguing that the Committee on Infractions used flawed evidence against him. In April of 2011, the Division I Infractions Appeals Committee denied the appeal.
The Committee stated in its report: “As the committee considered the former assistant coach’s arguments, both written and oral, it became clear that the most pertinent issues devolved to matters of witness credibility.”
The NCAA added that the above statement “specifically related to the former assistant coach’s arguments that the Committee on Infractions allegedly relied on false statements in making its credibility determinations. The appellate committee considered all of the information presented by the Committee on Infractions and the former assistant coach.
As a result, the appellate committee found that the evidence met the standard required by its prior reports, the applicable NCAA bylaw and other matters which properly guide its decisions.”
McNair’s Suit and the NCAA’s Anti-SLAPP Motion
McNair sued the NCAA on June 3, 2011 in Superior Court in Los Angeles County for unspecified damages, centered on the following causes of action: libel, slander, tortuous interference with prospective economic advantage, tortuous interference with contractual relations, breach of contract, negligence, and declaratory relief.
“McNair claimed that the NCAA’s investigation, which concluded that he had lied about his knowledge of gifts that had been given to Bush’s family by two different sports marketing companies in violation of NCAA rules and regulations, was flawed,” noted Gregg Clifton, Chair of Jackson Lewis’ sports law practice. “McNair claimed that the NCAA’s investigation was biased and one-sided and that his future earnings as a coach were hurt by its report on the scandal. The NCAA prohibited McNair from having any contact with recruits. McNair’s coaching contract at USC later was not renewed.”
In an effort to dismiss the case, the NCAA filed an anti-SLAPP motion claiming the investigation of McNair was thorough and fair, and that McNair could not win his case for defamation. Judge Fredrick Shaller denied the NCAA’s requested relief and allowed McNair’s suit to continue.
“Generally, this is a part of mundane motion practice that occurs in nearly every lawsuit filed in the United States,” said Christian Dennie of Barlow Garsek & Simon, LLP. “However, the findings articulated in Judge Shaller’s ten-page ruling were not something normally seen in litigation with the NCAA.
“Specifically, Judge Shaller stated 1) there is evidence the NCAA acted ‘malicious[ly]’ towards McNair; 2) evidence provided the NCAA had ‘reckless disregard for the truth;’ 3) the NCAA ‘should have known’ aspects of the infractions report were ‘demonstrably untrue;’ 4) the NCAA infractions report ‘contained material false statements’ pertaining to a call between McNair and Lloyd Lake; and 5) McNair has proven ‘actual malice.’
“Because McNair is a public figure under the law, he is required to show the NCAA acted with actual malice in publishing defamatory statements about McNair, rather than a lower standard for non-public figures.”
Judge Shaller’s characterization that the actions of NCAA investigators were “over the top” seems to suggest that the case has legs, according to Jackson Lewis’ Clifton.
“In addition, the decision states that emails between an NCAA investigative committee member, an NCAA worker and a person who works on the NCAA appeals division ‘tend to show ill will or hatred’ toward McNair,” said Clifton. “Judge Shaller further stated that McNair had shown a probability he can win the defamation claims in his lawsuit.”
McNair’s attorney (Bruce Broillet) declined formal comment following the ruling, but stated during the hearing that the NCAA knew it was relying on false statements about McNair’s conduct.
“The emails proved they wanted to get McNair in order to impose the heavier penalties they wanted on USC,” Broillet stated at the hearing. “So they wrote the evidence the way they wanted it to be — and that’s malice. … (T)hey got it all wrong on purpose.”
The plaintiff also secured another victory, since Judge Shaller said that he intends to unseal the entire inquiry into McNair, despite NCAA attorney Laura Wytsma objections that the records in the case should not be unsealed because it would hurt future NCAA investigations, since the NCAA lacks subpoena power.
That disclosure will have to wait, however, as the NCAA has appealed the ruling on its anti-SLAPP motion, which entails an immediate right to appeal.
