A California state appeals court has affirmed the ruling of a lower court, dismissing the claim of a man who sued the NCAA after he was implicated in an infractions report for providing unauthorized benefits to a University of Southern California (USC) student athlete.
Specifically, Rodney Guillory sued the NCAA for defamation, invasion of privacy/false light, and negligent misrepresentation. The NCAA successfully countered in a motion to dismiss that it was protected by the “anti-SLAPP” statute, and the fact that Guillory was unlikely to prevail at trial.
The appeals court began its analysis by recapping Guillory’s connection to an NCAA investigation of USC. In 2000, “the school reported a violation of NCAA rules involving a basketball player, Jeff Trepagnier. USC found that Guillory purchased airline tickets for Trepagnier and another athlete to meet with sports agents in Las Vegas. As a result of this violation, Trepagnier was briefly suspended from playing for USC.
“In 2006, a high school basketball player named O.J. Mayo signed a letter of intent to attend USC. The NCAA reviewed Mayo’s amateur status before his enrollment at USC in 2007. The NCAA interviewed Guillory and Mayo, who denied that Mayo received any special benefits. Following the interviews, the NCAA deemed Mayo eligible to play at USC because there was (at that time) no basis for concluding that a rules violation had occurred.”
All that changed in 2008 when ESPN publicly reported that “before the fall 2007 semester began at USC, Guillory and Louis Johnson took Mayo to a shopping mall where they purchased several thousand dollars in clothing for Mayo, paid for by Guillory. ESPN referred to Guillory as a ‘runner,’ defining runners as ‘middlemen who develop relationships with high-profile athletes with the goal of delivering them to a sports agent when the players turn pro.’” Guillory reportedly discussed a specific sports agent—Bill Duffy Associates Sports Management (BDM).
“In response to the ESPN report, the NCAA opened an investigation in May 2008, which continued for nearly two years. The NCAA interviewed 20 witnesses, but Mayo and Guillory refused to cooperate in the investigation. In September 2009, the NCAA gave USC notice of the allegations involving Mayo. In January 2010, USC admitted violating NCAA rules and imposed sanctions on itself: it vacated its wins during the 2007-2008 school year, when Mayo played while ineligible, and returned all money it received during the 2008 basketball championship.”
In June of 2010, the NCAA Division 1 Committee on Infractions issued its conclusions in a Public Infractions Report. While the report did not identify names, it was pretty obvious that “representative B” referred to Guillory. He was categorized both as affiliated with a professional sports agency and a USC booster. “With respect to Mayo, Guillory became a booster in November 2005, when he appeared unannounced at the USC men’s athletic department to say that he could deliver Mayo to the institution, and began assisting in recruitment efforts,” wrote the court.
“NCAA rules were violated when Guillory provided inducements and benefits to Mayo. These included: (1) providing Mayo and his brother with cash, transportation, meals, basketball instruction and merchandise in 2006; (2) wiring cash to Mayo’s girlfriend in 2006 and 2007; (3) providing Mayo and his brother with cell phones and wireless service in 2007-2008; (4) arranging for Mayo to appear on the cover of a magazine in 2007; (5) providing transportation to and lodging in Las Vegas in 2007 for Mayo and his brother; and (6) giving Mayo a $1,400 television in 2007.”
Guillory sued for the aforementioned reasons, claiming the NCAA had it all wrong, that he “was an event promoter who met Mayo at a basketball camp in 2003, when Mayo was in seventh grade. They forged a strong personal relationship, in which Guillory served as a friend, mentor, and positive African-American male influence in place of Mayo’s absent father. Guillory alleges that he had no influence over Mayo’s decision to attend USC: rather, Mayo asked Guillory to contact USC after deciding that it had a large media market and he wanted to help the school establish a basketball tradition. During an investigation in 2007, the NCAA determined that Guillory’s relationship with Mayo did not make Mayo ineligible under NCAA rules.”
While Guillory admitted that many of the statements made in the Infractions Report were true, he also alleged that he “’was providing love, comfort, society, support, mentorship, and guidance to Mayo’ and is being falsely labeled as a ‘professional leech’ with intentions of profiting from Mayo. When viewed in light of his close relationship with Mayo, none of the benefits Guillory provided to Mayo were improper. They were more like tokens of affection. The statements in the Infractions Report are defamatory and place him in a false light. In addition, the NCAA represented in 2007 that Guillory was not a representative of USC’s athletics interests and his relationship with Mayo was permissible. These statements were false, and the NCAA had no reasonable grounds for believing the representations when they were made. Guillory relied on the NCAA statements by continuing his close relationship with Mayo during his year at USC.”
Guillory sought general damages of $25 million, plus punitive damages.
The NCAA moved to strike Guillory’s complaint under the anti-SLAPP statute and the grounds that Guillory cannot “show a probability of prevailing on the merits of his claims because his complaint admits that the factual findings in the Infractions Report are substantially correct, and Guillory is a limited public figure who cannot prove actual malice.”
The NCAA claimed it engaged in “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest,” which is one of four categories covered by the anti-SLAPP statute.
On appeal, Guillory “argues—for the first time—that the Infractions Report is not a matter of public interest.”
The court continued: “Guillory’s newly minted claim fails, because he waived the issue in the trial court. … Guillory could have argued that the Infractions Report is not an exercise of free speech. He did not do so.
“In any event, there is no doubt that an investigation and report regarding violations of NCAA rules is a matter of significant public interest. (See Taus v. Loftus (2007) 40 Cal.4th 683, 712-713 There is an ongoing controversy regarding gifts and financial benefits given to college and high school athletes. The Infractions Report addresses multiple NCAA violations involving three sports and three athletes at USC. The 2008 ESPN report and the news reports appended to the NCAA’s reply—all regarding the relationship between Guillory and Mayo—exemplify the public’s keen interest in these matters, which touch upon a popular athlete’s eligibility to participate in college sporting events. As in Taus, the Infractions Report unquestionably falls within the ambit of the anti-SLAPP statute.”
The court next turned to the plaintiff’s likelihood of success on his defamation, invasion of privacy/false light, and negligent misrepresentation claims.
The court found that “the statements in the Infractions Report are not actionable defamation, because they are ‘substantially true.’ (Campanelli v. Regents of University of California, supra, 44 Cal.App.4th at pp. 581-582.) It is irrelevant that the NCAA deemed Mayo eligible to play for USC in 2007.”
After finding the right to privacy claim equally unavailing, the court turned to the negligent misrepresentation claim, which “is a false assertion, made by one who has no reasonable ground for believing it to be true, with the intent to induce reliance, causing the recipient to justifiably rely on the untrue fact and suffer damages as a result. (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834.)
“Guillory states that the NCAA represented in 2007 that his relationship with Mayo was permissible. Apparently—and oddly enough—this representation was false, because their relationship was in fact impermissible. Guillory allegedly ‘relied upon the NCAA’s statements by continuing his close relationship with Mayo throughout his career at USC.’ Guillory argues that he suffered damages ‘as he is now unable to perform his job as a sports promoter and is essentially blacklisted.’
“If Guillory’s misrepresentation claim is entirely unrelated to the Infractions Report, it is time-barred. The statute of limitations for negligent misrepresentation is two years. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1529.) The NCAA allegedly made misrepresentations in 2007, so Guillory’s complaint filed in 2010 is untimely.
“In reality, Guillory’s misrepresentation claim is based on the publication of the Infractions Report, in which he was found to be a representative or booster. Guillory did not suffer injury until the report was published. Artful pleading cannot avoid application of the anti-SLAPP statute, which applies to any claim arising from protected conduct. The focus is on the defendant’s activity, not the plaintiff’s cause of action. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
“Guillory’s misrepresentation claim is subject to the anti-SLAPP statute. The evidence shows that Mayo denied receiving benefits from Guillory when he was interviewed by the NCAA in 2007. This does not appear to have been true. If Mayo and/or Guillory lied to the NCAA during the 2007 investigation, Guillory cannot now be heard to complain that he was damaged because the NCAA believed the false or incomplete information he or Mayo supplied in 2007. Both Guillory and Mayo subsequently refused to be interviewed or cooperate with the NCAA in its second investigation, making no effort to refute the many national media stories about the benefits Mayo received from Guillory. Guillory has not shown a probability of prevailing on this claim.”
Rodney Guillory v. National Collegiate Athletic Association; Ct. App. Calif., 2d App. Dist., Div. 2; B234302, 2012 Cal. App. Unpub. LEXIS 4206; 6/4/12
Attorneys of Record: (for Plaintiff and Appellant) Lee & Fields, Edward Y. Lee, Christopher P. Fields. (for Defendant and Respondent) Loeb & Loeb, Michael L. Mallow, Laura A. Wytsma
