By Richard C. Giller, of Pillsbury Winthrop Shaw Pittman LLP
On February 5, 2021, the California Court of Appeals, Second District, issued an opinion affirming a trial court order granting a new trial on the defamation claim in the long-running case of Todd McNair v. NCAA. This is the fourth appellate decision in the case. Although the legal issues in the most recent appellate installment center on the appropriate deference and inferences to be applied when reviewing an order granting a new trial, the factual predicates and findings will likely have far reaching consequences that could resonate beyond allowing Coach McNair to proceed with a new defamation trial and possibly impact the foundation of amateur athletics and the NCAA’s regulation and investigation of its member schools.
McNair, a former NFL player, former University of Southern California (USC) assistant football coach, and current running backs coach for the 2021 Super Bowl Champion Tampa Bay Buccaneers, sued the NCAA in connection with the Reggie Bush inspired sanctions meted out by the NCAA against both McNair and USC in June 2010. By the time the case was tried in the spring of 2018, it had been whittled down to two causes of action: defamation and declaratory relief. The 2018 jury was originally deadlocked at a vote of eight to four in favor of the NCAA on the defamation claim. After installing an alternate juror for one that had a language issue, the reconstituted jury returned a nine to three defense verdict, finding that the NCAA’s statements about Coach McNair’s knowledge about the Bush infractions and statements about McNair’s believability in the NCAA Committee on Infractions (COI) report were not false – proving falsity is a prerequisite for defamation.
Immediately following the verdict, the court conducted a bench trial on Coach McNair’s declaratory relief claim and found in favor of McNair. The trial court ruled that California Business & Professions Code §16600, which voids “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind,” invalidated the NCAA’s “show-cause” bylaws that allow the Association to prevent coaches, under certain circumstances, from engaging in recruiting activities which, in turn prevents them from getting a job with another school. The June 2010 sanctions against USC included a “show-cause” order issued against McNair, barring him from contact with recruits while working for any NCAA-member institution which essentially barred him from coaching at any college or university.
Three months after the McNair jury returned its defamation verdict, the trial court heard and granted McNair’s motion for a new trial. The NCAA appealed both the declaratory relief judgment and the new trial order. Although the Court of Appeals delayed considering the declaratory relief appeal until a final judgment has been entered in McNair’s case by the trial court, its analysis of the shoddy NCAA investigation and infractions process regarding the 2010 USC infractions report is eye opening and consequential.
It has been over a decade since the NCAA hit USC’s football program with the harshest penalties leveled against a school in a quarter of a century. The NCAA cut 30 scholarships, imposed a two-year postseason ban, and vacated 14 wins, including USC’s 2004 BCS Championship win, because it concluded that USC demonstrated a “lack of institutional control” in connection with the Reggie Bush violations. According to the NCAA, the draconian sanctions were supposedly “justified” because Coach McNair knew about the infractions and purportedly lied to investigators about that knowledge. McNair was the only USC employee who was alleged to have had any knowledge of the infractions.
The finding of a lack of institutional control was based solely on a 2-minute, 23-three second telephone call that took place between Coach McNair and Lloyd Lake, a convicted felon and self-described sports marketer. In a classic “he said/he said” situation, the COI rejected out of hand Coach McNair’s interview responses about the call and, instead, adopted Mr. Lake’s version of that phone call in its entirety.
According to a self-described email “rant” from a non-participating COI member who, according to the NCAA’s own investigatory rules, was not allowed to either influence the COI or to participate in the deliberations, “McNair should have all inferences negatively inferred against him.” The internal secret NCAA emails were only produced because counsel for Coach McNair fought all the way to the court of appeals to obtain a final order declaring that the emails had to be turned over.
The non-participating COI member who advocated for stripping Coach McNair of any presumption of truthfulness, like the Committee afforded to Lloyd Lake, also noted that “credibility determinations are for this committee and this committee alone. As with all tribunals or fact finders, we need not say why we disbelieve him we only need to let the public, or whomever, know that we do disbelieve him.” A Fox Sports pundit described that logic this way: “So basically [the non-participating member] is saying, we don’t have to prove that McNair is a liar, just consistently call him a liar and people will believe it.”
The COI never explained why different credibility tests were applied to the interview responses of Mr. Lake and Coach McNair but, after reading hundreds of internal NCAA emails produced in the case, one is left with the unmistakable impression that there existed a not-so-veiled bias against USC within the committee, and an especially strong bias against Coach McNair. The COI simply presumed that Coach McNair was lying while adopting wholesale the testimony of a convicted felon who, in connection with those prior criminal proceedings, had been deemed to lack credibility as a witness, attempted to suborn perjury, concocted evidence out of whole cloth, and attempted to falsify other evidence. Somehow, the COI failed to discover any of the publicly available records documenting these findings by several federal court judges, and the U.S. Attorney’s office.
For over ten years, USC administrators, former coaches, and the school’s football fans have loudly complained that the NCAA’s punishment was far too severe because the NCAA had failed to establish a lack of “institutional control.” These critics intimated, and in some instances directly accused, the COI of being biased against both the school and Coach McNair, and that the NCAA had targeted USC because of its successful football program during the early 2000’s. The findings set out in the recent Court of Appeals ruling not only lends credence to these complaints they also turned the NCAA’s flawed credibility assessment of the participants to that phone call completely on its head. Those appellate rulings should impact future NCAA infraction investigations and resulting punishments.
Contrary to the COI’s credibility assessment, the California Court of Appeals concluded that, as between McNair and Lake, Coach McNair was clearly the more credible witness. The court ruled:
“McNair’s credible denials render false the [COI infractions report’s] assertions that he knew about the NCAA violations…. The NCAA failed to rebut this evidence because it relied solely on Lake’s vague, unresponsive, unreliable, and inadmissible interview responses, that in any event did not substantively support the [COI infractions report].”
In its February 5 opinion, the Court of Appeals held that the 2010 NCAA infractions report “falsely stated who initiated the call,” it “falsely related the purpose Lake ascribed to the call,” and it “falsely stated that McNair and Lake discussed the agency agreement and improper benefits during the late-night call.” According to the February 5 opinion, the COI infractions report “did not ‘paraphrase’ the Lake interview, but was ‘a fictional account of the Lake version’ of the late-night call that was the impetus for the sanctions imposed on McNair.”
Because the NCAA’s assertions that Coach McNair knew about the infractions were false, there was no support for the COI’s finding that USC lacked “institutional control” and, as a result, the 2010 NCAA sanctions leveled against USC were neither justified nor warranted. It is a shame that it has taken over ten years for an impartial judicial officer to properly assess the credibility of the two participants to the late-night phone call before properly concluding that Coach McNair’s version was the more credible. That, in turn, begs the question as to how and why impartiality was not a critical component of the NCAA’s infractions process involving Reggie Bush and USC.
Emails from voting members of the COI showed that they were troubled with the finding that the recollections of Lloyd Lake, a convicted felon, were more credible than Coach McNair’s, or the finding that McNair was lying about the substance of that two-minute telephone call. The California Court of Appeals noted this divergence:
“One [COI member] called the Lake interview ‘choppy;’ one said the McNair interview was ‘botched’ because the dates were wrong; another said the record was ‘recklessly constructed’, and one said the investigation had ‘fallen short.’ One member observed that Lake even had difficulty recalling McNair’s name until the enforcement staff prompted him. Some members noted that the question was whether McNair actually knew about Lake’s agency and the benefits Lake gave Bush, which would make lies out of McNair’s denials to investigators. One member found no evidence that McNair was personally involved or had specific knowledge of any wrongdoing. Nonetheless, the COI ultimately agreed to the operative statement as written.”
In its February 5 opinion, the California Court of Appeals concluded that the record clearly supported the trial court’s decision to accord Lloyd Lake’s version of the late-night call absolutely “no evidentiary weight.” The logical extension of these damning appellate findings is that there was no evidentiary support for the NCAA to conclude that USC lacked institutional control and, therefore, deserved the harshest of penalties.
It is beyond dispute that bias and prejudice should play absolutely no role in an NCAA investigation of possible infractions by a member institution especially when it involves a determination of a “lack of institutional control” and, therefore, implementation of the harshest of penalties. Although it has been a long and hard lesson for USC and its football program to learn, due process and impartiality must rule the day in these investigations.
As supported by the recent California Court of Appeals opinion, one possible way to ensure impartiality in future NCAA infractions proceedings would be for the NCAA to retain the services of a retired judge to participate in the process so that a jurist who is trained in neutrality, objectivity, and independence renders critical determinations instead of leaving that to voting and non-voting members who lack such training, In that way, the COI can properly assess the credibility of witnesses and rule on evidentiary issues that could impact the ultimate punishment handed down. The severe penalties levelled against USC in 2010 were based on a flawed credibility assessment of the participants to a single short telephone call and those penalties have clearly taken a heavy toll on the continued success of a traditional football powerhouse.
The February 5, 2021 California appellate opinion—while confirming the suspicions of many—cannot make up for USC football’s drop from national prominence but, perhaps, the decision can provide the impetus for revamping the NCAA’s investigation processes to include an impartial judicial officer as part of the “jury” assessing the credibility of witnesses and weighing the evidence of alleged wrong-doing. But the travesty of justice USC was forced to endure cannot be allowed to be repeated and can and should be avoided in the future.