Todd McNair v. NCAA: The NCAA’s Judge-Shopping Attempt Fails

Jan 20, 2017

By Jeff Birren
The NCAA destroyed a coach’s career based on the retroactive assumption of a felon and over the unequivocal denials of the coach. The felon, a would-be agent, years later told the NCAA that he had “no doubt that (USC assistant coach Todd) McNair knew about the (improper) benefits merely “[c]ause he was around a lot, and, you know, [its] like he watched me get them guys, his friends, hotel rooms…”. Furthermore, the NCAA’s relevant committee violated its own rules in order to find that McNair did know that the felon was violating NCAA rules (Todd McNair v. NCAA, Court of Appeal, Second Appellate District, Case No. B245475, December 7, 2015 at 4).
That behavior landed the NCAA in Los Angeles Superior Court nearly six years ago. The NCAA has employed all sorts of stratagems to get out of the case with very little success so at some point the NCAA decided it was the fault of the judge. Last summer it filed a motion to disqualify the judge who denied its anti-SLAPP motion to dismiss. The NCAA appealed that order.
The California Court of Appeal opinion “preserv(ed) five of the seven causes of action for future adjudication” and “reversed a small portion” of the Superior Court order, thus dismissing two minor claims (Todd McNair v. NCAA, Case No. B275282, California Court of Appeal, Second Appellate District, Division Three, 12/23/16 at 3). (See also “Who Guards The Guardians?” Sports Litigation Alert, Volume 12, Issue 23, December 25, 2015. For further background, see “The Public Is Invited” Sports Litigation” Volume 12, Issue 3, February 20, 2015, detailing the NCCA’s unsuccessful efforts to hide its records from public scrutiny).
The Court of Appeal returned the case to the Superior Court judge. The NCAA had previously invoked California law to disqualify one sitting judge from the case. That procedure is set out in the California Code of Civil Procedure § 170.6(a)(2). A party can, once, disqualify a judge ten days prior to a hearing or trial, by filing a motion and simply including a “Declaration of Prejudice.” No reason or evidence need be given beyond the lawyer’s statement, and the judge is then barred from participating in the case.
After the Court of Appeal remanded the McNair case following its ruling on the NCAA’s anti-SLAPP motion, the NCAA filed a second motion under CCP § 170.6 to disqualify the current judge (See Todd McNair v. Part Three: Unable to Escape Court, the NCAA Seeks to Disqualify the Judge” “Legal Issues In Collegiate Athletics, August, 2016). The NCAA also brought a challenge for cause against the judge. That was rejected by the judge and was not part of McNair’s writ proceeding. The Superior Court judge disqualified himself prior to receiving McNair’s response. McNair then filed a writ petition in the Court of Appeal, which issued a “show cause” order, and the matter was briefed and argued (McNair v. NCAA, Case. No, B275282 at 4).
The Court of Appeal granted McNair’s writ petition (Id.). It noted that the CCP §170.6 does allow a post-appeal peremptory challenge when the same trial judge is assigned to conduct a new trial after reversal on appeal. The Court noted that the Legislature had changed the peremptory challenge statute in 1985 “to address concern that a judge who had been reversed might be biased against the party who successfully appealed that judge’s ruling” (Id. at 5). However, that has nothing to do with the McNair case, as there was not to be a “new trial” since there never was a trial, nor was the appeal from a final judgment but merely an interim order on an anti-SLAPP motion.
Consistent with its prior rulings in the case, the Court determined that the “statute is clear and unambiguous and McNair is correct” (Id.). Furthermore, the Code generally allows a single peremptory challenge prior to the appeal from a final judgment. “A second peremptory challenge is not available to an appellant who secured the reversal of an interim order” (Id.), and logically, even less applicable when it is a very minor reversal with the main body of the interim ruling upheld on appeal.
The NCAA’s creative interpretation “expands the exception to the one-challenge rule by creating additional bases for exercising changes in violation of the principle that an exception to a statute’s general rule is to be strictly construed and, in applying exceptions, courts include only those circumstances within the words and reason of the exception” (Id. at 7, citations omitted). In the opinion of the Court of Appeal, the “reading advocated by the NCAA, allowing for a second peremptory challenge following reversal of an interim decision, incorrectly inserts absent words into one sentence and improperly renders that sentence redundant” (Id. at 7).
Furthermore, California courts “have been vigilant to enforce the statutory restrictions” since peremptory challenges present “the potential for abuse and judge-shopping” (Id. at 7,8). Previously the Court noted that the case had already been assigned to eight judges in five years, (Id. at 3, fn. 3).
The interim ruling in the McNair case did not terminate the litigation. It simply removed two minor causes of action and sent the case back to be adjudicated later. “A second peremptory challenge was not available to the NCAA because our opinion did not reverse a final judgment” (Id. at 9). The Court further rebuffed NCAA efforts to construe the statute based on some part of prior legislative history. “However, when as here, the ‘statutory language is clear and unambiguous there is no need for construction and courts should not indulge in it” (Id. at 9, citations omitted). Moreover, even if the NCAA’s proffered interpretation was what someone in the legislature contemplated, “it did not enact such a provision” (Id.)
The NCAA made another argument that writ petitions should only be granted when the ruling below is clearly erroneous and “substantially prejudices” the petitioner. There is no question that the decision to grant the NCAA’s peremptory challenge was clearly erroneous so the sole question was prejudice. The NCAA stood its ground, and wrote that a coach that had been driven from his profession by its actions, based on the assumption of a felon, and whose case had been pending for five years, was not prejudiced by further delay. The Court of Appeal brushed aside this last futile attempt. “Yet McNair was prejudiced by the trial court’s abrupt decision to accept the NCAA’s second peremptory challenge before he could oppose it, as he indicated he planned to do” (Id. at 10). Sustaining the NCAA’s arguments “will only further delay trial while a new jurist becomes familiar with the case” (Id.). The Court granted the petition for a writ of mandate and the “trial court is directed to vacate its order of May 20, 2016 accepting the NCAA’s peremptory challenge” (Id. at 11).
These pages considered the NCAA’s various assertions last summer. It came to the conclusion then that “[t]he NCAA’s cited authorities do not support the attempt to disqualify the judge” (“Todd McNair v. NCAA, Part Three: Unable to Escape Court the NCAA Seeks to Disqualify the Judge” Legal Issues in Collegiate Athletics, August, 2016 Volume 17, Issue 10). The NCAA was able to delay the case for another seven months, and counsel got to bill for its time. This effort may speak to the NCAA’s desperation to avoid the day of reckoning. The institution violated its own procedures in order to destroy the career of an assistant coach, Todd McNair (“Who Guards The Guardians?”, cited above). Ultimately, it relied on the word of a felon who admitted that he, too, violated NCAA rules with a player. Apparently, Todd McNair should have known what the felon was up to merely because he was “Around” and saw the felon get hotel rooms for friends. Todd McNair paid for the transgressions of everyone else. The NCAA has reason to be concerned.
Note: The author would like to express his deep gratitude to David Stern, Esq. of Toronto, Canada for his continued assistance with these articles.
Birren is the former general counsel of the Oakland Raiders.


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