By Jeff Birren
When this publication last looked in on the case brought by former USC assistant coach Todd McNair against the NCAA, the trial judge had just ruled for McNair on his sole remaining allegation against the NCAA that the NCAA’s findings against McNair violated California Business and Professions Code (“BPC”) Section 16600 (Sports Litigation Alert, V. 15, # 20, Todd McNair v. NCAA: It Ain’t Over Yet, White and Birren, 10-25-18). That victory partially salvaged an otherwise bad year as McNair had lost his defamation claim in a jury trial that spring. Furthermore, in 2018 McNair was forced to coach high school football. However, in early January 2019 the Tampa Bay Buccaneers hired McNair as its running back coach. Then, five days later on Jan. 16, 2019, Los Angeles Superior Court Judge Frederick C. Shaller granted McNair’s motion for a new trial on the defamation cause of action, making it a much better year after just one month.
McNair filed his new trial motion on Nov. 30, 2018. He argued that there is a “statutorily recognized ‘implied bias’ of one of the nine jurors (1) whose vote was critical to the verdict and (2) who was the juror selected as the jury foreperson.” His other basis was that “the evidence clearly demonstrates that the jury was mistaken” (McNair v. NCAA (“McNair”), Plaintiff’s Motion For New Trial, Los Angeles Superior Court, Case No. BC462891, 11-30-18, at 4 & 7).
The NCAA filed its opposition on Dec. 19, 2018. It asserted that: “1. “Juror No. 2 was not biased; 2. The jury’s verdict was supported by the evidence; and 3. McNair advances no other claims that his substantial rights were materially affected by the verdict” (McNair,NCAA’s Opposition To Todd McNair’s Motion for a New Trial, 12-19-18, at 2). McNair filed his reply brief on Jan. 3, 2019 and the next day the NCAA filed an ” Ex Parte Application of NCAA For Leave to File Sur-Reply to Todd McNair’s Motion for New Trial. Judge Shaller held the hearing on Jan. 11, 2019, and ruled five days later.
Judge Shaller granted the motion both on the grounds of “insufficiency of the evidence” and on “the issue regarding the disqualification of Juror No. 2 for implied bias” (McNair, Ruling on Submitted Matter–Motion for New Trial, 1-16-19 at 1). Judge Shaller further stated that McNair’s victory on the BPC Section 16600 claim “remains unchanged and is not affected by this ruling as it involves distinct and severable issues” (Id.). Finally, “the Judgment entered this date is ordered vacated and set aside” (Id.)
The first issue briefed by counsel concerned an allegation of implied juror bias under California Code of Civil Procedure §657 (“CCP”). Juror No. 2 is or was an attorney at Latham & Watkins in Los Angeles. Incredibly, in this very case, Latham & Watkins had served as co-counsel for the NCAA on an appeal (Id. at 6). Apparently, during voir dire, “both sides claimed that they had either forgotten or did not know due to the change of counsel after the Latham & Watkins participation had ended” (Id.). McNair’s counsel “brought the issue of the Latham & Watkins representation of the NCAA in this case to the attention of the court on the same day that Juror No. 2 also sought to talk to the court about his concerns about sitting as a juror in the case” (Id.).
The juror claimed that he was impartial and had no knowledge of his firm’s involvement in the case but at this point McNair objected to Juror No. 2 “and requested that he be removed from the jury pursuant to CCP §229(b) for implied bias” (Id.). However, the jury had already been sworn so voir could not be reopened” (Id. at 7). The issue was not briefed and the trial continued.
The court stated that for the new trial motion the first issue it had to decide was whether Juror. No. 2 was “disqualified for implied bias even though he individually did not do any work on the case, he professed no knowledge about his firm’s representation of the NCAA case, (the lawyers that had worked on the case) were in a different specialty group from Juror No. 2, …were at a distant geographical locations, and Latham & Watkins served as appellate counsel on the case and not in the trial” (Id.).
The primary authority cited by McNair was a case whose holding goes into the “duh” category, People v. Terry, (1994) 30 Cal. App. 4th 97. In that case, a trial juror was a deputy district attorney and served on a jury prosecuted by that office. The guilty verdict and the juror’s protestations were later swept aside and a new trial was granted. The Court of Appeal stated that the “thrust and purpose of section 229, if not perhaps its specific wording, requires that an attorney who is a member of the firm of counsel trying a case should not be permitted, over objection, to serve on the jury” (Terry, 30 Cal. App. 4th at 103).
That reasoning was applied to the McNair matter. In these cases, “where one attorney in a firm is disqualified, generally the entire firm is disqualified” (Id. at 8). Thus, “Juror No. 2 should have been removed as a juror for implied bias in spite of his claim of lack of knowledge or bias. The disqualification of Juror No. 2 is required due to the knowledge and information the impliedly shared with other firm members…Bias is implied, and disqualification was required without proof of actual bias” (Id.).
The second issue for the court was prejudice. The Court stated that permitting “Juror No. 2 to remain on the jury and participate in deliberations and the verdict resulted in a miscarriage of justice and in Plaintiff being deprived of a fair trial. Without Juror No. 2 it is likely that a different outcome would have resulted. Juror No. 2 was both the presiding juror and the deciding vote on the 9-3 verdict” (Id. at 9). The Court quoted People v. Galloway (1927) 202 Cal. 81, 92, thatthe”right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution” (Id.).
“Based upon the foregoing a new trial is appropriate in this court’s view since the constitutional guarantee of a jury comprised only of members ‘capable and willing to decide the case solely upon the evidence before it” was not met. The motion for new trial as to the defamation cause of action is granted” (Id.). One can only imagine the conversations within Latham if Juror No. 2 had held out for McNair, such that the no verdict was ever reached, or, for that matter, at the NCAA when it learned that a lawyer from their own counsel had voted against them. Moreover, allowing such a verdict to stand when the deciding vote was cast by a lawyer whose firm represented one of the parties in that very case does not pass the slightest smell test.
Insufficiency Of The Evidence
The second issue briefed by counsel was actually the first issue handled by the Court; the merits of McNair’s defamation claim. It required the jury to find that the NCAA had made false statements about McNair. It did not make that finding. McNair’s motion was based on CCP §657(6). McNair argued that the verdict was “against the evidence” and against the “uncontroverted evidence” at trial (Id. at 2). CCP §657(6) provides that “a judge may grant a new trial under CCP §657(6) based on the insufficiency of the evidence to justify the verdict only if, after weighing the evidence, the judge is convinced from the entire record, including reasonable inferences, that the jury clearly should have reach a different verdict or decision” (Id.). That is exactly what Judge Shaller found.
The NCAA’s findings against McNair were based on an unsworn statement by a felon, one Lake. Lake wanted to be the agent for then USC running back Reggie Bush and as part of his wooing of Bush, Lake provided Bush with benefits that violated NCAA rules. The unsworn statement came from a telephone conversation between Lake and NCAA investigators years later. The “report is hearsay (and at times double hearsay) and otherwise inadmissible except that it was admitted for the limited purpose of showing the basis” for the NCAA’s Infractions Committee Report (“COI Report”) (Id. at 3). During the conversation, Lake told NCAA gumshoes that McNair knew about the extra benefits. “(C)ause he was around a lot and, you know, it’s like he watched me get them guys, his friends hotel rooms, Reggie told me he knew about certain things he was doing but he’s cool. You know what I mean? It’s like basically through Reggie–” (Id.). That was it, the sole basis for the NCAA’s findings that Coach McNair knew about the extra benefits provided to Bush by the felon, Lake. This was, in the NCAA’s own words, “the lynch pin” (Id. at 4). The Court found that the “report was false in at least the following ways” (Id.).
In the first place, the COI Report stated that Lake said he called McNair. “In fact the interview shows Lake never stated who initiated the call–Lake was told in the interview by NCAA investigators that McNair had called him. Phone records admitted into evidence (Trial Exhibit 903.12) clearly document that Lake called McNair” (Id.). Have these investigators been fired?
Secondly, the COI Report stated that the call by Lake was for the purpose of getting McNair to help get Bush to comply with his “so-called agency agreement with Reggie Bush. In fact, the interview did not mention Lake making the call to request McNair’s intercession. The actual interview answer was made after the investigators told Lake that McNair had made the call to him, and Lake was attributing a motive to McNair for the reason why McNair purportedly called him–but there was not such call initiated by McNair, and McNair could have had no purpose in making an unmade phone call” (Id.).
Furthermore, “the interview does not state that McNair and Lake discussed the agency agreement” during the call, and Lake was “merely assuming that McNair ‘knew’ about the money that Reggie Bush allegedly took and the agreement between Bush and Lake, not because of anything said during the phone conversation but ‘basically through Reggie’ or McNair’s allegedly helping Lake get some hotel rooms for some of Bush’s friends” (Id. at 5). “The answers made by Lake to interview questions were unclear and unresponsive to the point of being unreliable and lacking in any value. When the report was written, the actual and critical content of the questions and answers was changed and/or recharacterized. Also, improperly non-responsive and speculative responses by Lake were recorded as true” (Id.).
“In the context of the importance of this interview to McNair’s case, it is ludicrous, in the court view, for NCAA to attempt to excuse the variance between the actual content of the Lake interview and (the final report) as mere ‘paraphrase.’ The COI Report in this regard is a fictional account of the Lake version of the phone call. The report gave evidentiary weight to statements that were not made and were the impetus for sanction imposed against McNair” (Id.). Lake did not testify at trial, nor did he ever give the NCAA a sworn statement. Thus the Lake interview was the sole basis for the NCAA to act against McNair and the sole basis for a finding that the NCAA statements about McNair were not false. The Court therefore concluded that the jury should have found that the NCAA did make false statements about McNair, and thus granted the new trial motion on that basis as well.
The NCAA filed a notice of appeal on Jan. 23, 2019 so it is likely to be a very long time before anything of significance happens in the case. This delay will at least see McNair gainfully employed, and one must hope that the NCAA uses the time to take whatever steps are necessary to insure that such “sloppy,” “unreliable” and “botched” work that included “fabricated” statements during the interview which led to an interview which was “impossibly vague, without evidentiary value to support the false statements by the NCAA” (Id. at 5/6) are never again repeated in any investigation.
Birren is former general counsel of the Oakland Raiders, a professor of sports law and senior writer for Hackney Publications.