Judge Hears Arguments in Cottrell Case

Former Alabama assistant coach Ronnie Cottrell watched attentively as lawyers for Cottrell and former assistant Ivy Williams argued against a motion to dismiss their two-and-a-half-year-old $60 million lawsuit against the NCAA, Rich Johanningmeier, Thomas Yaeger and Tom Culpepper before Tuscaloosa Circuit Judge Steve Wilson Thursday afternoon.

See Gallion's Presentation Document Here

Among the most compelling items, Cottrell Attorney Tommy Gallion unveiled a memo from SEC employee and former FBI investigator Bill Sieviers to SEC commissioner Roy Kramer explaining that Tennessee assistant Pat Washington had been solicited by Lynn Lang to purchase Means' services, and suggesting Washington be allowed to continue to talk with Lang and be bugged to record their conversations in order to implicate Alabama.

"Not only did they excuse Tennessee from all that. They wanted to wire up Pat Washington," Gallion exclaimed after the hearing.

NCAA attorney Robert Rutherford was quick to point out that the NCAA was not involved in this affair, however.

Gallion also repeated a claim that the NCAA was seeking the death penalty for Alabama, and trying to pressure Cottrell and Williams to implicate Logan Young so that the NCAA could eventually get "the big man at Alabama". Gallion claims they are referring to Alabama AD Mal Moore as the big man.

Wilson is expected to render a decision on the NCAA and Culpepper's motion to dismiss the case in approximately two weeks, but his decision could come any time before the set beginning of the trial on July 11.

The Thursday hearing served as a prelude to arguments that will be presented by each side if the case is allowed to proceed to a jury trial.

"We just hope the judge will let it go to a jury and let the jury make a decision," Gallion said. "I don't know what 12 men and women are going to do. We've got a bucket load of stuff to get out there."

The hearing began at 3 p.m. and lasted about four hours, and Cottrell was the only named party in either side of the lawsuit to attend. Rutherford represented the NCAA while Birmingham lawyer John Scott was there on behalf of Culpepper.

The NCAA opened the day with a surprise when they said they have no objection to the release of the information filed in support of a motion for summary judgment as well as the plaintiff's response to that motion. That information was released by Wilson and is set to be available to the media Friday morning. The documents supposedly include thousands of pages of data, including depositions and narrative.

Gallion headlined an eight-member plaintiff's team that included a public relations representative. Attorneys Delaine Mountain and Mike Rediker presented portions of arguments in the hearing. Jeremy Walker, a former Alabama player and clerk at Gallion's firm, was also a part of the delegation.

After Rutherford opened with an attack on TeamCottrell's defamation claims, Gallion wasted no time in launching his claim of a three-pronged conspiracy against the Alabama football program which he says harmed his clients.

Rutherford began by saying the NCAA's motion for summary judgment and Cottrell's response to that motion were "like ships passing in the night." He said that TeamCottrell's response avoided addressing the motion his side filed.

Rutherford offered few details when arguing for the motion to get rid of TeamCottrell's conspiracy claim. "There's just not anything there," he said. "None of the evidence used to support the charges that were brought against Cottrell and Williams were supplied by the NCAA or Culpepper", Rutherford told the judge.

The NCAA lawyer also tried to equate the NCAA investigative process with a legitimate legal process, and said that Cottrell and William's own actions invited media attention to the matter, making them public figures.

Gallion responded with a 40-slide Powerpoint presentation outlining their claims. Gallion addressed his side's conspiracy claim by analogizing the conspiracy to a hurricane.

The University of Alabama football program, and the NCAA's attempt to levy the death penalty against Alabama was the eye of the storm, while Cottrell and Williams were caught in the tail of the storm, according to the firebrand Gallion.

After the hearing, Gallion also questioned the University of Alabama's approach in dealing with the NCAA.

"This is the biggest sports story that ever happened and what they did to Alabama was totally incredible," Gallion said. "And again, I don't represent Alabama. You know, I would like to know why Alabama–- I know why Alabama has not stepped forward and said ‘Why did we let Tennessee do it?' I know why they did it. You'll have to look at Mr. Brand's September '03 visit for the Arkansas game and put some things together."

HEARING NOTES:

Rutherford later said that:

- TeamCottrell's response to their motion, "does not dispute our statement of facts, and that's because they cannot." He primarily addressed the charge of defamation, saying that there are three areas of defamation claimed by TeamCottrell.

- According to Rutherford those three areas were 1.) statements made during the official process, 2.) The show-cause order put on the NCAA's web site and 3.) statements made during the investigation which were outside the process (leaking, non-public interviews, etc.)

- Rutherford tried to lay a foundation for Cottrell and Williams to be considered public figures, in a legal sense. The public figure versus private figure argument is a crucial one to both sides because the hurdle clear to show defamation against a public (absolute malice) figure is much higher than the one to a private citizen.

- Rutherford tried to equate the NCAA investigative process with a legitimate legal process, and said that Cottrell and William's own actions invited media attention to the matter, making them public officials.

- Rutherford visited secondary violations and reprimands of Ronnie Cottrell in 1999 and 2000, saying he was admonished by three different athletics directors, required to meet with then SEC Commissioner Roy Kramer to discuss the matters and that his actions were a topic of review for then President Andrew Sorenson and then UA Chancellor Thomas Merideth.

- Rutherford alleged Cottrell was nearly fired for these instances. "All of this happened before the NCAA came to town," he said.

- He said that no testimony from Culpepper or Fulmer was used or led to findings of violations by Cottrell or Williams. "Clearly when you admit to the violations you can't say the charges against you were false."

- Rutherford also claimed that the NCAA was protected by absolute privilege that a private organization adjudicating a matter within rules it has set up. He cited a past case he said supported this argument.

- Addressing the issue of the web site listing Cottrell's name, he said the eight-year show-cause order posted against Cottrell was a clerical error made when an NCAA employee was preparing the Kentucky and Alabama summaries at the same time. Rutherford said this was "clearly" not done with malice.

- Rutherford said he has an affidavit from the woman who purportedly made the so-called clerical mistake, but TeamCottrell had not been privy to the woman's statement and had not deposed the woman. The judge later ordered the woman and her boss to be made available for separate depositions by TeamCottrell within approximately the next week.

- Rutherford said there was no damage in the web posting and claimed that it went unnoticed, and was only brought to the NCAA's attention after TeamCottrell's third amendment to the lawsuit filing. "Mr. Cottrell was never harmed by this erroneous post," Rutherford said.

- Rutherford offered few details when arguing for the motion to get rid of TeamCottrell's conspiracy claim. "There's just not anything there," he said. None of the evidence used to support the charges that were brought against Cottrell and Williams were supplied by the NCAA or Culpepper, Rutherford told the judge.

- He said the conspiracy could not exist because the underlying claims were not strong enough. He said Thomas Yaeger should be out of all the claims, and that Rich Johaningmeier's discussing the claims is "not the type of illegal act the Alabama Supreme Court says you have o have to support a conspiracy claim."

- Rutherford incredibly compared Johaningmeier to a police detective interviewing a witness, and said that people who plead guilty to violations cannot claim damage for being investigated for those violations.

Among Gallion's claims were that:

- To get to Alabama and the person that has been referred to as "the big man at Alabama" (whom Gallion believes to be Mal Moore) the NCAA wanted Williams and Cottrell to testify against Logan Young.

- Gallion said that Fulmer sent at least six communications to Kramer about Alabama beginning in 1998. One was a "for your eyes only" fax from Tennessee to Kramer."

- Gallion said that another document was sent to Kramer warning to beware of Roy Adams, who the document described as "a queer who associates with anyone who will talk to him."

- Gallion alleged that Kramer, who resides in Knoxville, has always been a supporter of Tennessee, and upon being named commissioner of the SEC among his first acts were trying to move the SEC headquarters out of the state of Alabama and trying to move the SEC Championship game away from Birmingham (successfully).

- Gallion also said Kramer was an NCAA infractions committee member in 1998 when Alabama was before the committee, but recused himself.

- He said Kramer and Fulmer had a close relationship and that there is "no doubt they both had utter disdain for the Alabama football program."

- Gallion said that on July 29, 1999 Kramer and Fulmer had knowledge of the Means' shopping and noted that Kramer hired a retired FBI agent Bill Sievers.

- He said that in 2000, Fulmer got the NCAA and Rich Johanningmeier involved, and that between March 9 and May 23, 2003 a quid pro qou arrangement was set in place between Fulmer and the NCAA.

- Gallion noted the glossed over investigations of accusations by Linda Bensel Meyers and Jamie Naughright, as well as the investigation into potential NCAA violations by Diane Sanford exposed by the Mobile Register that amounted to nothing in the eyes of the NCAA because Sanford was deemed to be not a booster.

- Gallion noted the audio tapes that were sealed in the settlement and that are scheduled to be destroyed at the end of the month. Gallion said he did not know what was on the tapes, but "You don't get $300,000 for Christmas carols by Doris Day."

- Gallion said that Fulmer met with NCAA investigator Johanningmeier on May 23, 2000 to give secret witness testimony. The next day, he said, Fulmer told Paul Finebaum in an interview that he was unaware of any NCAA violations by Alabama and that if he was aware of any he would proceed through proper channels within the SEC. His lie was exposed in the Logan Young trial, Gallion said.

- Gallion detailed his allegations of the co-conspirators: The NCAA, Johanningmeier, Fulmer, Kramer, Tennessee boosters in Memphis and Culpepper (later discussing the involvement of the United States Justice Department).

- He said the conspirators needed someone close to the Alabama program to further its conspiracy. That person was Tom Culpepper.

- He said Culpepper and Fulmer met in July in Chattanooga at the house of a UT booster.

- Gallion contended that Gene Marsh and Marie Robbins' depositions both indicate that if they had known about the Means shopping they could have stopped it. Gallion said Kramer lauded the work of Marsh and Robbins. Gallion said NCAA President Myles Brand lauded Gene Marsh. Gallion said Marsh and Robbins both claim that Alabama was not treated fairly and that the NCAA performed an illegal investigation in depositions.

- Gallion said the Justice Department was solicited by the NCAA, and that Lynn Lang cut a deal with the Feds and changed his story.

- Gallion claimed that the Justice Department continually threatened to put Cottrell and Williams in jail. He said that six FBI agents burst into a coaches meeting Williams' was in at Savannah State, telling him he had to appear in Memphis to give his testimony. He alleged that FBI agents went to Williams' house and told his children that Williams was going to jail.

- Gallion outlined alleged relationships among Lisa Mallory, Tennessee booster Arthur Kahn and Logan Young. He said Mallory was a girlfriend of Young's who later married Kahn, presumably implying that Mallory aided in the conspiracy against Young. He said this was relevant because Kahn later raised money for Means in violation of NCAA rules, but was permitted to do so by the NCAA.

- Gallion said he "knew all along" that someone was paying Culpepper's legal bills for him, and that Brand eventually amended his deposition where he said he was unaware of the NCAA footing Culpepper's legal bills.

- After Gallion outlined his version of the alleged conspiracy, Rediker argued that Cottrell and Williams should not be considered public figures for the purposes of the pending case. He said Cottrell and Williams were asked to keep quiet "and like good soldiers, they did." He said Cottrell was also asked by Alabama officials to "go along" with secondary violations alleged against him.

- Rediker meticulously cited case law to support his claim that Cottrell and Williams should not be considered public figures. He alleged that the NCAA leaked damning articles against Cottrell and Williams to the press.

- Delaine Mountain addressed the charges against Thomas Yaeger, saying he violated the NCAA's own rules in the hearing and in his committee's findings against Alabama.

- He said there is no rule requiring Cottrell to disclose any loans from Young (one of the major violations found), and that in his deposition Yaeger admitted that it was the NCAA's "interpretation" of a cited rule that resulted in a violation.

- Mountain claimed that in addition to listing Cottrell's name with a show-cause order, the NCAA was further wanton and negligent because the did not notify each NCAA institution individually that the listing of Cottrell's name was a "clerical error." Mountain said, "They didn't say it didn't happen, they're saying they shouldn't be held liable."

- Rutherford countered these arguments with a broad dismissal without much detail, relying chiefly on his written response for details. "I don't know where all this is coming from," he said.

- Rutherford claimed "we have never contended that Culpepper's testimony was not used. It was. It was used to support charges against Logan Young" and that none of Culpepper's statements were ever used against Cottrell and Williams.

- About the web site error, he said, "There is absolutely no evidence that error was made with malice." He also said there is no evidence that information was leaked by the NCAA or Johanningmeier.

- Rutherford's strongest argument seemed to be that Gallion had the wrong plaintiff and the wrong defendant. "Who does he represent? Does he represent the University of Alabama or does he represent Cottrell and Williams?" he said.

- He said that there is no evidence that the NCAA, before February of 2002, knew about the Logan Young/Albert Means affair, and that the violation had already occurred when the NCAA found out about it.

- He said there was a "absence of evidence" that information from Fulmer and Culpepper resulted in findings against the two plaintiffs, referring to Gallion's claim of conspiracy as "totally made up."

- "Maybe I missed something, but I thought Logan Young was convicted," a smug Rutherford said. "Apparently there is some doubt about that."

- "I don't know what they're talking about, but there's absolutely no evidence," he said.

- Rutherford said Gallion was touting a "conspiracy that doesn't have anything to do with this case."

- Gallion responded saying he has tried to show that his clients were pawns.

Rutherford rolled his eyes and shook his head dismissingly during much of Gallion's later retorts.

- At one point, Wilson asked if Sievers worked for the NCAA.

Gallion said, "The idea that I have dreamed this up, judge, is utter nonsense."

- Culpepper's attorney argued also that Cottrell and Williams were public figures, and that there was no evidence of actual malice against them by Culpepper. He also cited case law that the statute of limitations had expired on many of Culpepper's alleged defamation.

- He said that Culpepper was not a party to any decision by the NCAA or anyone else to use what he told them to hurt Cottrell and Williams.

- Gallion said Culpepper had hatred for Cottrell and wanted him fired from Alabama.

There will be a motion to compel the defendants to turn over a settlement agreement between the NCAA and Cottrell that purportedly spells out details on the NCAA paying Culpepper's legal bills.


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