1. Plaintiff Ronald W. Cottrell ("Cottrell") is over the age of twenty-one years and is a resident of Brewton, Alabama and Tallahassee, Florida. Cottrell is married with three children and is a graduate of Troy State University. Cottrell had been employed as head football coach at various high schools in Alabama before accepting a position in 1989 as Recruiting Coordinator and Tight End Coach at Florida State University. Cottrell was hired in 1997 as Assistant Head Coach, Tight End Coach, and Recruiting Coordinator at the University of Alabama until he was dismissed in November 2000.
2. Defendant National Collegiate Athletic Association ("NCAA") is a self governing organization organized for the purpose of governing college athletic programs in the United States and is located in Indianapolis, Indiana. The NCAA regulates college athletic programs and conducts business in both the State of Alabama and in Montgomery County, Alabama.
3. Defendant Thomas E. Yeager ("Yeager") is over twenty-one years of age and resides in Richmond, Virginia. He serves as Chairman of the NCAA Committee on Infractions and also as the Commissioner of the Colonial Football Association.
4. Defendant Richard A. Johanningmeier, ("Johanningmeier") is over twenty-one years of age, resides in Zionsville, Indiana and serves as Enforcement Representative with the Defendant NCAA.
5. Defendant Dr. Gene Marsh ("Marsh") is over twenty-one years of age, resides in Tuscaloosa, Alabama and serves as Faculty Athletic Representative to the Committee on Infractions. Defendant Marsh is also a member of said committee of Defendant NCAA, and is a law professor at the University of Alabama School of Law.
6. Defendant Marie Robbins ("Robbins") is over twenty-one years of age and resides in Tuscaloosa County, Alabama. She is former Associate Athletic Director at the University of Alabama and Compliance Coordinator to the Defendant NCAA Committee on Infractions. She presently holds an administrative position with the University of Alabama.
7. Defendant Tom Culpepper ("Culpepper") is over twenty-one years of age and resides in Shelby County, Alabama. Culpepper is a freelance sports writer and based on information and belief is one of the "secret witnesses" used by Defendants NCAA, Yeager, Johanningmeier, Marsh and Robbins.
8. Defendant Paul Finebaum ("Finebaum") is over twenty-one years of age and resides in Jefferson County, Alabama. Finebaum does business by and through his radio program and his syndicated newspaper columns that are broadcast and published in the State of Alabama and Montgomery County, Alabama. Finebaum also operates as an agent via his radio program for Defendant Clear Channel Communica-tions, Inc.
9. Defendant Clear Channel Communications, Inc ("Clear Channel") is a corporation with its corporate headquarters in San Antonio, Texas. Said Defendant owns and operates radio stations in the United States and does business in the State of Alabama and Montgomery County, Alabama.
10. Defendant A and B Partnership consisting of A and B is a partnership whose true and correct names is otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h), A.R.C.P., that participated in the tortious acts alleged herein.
11. Defendant ABC Company is a corporation, whose true and correct name is otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h), A.R.C.P., that participated in the tortious acts alleged herein.
12. Defendant XYZ Company is an unincorporated association, whose true and correct name is otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h), A.R.C.P., that participated in the tortious acts alleged herein.
13. Defendant C and D are individuals and whose true and correct names are otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h), A.R.C.P., that participated in the tortious acts alleged herein.
14. Defendant E and F are individuals whose true and correct names are otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h), A.R.C.P., that participated in the tortious acts alleged herein. Facts
15. Plaintiff Cottrell brings this action individually against the Defendants in that he has not only lost his coaching position at the University of Alabama ("Alabama") but has been unable to obtain employment in the coaching profession because of the outrageous and tortious actions of the Defendants. Cottrell has spent over a year investigating matters in which he has been falsely accused (including but not limited to accusations that are criminal in nature) and determining who was behind the efforts to use him as a "scapegoat" in an attempt to destroy the football program at Alabama. He has been able to establish, based on information and belief, a conspiracy that is so outrageous and shocking in nature that it would shock the conscious of a normal individual.
16. Based on advice from counsel, Cottrell voluntarily submitted to an independent polygraph examination given by nationally recognized independent polygraph examiner, Richard D. Rackleff ("Rackleff"), who has conducted polygraph examinations of such national recognized figures as Richard Jewell (the Atlanta Olympic bomb incident), and was involved in other nationally recognized cases such as the Benét Ramsey matter.
17. Cottrell was examined by Rackleff on December 4, 2002 on areas pertaining to the allegations lodged against him by the Defendants, the news media, and others. He passed said polygraph examination as to every question. (see Forensic Polygraph Report attached hereto as Exhibit A.)
18. Cottrell was ordered by the Defendant NCAA not to make any public statements in this matter until the final sanctions were issued against Alabama's football program. Defendants NCAA, Yeager, Johanningmeier, Marsh, and Robbins were also to refrain from making public statements. However, based on information and belief, some if not all of the above stated Defendants violated the agreement. Cottrell honored his agreement, although it was extremely difficult because of the false and defamatory statements made about him in the news media by some if not all of the above stated Defendants on a regular basis.
19. Based on intense investigation, information and belief, Cottrell has discovered that the Defendants NCAA, Yeager, Johanningmeier, Marsh, Robbins, and Culpepper worked together to do harm to Cottrell, other Alabama coaches and the Alabama football program as a whole.
20. On or about to wit January 14, 2001, it was revealed in the Memphis Commercial Appeal by one Milton Kirk ("Kirk") that a Memphis high school coach by the name of Lynn Lang ("Lang") had accepted monies from Alabama Booster Logan Young ("Young") in an apparent attempt to sell Memphis high school football player, Albert Means ("Means"). Both Kirk and Lang have told so many false stories that it is impossible to keep track of their numerous contradicting statements. It is apparent from the articles published in the news media that Lang planned to sell Means to the highest bidder whether it be the University of Arkansas, the University of Georgia, or any other university willing to pay the price. Blended into this soap-operatic production appears one Rip Scherer ("Scherer"), a former Alabama assistant coach, who was disgruntled and bitter after he left Alabama. Scherer emerged himself in the "Means affair" and allegedly participated in the conspiracy against the Alabama football program with the NCAA and others.
21. It is clear that other colleges committed violations of NCAA rules and regulations in the "Means affair" but at this point in time the only college program attacked in this bizarre ordeal has been Alabama. NCAA has historically gone after SEC teams, with the exception of the University of Tennessee ("Tennessee"), with whom it appears to have a "cozy relationship". Based on information and belief, a conspiracy was hatched in Memphis with the help of Scherer and other Tennessee boosters to destroy the Alabama football program. The Plaintiff Cottrell has now realized that he was maliciously used in their conspiracy and questions how the NCAA could deliver such punishment to Alabama based on undocumented hearsay evidence and "secret witnesses." After Cottrell's investigation into the behavior of the NCAA and other Defendants, he has put the pieces of this conundrum puzzle together.
22. It became obvious that Cottrell was being used as a "scapegoat" by not only the NCAA Defendants but also by Defendants Robbins and Marsh. The State of Tennessee was not even in Cottrell's recruiting area and he had nothing to do with off campus recruiting of any athlete in Memphis and/or the State of Tennessee.
23. When it was apparent that the NCAA and its Committee on Infractions was going to again, as it had in recent years, go after Alabama's football program, Defendants Marsh and Robbins decided to take it upon themselves to team up with Defendant Johanningmeier and the NCAA and work with them rather than do what was in the best interest of the Alabama football program. The typical college member institution of the NCAA allegedly reported between 20-25 complaints a year to the NCAA Committee on Infractions. Based on information and belief, the Defendants Marsh and Robbins allegedly reported over 200 complaints. Both Defendants Robbins and Marsh continually made derogatory remarks about the football program and in particular about Cottrell and other members and former members of the Alabama football staff.
24. Based on information and belief, Defendants NCAA and its agents, Marsh and Robbins worked with the news media and the alleged "secret witness" Culpepper to feed derogatory information to the media and particularly Defendant Finebaum, who published and uttered defamatory and untrue remarks about Cottrell. Defendant Finebaum never at any time attempted to call and/or contact Cottrell for his response about any of these libelous statements uttered and published by Defendant Finebaum. While coaching at Alabama, Cottrell continued to be harassed by Marsh and Robbins and they continued to defame him to other members of the staff in an attempt to have him fired and in an effort to further elevate themselves in the eyes of the NCAA and enhance their positions and employment at Alabama. Prior to the "Means affair," there was great inter-rivalry in the Alabama Athletic Department between Robbins, Marsh and members of the coaching staffs. When the Means story surfaced in January 2001, Marsh and Robbins jumped on the story to further inflict harm to Cottrell and the Alabama football program without any knowledge of the truth of any of the allegations.
25. After Means selected Alabama, a story broke in the Memphis media involving alleged wrong doings in the recruitment of Means. It later became evident that this conspired scheme was put together by a group of Tennessee boosters, along with Scherer and others. The NCAA in an unprecedented move and in total violation of its policy, violated its own rules and self-defeated its own code of ethics by officially authorities Scherer to counsel and influence Means as to his departure from Alabama long before the NCAA Committee on Infractions had rendered its decision. Scherer was former head football coach at University of Memphis and was obviously lobbying and counseling Means to leave Alabama and join the Memphis football team. The stories coming from Scherer, Kirk, Lang and other Tennessee boosters were all in such total conflict and utter disarray that a first grade student would see through these fabricated stories. One of the Tennessee boosters, Roy H. Adams ("Adams"), allegedly admitted in a statement that Scherer had furnished him with NCAA supplied status reports as the case was being compiled against Alabama, other coaches at Alabama, and Cottrell. If Adam's statement is true then this would be one of the more egregious violations of NCAA rules in the history of college athletics. Cottrell alleges that something is basically wrong with the NCAA and its agent Defendants' behavior in the "Means affair" in that they ignored obvious and factual evidence and in a mode of selective prosecution went after the Alabama football program and Cottrell, regardless of the absence of truth or any factual data to support the charges. The NCAA simply has hidden behind hearsay evidence and "secret witnesses" that miserably fail basic elementary standards of constitutional law and due process that should be afforded to any citizen or institution in this country. The NCAA and Johanningmeier by working with Scherer, as a counselor to Means twelve months before the NCAA infraction determination was published, blatantly prejudged the outcome of the investigation almost a full year before the initial process even took place and/or was completed. The NCAA, coiled like a giant rattlesnake, inserted its poisonous fangs into the due process and constitutional procedures that should have been afforded to Alabama and Cottrell. This facinorous behavior by the above stated Defendants has resulted in devastation to both Cottrell and to the Alabama football program.
26. Defendant Yeager, serves as Chairman of the Defendant NCAA Committee on Infractions, and also serves as Commissioner of the Colonial Athletic Association ("CAA") that is comprised of smaller college programs located in the Virginia region. Yeager has several personal connections with people that were conspiring to go after Cottrell and Alabama's football program, such as his close friend Scherer, who had been head football coach at James Madison University from 1991 to 1994 and who played football at William & Mary University, both colleges are members of CAA. Yeager should have immediately disclosed this fact to Alabama and Cottrell and recused himself from hearing any of these matters based on his relationship with Scherer. It is obvious from publications and other documentation that Scherer had a vendetta against Alabama after he left and teamed up with his good friend Yeager to go after Alabama and Cottrell, who became one of their "scapegoats". Yeager went so far in a public statement he made the following announcement concerning the Alabama penalties, "Alabama was absolutely staring down the barrel of a gun." It is now obvious who the "gun wielding assassins" are. This type of behavior by NCAA and its agents Yeager and Johanningmeier reveals the prejudice they held against Alabama that has resulted in harm to Cottrell.
Defendant National Collegiate Athletic Association ("NCAA")
Pattern and Practice
27. The NCAA has had a past history and a clear pattern and practice of selective prosecution and unbridled persecution of any and all college athletic programs, individual coaches, and "boosters" that dare to defend themselves. The best example to show the unconscionable and unsavory behavior of the NCAA and in particular its Committee on Infractions is the case of Jerry Tarkanian vs the NCAA.
28. Jerry Tarkanian ("Tarkanian") was the very successful basketball coach at the University of Nevada at Las Vegas ("UNLV") who stood up for his rights and was prosecuted in the most graphic unconstitutional and immoral manner ever recorded in the annals of American Jurisprudence. Tarkanian has been quoted as saying, "People kept telling me not to mess with those guys (NCAA Committee on Infractions) that they would destroy me. I just couldn't believe that could happen. I believe it now."
29. After years of fighting with the NCAA, Tarkanian finally was exonerated in 1997 and the NCAA made a multi-million dollar settlement with him. At the end of this long and drawn out ordeal, Tarkanian was quoted as saying, "Being the winningest coach of all time, that's great. But fighting for what's right, that's better … my reputation will never be the same, I did what I thought was right, though."
30. The Tarkanian matter is shockingly similar to what has happened to Cottrell and the Alabama football program in the last few years by the deliberate and intentional prosecution of them by the NCAA related Defendants. In the Tarkanian case, the NCAA used 100% hearsay information, believed a disgruntled and fired ex-employee of UNLV and refused to allow Tarkanian to have any sort of legal reply to the allegations lodged against him. After nearly three years of stalking UNLV, the NCAA delivered its 54 page list of allegations. Tarkanian took exception to each of the ten allegations the NCAA made against him and on each his lawyers delivered sworn statements, depositions, and documents that proved his innocence. The NCAA and its Infractions Committee disregarded all of the evidence and without allowing Tarkanian to face the "secret witness" and/or his accuser, they found him guilty and suspended him from coaching. After the secret witness and the ex-employee of UNLV read about the suspension, he felt so guilty that he called Tarkanian and admitted that he had agreed out of anger to be the NCAA source and asked Tarkanian for forgiveness. This former coach at UNLV called the Nevada Attorney General's Office and volunteered to give a deposition as UNLV prepared for its appeal to the NCAA Council. Despite the confession of said "secret witness," the NCAA chose to build its case around his admitted false allegations.
31. In August 1977, UNLV appealed the committee's decision to the NCAA Council. It did so, though, with little hope of reversal. No school had ever won an appeal up to that time, and to Cottrell's knowledge, no school has won since. UNLV wrote in its appeal, "The University has good reason to believe, supported by uncontestable facts, that information provided to the NCAA investigators to the Committee on Infractions was either false, misleading, or, at best, grossly inadequate." The NCAA in all probability did not even review this appeal and upheld the Infraction Committee's findings, ignoring the uncontroverted evidence exonerating UNLV and Tarkanian. The Nevada Attorney General's Office testified that the investigation conducted by his office "found no factual basis for the NCAA charges."
32. The NCAA has long ignored the authority of the judicial system and the United States Congress. Similar to the Cottrell case, while defending itself in court, the NCAA issued daily press releases despite the repeated warnings of the Nevada District Court. The Court, in chastising the NCAA, said its refusal to abide by its order to stop daily press releases was "clearly an attempt to wield its power with the press to win the case through the media if it couldn't do so in court." When Congress attempted to subpoena documents for its investigation, the NCAA originally ignored the subpoenas then issued a veiled threat to the universities that might consider participating in these hearings. The congressional committee chairman wrote a letter to the NCAA Executive Director reminding him that "to endeavor to influence, intimidate or impede any witness before a congressional committee was an felony." Totally ignoring this letter, the NCAA continued its outlandish behavior. As quoted in newspaper articles and other sources, to both Congress and the courts, the NCAA's attitude could best be characterized as arrogant. At its worst, the organization's behavior bordered on criminal. But in those public forums, the NCAA's enforcement system in general and its treatment of Tarkanian, in particular, was showed to be malicious, slipshod, inaccurate, one-sided and bigoted. The same is true as to its treatment of Cottrell and Alabama.
33. The NCAA actually threatened innocent basketball players at UNLV and despite one of these players repeatedly telling the NCAA that he did not know of any violations by Tarkanian and other players placing affidavits in the record showing that they were threatened, the NCAA suspended said players and it took a Nevada District Court to order said players reinstated. The NCAA was also chastised for its radical discrimination by the court. The then head of the NCAA referred to Tarkanian as a "rug merchant," a bigoted reference to the coach's Armenian ancestry. The Nevada District Court admonished the NCAA and stated as follows, "The name of the Chief Justice of the State of Nevada is Manoukian and the name of the Governor of the State of California is Deukmejian. All are Armenian and there isn't a rug merchant among the three."
34. Similar to the Cottrell and Alabama matter, the NCAA used a UNLV supporter Rodney Parker ("Parker") by declaring him a "representative of the University's interest," a euphemism used by the NCAA to describe boosters. Like the accusations against Cottrell involving Alabama and its booster Logan Young, the NCAA in its case against Tarkanian continued to strike out at every turn. The NCAA made wild accusations and reported that the information had been given to them by this UNLV booster. It shocked the UNLV attorneys as to its content. A problem occurred when Parker had taped the interview by Mr. Berst of the NCAA in which showed clearly that Parker had not made any of the accusations as represented to UNLV and the public as a whole. The Parker incident underscores what the NCAA will do to win its case. It did not matter how many affidavits, how many taped transcripts, or how many depositions UNLV presented and the fact that the NCAA had absolutely no other contradictory evidence. It allowed its Infractions Committee to repeatedly accept hearsay from its investigators while more legally recognized evidence – depositions, affidavits, flight records, and other documents submitted by UNLV - were ignored.
35. The NCAA even went after one of UNLV's professors, Harvey J. Munford ("Munford"), falsely accusing him of doctoring grades of one of the basketball players. Munford submitted a sworn affidavit from the player stating that Tarkanian had made no arrangements with this teacher, letters from five students, none of whom were athletes stating that the player attended all of his classes and reputed each and every allegation the NCAA lodged against Professor Munford. Unbelievably, the NCAA found Munford guilty. On appeal his attorney presented the NCAA with the results of a polygraph test verifying the points that he had made in his affidavit (the polygraph showed Munford was telling the truth) and an additional voice analysis test that supported Professor Munford's polygraph test. The NCAA ignored all these documents. This unbelievable prosecution of Munford parallels its action against Alabama Professor Dr. Tom Jones.
36. Tarkanian requested a right to bring witnesses to the NCAA's final hearing to allow him the basic constitutional right to face his accusers. UNLV even offered to pay the cost of transporting the witnesses to the hearing. Unbelievably, the request was denied by the committee and it was made clear that only the "accused" and not the "accusers" would be cross-examined before the committee, prompting two courts to note that "every fundamental principle pertaining to the plaintiff's (Tarkanian) due process rights was violated by the NCAA.
37. The Los Angles Times wrote after the Congressional hearings were complete that, "the National Collegiate Athletic Association is a governing body in college athletics that occupies the same spots in the hearts of its subject as the Gestapo in Warsaw. The NCAA deals in more hearsay than Rona Barrett."
38. Clark County (Nevada) District Court Judge James Brennan, who was the first to hear the Tarkanian case and who ruled against the NCAA, stated in this opinion that … "The case against Tarkanian was incredible. The evidence the NCAA presented was 100 percent hearsay without a scrap of documentation in substantiation. The evidence shows that every fundamental principle pertaining to the plaintiff's due process rights were violated. The Committee on Infractions and its staff conducted a star chamber proceeding and a trial by ambush against the plaintiff (Tarkanian). … The Committee on Infractions allowed a staff investigator, who, the evidence clearly shows, swore he would get Tarkanian if it was the last thing he ever did, to act as an investigator, judge and jury. The record is replete with lies, distortion and half truths. … There is no legal credible evidence to support the findings and the actions of the NCAA."
39. The next judge to hear this matter in Nevada was District Court Judge Goldman, who stated in his order as follows: "… the NCAA now seems to say: if you want to play ball, you must join us, obey rules and surrender any claim you may have under the Bill of Rights. … In sum, what started out as an association whose members met and acceded to certain lofty goals ended up as the NCAA-bureaucracy which looks upon its friends (sycophants) with feigned pleasure, and its enemies (those who still recognize the U.S. Constitution) with barely concealed malevolence. … NCAA practice might be considered "efficient," but so was Adolf Eichmann and so [was] the Ayatollah."
40. During the trial when the NCAA continued to argue with Judge Goldman and attacked Judge Goldman and his decisions at every turn, Judge Goldman stated, "that the clause in the NCAA manual "illustrates the arrogance" of the organization. Even the NCAA's insistence on the use of the word ‘legislation' instead of ‘rules' gives us a view of the NCAA view of itself and its power."
41. The NCAA's pattern and practice did not stop there as it continued to wreak havoc in UNLV's programs for years to come as they are presently doing with Alabama. The NCAA has continually gone after innocent individuals and ruined their careers. Nevada, Illinois, Florida, and Nebraska have enacted due process laws to combat the NCAA as a result of the Tarkanian decision. Although the NCAA claims to have changed its rules in 1999 and now allow due process, it obviously has violated its own rules and regulations in this case at bar. The NCAA has been sued over and over and to Cottrell's knowledge has never won a lawsuit of this nature to date. After it wreaks havoc and ruin coaches, players, professors, and boosters reputations, it reaches into its hip pockets and pays out monies in order to make a settlement hoping that its hideous and despicable behavior will be kept under wraps.
42. Cottrell alleges that he and Alabama have been treated in the same outrageous manner by the Defendant NCAA and its Defendant agents as Tarkanian and UNLV with the exception that UNLV did not have inside and "Judas-like" employees such as Defendants Marsh and Robbins assisting the NCAA's efforts.
43. As with UNLV Professor Munford, one does not have to go back far to recall the NCAA attack on Alabama Faculty Chairman of Athletics, Dr. Tom Jones ("Jones"), as he was falsely accused by the NCAA of being incompetent and committing malfeasance in his job. After being accused of unethical conduct in 1995 in the NCAA Infractions Report, Jones fought back. He threatened a defamation suit and the NCAA backed down. Jones forced the NCAA to have an unprecedented nationwide media teleconference that vindicated Jones and his good name.
44. In addition, based on information and belief, the NCAA paid Jones a large monetary settlement for its reckless and gross behavior. However, the lengthy fight to clear his name left scars after six years. By Jones successfully fighting and prevailing in this matter, one would think that the NCAA had learned its lesson, but that is not the case. The NCAA proved once again that when individuals like Jones and Tarkanian stand up to clear their names, the NCAA is quick to settle the case but will subsequently come back and attempt again in a vindictive and malicious manner, to destroy those who stand up against the NCAA's outlandish behavior. This dictatorial organization has ignored court orders, congressional investigations, and considers itself to be, not only above the law, but an organization that can do whatever it pleases, when it pleases, regardless of the disastrous results left in the wake of its tenable and outrageous behavior.
45. The NCAA has once again proven to be an insidious, entangled, and insensitive organization that is unbridled and out of control. The NCAA, by and through its agents, shows a complete disregard for human decency and totally ignores basic constitutional guarantees afforded to every citizen of this country. The NCAA's limaceous and lascivious behavior by slipping in and out of dark alleyways of Memphis, Tennessee and obtaining and accepting hearsay testimony from "secret witnesses," liars, and convicted felons in an effort to destroy dedicated football coaches (Cottrell), boosters, and the Alabama football program, must be exposed.
46. Cottrell has had his coaching career destroyed by this cannibalistic organization, that forces its subjects to submit to its above described dictatorial power, as it destroys and devours these individuals similar to the antics of the fictional character Hannibal Lector. Because its rules are vague, broad and far reaching the NCAA and its agents use their power to team up with those connected to other member colleges, to destroy the athletic programs of other competing programs, while protecting those college athletic programs that are well connected with the hierarchy of the NCAA.
Actual Facts as to Defendants' Actions
Against Plaintiff Cottrell
47. In November 2000, Cottrell was notified that he was going to be interviewed on the record by Defendant Johanningmeier on November 29, 2002. Only a few days before said recorded transcribed interview, Cottrell was told that he should get an attorney to represent him in this matter. Cottrell was under the mistaken impression that Richard R. Hilliard (Attorney hired by the University of Alabama from Indianapolis, Indiana and a former employee of Defendant NCAA) would also protect his interest as a recent employee of Alabama. Because of the incestuous relationship between Hilliard and the NCAA, it later became apparent in Cottrell's second interview that this was not the case. Based on information and belief, Marsh and Robbins were previously rumored to be trying to not only get Cottrell's fired but also destroy the Alabama football program in order to elevate themselves to higher positions. Cottrell thought because Marsh and Robbins were both attorneys, they had a duty to assist him in his defense of these false allegations. This again was not the case. With only a few days to secure an attorney, Cottrell was able to meet with and employ Stewart F. Vargo ("Vargo") of Birmingham, Alabama, who was put at a terrible disadvantage in not being able to properly prepare for said hearing through no fault of his own.
48. On November 29, 2000, Cottrell met with Vargo and was instructed by him, as any good attorney would instruct their client, to answer only those questions asked and to volunteer nothing.
49. The recorded hearing took place at 9:30 a.m. on November 29, 2000 and the examination was to be conducted by Johanningmeier. Shortly after the examination got underway, it became apparent that Marsh and to a lesser extent Robbins would join together with Johanningmeier in an attempt to make Cottrell out to be a liar. Cottrell was shocked and after the interview was totally confused about who was representing whom and whose interest was being protected. It was at this time that Cottrell agreed with the Defendants present not to discuss any matters pertaining to the interview with the media. As stated above, Cottrell did comply with this agreement but it later became obvious that the other Defendants present did not comply with the agreement.
50. In that Plaintiff Cottrell had been dismissed from his position as a coach at Alabama in November 2000, it was not until early February 2001 that he was given any evidence that there may have been a conspiracy to not only remove him from his coaching job but also to use him as the "scapegoat." Cottrell and his attorney went over the transcribed November 29, 2000 interview and determined that he had told the truth about each and every area in which he was examined. He was never asked about the mortgage loan with Alabama Booster Young anywhere in the 383 page transcribed interview.
51. Cottrell was subsequently informed that a second interview would take place on May 16, 2001. It was at this interview that Cottrell actually realized that he was being used as a "scapegoat" and that the NCAA, Johanningmeier, Marsh, and Robbins would do nothing short of trying to find any area in which they could find Cottrell guilty. As the recorded interview began Cottrell's counsel stated that he would voluntarily answer all questions and agreed to give Johanningmeier any documents that they formally requested. It was placed on the record (tr. p. 7-9) that Defendants NCAA, Johanningmeier, Marsh and Robbins had obviously violated the confidentiality agreement as to the November 29, 2000 interview in that matters contained therein had been purposefully leaked to the press.
52. In addition, Cottrell's attorney placed on the record the NCAA's own rule, "Any member of the Committee on Infractions or the appropriate appeals committee per bylaw 19.3 or a hearing officer who is directly connected with an institution under inquiry shall not take part in any NCAA proceedings connected with the case. And Mr. Marsh is now here …" (tr. p. 10-11) Cottrell's attorney further showed what a blatant conflict of interest it was that Marsh and Robbins were taking part in the examination of Cottrell and how it violated the NCAA's own rules. He further brought up the fact that a newspaper article revealing information contained in the first interview was published which, based on Marsh's own statements, had to come from him or someone connected to him.
53. Incredibly, Hilliard, the attorney for Alabama, who is considered to be an authority on the rules and regulations governing the NCAA, made the following unbelievable statement concerning the violation raised by Cottrell's attorney, "but there is no definition of NCAA proceedings within Bylaw 32 and it would be our position that this is not a NCAA proceeding." (tr. p. 13) This statement by Hilliard is so incredulous it would shock any individual as to how the NCAA could have court reported interviews with a person accused of violating the NCAA rules, use said interviews to base its final decision and then state that these interviews were not part of a NCAA proceeding is beyond belief. Johanningmeier, Marsh, and Robbins were all NCAA officials and were all present at both interviews. To emphasize this oxymoron, one only has to look at the NCAA Infractions Report No. 193 in which the NCAA bases the findings against Cottrell on these very interviews and his responses thereto.
54. Incredibly, the NCAA found Plaintiff Cottrell guilty of "unethical conduct" because he did not answer a question that was not even asked, at the November 29, 2000 transcribed interview. Again, Cottrell followed the advice of his attorney and did not do anything but answer the questions asked to him by Johanningmeier, Marsh and Robbins. In that Cottrell had answered all of the questions honestly and without hesitation, he was shocked that the NCAA Committee on Infractions headed by Yeager found him guilty of unethical behavior. Said Committee quoted in its rationale paragraph that, "although the case is very close, the committee concluded that, on balance, there was insufficient evidence to support a finding of unethical conduct. Nevertheless, the committee concluded that the Assistant Coach's (Cottrell) responses did not constitute the full and complete disclosure required by bylaw 19.01.3 and fell short of the standards of honesty required by bylaw 11.1.1."
55. Naturally, based on such bizarre findings, Cottrell appealed this matter to the NCAA Division One, Infractions Appeals Committee. Incredibly on September 17, 2002, said appeal committee issued the following finding, "On a review of the record, we conclude the findings constitute violation of the NCAA Bylaws and are not clearly contrary to evidence. The former assistant coach ("Cottrell") also argued that he was denied due process when the Committee on Infractions found violations that he had not been charged. The evidence of the conduct on which the findings of violation were made was presented to the Committee on Infractions hearing. It may find violations based on ‘information developed or discussed during the hearing' (Bylaw 19.5.3.) There was, thus, no procedural error … findings and violations 2 - C1 - 2 - C3 are affirmed."
56. Likewise, Alabama and Cottrell were also charged with violations of "16.12.2 – Non permissible" which is non-existent. The rule states, "This bylaw is only a heading and does not contain any text in the manual." The NCAA also charged Cottrell with having a speeding ticket dismissed for Shamari Buchanan by Colonel Mike Sullivan, who was at the time the Director of the Alabama Department of Public Safety. Sullivan has denied that this is true and is willing to testify under oath that the NCAA allegation is false.
57. Even during the era of Hilter's Gestapo and Mussolini's "Storm Troopers" has a self-governed non-regulated committee of this nature ever been allowed to destroy the reputation and career of individuals based on hearsay, "secret witnesses", violations of their rules, and incredibly based on "information developed or discussed during the hearing" without even informing the accused of what information developed and discussed that was a part of their finding.
58. The citizens of this country, in particular athletes and coaches who participate in college athletic programs, should live in fear that this renegade and unbridled Gestapo type of agency could destroy their lives and athletic programs of their colleges with a stroke of its poisonous pen. The Defendant NCAA and its agent Defendants did in a malicious, unconstitutional and defamatory manner destroy the career of Cottrell.
59. Culpepper, who has worked in conjunction in the above stated conspiracy with some of the Defendants, did so because of his uncontrollable hatred of Cottrell. Culpepper, based on information and belief, is believed to be one of the "secret witnesses" in this matter and has made the following false statements about Cottrell:
(a) "Ronnie embezzled money from the Shaun Alexander Foundation";
(b) "Ronnie and another individual had stolen video tapes from Alabama of high school recruits";
(c) Culpepper stated to individuals openly that Cottrell lacked integrity and was a liar;
(d) Culpepper referred on the website BamaMag.com on 11-04-01 that, "Keepers of your program lack character" (referring to Cottrell); and
(e) Culpepper compared Cottrell to O. J. Simpson and John "Teflon Don" Gotti.
In addition to the above libelous and defamatory remarks, Culpepper stated to an individual in the media, "I will see to it that Ronnie Cottrell never coaches again." In addition, Culpepper told Cottrell after he had been dismissed at College Sports Southeast, "I have been hurt, now it is time for you to hurt." These examples of malice and outrageous conduct are beyond what a civilized society should accept.
60. Defendant Finebaum, individually and as agent for Clear Channel Communication, Inc. uttered and/or published the following false statements:
(a) In a "lead-in" for Finebaum's program on June 1, 2001 and subsequently, he referred to Cottrell as a "scumbag";
(b) On his radio program he stated that Cottrell allowed a University of Alabama football player to improperly live at his home;
(c) Finebaum alleged that Cottrell had gone to Athletic Director Mal Moore in an attempt to get Marie Robbins fired;
(d) On October 1, 2002, Finebaum stated words to the effect that Carnell "Cadillac" Williams was coming to Alabama until Cottrell offered him a bribe and/or some other incentive to attend Alabama;
(e) Finebaum stated that Cottrell was the one who had leaked the alleged extra martial affair of Coach Dubose to the press and compared him to O. J. Simpson;
(f) Finebaum put into print on February 15, 2002 in a newspaper column in the Mobile Press Register, "others thought that he (Cottrell) was the one who leaked the rumors that DuBose had an affair with his secretary …"; and
(g) In a February 2, 2002 article published in the Mobile Press Register, Finebaum stated that, "Instead of stemming the Tide of good ole boy network, it got worse with the hiring of Mike DuBose and the subsequent addition of recruiting guru Ronnie Cottrell and the allowance of both to be coddled by influential boosters." All of the above libelous statements are false and Finebaum never checked with Plaintiff Cottrell to determine if these statements were true and/or to get his side of any of these false allegations. In addition, Cottrell is continuing to receive recordations and other newspaper publications in which Finebaum has aimed and participated in a scheme to destroy Cottrell and his coaching career, through his libelous statements.
61. The facts in this case are so incredulous that it is almost unbelievable as to what has occurred. Not only has the Plaintiff Cottrell's reputation as a coach been destroyed but his life, along with that of his wife and children, have been devastated. In addition, the specious and malicious conspiratorial scheme to make Cottrell a "scapegoat" in an effort to destroy the Alabama football program are almost beyond belief.
Deceit and Reckless or Wanton Conduct
62. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
63. The Defendants NCAA, Johanningmeier, Yeager, Marsh and Robbins were each under an obligation and affirmative duty under the special circumstances of this case, and by virtue of their actual and/or de facto fiduciary positions or prior fiduciary positions to communicate material facts to the Plaintiff of what they thought may be an alleged wrong-doing by the Plaintiff. Said Defendants instead elected to enter into this scheme through reckless and wanton conduct to suppress, conceal and failed to disclose their real intent and reasons why they were taking these actions without proper investigations which were fraudulent, deceitful and malicious.
64. The above stated Defendants have knowingly, willfully and/or recklessly deceived the Plaintiff through such secretive, misleading and omissive activity.
65. Said Defendants knew or recklessly disregarded, or were reckless in not knowing that, the statements made by them were misleading, which caused injury to the Plaintiff.
66. Said Defendants knew and/or should have known that they could obtain any and all information needed to answer any questions pertaining to the above described allegations against the Plaintiff. They instead chose to enter into a conspiracy that would cause harm to the Plaintiff, by falsely accusing the Plaintiff of unethical conduct.
67. The conduct of said Defendants was attended by such malicious, intentional, willful, reckless, wonton and/or outrageous conduct that an award of exemplary damages is necessary and appropriate to punish said Defendants for such conduct and to make an example of them and to deter repetition of such conduct. Plaintiff is entitled to punitive damages under the facts of this case.
68. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
WHEREFORE the Plaintiff claims an amount of Fifteen Million Dollars ($15,000,000) in compensatory damages and Forty-Five Million Dollars ($45,000,000) in punitive damages plus attorneys' fees and other related costs from the Defendants.
Breach of Fiduciary Duties
69. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
70. Defendants Marsh and Robbins were under an obligation and affirmative duty under the circumstances of this case as outlined in the Complaint, and by virtue of their positions, to communicate material facts to Plaintiff Cottrell. Moreover, Defendants Marsh and Robbins, directly and through their legal representative, Hilliard, acting with apparent authority, sought to instill in the Plaintiff a trust the NCAA Committee on Infractions and created an relationship of trust and confidence, out of which a further duty to disclose arose. Defendants Marsh and Robbins suppressed, concealed, and failed to disclose material facts, which under the special circumstances of this case. Defendants were under duty to communicate to Plaintiff Cottrell. Defendants' actions constitute a breach of their fiduciary duty. The Plaintiff suffered damages as a proximate result of said Defendants breach of fiduciary duties.
71. The conduct of Defendants was attended by such malicious, intentional, willful, reckless, wanton, and/or outrageous conduct that an award of exemplary damages is necessary and appropriate to punish Defendants Marsh and Robbins for such conduct that has caused severe mental and emotional distress and to make an example of them so as to deter repetitions of such conduct. Plaintiff is entitled to compensatory and punitive damages under the facts of this case.
72. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
WHEREFORE the Plaintiff claims an amount of Fifteen Million Dollars ($15,000,000) in compensatory damages and Forty-Five Million Dollars ($45,000,000) in punitive damages plus attorneys' fees and other related costs from the Defendants.
Intentional Interference with Business
73. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
74. Plaintiff had an on-going coaching career with numerous opportunities of which Defendants NCAA, Johanningmeier, Yeager, Marsh and Robbins were aware.
75. Said Defendants intentionally made false and accusatory comments about the Plaintiff with the intent to interfere with the Plaintiff's on-going coaching career and relationships. Specifically, said Defendants made invalid statements concerning the Plaintiff's reputation in the community with willful intent to destroy the coaching relationship between the Plaintiff and his employer while using the false allegations against the Plaintiff in order to elevate their positions and careers in this area of college athletics. Plaintiff suffered damages as a proximate result of said Defendants' intentional interference with the Plaintiff's business relationships.
76. The Defendants' false allegations were malicious, intentional, willful, reckless, wanton, and/or outrageous conduct that an award of exemplary damages is necessary and appropriate to punish said Defendants for such conduct and to make an example of them so as to deter repetitions of such conduct. Plaintiff is entitled to punitive damages under the facts of this case.
77. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
WHEREFORE the Plaintiff claims an amount of Fifteen Million Dollars ($15,000,000) in compensatory damages and Forty-Five Million Dollars ($45,000,000) in punitive damages plus attorneys' fees and other related costs from the Defendants.
Libel, Slander and Defamation
78. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
79. Defendants Culpepper and Finebaum, individually and as agent for Clear Channel Communications, Inc., made statements and caused to be published false, libelous and defamatory statements of and concerning the Plaintiff as described above.
80. When the above stated Defendants entered into a conspiracy with the NCAA Defendants and others, they caused and participated in actions to cause the statements to be published in the statewide news media and sent to various people in the college football programs in which the Plaintiff did business. When the said Defendants made and/or published said statements, they knew or should have known that statements were false, and their actions were further done with reckless and gross disregard as to whether or not such statements were true or false.
81. As a proximate result of said Defendants' defamatory actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
Tort of Outrage
82. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
83. Based upon the above stated facts, all of the Defendants intentionally or recklessly caused Plaintiff to suffer emotional distress by the Defendants' outrageous conduct.
84. Defendants' actions towards the Plaintiff were so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and are atrocious and utterly intolerable in a civilized society.
85. The emotional distress that the Defendants caused Plaintiff to suffer was so severe that no reasonable person could be expected to endure same.
86. In addition to the emotional distress, the Plaintiff has also had to suffer economic loss.
87. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
False Light – Invasion of Privacy
88. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
89. The facts contained in the Complaint herein included quoted statements which were falsely attributed to the Plaintiff.
90. By attributing the above stated false allegations set forth in this Complaint to the Plaintiff, the Defendants placed the Plaintiff in a false light before the public.
91. The Defendants knew of the falsity of the statements or acted in reckless disregard as to the truth or falsity of the statements by publishing the false allegations to the public as a whole.
92. As a result of the publication of the above mentioned false allegations, the Plaintiff suffered injury to his reputation, suffered severe emotional distress which required medical treatment, and had a substantial loss of income.
93. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
94. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
95. The Defendants undertook the duty to provide factual information to exonerate the Plaintiff. The Defendants conspired to cause pain and suffering to the Plaintiff by falsely accusing him of illegal acts.
96. The Defendants breached their duty, in that they wantonly failed to provide and procure factual information that would clear the Plaintiff of any wrong doing.
97. As a direct result and proximate cause of said wanton conduct, Plaintiff has suffered damages in that it appears that these conspiratorial acts and libelous statements were purposely done to wantonly cause injury to the Plaintiff.
98. As a proximate result of said Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
99. Plaintiff realleges and incorporates by reference all the allegations contained in prior paragraphs of this Complaint, as if fully set forth herein.
100. Plaintiff, based on information and belief, alleges that the Defendants entered into a conspiracy with each other to destroy him and use him as a "scapegoat" to destroy the Alabama football program.
101. The Defendants set out in an conspiracy to destroy the coaching career and personal reputation of the Plaintiff for personal reasons.
102. The Defendants have contrived, combined, federated, and conspired among themselves and others named herein to do the acts hereinbefore described. The Defendants are liable for the damage done to the Plaintiff because of the actions committed as described herein.
103. The Defendants entered into the above-described conspiracy to commit legal wrongs that are actionable under the laws of the State of Alabama. These parties, separately, severally and/or in combination, committed various acts and falsely instituted this illegal scheme against the Plaintiff in order to cheat, and/or defraud him out of his job and business properties by unlawful and deceitful means; and /or caused harm to the Plaintiff in an attempt to interfere with his business relations and to prevent him from exercising his coaching career. These legal wrongs are contained in the paragraphs herein.
104. As a proximate result of the Defendants' actions, the Plaintiff has been caused to suffer great mental pain and anguish, monetary damages, property damage and other like and similar damages compensatory in nature.
WHEREFORE the Plaintiff claims an amount of Fifteen Million Dollars ($15,000,000) in compensatory damages and Forty-Five Million Dollars ($45,000,000) in punitive damages plus attorneys' fees and other related costs from the Defendants. Respectfully submitted this 20th day of December 2002.