Catching up with Todd McNair

It's been nearly 22 months since LA Superior Court Judge Frederick Shaller ruled against the NCAA in the Todd McNair lawsuit and now the organization's appeal will finally be heard. Here are the briefs and a little review for what both sides say happened.

Time for a little review here for those of you who would like to get ready for next month's California Court of Appeals hearing of the NCAA's attempt to have Todd McNair's lawsuit dismissed almost 22 months since it was first ruled on in LA Superior Court.

The 9,623-word Appellant's Reply Brief the NCAA filed Feb. 10 was in answer to the 16,272-word brief filed by McNair's attorneys Nov. 27.

There's a lot of lawyer stuff but the basic thrust of what's happening here is how the NCAA will do anything to keep you from seeing the hate-filled, prejudicial emails that show just how the organization abandoned all sense of fairness or obeying its own rules in its desire to take the USC football program down.

USC fans who have paid careful attention to the NCAA's infractions case against USC and its finding of unethical conduct against McNair in order to be able to take down the Trojans program with severe sanctions will be right at home here. And also at the 1:30 p.m. Oct. 15 hearing at the Ronald Reagan State Office Building on Spring Street downtown as the NCAA attempts to get the LA Superior Court rulling of Judge Frederick Shaller's overturned.

While the NCAA redacted very little in its 37-page brief saying that Shaller erred and McNair has no case for defamation and the suit should be dismissed, that's not the case for McNair's attorneys. They adopted a much more conservative approach as to what should be redacted.

The McNair brief argues that the NCAA had to "fabricate" evidence, change witness statements, and then after being made aware of some of its evidence was false like the famous wrong-year, wrong-caller Lloyd Lake two-minute phone call, it still allowed three different agencies of the organization to publish false charges implicating McNair as the dishonest, guilty party when the NCAA deserved that designation.

There are a total of 16 pages of redacted material here, an estimated 3,800 words. And while the NCAA tries to play down that phone call, McNair's brief makes it clear that "the basis for the NCAA's career-ending sanctions was the one late-night, two-minute telephone call between McNair and Lake . . . redacted . . . the NCAA had a problem, however . . . redacted . . . Accordingly, unless Lake's statement was altered, the NCAA could not reach its predetermined, career-ending findings against McNair. So even though the NCAA knew the facts were contradicted by the record, three different NCAA departments approved the publication of these false facts. They further continued to cling to them even after their falsity was explained in writing and in great detail by McNair's lawyer (Scott Tompsett) in his administrative appeals brief."

Some of the best stuff comes when the brief quotes NCAA bylaws saying that "institutions, staff and student-athletes be afforded 'fair procedures in consideration of an identified or alleged failure of compliance.' " Quoting again from the NCAA bylaws, they say such fairness is "essential to the conduct of a viable and effective enforcement program."

McNair's brief makes the comment that "the process was anything but fair to McNair. As detailed below, in addition to fabricating the facts, the NCAA violated its own rules, procedures and bylaws . . . the NCAA believed that whenever fair process stood in the way of their ultimate goal, it could be ignored, regardless of the consequences to McNair."

What the NCAA did was "a blatant deliberate falsification of material facts," McNair's brief says. It also contends that he's not a "public figure" in even the limited purpose of that term since McNair in no way inserted himself into the situation he found himself in, the NCAA did.

There are hints at how it happened after the three-day Committee on Infractions hearing in Tempe. "Once the hearing has ended, the rules require the voting members, and the voting members only, to begin their deliberations similar to that of a jury. The voting members are not to be influenced by non-voting members of the COI, or by the Coordinator of Appeals, or by information outside of the record. (AA 401-402, 437-440, 452 [NCAA Division I Manual, Rule])."

The next seven pages, describing what McNair says actually happened, are mostly redacted but there are some highlights: "In the first round of deliberations, the NCAA began a systematic course of violating its own rules, procedures and bylaws regarding deliberations . . . (redacted for half a page) . . . This was done even though the bylaws required the COI to discuss the matter in private with only voting members."

It continues with this note: "On Feb. 22, 2010, one day after the first day of delibertions, . . . (the next 28 lines are redacted) . . . Even though he was required to be a neutral administrator . . . (11 more redacted lines) . . . Neither McNair nor his counsel were made aware of the existence of . . . (two lines redacted) . . . As such, they did not have the opportunity to respond. Moreover, when questioned about his memo, . . . (next two lines redacted). "Further still . . . (then the next 27 lines are redacted with this lone exception) . . . After violating these clear-cut rules regarding deliberations.

"But even then, this action by the NCAA could still not overcome the fact that the record evidence could not support a finding of unethical conduct. So the NCAA broke another of its rules related to fair process : . . . (then 18 ompletely redacted lines exept for this one word) . . . Worse . . . redacted).

Then there is this concluding graph. "In order to punish USC to the extent desired, it needed to make a finding against Todd McNair. Without such finding, the only remedy which the NCAA had in relation to the Reggie Bush issue would have been a charge of a violation of amateurism legislation against Reggie Bush himself. USC could not have been charged or penalized as severely as it was. In the limited discovery plaintiff has been afforded so far, . . . (redacted for eight more lines)."

Not redacted is this comment from the trial court that there was "evidence showing an ill will or hatred by three NCAA agents toward McNair including writings expressing that 'individuals like McNair shouldn't be coaching at ANY level,' calling him a lying, morally bankrupt criminal' and 'a hypocrite of the highest order'."

There's a whole lot more in the brief. A lot of technical legal cites on Anti-SLAPP law, "malice" and whether McNair is a public figure of any kind or not.

But that doesn't matter, the NCAA says in its brief contending that "factual error . . . an inadequate investigation . . . or overt hostility" in finding McNair guilty of unethical conduct are not actual malice. They even cite a case where "the plaintiffs fabricated a conversation with a fabricated witness" as "not actual malice."

And then they say that "Hostility does not prove malice." How's that for a standard of judicial fairness? Don't worry about the fact that the people investigating you and judging you also hate you. It'll be fine, the NCAA says. Trust us. We'll be fair.

Made-up evidence, hostility . . . no harm, no foul. "How could 10 volunteer members deliberately and recklessly publish a false report?" the NCAA asks, saying that McNair has "accused 10 independent law professors, lawyers and institutional representatives of conspiring to make a scapegoat of him."

That's something the NCAA describes as "this farfetched conspiracy theory -- that 10 highly distinguished professionals serving on the Infractions Committee deliberately or recklessly published false information simply to inflict greater sanctions on USC -- is not supported by evidence of falsity or clear and convincing evidence of actual malice."

But there's also this. The NCAA says it's very much concerned about how it would be able to conduct enforcement investigations in the future if any more of this USC confidential case file information comes out: " . . . the importance of investigating possible exploitation of student athletes, the NCAA bylaws governing the enforcement process and the expectations of third-party witnesses interviewed in the process override the public's interest in disclosure of enforcement records."

California law should be superceded by the NCAA's rules, they say, ones the association itself may or may not observe. Trust them, they say. They'll be fair. No one really needs to know how this went down.

How can you not trust us. We're the NCAA and we're here to make things right, they say. Would we lie to you?

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