The argument to dismiss the NCAA appeal

Todd McNair's attorneys say it's time to go to trial, no more wasting the Court's time. Dismiss the NCAA's inadequate appeal.

The request by Todd McNair's attorneys for the California Court of Appeal to dismiss the not quite complete record that the NCAA filed last week is a simple 1-2 shot.

1) The NCAA filed a materially inadequate brief missing more than 200 pages of material considered by the trial court. Here's the exact argument:

"The NCAA cannot prosecute its appeal based on a record that has material omssions of the evidence that was before the trial court when it ruled that the plaintiff [Todd McNair] had a probability of prevailing on his claims under Prong 2 of the Anti-SLAPP standard."

To make the point further, they argue that "it is a bedrock principle that the trial court's order is presumed correct and therefore it is incumbent on the appellant challenging that order to provide the reviewing court with a complete record of the matters that were before the trial court when it ruled" and that any documents not submitted "will be presumed that those documents support the trial court's ruling. The failure to provide a complete and adequate record to review a trial court ruling therefore is grounds for dismissal of an appeal."

2) Here's the second point: The NCAA has already argued that without being able to submit the entire file on appeal, under seal, it would not be able to make its case and now it has done just that. In effect, McNair's attorneys argue, the NCAA tried to keep the material sealed by saying it couldn't defend itself if it all went public. Now that it lost that argument, it says it will still go ahead and continue the appeal even while holding back some material.

Why waste our time, McNair's attorneys ask. It's over. Let's go to trial. Or did the NCAA not mean what it said in its original appeal?

In the 18-page request for a dismissal, McNair's attorneys list all the items the NCAA failed to submit in the ongoing appeal. It's an interesting, and clearly potentially more incriminating lineup.

Here are the highlights of the missing ingredients that McNair's attorneys tabulated with each listed as "MISSING":

*** 1) The entire Committee on Infractions Report of June 10, 2010 . . . MISSING;

*** 2) Lloyd Lake interview transcripts . . . MISSING;

*** 3) Todd McNair interview transcripts . . . MISSING;

*** 4) Telephone records of USC and Reggie Bush . . . MISSING;

*** 5) Notice of Allegations to Todd McNair . . . MISSING:

*** 6) Sheppard Cooper interview transcripts . . . MISSING;

*** 7) Dennis Thomas deposition transcripts . . . MISSING:

*** 8) Shep Cooper email dated Feb. 24, 2010 . . . MISSING;

*** 9) Britton Banowsky email dated March 3, 2010 . . . MISSING;

*** 10) Richard Johanningmeier deposition excerpts . . . MISSING:

*** 11) NCAA letter to USC dated Jan. 6, 2010 . . . MISSING;

*** 12) Emails between Rodney Uphoff, Shep Cooper and COI members, Exhibit 16, dated Feb. 22 and 23, 2010 . . . MISSING;

*** 13) ) Emails between Rodney Uphoff, Shep Cooper and COI members, Exhibit 17, dated Feb. 22 and 23, 2010 . . . MISSING;

*** 14) Shep Cooper email dated March 1, 2010 . . . MISSING:

*** 15) Shep Cooper email dated Feb. 25, 2010 . . . MISSING:

*** 16) Shep Cooper email dated Jan. 25, 2010 . . . MISSING:

*** 17) Rodney Uphoff email dated May 10, 2010 . . . MISSING:

*** 18) Rodney Uphoff email dated Feb. 23, 2010 . . . MISSING:

*** 19) Rodney Uphoff email dated March 2, 2010 . . . MISSING:

*** 20) Tim Elworth email dated March 2, 2010 . . . MISSING:

*** 21) Excerpts of Committee hearing, Exhibit 32 . . . MISSING:

*** 22) Lloyd Lake interview transcript excerpts . . . MISSING:

*** 23) NCAA Case Summary excerpts, Exhibit 7, redacted and missing pages . . . MISSING:

*** 24) Eleanor Myers email May 10, 2010 . . . MISSING:

*** 25) Memorandum authored by Josephine Potuto, Exhibit 17 . . . MISSING:

Here's the complete 3,012-word at request for a dismissal submitted by the McNair attorneys.

You can follow me on Twitter at @dweber3440 or email me at weber@uscfootball.com.


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