The attorneys for Todd McNair took no prisoners in what reads as an almost mocking 10-page, 2,273-word response to the NCAA's opposition filing that it had no obligation to submit the entire record when re-doing its appeal for the Court of Appeals.
Filed Wednesday, the McNair attorneys make the counter-argument that: "Nothing the NCAA argues justifies its prosecution of an appeal based on a record that has material omissions of the evidence that was before the Trial Court when it denied the NCAA's Special Motion to Strike."
McNair also charges that the NCAA altered a document it did file improperly without notifying the Court. Also not permitted, McNair says.
In picking and choosing which of the 700 pages it originally filed in its motion to dismiss McNair's defamation lawsuit, and then submitting just 500, McNair says the NCAA is trying to have it both ways here.
And all three of its arguments fail, McNair says of the NCAA arguing that: 1) the court did not require it to file all documents previously sealed on appeal; 2) that there is no requirement to do so; and 3) even if there were omissions in the NCAA's filing, those can be cured by other means.
No need to do that, McNair says. Just dismiss the appeal. After all, the NCAA argued originally that if it weren't allowed to seal the 700 pages, it "would be placed on the horns of a dilemma" -- it could either make the sealed documents public or forfeit its appellate rights. Now it wants to have it both ways -- still making its appeal but holding some documents back.
No can do, McNair says in so many words. The NCAA was given two choices by the court, they say: File the entire record or drop the appeal. "Nowhere in its opinion did this Court give the NCAA permission to cherry pick just those portions of the trial record it believed should be made public."
McNair further argues that when the NCAA thought the record would be sealed and out of public view, it needed all 700 pages. Now when it won't be sealed, it says it doesn't.
"Is the NCAA now saying that this was all charade and that it did not have to even submit the evidentiary exhibits in support of or in opposition . . . ?" McNair asks. Good question, it would seem, for us nonlawyers. "If this is truly what the NCAA is arguing," McNair argues, "then it only serves to highlight the lengths to which it will go to avoid the public disclosure of the full evidentiary record."
As a result of the NCAA omissions, "this Court obviously does not know what is in the documents that are no longer part of the record on appeal," McNair says, and that "those evidentiary documents therefore must be presumed to contain evidence supporting McNair's claims." And how would the Court know otherwise since it hasn't seen them in the NCAA's filing, McNair adds.
As to the alteration by the NCAA, saying it was just protecting the identity of a student-athlete, McNair notes that that argument has already been rejected by the Court in denying the motion to seal. And that by doing so unilaterally and without notice, the NCAA again files a record that is not complete.
For all those reasons, McNair asks the Court to dismiss the NCAA's appeal.
Whether the Court does so, or requires a hearing, will be determined fairly quickly, we're told. And this is just for the motion to dismiss. Next would be for the Court to set a hearing on the actual merits of the NCAA's appeal to dismiss the defamation suit that it's already lost on in Trial Court.
How long this four-year process has taken and which side that favors is now becoming the issue.
We've attached a copy of the NCAA's filing here. You can follow me on Twitter at @dweber3440 or email me at firstname.lastname@example.org.