In our occasional return to the how-did-we-get-here-from-there look back at the Todd McNair/NCAA/USC case over the last five years, today we look at the moment everything turned.
Turned against the NCAA bullies and liars. Turned for the banished USC assistant coach -- although not necessarily for a hesitant USC itself.
It was Thanksgiving week in November of 2012. And we were all gathered in the LA Superior Court awaiting Judge Frederick Shaller's ruling on the NCAA's attempt to get the McNair defamation lawsuit dismissed before it got started.
And as we waited, we noted the feeling that things might not be going the NCAA's way: "You knew right away the NCAA was in trouble arguing the case," we wrote. "You just didn't know how much trouble although the comment by NCAA attorney Laura Wytsma that 'Mr. McNair dragged the NCAA into this proceeding' seemed more like whining than a legal argument."
But what caught our attention right away was when Wytsma said that it wasn't the infamous Lloyd Lake who changed the facts of that famous 1:34 a.m. phone call to McNair about Reggie Bush, that the NCAA had so depended on for proof of a connection to and knowledge by USC of amateurism violations involving the Bush family. No, it was the chief NCAA investigator, Richard Johanningmeier, who may have gotten it wrong.
"Uh oh," we thought. The NCAA is now admitting it got it wrong. Well, this should be interesting. Who knew the NCAA could tell the truth. They must really be in trouble.
"Mr. Johanningmeir misspoke, not Lake," the NCAA attorney said, seeming to throw the association's former chief investigator under the bus. That's when a courthouse observer leaned over and noted how, when you have to argue the way Wytsma was, "you have a pretty tough case to defend . . . and the NCAA has a tough case here."
We just didn't yet know how tough. Sure, we'd written about all the NCAA's misrepresentations, misstating of the facts, mischaracterizations of the evidence and careless missteps that we'd discovered in the Case Summary, but we hadn't seen the limited discovery, the emails and depositions of some of the NCAA investigative staff and members, so we were looking at it from the outside.
Judge Shaller had seen them so that made his response, that "he disagreed with both of the NCAA's motions and did so in what seemed like fairly strong language," our first take on the day the case turned around on the NCAA.
Shaller went on in detail, saying the NCAA investigators were "over the top," after he'd reviewed the information filed by both sides. And they were "malicious." That was the killer word. In a defamation suit, a judge finding malice is not about to dismiss it, we thought.
But that wasn't the end of it. What Judge Shaller saw after reviewing emails from NCAA personnel, investigators, Committee of Infractions and Appeals members, "tended to show ill will" to McNair, as McNair had contended.
So after judge-shopping the case since McNair filed his lawsuit in June of 2011, the NCAA had taken a swing and missed when it got a no-nonsense Judge Shaller in this case.
The NCAA had two requests of Shaller and lost on both of them. Here's how we described them: "One was an anti-SLAPP motion that allows cases in California to be dismissed basically when they can be demonstrated simply to be an exercise of free speech. All that did was force the NCAA to produce the discovery that Shaller relied on for his decision."
And here was the second: "The other motion was to seal the court record in the case since that's what it promises participants in its investigative/enforcement/infractions cases, the NCAA said, since it lacks subpoena power."
"The NCAA is now 0-2 vs. McNair," we wrote. The NCAA said McNair was a public figure and in order for him to be a victm of defamation, it would have to be proved that the NCAA showed 'actual malice' against McNair."
That gave McNair's Santa Monica-based attorney Bruce Broillet his opening in court to speak to Shaller. "The emails proved they wanted to get McNair in order to impose the heavier penalties they wanted on USC," said Broillet, who does not comment on cases outside of court and not on this case with its protective order for the attorneys. "So they wrote the evidence the way they wanted it to be -- and that's malice . . . they got it all wrong on purpose."
Shaller clearly agreed, saying "it's malicious," what the NCAA did here. "I think it was directed to an outcome."
Shaller continued: "I understand [why] the NCAA wants to keep this quiet," he said. "But I'm not going to seal the record . . . I know you guys are going to appeal it but from my part . . . there's no reason to seal it . . . I think the public has a right to know."
And now we know. It took more than two years to see nearly 500 pages of material Shaller saw when they were made public thanks to a Court of Appeals ruling seven weeks ago. We said then it might take a year to get a final decision after the NCAA said 'We are disappointed with the decision and plan to appeal."
And after Shaller conceded to the NCAA by staying his decision to make them public until the appeal was decided, we missed by more than a year here. "That should make for some interesting reading for USC folks familiar with the case and the principals involved here," we said then. We were right, of course.
If only the powers-that-be at USC had been as curious as the McNair attorneys, Trojans fans or the media, about what was in those sealed documents with regard to the unprecedented penalties visited on the USC football program.
But only in the past month, after the unsealing of the first nearly 500 pages, has USC said it would possibly respond to what the NCAA did to USC. Although whether that would constitute an actual aggressive action in addition to statements of disappointment in the NCAA's conduct is unknown.
We summarized it thusly in November of 2012: "This case pretty much revolves around the NCAA's finding of unethical conduct against McNair for what it characterized as his lying in answers to investigators especially surrounding the Lake phone call -- and the evidence to support it. The NCAA contends that the Committee simply believed multiple-felon Lake and didn't believe McNair.
The NCAA tried to say that it didn't really railroad McNair, reading an email from law professor Eleanor Myers, a Committee on Infractions member, from Temple -- "Todd McNair's alma mater," the NCAA lawyer said. Myers questioned how the NCAA could go ahead when it clearly had gotten so much wrong about just one piece of evidence -- the Lake-McNair phone call that the NCAA mischaracterized as to who called whom and what year it occurred.
Shouldn't the NCAA investigators at least do that over and get it right, Myers asked. So see, the NCAA said, this Committee that included law professors, a former head of the Missouri State Bar and a former US Attorney, really did try to get it right.
Only they didn't, Judge Shaller said. Not even close.
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