A little more than two weeks late, the NCAA finally got its Appellants Opening Brief filed this week in its attempt to have the Todd McNair lawsuit dismissed. And now we know why it was late.
For those who said it would file the same-old, same-old the NCAA filed back in February of 2014 before the whole process got sidetracked on the "seal or no-seal" deal for the emails and depositions of the NCAA staff, well, it wasn't -- not exactly.
That one had just 9,623 words over 39 pages. And it had redactions and no photos.
The new NCAA brief has 51 pages, 12,228 words and a photo. Can you guess which one? If you said the bar scene when Lloyd Lake and Michael Michaels supposedly shot a selfie with McNair and his actor buddie Faizon Love, we have a winner.
And sure, you're asking whether the NCAA can prove the oddly cropped photo's format is original and unaltered. Well, the NCAA doesn't go there. Proof is something for McNair, they say. Maybe the photo is there just to break up all that type -- a design feature.
Otherwise, you'd think its purpose was more to slime McNair, which might work if this was going to be read by the folks who watch TMZ but we're not sure a California appellate panel will be impressed all that much by this weird photo that raises more questions than it answers.
There's a new NCAA attorney on the case from a big DC law firm, that much we can see for starters. And the first section describing how this case got here is new: "The NCAA Protects and Encourages Amateur Athletics" is the header here. Maybe it's a tribute to the late Paul Dee and his invented standard about "high-profile athletes" needing high-profile monitoring to make sure they remain amateurs.
But that theme continues as the NCAA's opening paragraph has this laughable characterization -- at least for anyone who read the emails from a small sample of the staff and Committee on Infractions folks.
"This appeal concerns Todd McNair’s highly improbable claim that ten independent professionals serving on the NCAA’s Committee on Infractions in 2010 acted collusively to knowingly or recklessly make false statements in reporting their conclusions in an 'Infractions Report' finding rule violations at USC," the NCAA's brief blusters in the apparent hope that none of the justices will read or remember the 700 pages of incriminating emails.
Or they're hoping the Appeals Court doesn't make the connection to what it was exactly those "ten independent professionals" were doing by counting the staffers and non-voting members who tried to influence the outcome and realizing there were more than 10 involved.
And "independent"? No way there was much of that when you read the outrageous rants run by the COI people to no apparent intellectually honest response from any of them, although the NCAA avoids the emails like an SEC team getting a call from USC about a game when Pete Carroll was coaching the Trojans.
And by "professional," do you mean an attorney who could compare the McNair case to the Oklahoma City bombing?
Just a couple of graphs into the brief and we're thinking the NCAA needs to get out of its bubble and into the real world. The more they say, the more they remind you of what a hack job this hit on McNair and USC had to have been. But that's just our reading of it here.
Not sure if the NCAA, in charging major errors to the original trial court and Judge Frederick Shaller, is going to get away with saying the Infractions Committee didn't make any false statements. That it was McNair's fault for the factual problems with the way that "late-night call between McNair and sports agent Lloyd Lake" (actually he wasn't an agent but why be hyperfactual here) because McNair "constantly mischaracterizes the interview" while "the Infractions Report accurately summarizes it."
And how does McNair do this? By "distorting an investigator's mistaken question," the NCAA says, "a single mistaken question."
Hey, the investigator missed it by a whole year, without anyone at the NCAA correcting it even though they knew it was false, and he got who called who wrong too. But it's all McNair's fault, the NCAA says. We say: Bad start, NCAA. This is not going to fly.
Error No. 2, the NCAA says, is there's no way "ten independent and highly reputable members of the Infractions Committee acted with actual malice -- viz., knowing or reckless disregard for the truth." Again, read the emails and the NCAA's findings. McNair doesn't need a lawyer here against these "highly reputable" folks. They're convicted by their own words.
If the justices can read, the way Judge Shaller did, and unless the definition of malice has been changed -- which the NCAA would surely arrange if this were in their court -- this one needs no argument. It is what it is -- actual malice.
But the NCAA continues on its wacky denial of the history here: "The only 'miscarriage of justice' here is this lawsuit," the NCAA says. The NCAA was just "publishing the report of an independent committee on an issue of public interest involving public figures -- quintessential First Amendment conduct," and for that, they should be praised, not sued, the NCAA says. McNair's "claims should have been struck," and "the trial court erred in failing to do so. This Court, exercising de novo review, should correct that error."
Hey NCAA, if you wanted to perform some "quintessential First Amendment conduct," here's a thought. Instead of fighting for more than three years to keep the 700 pages of discovery material filed in this public case secret, why didn't you publish them before you were forced to?
We know why. And so do you. Nothing the NCAA has done in this case allows it to cloak itself in a First Amendment flag. Nothing. Stop it. You're making yourselves look even more hypocritical than we'd have imagined you could.
The NCAA then gets around to describing the three-year investigation that two staffers worked on full-time in their attempt to take USC down and says flatly in a section header that "MCNAIR ADMITTEDLY LIES TO THE NCAA" and we have to say this, when the NCAA says someone is lying, you have to listen to folks who know very well what they're talking about. These folks know lies.
What follows is a basic rehash of all the sloppy investigative work that concluded McNair knew Lake by going over the same territory -- the San Diego party for Marshall Faulk, the nightclub photo, the three phone calls trying to track Reggie Bush down that went to Lake's phone and the late-night call the NCAA got all wrong. That's it.
Interestingly, the NCAA notes that in its interview with a "reluctant" Lake, they could do it "only on the condition that only the NCAA participate in the interview." But at the same time, they fail to mention all the lying the NCAA had to engage in to keep USC's attorneys from attending that interview, just that no NCAA rule guaranteed McNair a seat at that interview so tough for him.For McNair and USC, the conclusion of an agenda-driven investigative process was a determination of "unethical conduct" for "ADMITTEDLY" lying because Lake contradicted the USC coach and the NCAA believed the multiple felon and convicted perjurer was the "credible" witness here. OK.
No question there was "unethical conduct." But it no longer is the NCAA's call as who's guilty of it and that clearly discomfits them. Which is why this case has to go to trial and return to LA Superior Court so it can all be sorted out the way we do these things in America.
Is anyone surprised the NCAA doesn't want that to happen? Just let them keep assassinating McNair's character by going into detail about the USC student McNair attended the San Diego party with as if that had any relevance to anything in this case. Really, why should McNair tell them anything about that? It's not the NCAA's business, unless the NCAA's business is to slime McNair, which in reading this brief, apparently it is.
Then the NCAA goes to great lengths detailing who was on the Committee, who did what, who "misspoke," why they didn't bother to correct the McNair interview mistakes, who the "other" members were, what were their duties, before going into more detail about how long and hard they thought about McNair's guilt before "months" later coming to a "consensus" to give McNair a "show cause" finding, which by the way didn't mean he couldn't coach they say, just that he couldn't have any contact with recruits. Not their call, the NCAA says.
So in answering first McNair's appeal then lawsuit, the NCAA chooses to appeal to a recitation of the super-swell credentials of the committee members who heard that appeal by noting it "included a Foley & Lardner partner; an executive vice president at the Institute for the International Education of Students; the vice president for legal affairs at the University of Texas at Austin; and the vice chancellor and general counsel at Vanderbilt University." So how could those august persons get it wrong, they ask. These are big shots. And he's just a lying assistant coach, the NCAA argues. Who are you going to believe?
Pardon us if we're not impressed. But as the brief gets into -- for us -- the legal weeds, we did brighten up at one mention by the NCAA here when they note that McNair says that he's been damaged by comments made by NCAA Pres Mark Emmert and the late COI chair Dee but that "McNair failed to offer any evidence that such statements were ever made, much less any evidence that such statements were false and defamatory, or made with actual malice . . . Moreover, even if Emmert stated that the NCAA 'got it right' in the Infractions Report, as McNair alleged but did not prove, such a statement would be non-actionable."
Hey NCAA, you want proof that Emmert said what McNair said he said? Well, we can testify to that since Emmert made that the NCAA "got it right" comment directly to us in a one-on-one sitdown before he was to give a speech in LA and before his handlers knew about USCFootball.com's "Missteps on McNair" story. All you have to do is ask us.
And on top of it all, the NCAA concludes "that McNair violated ethical conduct legislation by providing false and misleading information concerning his January 2006 conversation is an opinion based on disclosed facts, not a 'provably false factual assertion,' " even if it was based on a "provably false factual observation."
"The First Amendment imposes a heavy burden on public figures pursuing defamation claims," the NCAA says, and there must be proof not only that it was false and defamatory but that there was “reckless disregard” for the truth requiring evidence “that the defendant actually had a ‘high degree of awareness of . . . probable falsity.’ ” And that isn't the case here, the NCAA says, because the 'committee believed that it got the facts correct' in the Infractions Report."
Here's the essence of their argument against the McNair decision: "Stripped to its core, the trial court’s finding of malice is premised on two mistakes made by one investigator during interviews. From these two mistakes, the court inferred actual malice by the Infractions Committee."
Two lousy little mistakes. Picky, picky, picky.
Despite the "inadvertent errors," the NCAA says that "ten highly accomplished professionals volunteering their time -- tried to find and report the truth" simply presenting "the positions of all parties and then provided its conclusions on the conflicting evidence."
How could anyone believe McNair's argument, the NCAA asks. Could the NCAA really have gone all out, as McNair says, "to make an example of USC," and "conspire to make him a 'sacrificial lamb' " as a mistaken ”trial court agreed, concluding that an independent group of reputable attorneys, law professors, and conference commissioners disregarded the evidence, voted against their own beliefs, risked their professional reputations and licenses, and ultimately made false statements knowing them to be untrue for the sole purpose of adding even further penalties to those USC that had already imposed on itself for conceded violations."
Except for the part about "risking their professional reputations and licenses,' since these folks had no inkling any of this would come out and they'd ever have to answer for their actions, that sounds exactly right to us. There is no other explanation for the over-the-top sanctions against USC with regard to every other NCAA infractions case in history.
As to that point, the NCAA's brief is tellingly silent. From reading it, you'd have thought USC -- and Todd McNair -- got the same sort of fair dealing Ohio State, Miami, Oregon and North Carolina got but maybe not the wet kiss Auburn received from the NCAA.
And since McNair's "claims arose from the NCAA’s exercise of its First Amendment rights on a matter of public interest," McNair's unproven claims don't hold up, the NCAA says, and according to California's anti-SLAPP statute, should be dismissed.
Because otherwise, the NCAA would have to defend the actions of these "10 distinguished professionals" volunteering their time to do what they did to Todd McNair and USC in a place where the NCAA will not be the sole judge, jury, executioner, investigator, legislator and appeals body.
Sounds like a pretty good place for this to go. And to the Appeals Court here, it can't get there soon enough. Let a jury of real people take a look at this case and be dazzled by the wonderful work of those 10 distinguished professional volunteers just trying to do the right thing, as their emails and depositions will make clear to all.
You can follow me on Twitter at @dweber3440 or email me at firstname.lastname@example.org.