Until Presiding Judge Lee Smalley Edmon announced it to start the proceedings Tuesday afternoon in the Second District of the California Court of Appeals, you wouldn't have known there had been a "tentative ruling" already issued by the three-judge panel in the NCAA's appeal to dismiss the lawsuit of former USC assistant Todd McNair.
And even though Edmon did not make the decision public before or after the oral arguments, the smiles and upbeat manner of McNair's attorneys and the way the judges questioned each side made it clear. This was a good day for Todd McNair.
And a third straight loss, it would certainly seem, for the NCAA that lost in the original trial court of LA Superior Court Judge Frederick Shaller, then lost its first appeal to have the emails and documents submitted in the case sealed from public view. And finally, on the merits of its motion to dismiss the lawsuit, should the "tentative ruling" hold up after oral arguments and any re-reading of the briefs or other submissions.
The decision could come down in as little as a day or the entire 90 days allowed. At that time, you could expect a request for much fuller discovery and depositions of the full Committee on Infractions panel. Only one has been deposed thus far, it appears. And other NCAA staffers, we'd imagine.
Laura Wytsma, arguing for the NCAA, basically said they got one thing wrong, one little fact, but they didn't make anything up and didn't show any malice to McNair -- and since COI chair Paul Dee is deceased, no way you can inquire into his state of mind now.
But as Wytsma, who spoke first, talked of how the NCAA spent four years on the USC case, had a 30-hour, three-day hearing instead of the standard six to eight hours over one day, the NCAA bent over backwards to be fair to McNair.
"It wasn't based on a single phone call," she said.
To which Judge Richard Aldrich asked the central question: "What evidence do you have that Mr. McNair knew" [of the agency arrangement between Mr. Bush and the pair of wannabe agents Mr. [Lloyd] Lake and Mr. [Michael] Michaels?
Ms. Wytsma wasn't exactly able to say since the NCAA's Lake testimony "wasn't a perfect rendition" of exactly what he said. "But isn't it important for you to be able to point to evidence in the record that Mr. Lake knew?" Wytsma said it wasn't.
But Judge Aldrich didn't give up, asking if in his interview, did Lake ever say that McNair knew. "Lake said he was around a bit. That isn't answering the question."
Then Judge Patti Kitching, in her final case after 22 years and 1,400 opinions written on this court, wanted to know "if this was a unanimous decision?" by the committee. Told that it was a "consensus," Kitching responded that there are "a lot of really troublesome comments," noting the malicious emails about McNair from two nonvoting members on the panel, Roscoe Howard and Rodney Uphoff, and from the appeals coordinator, NCAA staffer Shep Cooper.
"I don't know what to say, how they're going to get a fair deal here -- what's really underlying this?" Kitching asked.
Wytsma pointed out that Cooper "had no role in the voting," although that point may have been negated by the fact that Cooper, who had excoriated McNair's character in an email during the deliberations, was the person assigned to start writing the final report -- again before the deliberations were completed.
The judges also didn't seem to impressed by the NCAA's decision not to find McNair guilty of unethical conduct when he said he didn't attend the Marshall Faulk birthday party in San Diego with a USC student and friend since he felt it wasn't relevant but then the NCAA said it mattered as to McNair's credibility.
Judge Aldrich pressed Wytsma: "You haven't answered my question. You don't have Mr. Lake saying I told Mr. McNair." To which Wytsma said, "It's not verbatim." To which the judge said "if it's not an accurate rendition of the interview, how can the committee use it in any way?"
"It's really incoherent," Judge Kitching said.
"There were mistakes," Wytsma said, "I will concede, honest mistakes."
"He was not allowed to cross-examine Lloyd Lake," Kitching said of McNair. But they encouraged McNair to talk to him, Wytsma said, but couldn't force it. Although USC made the point the NCAA lied to make it impossible for USC's attorneys to be there during the Lake interview.
McNair's appellate attorney, Stuart Eisner, was up next. and started by quoting from the NCAA bylaws that forbade Uphoff from "being an active participant" the way he was on the committee. That's contrary to what Wytsma had said when she said there were no rules forbidding him from participating in the debate. She didn't rebut that.
And to the point that Mr. Cooper didn't vote, Eisner said "he did more than that, he wrote the report."
To the malice issue, Eisner said "They ruined this man's career . . . and when it was pointed out to them" the factual mistake it was based on, "they turned a deaf ear . . . that's malice personified . . . they made stuff up."
According to Wytsma, the way the deliberations went, despite the emails and influence of the three nonvoting participants, the length of the deliberations shows "sincerity" and "no rush to judgment . . . there were mistakes, perhaps, we can quibble over that all day . . . "
That got Judge Kitching jumping in with: "We're not 'quibbling' over this, we're concerned with something much more serious."
And that was reflected in this question by the judge: Was the person who called McNair 'a lying, morally bankrupt criminal' " during the deliberations really assigned to write the committee's official report on USC and McNair?
It's his job, Wytsma said.
And now it will be one of these judge's jobs to write the decision that could be California's answer to the NCAA's judgment of McNair.
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