McNair prevails, Court tosses NCAA appeal

Time to move on to more discovery for McNair as the lawsuit moves back to LA trial court

Todd McNair got the decision he was hoping for Monday from a California Court of Appeals panel that heard the NCAA's appeal to dismiss McNair's lawsuit against the organization.

Here's the decision of the unanimous three-judge panel: McNair vs. NCAA.

We hold that McNair has demonstrated a probability of prevailing on the merits of his defamation causes of action but not on his interference with contract and economic advantage causes of action. We further hold that McNair’s negligence, contract, and declaratory relief causes of action do not arise from protected activity. Accordingly, we affirm the judgment in part and reverse it in part.

McNair is to recover costs on appeal.

We suggest you read the entire 30-page decision linked here. But here's the nub of the court's reasoning:

Based on McNair’s complaint, the issue centers on whether the COI report’s operative statement falsely states that McNair “had knowledge” of the agency agreement and improper benefits and hence acted unethically and dishonestly under NCAA legislation by lying about that knowledge and failing to report that knowledge to USC.

McNair presented admissible evidence, which if credited by a jury, indicates that he did not know about the NCAA violations, in which case the operative statement is susceptible of a false meaning. McNair stated in his declaration that the operative statement was false. His declaration flatly denied he had any knowledge of, and denied he ever discussed improper benefits with Lake. If this declaration is credited, McNair did not know about the NCAA violations and thus did not violate NCAA ethical conduct legislation.

As noted, the two-minute call appears to be the sole basis for the NCAA’s ethics-violation finding against McNair. Yet, a jury could reasonably conclude that Lake’s interview did not support the statement that McNair knew about the NCAA violations. Lake appeared to be confused when questioned about his relationship with McNair. Lake accepted that McNair called him. Although Lake said in his interview that McNair “knew about the money [Bush] took, he knew that [Bush] had an [agency] agreement,” when pressed by the interviewers, Lake made clear that this was Lake’s own assumption. Nowhere during Lake’s description of the two-minute call did Lake ever say that he informed McNair of, or that McNair claimed knowledge about, the agency agreement and improper benefits.

Instead, Lake speculated that Bush told McNair, or that McNair knew from osmosis because “he was around a lot” and “watched.” Lake’s later statement that he called McNair to get his money back only creates a factual dispute but does not defeat McNair’s evidence as a matter of law. (Oasis West Realty, LLC v. 8 Goldman, supra, 51 Cal.4th at p. 820.) In sum, McNair has demonstrated prima facie that the operative statement could reasonably be interpreted as implying a provably false assertion of fact.

And then there's this from the court about the NCAA's contention that it was just its opinion about what McNair knew: The defamatory publication is the operative statement’s recitation that McNair knew about the NCAA rules violations and lied about that knowledge. Yet, this conclusion is based on the interviews of Lake and McNair about the two-minute call, which interviews were not disclosed. Furthermore, the operative statement was the justification for the serious sanctions against McNair, and common sense tells us that a sanction is more than a simple opinion. In sum, a reasonable factfinder could conclude that the published statement declares a provably false assertion of fact and not opinion with the result that McNair has established a probability of prevailing on the merits of his libel cause of action.

Ever since McNair's original attorney, Scott Tompsett, argued his case before the NCAA Appeals Committee, this has been the central contention. The NCAA published a provably false assertion about McNair and harshly sanctioned him -- and USC -- as a result.

So now what? What we understand is that the case goes back to the original trial court in Los Angeles and there will now be further discovery that will allow McNair's attorneys to depose the seven members of the Committee On Infractions who have yet to be deposed including Nebraska's Josephine Potuto and Notre Dame's Missy Conboy, among others.

At the end of that which will be months away, the NCAA can request a summary judgment to dismiss and also appeal to the California Supreme Court that accepts no more than one of a 100 appeals so that's essentially another NCAA Hail Mary.

The court also upheld McNair’s second cause of action: for damages for slander based on five allegedly false, oral statements made to news media by agents of the NCAA: four by Paul Dee and one by Mark Emmert. The trial court did not address these utterances in the statement of decision. In its appeal, the NCAA contends that the trial court erred in failing to dismiss the slander cause of action . . . In making these oral statements, Dee republished to a new audience statements from the COI report, which statements we have concluded could be understood by a reasonable factfinder to assert a provably false statement of fact. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1243.). Accordingly, McNair showed a probability of prevailing on the merits of his slander cause of action.>/p>

And finally, here's what the court has to say about the issue of the NCAA's "malice" toward McNair. To summarize, McNair established a probability that he could show actual malice by clear and convincing evidence based on the COI’s doubts about McNair’s knowledge, along with its reckless disregard for the truth about his knowledge, and by allowing itself to be influenced by nonmembers to reach a needed conclusion.

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

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