Eight and a half years after Todd McNair sued the NCAA for defamation, the former USC assistant football coach’s legal fight against the organization isn’t over.
Attorneys for McNair pushed back in a court filing last week against the NCAA’s appeal of an order granting a new trial.
“Nothing the NCAA argues comes close to undermining the new trial order on either (let alone both) of the independent grounds supporting that order,” said the 71-page response in California’s 2nd District Court of Appeal.
The latest chapter in the saga started in May 2018 when a Los Angeles County Superior Court jury found that the NCAA had not defamed McNair in the investigation into the scandal involving former USC running back Reggie Bush.
In June 2010, the NCAA’s Committee on Infractions found that McNair had engaged in unethical conduct in connection with Bush, an All-American running back, receiving extra benefits from sports marketers while playing at USC.
Judge Frederick Shaller, who oversaw the proceedings, granted McNair’s motion for a new trial in January. He found the jury didn’t have sufficient evidence to support its finding and that the jury foreman, an attorney whose firm did appellate work for the NCAA earlier in the case, should have been disqualified.
Shaller previously found that the NCAA’s one-year show-cause punishment against McNair violated state law, and he declared the bylaws supporting the penalty void because they were an “unlawful restraint” on pursuing a lawful profession.
The NCAA appealed both decisions — sending the case to the appellate court for the fourth time.
Much of the response by McNair’s attorneys focuses on the jury not making it past the third of nine questions on the verdict form last year: whether statements two NCAA committees made about the coach were false. In granting the new trial, Shaller argued that the report by the infractions committee that sanctioned McNair in June 2010 was false “in several material ways,” particularly in regard to the description of an alleged phone conversation between Lloyd Lake, a sports marketer linked to Bush, and McNair.
“Finally,” the response continued, “the Court found McNair ‘to be a credible witness and that his denial of knowledge about Lake’s payoffs to Bush was not credibly rebutted or impeached.’
“Lake did not testify at trial and Lake’s interview [with NCAA investigators] was not admitted for the truth of the matter asserted. Accordingly, the Court summed up that it ‘cannot find any credible basis for the jury to have found that those NCAA statements in the NCAA report … were other than false statements.’ ”
The response described McNair as a “sacrificial lamb” in the NCAA’s investigation of USC that led to wide-ranging sanctions against the school.
McNair’s attorneys used equally strong language about the jury foreman, saying in the response he was “impliedly biased” because of his firm’s work for the NCAA on the case and “should have been removed.”
They also argued the appellate court lacked jurisdiction to review the order declaring the NCAA’s show-cause penalty unlawful and dismissed the organization’s argument that “invalidating the NCAA’s purported authority to regulate its membership would jeopardize professional regulations” for doctors and lawyers.
“While organizations such as the state bar or medical board are authorized by the ‘laws of the land’ to regulate their professions, the NCAA — to the contrary — violated California’s prohibition on the restraint of trade,” the response said.
The Tampa Bay Buccaneers hired McNair to coach running backs earlier this year, his first job with a college or professional team since USC declined to renew his contract after the show-cause penalty in 2010.
The NCAA has until Dec. 3 to respond to McNair’s filing.