A Los Angeles County Superior Court judge granted Todd McNair’s motion for a new trial in the former USC assistant coach’s long-running defamation lawsuit against the NCAA and issued a stinging rebuke of how the organization investigated the Reggie Bush extra benefits scandal.
In a ruling filed Wednesday morning, Judge Frederick Shaller wrote that there wasn’t sufficient evidence to support a jury’s finding in May that the NCAA didn’t defame McNair. The judge also ruled that the jury foreman, an attorney whose firm did appellate work for the NCAA in the case years earlier, should have been disqualified.
“Permitting Juror No. 2 to remain on the jury and participate in deliberations and the verdict resulted in a miscarriage of justice and in Plaintiff being deprived of a fair trial,” Shaller wrote. “Without Juror No. 2 it is likely a different outcome would have resulted.”
The NCAA’s Committee on Infractions found in June 2010 that McNair engaged in unethical conduct in connection with Bush, an All-American running back, receiving extra benefits from sports marketers while playing at USC. The committee punished McNair, now 53, with a one-year “show-cause” penalty and USC declined to renew his contract. He sued the NCAA a year later, arguing the stigma from the punishment made coaching with another college or professional team all but impossible.
After the three-week trial, the jury didn’t make it past the third of nine questions on the verdict form: whether statements two NCAA committees made about McNair were false.
Shaller disagreed in a nine-page ruling packed with unusually strong language.
The judge wrote that the infractions committee’s report was false “in several material ways,” particularly in stating that Lloyd Lake, one of the sports marketers, told NCAA investigators he called McNair in January 2006 to get the coach to compel Bush to follow through on an agreement with Lake.
The NCAA cited this call as the “linchpin” of its case against McNair.
Lake, who didn’t testify at the trial, never told investigators who initiated the call or that the parties discussed the agreement. During the trial, NCAA attorneys excused the discrepancies as paraphrases by the committee.
“In the context of the importance of this interview to McNair’s case, it is ludicrous, in the court’s view, for NCAA to attempt to excuse the variance between the actual content of the Lake interview and the COI report as mere ‘paraphrase,’ ” Shaller wrote. “The COI report in this regard is a fictional account of the Lake version of the phone call. The report gave evidentiary weight to statements that were not made and were the impetus for sanctions imposed against McNair.
“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. … Since the content of the [Lake] interview was impossibly vague, without evidentiary value to support the false statements by NCAA in the COI report, the court cannot find any credible basis for the jury to have found that these NCAA statements in the NCAA report as quoted above were other than false statements.”
Shaller savaged the “sloppy” and “botched” interview of Lake by NCAA investigators, calling them “unprofessional” and “clearly not prepared” and “mistaken as to basic facts.”
“The answers made by Lake to interview questions were unclear and unresponsive to the point of being unreliable and lacking in any value,” Shaller wrote. “When the report was written, the actual and critical content of the questions and answers was changed and/or recharacterized. Also, improperly non-responsive and speculative responses by Lake were recorded as being true.”
McNair’s attorneys declined to comment on the judge’s decision.
Donald Remy, chief legal officer of the NCAA, said in a statement: “This is an extremely disappointing ruling from the trial court judge, who presided over the jury selection, four-week trial and multi-day juror deliberations. There is no basis to disregard the decision the citizens of Los Angeles County reached after careful deliberation.We will appeal this decision and continue to defend the ability of NCAA member schools to both create and enforce its rules.”
Shaller also found the jury foreman, Anthony Bruno, problematic. He worked as an attorney in the Los Angeles office of Latham and Watkins at the time of the trial. Attorneys in the firm’s San Diego and Washington offices represented the NCAA during a previous appeal in the case.
When the involvement of Latham and Watkins came to the attention of McNair’s attorneys after opening statements, they asked Shaller to remove Bruno. Shaller questioned the foreman in chambers, decided he wasn’t personally aware of the work Latham and Watkins did for the NCAA and denied the request.
“The fact that Latham represented [the NCAA] didn’t affect my view of the evidence,” Bruno told the Los Angeles Times after McNair’s attorneys moved for a new trial last month.
But after additional research on the subject following the motion to dismiss, Shaller found that even though Bruno had no knowledge of his firm’s work for the NCAA, he shouldn’t have sat on the McNair jury.
“Bias is implied, and disqualification was required without proof of actual bias, since bias under these circumstances is inferred,” Shaller wrote.
With the NCAA saying it will appeal, the case will be tied up in the 2nd District Court of Appeal, which issued rulings favorable to McNair earlier in the case, for a year or more.
In an earlier setback for the NCAA, Shaller found in September that the show-cause sanction against McNair violated state law and declared the bylaws behind the penalty void because they’re an “unlawful restraint” on pursuing a lawful profession.
The show-cause penalty issue had been severed from the trial phase of McNair’s lawsuit. Shaller decided it based on briefs both sides filed.
The NCAA attempted to remove Shaller as judge in the case in 2016. The organization alleged in a court filing at the time that the “public perceives potential judicial bias” because Shaller graduated from USC. The filing cited years-old news stories and message board postings to support the argument. It failed.
During the trial, McNair testified about having to ask friends and family for loans after losing his job at USC, cashing in his retirement account, his wife taking a job as a parking lot attendant and using food stamps to help make ends meet.