Former University of Southern California (“USC”) assistant football coach and current running backs coach for the Tampa Bay Buccaneers Todd McNair (“McNair”) filed suit against the NCAA more than ten (10) years ago relating to the NCAA Committee on Infractions’ and NCAA Infractions Appeals Committee’s decisions relating to him and the investigation undertaken by the NCAA relating to Reggie Bush’s relationship with Lloyd Lake (“Lake”).  On June 3, 2011, McNair filed suit in Superior Court in Los Angeles County (“Trial Court”) and requested unspecified damages based on causes of action for libel, slander, tortuous interference with prospective economic advantage, tortuous interference with contractual relations, breach of contract, negligence, and declaratory relief.   The jury ultimately concluded in favor of the NCAA, but the Trial Court granted a McNair’s Motion for New Trial.  The NCAA appealed that ruling.

Applying the abuse of discretion standard, the Court of Appeals concluded that the NCAA failed to demonstrate an abuse of discretion.  The primary issue in the case before the NCAA Committee on Infractions and ultimately the Trial Court was a late-night phone call between McNair and Lake and, subsequent, inaccurate reporting of such conversation by the NCAA Committee on Infractions.  The NCAA acknowledged that the late-night call was the “linchpin” on which it sanctioned McNair, and the only evidence of the content of the late-night call was the Lake interview. Comparing the operative statement to the transcript of Lake’s interview, the Trial Court found that the operative statement’s summary of the late-night call was “false in at least the following ways:” (1) it falsely stated who initiated the call; (2) it falsely related the purpose Lake ascribed to the call; and (3) it falsely stated that McNair and Lake discussed the agency agreement and improper benefits during the late-night call. Therefore, the Trial Court found the operative statement did not “paraphrase” the Lake interview, but was “a fictional account of the Lake version” of the late-night call that was the impetus for the sanctions imposed on McNair.

The statement of reasons focused on the credibility, admissibility, and weight of the evidence. On the one hand the Trial Court found McNair “to be a credible witness.” On the other hand, the Trial Court observed that Lake did not testify at trial, and that the transcript of Lake’s interview was inadmissible, as it was not given under oath, it contained hearsay, and at times double hearsay, and it was only admitted to show the basis for the operative statement. The Trial Court called Lake’s interview answers “unclear and unresponsive to the point of being unreliable,” and “impossibly vague.” Therefore, the Trial Court concluded that McNair’s denial that he had knowledge of Lake’s payoffs to Bush “was not credibly rebutted or impeached” and so the NCAA’s evidence about what was said in the late-night phone call was insufficient to justify the verdict.

The Court of Appeals found that the transcript of the Lake interview supports the Trial Court’s findings. Contrary to the operative statement, it was Investigator Johanningmeier, not Lake, who said “McNair makes a call to you [Lake].” The significance of this incorrect assertion is that in response, Lake, who did not appear to remember the call, attributed a motive to McNair for calling—knowledge of the agency and benefits—when McNair had not made the call. Investigator Cretors acknowledged the same during the trial. The Court of Appeals followed the Trial Court reasoning and stated it reasonably observed, “McNair could have had no purpose in making an unmade phone call.” Indeed, Lake appeared to be guessing at the late-night call’s topic, stating, “I think that was like, that was like him trying to resolve it.”

The Trial Court abuses its discretion only when there is no reasonable basis for its ruling or the Trial Court committed legal error.  The NCAA failed to demonstrate an abuse of discretion.  The NCAA was ordered to bear the costs of appeal.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.