Todd McNair’s (“McNair”) lawsuit against the NCAA has become quite a saga with extensive briefing, appeals, and a multi-week trial. At trial, a jury found in favor of the NCAA and, thus, it was thought that this saga was coming to a close subject to rulings on appeal. However, on January 16, 2019, Judge Frederick C. Shaller granted McNair’s Motion for New Trial giving McNair another shot in front of a jury (subject to appeal). Judge Shaller granted McNair’s Motion for New Trial on two grounds: 1) there was an “insufficiency of the evidence to justify the verdict” on McNair’s defamation claim; and 2) Juror No. 2 should have been disqualified on the basis of implied bias.
Insufficiency of Evidence to Justify the Verdict on the Defamation Claim
As is customary, the jury was presented with multiple questions pertaining to McNair’s defamation claim. The jury answered affirmatively that the NCAA made statements about McNair and that people to whom the statements were made reasonably understood those statements to be made about McNair, but answered negatively that such statements were false. The statements addressed were based on an NCAA interview conducted of Lloyd Lake (“Lake”) by two NCAA investigators on November 6, 2007 that was ultimately reported in the NCAA Committee on Infractions report dated June 10, 2010. The relevant passage is as follows:
The committee nonetheless remains particularly troubled by the two minute and 32 second telephone call from agency partner A to the assistant football coach that took place at 1:34 a.m. on January 8, 2006. The assistant football coach claimed that he did not remember the phone call and denied agency partner A’s description of what was said. The committee finds agency partner A credible in his report of the call. Agency partner A said that he phoned the assistant football coach to ask him to intercede with student-athlete 1 and get him to adhere to the agency agreement that he made with agency partner A and B. Agency partner A said he also told the assistant football coach that he did not intend to lose the money he had given student-athlete 1 and his parents and preferred not to go public with the matter and implicate the institution.
Judge Shaller stated “[t]he falsity of the summary of the phone call…is material” and was the “linchpin” upon which McNair was sanctioned by the NCAA. Judge Shaller broke down this passage and concluded that the NCAA misstated Lake’s interview in a number of respects: 1) Lake never stated who initiated the call between he and McNair, but the phone records “clearly” show that Lake called McNair; 2) there was no mention in Lake’s interview that he called McNair to intercede in his relationship with Reggie Bush (“Bush”); 3) the interview does not state that McNair “knew” of the agency relationship between Lake and Bush and that Lake assumed McNair was aware of the same; and 4) it was “unreasonable” to interpret the “sloppy interview” of Lake to interrupt that Lake told McNair that he “did not intend to lose the money he had given [Bush] and his parents.”
Judge Shaller stated that he found McNair to be a credible witness, but took umbrage with the NCAA’s interview of Lake. He referred to the interview as “unprofessional” and a “fictional account.” He further stated that NCAA investigators were “clearly not prepared” and that NCAA investigators were “making jokes and interruptions” during the interview that obscured the actual answers. Judge Shaller concluded that the “interview should have been redone and scrapped.” Ultimately, Judge Shaller concluded that a new trial is warranted.
Disqualification of Juror No. 2 for Implied Bias
Juror No. 2, the presiding juror, is a transactional attorney at Latham & Watkins. Lantham & Watkins served as co-counsel in this case. McNair argued that Juror No. 2’s participation in the deliberations and decision in the case was particularly meaningful in light of the fact that Juror No. 2 served as the presiding juror in deliberations, and he made the deciding vote in the 9-3 verdict in favor of the NCAA. At trial, McNair raised an objection to Juror No. 2, but Juror No. 2 stated he had “no knowledge” of his firm’s involvement in this case and professed impartiality. Judge Shaller concluded that Juror No. 2 should have been removed on the basis of implied basis based on McNair’s objection and challenge for cause. Further, Judge Shaller concluded that permitting Juror No. 2 to remain on the jury and participate in deliberations and the verdict resulted in a “miscarriage of justice” and deprived McNair of a fair trial. Accordingly, a new trial is warranted.