LOS ANGELES — After fighting in court for nearly seven years, former Southern California assistant football coach Todd McNair’s defamation trial against the NCAA will begin Wednesday in Los Angeles County Superior Court.
McNair’s lawsuit, which includes claims for libel, slander, breach of contract, negligence and tortious interference, came in response to NCAA-levied sanctions against McNair and USC in the wake of an extra-benefits investigation into former running back Reggie Bush.
This whole saga dates back to 2004, when Bush started to emerge as star for the Trojans, while McNair served as his position coach. Here’s everything you need to know with the trial set to begin.
Those NCAA sanctions against USC seem like so long ago. What happened, again?
On June 10, 2010, the NCAA Committee on Infractions issued a report that determined various NCAA violations had been committed by USC’s football, men’s basketball and women’s tennis programs. For the purpose of McNair’s connection, we’ll just focus on football. In its official report, the COI listed several violations — mostly classified as impermissible extra benefits — that Bush committed beginning in the fall of 2004 through December 2005, during his sophomore and junior seasons. They stem from a relationship Bush had with an aspiring sports marketer, Lloyd Lake, and plans for the formation of a sports agency. Lake and his business partner, Michael Michaels, provided Bush and his family members with cash and travel expenses and, most notably, purchased a home in the San Diego area where Bush’s parents — who were provided $10,000 to furnish the home — lived rent free for more than a year.
The NCAA investigation lasted approximately four years and ended with heavy sanctions. USC was forced to vacate the final 14 wins of Bush’s career, including its Orange Bowl victory following the 2004 season that secured the national title. The program lost 30 scholarships over three seasons and was prohibited from playing any postseason games for two years. In addition to its acceptance of USC’s self-imposed disassociation from Bush — who gave back the Heisman Trophy he won in 2005 — it also required the school to show cause for “why it should not be penalized further if it fails to permanently disassociate” with him. There were other less significant penalties tacked on that can be found in the complete report.
Who is Todd McNair and how does he enter in to this?
McNair played running back at Temple before an eight-year NFL playing career with the Kansas City Chiefs and Houston Oilers. From 2001 to 2003, he was the running backs coach for the Cleveland Browns, before USC coach Pete Carroll hired him for the same role at USC in 2004.
The NCAA’s investigation came to the conclusion that McNair “knew or should have known” that Bush was engaged in violations with Lake and Michaels that negatively affected Bush’s amateur status. Additionally, the COI report indicated “[McNair] provided false and misleading information to the enforcement staff concerning his knowledge of [Lake and his partner’s] activity and also violated NCAA legislation by signing a document certifying that he had no knowledge of NCAA violations.”
For all intents and purposes, McNair, outside of Bush, became the face of one the darkest periods in USC history. He was given a one-year show-cause penalty that impedes a coach’s ability to be hired by a different university and was prohibited from contacting recruits. By the time the NCAA report was published and the sanctions were levied, Carroll already had left for the NFL to coach the Seattle Seahawks and was replaced by Lane Kiffin, who overlapped as offensive assistant coach with McNair at USC from 2004 to 2006. At first, it appeared that McNair would remain on Kiffin’s staff, but when his contract expired 20 days after his alleged involvement was made public, USC did not renew it.
McNair has not coached at the college or pro level since.
How did the NCAA determine McNair “knew or should have known” about Bush’s improper dealings?
The evidence the NCAA leaned on to make this conclusion is based heavily on a phone call recorded between McNair and Lake’s cellphones that took place on Jan. 8, 2006, at 1:36 a.m., and lasted 2½ minutes. Lake, a convicted felon, told the COI that McNair initiated the call after Bush decided to sign with a different sports agency after declaring for the NFL draft. (Phone records show it was Lake who initiated the call.) In an interview with the COI, Lake said McNair knew Bush took money from him but didn’t elaborate. McNair has denied any memory of the call and denied the conversation Lloyd outlined took place.
Additionally, there’s also a photo that includes McNair, Lake, Michaels and McNair’s friend, actor Faizon Love, in a nightclub. McNair told the COI he does not remember taking the photo and said it was common for him to take pictures with people he didn’t know, especially when he was out with Love.
Is that all the NCAA had to go on?
The lack of solid, documented evidence that McNair was clearly aware of Bush’s dealings with Lake is why it was a popular belief, for several years, that the NCAA and McNair were likely to settle out of court.
Is it rare that it actually reached trial and what took so long?
Yes. It’s much more common for cases to be dismissed or to get resolved well before trial. It stands to reason the NCAA never offered a settlement figure to McNair and his attorneys’ satisfaction. One of McNair’s attorneys, Bruce Broillet, has been involved in several high-profile civil cases, including a $55 million jury verdict for broadcaster Erin Andrews after she was secretly recorded naked in a hotel room by a stalker, according to his firm’s website.
The NCAA fought hard to have the case dismissed and took several steps to ensure the case would move slowly through the court system. Eight different judges have been assigned to the case at various times, including Frederick Shaller, who will be the judge during the trial. In 2016, the NCAA tried to have Shaller disqualified because he attended USC, but California’s 2nd District Court of Appeal determined he could remain on the case.
McNair’s story is well-known in the college athletics community and he’s generally a sympathetic figure. Still, why hasn’t he landed another job?
It will be interesting to see if McNair, whose testimony is expected to take seven hours, is asked to take the jury through his job-seeking process following the COI report. There are several examples of coaches whose careers progress despite show-cause orders from the NCAA. What kind of feedback did he receive from colleagues in the coaching community or university administrators?
That he has been engaged in ongoing litigation with the NCAA for the past several years has likely served as a double-edged sword, as well. On one hand, it has called into question the legitimacy of the NCAA’s conclusion about his involvement with the Bush scandal, but on the other, universities don’t look fondly at potential hires being involved in cases like this.
What will McNair’s attorneys argue?
In short, they are expected to make the case that the NCAA/COI was severely biased in how it treated McNair and was set on making an example out of him and USC, instead of applying the appropriate punishment for what the evidence showed took place. They also are expected to argue that the NCAA’s investigation was flawed and that the NCAA chose specific witnesses and fed them suggestive questions to implicate McNair — all while preventing McNair, or his counsel, from being present during the questioning of those witnesses or having the ability to question or cross-examine them.
In 2015, several e-mails by those close to the NCAA investigation were unsealed by the court, and they don’t look good for the NCAA, which fought to keep the records sealed.
For example, Rodney Uphoff, then the NCAA coordinator of appeals and a non-voting member of the COI, wrote: “A failure to sanction USC both in basketball and football rewards USC for swimming with sharks. Although they all talked about the importance of compliance at the hearing, winning at any cost seems more important.
“USC has responded to its problems by bringing in Lane Kiffin. They need a wake-up call that doing things the wrong way will have serious consequences. In light of all of the problems at USC, a failure to send a serious message in this case undercuts efforts to help clean up NCAA sports.”
In an email to COI members, Uphoff, also a lawyer who was appointed to defend Terry Nichols, an accomplice to Timothy McVeigh in the 1995 Oklahoma City bombing that killed 168 people, compared the two cases: “The evidence in this case is, for example, is markedly stronger than in the OKC bombing case, which was built entirely on circumstantial evidence.”
In February 2010, Shep Cooper, also a non-voting member of the committee, wrote to another member and called McNair “a lying, morally bankrupt criminal, in my view and a hypocrite of the highest order.”
Uphoff is expected to take the stand during trial, and a court document estimates his testimony could take up to six hours — three hours for both sides. Cooper already has given a taped 2½-hour deposition that will likely be played for the jury.
What will the NCAA argue?
Over the past several years, the NCAA has stood by the unethical conduct findings, and there is no reason to expect that will change in court. It is expected to maintain that the investigation and public statements about McNair were made in good faith.
Who else will be taking the stand?
Neither Bush nor Lake are expected to testify, according to the witness list filed in advance of the trial, but both sides have submitted a combined total of 23 people who can be called into trial — 10 of whom, including NCAA commissioner Mark Emmert and SEC commissioner Greg Sankey, already have been deposed on video.
McNair and Angie Cretors, the former associate director of Agent, Gambling and Amateurism Activities at the NCAA, are expected to have the longest testimonies. They’ll be joined by several members from the COI and NCAA. The witness list is subject to change.
During jury selection, potential jurors also are expected to be introduced to several other names of people who are not expected to testify but who might be referred to during the trial. That list includes Carroll, Bush, Lake, Kiffin, former USC coach Steve Sarkisian and former NFL player Percy Harvin, who was hosted by Bush on a recruiting visit to USC, among several others.
Why this matters?
It’s obviously most relevant for USC and its fans, which have long felt the NCAA sanctions were unnecessarily heavy-handed. Any sort of resolution that paints the NCAA’s handling of the investigation as improper will generate some level of vindication, however hollow that might be. The athletic department remains ever cognizant of the experience, and it continues to factor in to how the department functions. The most recent example of this is the school’s decision to err on the side of caution and sit basketball player De’Anthony Melton for the entire 2017-18 season because a family friends accepted travel expenses from an aspiring sports agent, a relatively minor transgression.
Jury selection is slated for Wednesday, which will precede opening statements. McNair’s team will present its evidence, then the NCAA will present its own. The trial is expected to last a few weeks.