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November 21, 2012
You knew right away the NCAA was in trouble arguing the case to dismiss former USC assistant Todd McNair's lawsuit here in Judge Frederick Shaller's Department 46 courtroom of the Superior Court of Los Angeles Wednesday afternoon.
You just didn't know how much trouble although the comment by NCAA attorney Laura Wytsma that "Mr. McNair dragged the NCAA into this proceeding" seemed more like whining than a legal argument.
But when Wytsma said that it wasn't Lloyd Lake who changed the facts of that famous 1:34 a.m. phone call to McNair about Reggie Bush, no, it was the chief NCAA investigator, Richard Johanningmeier, who may have gotten it wrong, you had one of those "uh oh" moments.
"Mr. Johanningmeir misspoke, not Lake," the NCAA attorney said, seeming to throw the association's former chief investigator under the bus.
A courthouse observer leaned over and noted how, when you have to argue like this, "you have a pretty tough case to defend . . . and the NCAA has a tough case here."
Really tough after Shaller responded with his ruling saying he disagreed with both of the NCAA's motions and did so in what seemed like fairly strong language.
The NCAA investigators were "over the top," Shaller said after reviewing the information filed by both sides, and "malicious" and that what he saw after reviewing emails from NCAA personnel, investigators, Committee of Infractions and Appeals members, "tended to show ill will" to McNair.
After judge-shopping the case since McNair filed his lawsuit in June of 2011, the NCAA failed in its 1-2 attempt to defend its case.
One was an anti-SLAPP motion that allows cases in California to be dismissed basically when they can be demonstrated simply to be an exercise of free speech. All that did was force the NCAA to produce the discovery that Shaller relied on for his decision.
The other motion was to seal the court record in the case since that's what it promises participants in its investigative/enforcement/infractions cases, the NCAA said since it lacks subpoena power.
The NCAA is now 0-2 vs. McNair, described by the NCAA as a public figure and in order for him to be a victm of defamation, it would have to be proved that the NCAA showed "actual malice" against McNair.
That gave McNair's Santa Monica-based attorney Bruce Broillet his opening in court to speak to Shaller.
"The emails proved they wanted to get McNair in order to impose the heavier penalties they wanted on USC," said Broillet, who does not comment on cases outside of court and not on this case with its protective order for the attorneys. "So they wrote the evidence the way they wanted it to be -- and that's malice . . . they got it all wrong on purpose."
Shaller did not disagree, saying "it's malicious," what the NCAA did in this case and the way they did it based on his reading of the filings and discovery produced for the court, which the NCAA attorney said was everything they had in this multi-year investigation.
"I think it was directed to an outcome," Shaller said.
It's not the first time the NCAA has been charged with coming to a conclusion in a case like that of USC or more recently the UCLA basketball case of Shabazz Muhammad, then seeming to find enough "facts" to try to make it stand.
"I understand [why] the NCAA wants to keep this quiet," Shaller said. "But I'm not going to seal the record . . . I know you guys are going to appeal it but from my part . . . and there's no reason to seal it . . . I think the public has a right to know."
''We are disappointed with the decision and plan to appeal,'' the NCAA responded to the Associated Press. And that could take as long as a year, it's understood.
But the court filings in the case should be available for public perusal in 30 days, it appears. And that should make for some interesting reading for USC folks familiar with the case and the principals involved here.
This case pretty much revolves around the NCAA's finding of unethical conduct against McNair for what it characterized as his lying in answers to investigators especially surrounding the Lake phone call -- and the evidence to support it. The NCAA contends that the Committee simply believed multiple-felon Lake and didn't believe McNair.
Reading one email from a law professor on the Committee from Temple, "Todd McNair's alma mater," the NCAA lawyer said, the Committee that included law professors, a former head of the Missouri State Bar and a former US Attorney, really did try to get it right.
Not so, said Judge Shaller. Not even close.
Dan Weber covers the Trojans program for USCFootball.com. You can reach him at email@example.com.