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May 10, 2013

Todd McNair, Take 2

In our quest to make it easier for you to read the court transcripts from the McNair-NCAA case, we have both of them here for you to link below. The first is the Nov. 21, 2012 hearing on LA District Court Judge Frederick Shaller's slapdown of the NCAA's Anti-SLAPP motion to dismiss.

The second is the Dec. 7, 2012 transcript on the NCAA's desire to keep all the materials filed in that first motion under seal with the details how that went down.

We won't even pretend to know when this will all get decided at the state appellate court level or what that will mean -- for Todd McNair or by extension USC -- when it does. Just that eventually it will. And then we'll see.

But for now, when there is a bit of time free from football, we're putting this out there for you for future reference, if you will. And to help out a bit, we'll put together a kind of Cliff's Notes with our favorite quotes from the transcripts and then some reaction from a couple of very sharp legal analysts with an interest in this from both a USC and NCAA point of view.

First the quotes: From the Nov. 21 hearing:

* Judge Shaller on his ruling denying the NCAA's motion to dismiss: "I mean, I know that you're going to appeal the case and the Court of Appeal is going to look at this de novo and they may say Judge Shaller is all wet, but I firmly believe that my tentative ruling is based on an accurate statement of the facts and the law. And I think that the conduct shown by the persons involved in this investigation is over the top, it's malicious, and I think it was directed for an outcome. That's my feeling."

* Shaller on sealing the record: "With regard to sealing of the record, I understand the sensitivity and I understand the desire of the NCAA to keep this quiet, because it's certainly an interest -- of huge public interest -- the machinations here that occurred, that led to this decision are, to me, just unbelievable. I think that the public has a right to know . . . But will this chill further investigations? Will the confidentiality of investigations be somewhat hampered in the future? I don't see that. I'm not going to seal the record. I think the public has a right to know."

* Scott Carr (McNair attorney): On McNair's position on sealing the NCAA documents: "I'm sorry, Your Honor, I think Ms. (Laura) Wytsma (NCAA attorney) had argued that Mr. McNair wants the documents sealed. Mr. McNair isn't taking a position that he wants the document sealed. So . . . " Mr. (Bruce) Broillet (McNair attorney) "Don't misinterpret." Mr. Carr: "Based on the protective order that we have, we're just not taking a position one way or the other, but I don't want the record to reflect that Mr. McNair in any way wants these records sealed."

And now for our legal analyst on the Nov. 21 transcript:

* 1) On Page 2, the NCAA invokes its Bylaw 32 as superseding the public's right to know: the NCAA believes it should have special privileges because it is the NCAA. Its Bylaws trump the rule of law.

* 2) On page 4, the NCAA claims it didn't put its dispute in this Court, Mr. McNair dragged the NCAA into this courtroom, in essence it's McNair's fault we're here so we deserve special privileges . . . The NCAA is in court because of its malicious conduct and the court is McNair's only recourse . . . The NCAA can protect the confidentiality of its sources by simply conducting its investigations in an ethical manner . . . which it did not. The NCAA then goes into a lot of BS about how they weren't after McNair -- including calling McNair a "criminal."

* 3) Page 21: The reason the NCAA had to get McNair. "If the NCAA can't implicate McNair, they can't impose the level of penalties on SC that they wanted because McNair was their only link between SC and what Bush was doing."

* 4) Page 22: The NCAA continued to rely on false facts.

* 5) Page 25: Shaller's statement on the record (above). Still the most critical statements. Shaller was making a record that will be hard to overturn.


And now quotes from the Dec. 7, 2012 transcript on sealing the NCAA documents:

* Ms. Wytsma for the NCAA: "The case law is very clear on that, while the SLAPP motion is being considered by the Court of Appeal, nothing can go forward. And the state will quote, there's no need for this information to be put out in the public. There's no discovery that's going to take place. You know, the stories have already issued. They have the court's tentative. They know that the court thinks our conduct is malicious. That's already been reported. There's just nothing going to happen until the Court of Appeal rules. And it has both issues before it, and the only way it can give us any effective relief is if that stay is recognized."

* Judge Shaller: "Since the notice of appeal on this issue has been filed, I am inclined to -- to stay distribution or public dislosure of these documents because, I mean, I think I have to uphold the due process of the Constitution to allow the appellate process to work out, whether or not these documents should, or should not, be considered to be privileged."

* Ms. Wytsma for the NCAA: "Just to clarify that the -- they would remain under seal until such time as there's a final appellate ruling and then the 10-day period within which the NCAA could indicate whether it wants to documents publicly filed or returned to it at this point. Judge Shaller: Yeah. So my notice of what -- when this thing runs out when the Court of Appeal issues remittur? . . . on the sealing order. Ms. Wytsma: "I don't know if the court will take these up simultaneously, if they'll be -- I assume they'll be briefed together. But if the sealing order should precede the merits, then obviously we would have a 10-day period to decide to pull back those documents or have them publicly filed."

The second transcript (Dec. 7, 2012) draws these responses from our analysts:

The big takeaway is really just the fact that the "transparent" NCAA wants the e-mails kept secret . . . [which is] an exception to their "transparency."

And this from our second analyst.

"The NCAA says one thing (transparency and acting in the interests of the players), but does precisely the opposite." The theme should be -- do not believe its words, rather, believe its actions. The NCAA should not be defined by its well-funded PR machine, rather, but by what it actually does."

What the NCAA actually did, and said, can be read here in the Nov. 21, 2012, appeal hearing transcript.

And in this Dec. 7, 2012, Ex Parte Hearing Transcript.

Dan Weber covers the Trojans program for USCFootball.com. You can reach him at weber@uscfootball.com.


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