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Framing the McNair argument

For USC fans who have paid attention to the NCAA's infractions case against the Trojans, and the finding of unethical conduct against Todd McNair, this is hardly news. For the NCAA to be able to take USC down with severe sanctions, it had to take McNair down.
But while the 16,272-word Respondent's Brief filed Nov. 27 by McNair's attorneys -- and linked here -- makes that point to the California Court of Appeals that the LA Superior Court ruling of Judge Frederick Shaller not to dismiss should not be overturned, it's tantalizing in its major redactedness.
Although the NCAA redacted very little in its 37-page, 9,623-word brief filed last week saying that Shaller erred and McNair has no case for defamation and the suit should be dismissed, McNair's attorneys went the other way. They seem to have adopted a much more conservative approach as to what should be redacted.
Or maybe it's just that so much of what they argue, especially about the discovered emails, tells us how, and who, and even why, the NCAA consistently violated its own rules numerous times. It's the only way the NCAA could get the desired result.
McNair was just "the sacrificial lamb" tying USC to knowledge of whatever it was Reggie Bush and his family -- or maybe we should reverse that order -- were doing, they say.
The McNair brief argues that the NCAA had to "fabricate" evidence and change witness statements. But then after being apprised of the falsity of some of its evidence like the famous wrong-year, wrong-caller Lloyd Lake two-minute phone call, the NCAA still allowed three different agencies of the organization to publish false charges implicating McNair as the dishonest, guilty party when the NCAA deserves that designation.
And while we can only guess at what and who is in the 15 pages and estimated 3,800 words of redacted material, that might be part of the fun in reading this. Even though there's one full page with not a single unredacted word, another with the single word "Thus," and others with all but one or two lines blacked out.
Despite the NCAA's attempt to play down that phone call, McNair's brief makes it clear that "the basis for the NCAA's career-ending sanctions was the one late-night, two-minute telephone call between McNair and Lake . . . (redacted here) . . . the NCAA had a problem, however . . . (redacted here) . . . Accordingly, unless Lake's statement was altered, the NCAA could not reach its predetermined, career-ending findings against McNair. So even though the NCAA knew the facts were contradicted by the record, three different NCAA departments approved the publication of these false facts. They further continued to cling to them even after their falsity was explained in writing and in great detail by McNair's lawyer (Scott Tompsett) in his administrative appeals brief."
If "liar" was the NCAA's word of choice for McNair in its brief, McNair's word of choice for the NCAA's conduct would be "falsity" -- or maybe just plain "false." It's in there a lot. And it isn't redacted.
But the most interesting stuff comes when the brief gets to part where it quotes NCAA bylaws saying that "institutions, staff and student-athletes should be afforded 'fair procedures in consideration of an identified or alleged failure of compliance.' " Quoting again from the NCAA bylaws, they say such fairness is "essential to the conduct of a viable and effective enforcement program."
You know where this is going as McNair's brief makes the obvious comment that "the process was anything but fair to McNair. As detailed below, in addition to fabricating the facts, the NCAA violated its own rules, procedures and bylaws, allowed improper influence over the deliberations . . . (and then come six redacted lines where we can only assume the details of how this happened are presented) . . . This was anything but 'fair process.' The NCAA believed that whenever fair process stood in the way of their ultimate goal, it could be ignored, regardless of the consequences to McNair."
What the NCAA did was "a blatant deliberate falsification of material facts," McNair's brief says. It also contends that he's not a "public figure" in even the limited purpose of that term since McNair in no way inserted himself into the situation he found himself in, the NCAA did.
And in another mostly redacted paragraph, there is this: "And we know . . . (redacted for a full line) . . . there was personal animus against McNair which ultimately muted . . . (redacted for two more full lines) . . . Simply put, what occurred here is malice personified."
There are hints at how it happened after the three-day Committee on Infractions hearing in Tempe, Ariz., in 2010.
"Once the hearing has ended, the rules require the voting members, and the voting members only, to begin their deliberations similar to that of a jury. The voting members are not to be influenced by non-voting members of the COI, or by the Coordinator of Appeals, or by information outside of the record. (AA 401-402, 437-440, 452 [NCAA Division I Manual, Rule])."
The next seven pages, describing what McNair says actually happened, are mostly redacted but there are some interesting tidbits: "In the first round of deliberations, the NCAA began a systematic course of violating its own rules, procedures and bylaws regarding deliberations . . . (redacted for half a page) . . . This was done even though the bylaws required the COI to discuss the matter in private with only voting members."
It continues with this note: "On Feb. 22, 2010, one day after the first day of deliberations, . . . (the next 28 lines are redacted) . . . Even though he was required to be a neutral administrator . . . (11 more redacted lines) . . . Neither McNair nor his counsel were made aware of the existence of . . . (two lines redacted) . . . As such, they did not have the opportunity to respond. Moreover, when questioned about his memo, . . . (next two lines redacted).
"Further still . . . (then the next 27 lines are redacted with this lone exception) . . . After violating these clear-cut rules regarding deliberations.
"But even then, this action by the NCAA could still not overcome the fact that the record evidence could not support a finding of unethical conduct. So the NCAA broke another of its rules related to fair process : . . . (then 18 completely redacted lines except for this one word) . . . Worse . . . redacted).
But the next concluding graph was not. And it will not come as news to USC fans.
"In order to punish USC to the extent desired, it needed to make a finding against Todd McNair. Without such finding, the only remedy which the NCAA had in relation to the Reggie Bush issue would have been a charge of a violation of amateurism legislation against Reggie Bush himself. USC could not have been charged or penalized as severely as it was. In the limited discovery plaintiff has been afforded so far, . . . (redacted for eight more lines)."
Not redacted is this comment from the trial court that there was "evidence showing an ill will or hatred by three NCAA agents toward McNair including writings expressing that 'individuals like McNair shouldn't be coaching at ANY level,' calling him 'a lying, morally bankrupt criminal' and 'a hypocrite of the highest order'."
Even with the redactions, there's a way you can read this as when McNair's attorneys contend once again after laughing at the thought that the celebrity photo of Lake, McNair and actor Faison Love was evidence of anything: "To repeat, the career-ending unethical conduct finding was based entirely upon the one two-minute late night telephone call . . . (four lines redacted) . . . The NCAA had a problem . . . (two redacted lines) . . . The NCAA now argues that the report was accurate because . . . (five redacted lines) . . . The NCAA is wrong. The NCAA twists the record and contravenes what its own committee members freely acknowledged . . . (and then in a full page of redacted material apparently cites what the COI folks must have said)."
There's even a cameo appearance here by NCAA Pres. Mark Emmert and his oft-repeated answer to that "The NCAA got it right."
This was not a "vague accusation that the NCAA wants to be understood as not defamatory," McNair's brief says, but a "reassertion of the very detailed factual accusations and charges the NCAA had already published against McNair."
There's a whole lot more in the brief. A lot of technical legal cites on Anti-SLAPP law, "malice" and whether McNair is a public figure of any kind or not and whether it even matters. McNair also argues that there's no overriding interest that could possibly require the file to be sealed no matter what the NCAA says.
The NCAA's own bylaws say the duty of confidentiality ends with the publishing of its case findings. And that the NCAA itself, when it decides it's in its benefit, has no hesitation publishing witness interviews, as it did in the USC case.
And now we wait for the Court of Appeals to set the date for oral arguments.
Ed. Note: If the scanned brief looks a little rough, it's a case of the Court of Appeals clerk requiring anyone interested in making a copy of a brief to bring in their own copier and copy the bound brief in its office. So we did the best we could.
Dan Weber covers the Trojans program for You can reach him at
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