When news surfaced on Wednesday than an LA Superior Court judge said the NCAA was “malicious in its attack of former USC running backs coach Todd McNair as a part of its investigation of USC regarding Reggie Bush and that there is sufficient evidence to suggest McNair could win his defamation suit against the NCAA, Trojan fans set Twitter ablaze with speculations of what it all could mean for the the program.
Judge Frederick Shaller disagreed with the NCAA when they sought to have the case dismissed, instead saying in a 10-page ruling that having reviewed certain sealed documents, there are emails that “tend to show ill will or hatred” toward McNair.
While this seems like good news for all of those who felt the NCAA came down too hard on USC, this recent development really yields little in determining the final outcome of the case, much less if it motivates the university to do anything on its behalf.
We spoke with Lincoln Bandlow, a partner at Lathrop & Gage LLP and an adjunct professor at USC specializing in media litigation, First Amendment, intellectual property and other entertainment related matters. As such, he is an expert in defamation law.
Bandlow explains that when McNair filed a defamation lawsuit, the NCAA brought an anti-SLAPP motion, which means the organization believes its investigation of McNair was thorough and fair and there is no way he could win his case, which will surely be lengthy and expensive. In disagreeing with the NCAA, Judge Shaller is saying that he believes there is enough evidence to show actual malice, which is what McNair’s lawyers need to demonstrate to prevail in this case. Since McNair was a football coach at the time of the investigation, he is considered a public figure, and so the standards of his defense change.
“The judge likely found evidence showing the NCAA shouldn’t believe what they were about to say,” suggests Bandlow. But if it’s just that they [The NCAA] didn’t like him, that’s not enough.”
“All that matters is if they knew the truth and hid it,” said Bandlow, meaning that McNair’s attorneys need to prove there is evidence that the NCAA had no proof of or knew that McNair had no involvement in the situation surrounding Reggie Bush, yet they held him responsible anyway.
The documents are sealed so we likely will not know for a while what exactly is present that Judge Shaller believes is sufficient proof that could result in McNair winning his case. However, this does not mean McNair, USC, or Trojan fans can expect anything else to happen any time soon. Since the NCAA filed the anti-SLAPP motion, they immediately have the option to appeal and they absolutely will.
Discovery will be stayed during the appeal, and it it could take another nine to ten months for an appellate court to hear the NCAA’s case. They would then have to agree with Judge Shaller’s initial determination for the ruling to stick. If it does, McNair is granted discovery and can examine more of the sealed documents to see what the NCAA had–or did not have–on him in the first place.
This all means that litigation in this case will die for about another year. But should the appellate court agree with Judge Shaller, what happens if McNair ultimately wins his suit?
Well, not all that much for USC, realistically. This is a defamation suit, so civil damages could be awarded against the NCAA, according to Bandlow. McNair would likely receive a monetary sum in punitive damages, but as of now, that looks to be it.
It later came out that Judge Shaller is a USC alumni, but Bandlow says that in and of itself is not enough to recuse himself from the case. He would have to have a financial interest in the outcome, or know either the plaintiff or defendant personally to be a conflict of interest.
Bandlow does not believe that a precedent would be set for future plaintiffs going up against the NCAA, as each case is different and actual malice would always have to be proven for there to be any kind of ethics breaches by the NCAA. The final ruling could be interesting for USC however, because if actual malice is found for McNair, it could lend the Trojans to sue on the same grounds.
For now, we know that there could be something for McNair to prove his lack of culpability in this situation but even if there is, we won’t know anything more for about a year. So McNair–and the thousands of college football fans interested in this case–will have to play the waiting game for a little while longer.