Court slams NCAA in Reggie Bush USC violations case

Brent Schrotenboer | USA TODAY Sports

The NCAA disregarded the truth in the Reggie Bush case to reach a "predetermined conclusion" against the USC football program, casting new doubt about whether the Trojans should have been slammed with penalties in the case, according to a ruling Monday by a California appeals court.

At issue was whether former USC running backs coach Todd McNair was aware of NCAA violations involving Bush when Bush was a USC running back.

McNair said he didn't know about the violations, and he sued the NCAA for defamation after the organization hammered USC with severe sanctions in 2010.

A three-judge panel reviewed evidence as part of an appeal by the NCAA to have McNair's case thrown out.

"This evidence clearly indicates that the ensuing (NCAA infractions committee) report was worded in disregard of the truth to enable the (NCAA committee) to arrive at a predetermined conclusion that USC employee McNair was aware of the NCAA violations," said the ruling from California's Second District Court of Appeal. "To summarize, McNair established a probability that he could show actual malice by clear and convincing evidence based on the (committee's) doubts about McNair's knowledge, along with its reckless disregard for the truth about his knowledge, and by allowing itself to be influenced by nonmembers to reach a needed conclusion."

NCAA spokeswoman Stacey Osburn on Tuesday said via email, "We don't have comment at this time."

The court threw out some parts of his McNair's lawsuit but preserved his defamation claim, ruling that he demonstrated a probability of prevailing at trial based on the merits of his case. The court's ruling allows the case to proceed to trial. It also adds new fuel to the debate about the fairness of the penalties USC received, including a two-year postseason bowl ban and the loss of 30 scholarships over three seasons.

NCAA investigator Rich Johanningmeier acknowledged during a pretrial deposition that the NCAA would need evidence that a USC employee knew of the improper benefits to sanction USC for Bush's receipt of those benefits, the court noted.

"As Johanningmeier acknowledged in his deposition, without a finding against McNair, no penalties could have been instituted against USC for Bush's receipt of improper benefits," said the ruling filed by Justice Richard Aldrich, with two other justices concurring. "McNair produced evidence that, while the (committee) had difficulty reaching a conclusion about McNair, it violated its own procedures by considering facts outside the record without affording McNair an opportunity to explain, and by allowing nonvoting members to influence the deliberations."

Bush forfeited his 2005 Heisman Trophy as a result of the scandal, which included allegations of improper benefits received by him and his family while he played at USC. In its 2010 report condemning USC, the NCAA infractions committee said that McNair "knew or should have known" that Bush was engaged in violations with a prospective sports marketing agency.

The committee listed McNair's "unethical conduct" as the first finding in its report, giving it huge significance in the case against USC. It notes a phone call in January 2006 between McNair and Lloyd Lake, one of the would-be marketers trying to woo Bush and his family with impermissible benefits. The call lasted about two and a half minutes.

The court noted the call appears to be the sole basis for the NCAA's ethics-violation finding against McNair.

"Yet, a jury could reasonably conclude that Lake's interview did not support the statement that McNair knew about the NCAA violations," the court said.

"Lake appeared to be confused when questioned about his relationship with McNair. Lake accepted that McNair called him. Although Lake said in his interview that McNair `knew about the money [Bush] took, he knew that [Bush] had an [agency] agreement,' when pressed by the interviewers, Lake made clear that this was Lake's own assumption. Nowhere during Lake's description of the two-minute call did Lake ever say that he informed McNair of, or that McNair claimed knowledge about, the agency agreement and improper benefits. Instead, Lake speculated that Bush told McNair, or that McNair knew from osmosis because 'he was around a lot' and 'watched.' Lake's later statement that he called McNair to get his money back only creates a factual dispute but does not defeat McNair's evidence as a matter of law."

The court stated that "McNair presented admissible evidence, which if credited by a jury, indicates that he did not know about the NCAA violations."

The court also said "McNair made a sufficiently convincing showing that the NCAA recklessly disregarded the truth when the (committee) deliberately decided not to correct the investigation's errors or to acquire more information about what McNair knew concerning the rules violations."

McNair, 50, claims his career and reputation have suffered as a result of the NCAA case. After his contract wasn't renewed at USC in 2010, he filed his suit in 2011.

Follow sports reporter Brent Schrotenboer @Schrotenboer. E-mail: bschrotenb@usatoday.com

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