B245475

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION THREE

TODD McNAIR, Plaintiff and Respondent,

vs.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.

APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY

HON. FREDERICK SHALLER, JUDGE, SUP. CT. No. BC462891

RESPONDENT'S BRIEF

GREENE, BROILLET & WHEELER, LLP BRUCE A. BROILLET, BARNO. 63910

SCOTT H. CARR, BARNO. 156663

CHRISTIAN T. F. NICKERSON, SBN 281084

100 WILSHIRE BOULEY ARD, SUITE 2100

P. 0. Box 2131

SANTA MONICA, CALIFORNIA 90407

TELEPHONE: (310) 576-1200

ESNER, CHANG & BOYER STUART B. ESNER, BAR No. 105666

234 EAST COLORADO BOULEY ARD,

SUITE 750

PAS ADENA, CALIFORNIA 911 0 1

TELEPHONE: (626) 535-9860

ATTORNEYS FOR PLAINTIFF AND RESPONDENT

1

. TO BE FILED IN THE COURT OF APPEAL APP-008 ..

Court of Appeal Case Number: COURT OF APPEAL, Second APPELLATE DISTRICT, DIVISION Three

B245475 . . . ATTORNEY !)R PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Stuart B. Esner, SBN 105666

SuperiorCourt Case Number:

- Esnerj Chang & Boyer 234 East Colorado Boulevard, Suite 750 FOR COURT USE ONLY

Pasadena, CA 91101 lELEPHONE NO.: 626-535•9860 FAX NO. (Optional): 626-535-9859

E-MAIL ADDRESs (Optional): esner523@aol.com ATTqRNEYFORCName): Todd McNair

APPELLANT/PETITIONER: Todd McNair

RESPONDENT/REAL PARTY IN INTEREST: Nat'l Collegiate Athletic Association

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): [Z] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the Initial certificate In an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application In the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclos(i!d.

1. This form is being submitted on behalf of the following party (name):..:T:....:o:....:d:...:.d:...:M::...:..:c:..:.N..:.:a:.:..:i::..r ______________ _

2 .. a. [Z] There are no Interested entities or persons that must be listed in this certificate under rule 8.208.

b. D Interested entities or persons required to be listed under rule 8.208 are as follows:

(1)

(2)

. (3)

(4)

(5)

Full name of interested entity_ or petson

D Continued on attachment 2.

Nature of interest (Explain):

The undei'Sig'ried certifies that the above-listed persons or entities (corporatio"r'1s, partnerships, firms, "Or any other association, blit not Including gcNernment entitles or their agencies) have either (1) an ownership interest of 1 li percent or more iil the party If it is an entity; or (2) a financial or other Interest In the outcome of the proceeding that the justices should .consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2)".

Date: November 15, 2013

"Stuart B. Esner

· Fonn Approved for QpUonal Use Judicial Cciuncil of California

APP-008 (Rev. Ja·nuary 1, 2009)

(TYPE OR PRINT NAME)

CERfiFICA TE OF INTERESTED ENTITIES OR PERSONS

2

Cal. Rules of Court, rules 8.208, 8.468 · www.courlirtlo.ca.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... 5

INTRODUCTION ....................................................... 8

STATEMENT OF FACTS AND PROCEEDINGS BELOW ..................... 14

A. Background ........................................... 14

B. The NCAA's Motion to Strike. . .......................... 24

C. McNair's Opposition .................................... 25

D. The NCAA's Reply ..................................... 26

E. The Trial Court's Ruling and the NCAA's Appeal. ............ 26

ARGUMENT .......................................................... 28

I. THE TRIAL COURT CORRECTLY DETERMINED THAT MCNAIR ESTABLISHED A PROBABILITY OF PREY AILING ON THE MERITS OF HIS DEFAMATION CLAIMS .................. 28

A. McNair Was Required to Demonstrate Only That his Claim Has Minimal Merit. ........................................ 28

B. McNair Established That He Had a Probability of Prevailing on His Defamation Claims .................................. 29

1. McNair established a probability of proving his libel claim ........................................... 30

2. McNair established a probability of proving his slander claim against the NCAA ............................ 40

3. McNair is not a public figure ........................ 42

4. Even if McNair is a public figure, there is ample evidence that the NCAA acted with malice ..................... 4 7

3

C. The NCAA Fails to Undermine the Trial Court's Ruling Denying the Motion to Strike as to the non Defamation Claims ... 54

1. The trial court correctly concluded that McNair's non defamation claims did not fall with the anti-SLAPP statute .......................................... 54

2. Even if the anti-SLAPP statute applies, the trial court's ruling as to the non defamation claims should be affirmed because McNair has a probability of prevailing on them ................................ 57

CONCLUSION ........................................................ 61

CERTIFICATE OF WORD COUNT ....................................... 62

4

TABLE OF AUTHORITIES

CASES

Suzuki Motor Corp. v. Consumers Union of United States, Inc. (9th Cir. 2003) 330 F .3d Ill 0 ............................................. 49

Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569 ......................... 43

Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 .......................... 48

Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041 ...................... 48

Barry v. Time, Inc. (N.D.Cal.1984) 584 F.Supp. 1110 ....................... 43-45

Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 ......................... 45

Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142 ......................... 57

Computer Xpress, Inc. v. Jackson (200 1) 93 Cal.App.4th 993 ..................... 41

Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937 ........................ 60

Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375 ................... 36

Garrison v. Louisiana (1964) 379 U.S. 64 ................................... 47

Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 .............................. 43

GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141 .................. 35

Hailstone v. Martinez (2008) 169 Cal.App.4th 728 ............................. 29

Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657 : ......... 49

Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254 .......................... 45

Kolar v. Donahue, Mcintosh & Hammerton (2006) 145 Cal.App.4th 1532 .......... 55

Lien v. Lucky United Properties Inv., Inc. (2008) 163 Cal.App.4th 620 ............. 40

5

Mann v. Quality Old Time Serv., Inc. (2004) 120 Cal.App.4th 90 ................. 30

Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181 ................ 55

McGarry v. University ofSan Diego (2007) 154 Cal.App.4th 97 .................. 46

New York Times v. Sullivan (1964) 376 U.S. 254 .............................. 47

Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027 ..................... 28

Oasis West Realty, LLC v. Goldman (20 11) 51 Cal. 4th 811 . . . . . . . . . . . . . . . . . . . 14, 29

Oiye v. Fox (2012) 211 Cal.App.4th 1036 .................................... 56

Overhill Farms, Inc. v. Lopez (2011) 190 Cal.App.4th 1248 ..................... 36

Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659 ..................... 49

Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244 ................... 48

Roberts v. Los Angeles County\Bar Assn. (2003) 105 Cal.App.4th 604 .......... 55, 56

Rosenaur v. Scherer (2001) 88 Cal.App.4th 260 ............................... 30

Shekhter v. Fin. Indemnity Co. (2001) 89 Ca1App.4th 89 Cal.App.4th 141 .......... 40

St. Amant v. Thompson (1968) 390 U.S. 727 .................................. 48

Warford v. Lexington Herald-Leader Co. (Ky. 1990) 789 S.W.2d 758 .......... 44, 45

Westside Ctr. Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507 ...... 58

Wong v. Jing (2010) 189 Cal.App.4th 1354 .................................. 29

STATUTES

Bus. & Prof. Code,§ 1660 ................................................ 60

Civ. Code, § 46 ........................................................ 30

6

Code Civ. Proc., § 425.16 ........................................... 8, 24, 28

MISCELLANEOUS

1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay,§ 38, pp. 831-832 ................ 57

7

INTRODUCTION

In this appeal, defendant and appellant the National Collegiate Athletic

Association ("the NCAA") challenges the trial court's ruling denying its special motion to

strike under Code of Civil Procedure section 425.16. In its earlier published opinion, this

Court denied the NCAA's motion to seal portions of the record on appeal. The NCAA

has now filed a revised opening brief publicly referencing selected portions of the earlier

sealed record, abandoning its arguments attacking the trial court's ruling denying its

motion to seal, and for good measure, adding overheated rhetoric apparently believing

that false indignation will mask the shortcomings of its legal arguments. The NCAA is

mistaken. 1

On June 10, 2010, the NCAA published a report stating that plaintiff and

respondent Todd McNair, then a USC assistant football coach, had committed unethical

conduct relating to a purported two-minute telephone call on January 8, 2006 at 1:34 a.m.

between McNair and an individual named Lloyd Lake. But this finding was based upon

1 After this Court denied the NCAA's motion to seal the record on appeal, the NCAA submitted a supplemental appendix including some but not all of the evidence that was before the trial court when it denied its anti-SLAPP motion. Plaintiff moved to dismiss the appeal because there was now an incomplete record on appeal. The NCAA opposed that motion arguing in part that dismissal was unwarranted because plaintiff could supplement the record to correct any shortcomings. This Court then denied the motion to dismiss. It is plaintiffs position that, in order for this Court to fully evaluate the trial court's order, it is necessary for it to have all of the evidence that was before the trial court when it ruled. Therefore, along with this brief, plaintiff is filing respondent's appendix containing the materials omitted by the NCAA in its appendix. Reference to this appendix will be to "RA."

8

facts fabricated by the NCAA. Lake, a convicted felon who was attempting to start a

sports agency, was accused of providing improper benefits to USC star running back

Reggie Bush in violation of NCAA rules. Based entirely on this two-minute telephone

call, the NCAA found that McNair knew, but failed to report these improper benefits to

USC and the NCAA. In turn, it was this alleged failure to report that formed the sole

basis for the NCAA's finding of unethical conduct that effectively ended McNair's career

as a college football coach.

The NCAA's career-ending report was false and its findings were based upon the

NCAA's deliberate falsification of the evidence which was done to justify its

predetermined desired outcome. McNair filed this action alleging, among other things

that the NCAA defamed him. The NCAA responded with a special motion to strike

arguing that its conduct concerned a matter of public interest and that McNair had no

probability of prevailing. The trial court denied the motion. In a thoroughly analyzed

ruling, the court explained in great detail that the NCAA report was based upon

deliberately manufactured evidence and that there was strong, if not overwhelming

evidence, that this was done with malice. The NCAA appeals that ruling. As explained

in this brief, nothing the NCAA argues justifies disturbing the trial court's ruling.

After having falsely smeared McNair, and destroying his career as a football

coach, the NCAA now has the audacity to begin its revised brief indignantly questioning

how McNair could possibly question the motives of its highly credentialed personnel.

The answer is obvious. As the trial court recognized and as detailed below, there is ample

9

and indeed direct evidence "showing a[n] 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"' (AA 1059 see 491.) These individuals ultimately

prevailed on the committee as a whole to go along with the NCAA's quest to punish USC

at any cost even if it meant fabricating evidence against McNair.

Nevertheless, the NCAA now goes so far as to proclaim that "[t]his is precisely

why California's 'anti-SLAPP' statute exists .... " (AOB 1.) But just the opposite is true.

The NCAA's position is a perversion of that statute. It represents a powerful institutional

entity attempting to use the anti-SLAPP statute as a means of avoiding the merits of

claims prosecuted by a far less powerful individual who was dependent on the defendant­

entity to practice his profession. It begs credulity to suggest that the statute was enacted

to protect the NCAA's of this world from individuals such as McNair.

As stated, the basis for the NCAA's career-ending sanctions was the one late night,

two-minute telephone call between McNair and Lake. When the NCAA interviewed

Lake, Lake stated that McNair had initiated the telephone call to intercede in an alleged

dispute between Lake and Bush relating to the alleged agency agreement. Lake's

characterization of the purpose of the call made sense if, and only if, it had been initiated

by McNair. The NCAA had a problem, however. The telephone records (which the

NCAA had in its possession) conclusively established that it was Lake- not McNair­

who initiated this brief late night telephone call. So Lake reported false information

10

about the call. Accordingly, unless Lake's objectively false statement was altered to

conform to the truth and make it appear that Lake was a credible and reliable witness, the

NCAA could not reach its pre-determined, 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 false statement that Lake reported he

called McNair, even though Lake said McNair had called him. Moreover, the NCAA

embellished Lake's statement even further with additional false assertions. And the

NCAA clinged to them even after their falsity was explained in writing and in great detail

by McNair's lawyer in his administrative appeals brief.

Furthermore, despite the requirement in the NCAA's own bylaws that institutions,

staff and student-athletes be afforded "fair procedures in the consideration of an identified

or alleged failure in compliance" and that the assurance of fair procedures is "essential to

the conduct of a viable and effective enforcement program," the process here 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 by permitting nonvoting members of the quasi-judicial panel to

participate in the deliberations, allowed adverse evidence from outside the record to be

considered during the deliberations without informing McNair and without giving him an

opportunity to respond to the evidence, failed to inform McNair that he was a target of the

investigation before interviewing him, and allowed Lake to be interviewed by the NCAA

without being subject to cross examination by USC, McNair or his counsel. This was

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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.

The NCAA thus defamed McNair when it stated that he engaged in unethical

conduct based upon its deliberate falsification of material facts. At the very least, McNair

has satisfied the minimal showing necessary to defeat a special motion to strike on this

issue. The NCAA nevertheless argues that McNair is not entitled to proceed with his

action because he is a limited public figure and therefore it is necessary for him to

demonstrate that the NCAA acted with malice. This argument fails for two independent

reasons.

First, in order for McNair to be considered a limited public figure, he must have

voluntarily injected himself into a matter of public interest. He did no such thing.

Rather, it was the NCAA that thrust McNair into this matter and not the other way

around. Thus, it will not be necessary for McNair to establish malice in order for him to

prevail.

Second, even if it is necessary for McNair to establish malice, the NCAA still

loses. As the trial court recognized, there is ample evidence from which a jury could infer

that the NCAA acted with malice. After all, it was told point blank that the facts on

which it was relying were made up and were not supported by anything in the record.

Nevertheless it persisted in its quest to get McNair and to use that as a basis to sanction

USC, blatantly disregarding its own procedures along the way. And, we know from

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behind the scenes communications that were made during the NCAA's deliberations, that

there was personal animus against McNair which ultimately muted the serious questions

that were raised about the scarcity of the evidence against McNair as well as the

"botched" investigation conducted by the NCAA. Simply put, what occurred here is

malice personified.

In short, the NCAA has provided no basis for this Court to reverse the denial of the

motion to strike as to McNair's defamation claims. As further explained below, nor has

the NCAA established a basis for reversal of the anti-SLAPP ruling as to the non

defamation claims. As clearly established by the evidence, the order denying the anti-

SLAPP motion should be affirmed in full. 1

10fnote, in the aftermath of this Court's denial ofthe NCAA's motion to seal the record on appeal, the NCAA has omitted any argument challenging the trial court's order denying its motion to seal. Thus, the NCAA has abandoned its appeal from that order.

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STATEMENT OF FACTS AND PROCEEDINGS BELOW

A. Background. 2

Plaintiff Todd McNair filed an action against the NCAA alleging causes of action

for libel, slander, tortious interference with prospective business advantage, tortious

interference with contractual relations, breach of contract, negligence and declaratory

relief. (AA 7.) The action arises out of the manner in which the NCAA falsely stated

that McNair violated the NCAA's Principles of Ethical Conduct and then issued sanctions

making McNair toxic to his present and any potential future employers, effectively

ending his highly-successful career as a collegiate football coach. McNair alleges that the

NCAA engaged in this conduct to further its vendetta against him and the University of

Southern California. The findings against McNair served as a predicate for the severe

sanctions that were meted out to USC. (RA 351.)

McNair was an Assistant Football Coach at USC during the period that Reggie

Bush was a running back on the school's football team and won the prestigious Reisman

Trophy awarded annually to the best college football athlete. At some point the NCAA

began investigating whether Reggie Bush had committed violations of NCAA rules by

2These facts are summarized in accordance with the standard for determining whether a plaintiff has established a probability of prevailing on his claims sufficient to defeat a special motion to strike. Under that standard, the Court accepts as true the evidence favorable to the plaintiff. (Oasis West Realty, LLC v. Goldman (20 11) 51 Cal. 4th 811, 820.)

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entering into an agency relationship with an individual named Lloyd Lake while Bush

was still playing for USC. (AA 9.)

On November 6, 2007, the NCAA Enforcement Staff interviewed Lloyd Lake

("Lake") concerning his relationship with Reggie Bush. During that interview, NCAA

Enforcement Staff employee Richard J ohanningmeier asked Lake about a 2 minute and

32 second phone call with McNair at 1:34 a.m. on January 8, 2006. In that interview,

Lake took the positions: (1) that McNair had called Lake at that date and time; and (2)

that McNair's motivation to call Lake was to try and "resolve" issues between Lake and

Bush concerning whether Lake was going to represent Bush professionally or if not,

whether Bush should repay the money Lake had given him while Bush was enrolled at

USC. According to Lake, McNair called to tell him that "Reggie's wrong, he should

make it right and basically don't implement [sic] the school." (AA 9-12.)

On February 15, 2008, NCAA Enforcement Staff employee Richard

Johanningmeier interviewed McNair and asked him whether he recalled a phone call at

1:32am with Lloyd Lake on January 8, 2005. McNair did not recall any such phone call.

(AA 376.) In fact, McNair could not have remembered any such phone call because no

such call took place on January 8, 2005 (the call in question took place a year later).

Significantly, the NCAA Enforcement Staff had obtained McNair's phone records from

USC as part of the investigation. Those records clearly showed that, contrary to what

Lake had said, McNair had not called Lake in the early hours of January 8, 2006. Rather,

the records clearly showed that Lake had called McNair. (AA 510; RA 378, 515-516.)

15

Despite the fact that they had no credible evidence of what transpired in that brief

phone call, and despite the fact that their sole witness, Lake (a convicted felon), had been

thoroughly impeached by the phone records relating to the call, the NCAA charged

McNair anyway on September 24, 2009 with unethical conduct. (RA 379.)

On February 18, 2010, the matter came on for hearing before the Committee on

Infractions ("COl"), the adjudicative arm of the NCAA. The COl is comprised of various

individuals, only some of whom are voting members for a particular enforcement

proceeding. Once the hearing has ended, the rules require the voting members, and the

voting members only, to begin their deliberations, similar to a jury. (RA 401-402, RA

437-440.) The voting members are not to be influenced by non-voting members of the

COl, or by the Director of the COl, or by the Coordinator of Appeals, or by information

outside of the record. (RA 401-402, RA 437-440,452 [NCAA Division 1 Manual, Rule

19.1.1.4].)

The full hearing lasted nearly three days and at the conclusion, the COl began

deliberating. At the end of the first day of deliberations on February 21, 2010, the COl

reached various findings regarding matters submitted to it in the wide-ranging proceeding

involving USC. But, as to McNair, the COl was unable to reach a determination. (RA

458-461.) Various COl voting members resisted making a finding against McNair based

on the record evidence. The investigation by the Enforcement Staff was described in

emails as "botched" (AA 462), with a record that was "recklessly constructed" for an

investigation that "fell short." (AA 488, 489.) Further, at least one COl voting member

16

questioned why McNair had not been re-interviewed by Enforcement Staff. (AA 462.)

This was because the interview was "choppy." (RA 410.) Another voting member

expressed reservations about making a finding against McNair when there was no

allegation or evidence that he was involved in the provision of impermissible benefits

Lake allegedly gave to Bush. (RA 464.) And, when they considered whether McNair

should be re-interviewed using the date 2006 instead of2005, senior members of

Enforcement Staff made a conscious decision not to do so. (RA 477-478.)

Moreover, as COl voting member Eleanor Myers stated, "To make an unethical

conduct finding, I think we would need to be pretty confident that we knew the content of

the Jan. 8 call from Lake to McNair and that it was a threatening call and McNair lied

about it." (AA 462.) Myers' comment was consistent with the high standard of proof

which the NCAA imposes upon itself in enforcement proceedings by its own bylaws. As

set forth in bylaw 32.8.8.2, "The Committee on Infractions shall base its finding on

information presented to it that it determines to be credible, persuasive, and of a kind on

which reasonably prudent persons rely in the conduct of serious affairs." (AA 456 [Rule

32.8.8.2].) Thus, if the evidence does not meet this high threshold, a finding cannot be

made.

In the first round of deliberations, the NCAA began a systematic course of

violating its own rules, procedures and bylaws regarding deliberations. Roscoe Howard

was new to the COL As a new member, he was required to silently observe an entire

proceeding before becoming a voting member of the COL The USC matter served this

17

purpose for Howard- he was a silent observer. (RA 400-401, RA 619.) The parties were

informed in advance that Mr. Howard would strictly be an observer, and would not

participate in the USC matter. (RA 484.) As a silent observer, the NCAA procedures

further required that he not participate in deliberations. (RA 401, RA 430, RA 436.) He

is further prohibited from influencing the deliberations. (RA 402-403 .) However, as the

evidence clearly demonstrates, Howard did participate in the deliberations and voiced a

strong position about what should be done in an obviously improper attempt to influence

the voting members of the COL (AA 486-490; RA 491-494.) This was done even though

the bylaws required the cor to discuss the matter in private with only voting members

participating in deliberations. (RA 407-408; 456 [Rule 32.8.8].)

On February 22, 2010, one day after the first day of deliberations (at the end of

which the decision on McNair had been deferred because the COl could not agree on the

case against him) (RA 408-409, RA 459), Rodney Uphoff ("Uphoff'), the NCAA

Coordinator of Appeals, sent a vitriolic email to Shepard Cooper, the Director of the COl

and an NCAA employee, about his concern that the COl was going to go too easy on

USC, and why he believed McNair should be hit with an unethical conduct finding. (AA

495.)

Recognizing that it was wrong for him to be participating in the deliberation

process, Uphoff stated the following to Cooper:

"Obviously this email is only going to you. I haven't been able to sleep for three nights because I fear that the Committee is going to be too lenient on USC on the football violations. I think that would be a huge mistake in

18

light of the evidence against Bush. It is incredible to think that he wasn't involved from the start. Roscoe and I both are concerned because the evidence in our view is overwhelming that he was involved in 2004 and we are surprised at the very level of proof demanded by some of the Committee members. I am working on a long memo summarizing the evidence .... " (RA 495.)

Likewise; Roscoe Howard sent a diatribe against McNair to Cooper (which was

eventually shared with the voting members of the COl), essentially expressing his desire

to publish his thoughts to the entire committee in an obvious attempt to influence them.

(AA 486.) Howard goes even further in his obvious contempt for McNair and wrote as

follows:

"McNair should have all inferences negatively inferred against him ... we need not say why we disbelieve him, we only need to let the public, or whomever, know that we do disbelieve him." (AA 486.)

Neither of these individuals were supposed to be influencing the voting members of the

COL Even more striking is that the NCAA encouraged Howard to participate in the

deliberations even though he was prohibited from doing so. (See RA 627.)

Even though he was required to be a neutral administrator, Cooper clearly voiced

his opinion on McNair as well, conceding, amongst other things, that he believed that

"McNair shouldn't be coaching at ANY level.. .. He's a lying, morally bankrupt criminal,

inmyview ... " (RA491.)

Howard, Uphoff and Cooper were absolutely forbidden by NCAA rules from

attempting to influence cor deliberations and therefore were not supposed to share their

views with the voting members of the COL (AA 486; RA 491, RA 495, RA 499, RA

19

620.) Nevertheless, their inappropriate communications were sent to the voting members

immediately prior to the next scheduled deliberation session on March 2, 2012. (RA 500,

RA 425-426.) Indeed, the decision was made to send Uphoffs memo to the voting

members of the COl to "get the conversation going." (RA 623.)

Neither McNair nor his counsel were made aware of the existence of these

impermissible ex parte communications nor of the fact that they were provided to the COl

voting members after deliberations began. As such, they did not have the opportunity to

respond. (AA 287, 290.) Moreover, when questioned about his memo, Uphoff doubled

down and reiterated his position that McNair had lied. (RA 625.)

Further still, members of the COl went outside the record by performing internet

searches on McNair and inaccurately concluding that he had been convicted of crimes

related to dog fighting. (AA 487.) Without ever notifying McNair or his lawyer (again,

in violation of its own rules) (AA 287, 290) the COl considered the evidence from outside

the record, including the notion that McNair had supposedly lied when asked whether he

had anything in his background, of a criminal nature, which would call into question his

veracity. (AA 501.) In fact, not only did McNair and his lawyer truthfully answer the

question, but the COl's information obtained from the internet was inaccurate, because

McNair had never been convicted of dog fighting. (AA 290.) Nevertheless, the COl

erroneously used this information against McNair without ever giving him notice or an

opportunity to respond. Cooper has now conceded that he had no information that

McNair lied about whether he was convicted of anything bearing on his veracity. (RA

20

418-419.)

After violating these clear-cut rules regarding deliberations, Director Cooper, on

behalf of the NCAA, began to write an opinion finding McNair guilty of unethical

conduct before the COl had even reached a decision on that issue. (RA 419-420, RA

421-422.) In fact, Uphoff was pushing Cooper to draft findings against McNair even

though he conceded that, "We are not going to achieve consensus re McNair no matter

how many calls we have and we are going over ground that we already have discussed."

(AA 502.) Not only was Cooper not a voting member of the COl, he was not a member

ofthe COl at all. His role as Director was only to be a support staff liaison to the COl

and to administratively support the Committee. (RA 398, RA 405-406.) It is important to

remember that Cooper is the individual who had previously expressed his overwhelming

bias against McNair. Obviously, it was hoped that Cooper's draft opinion would push the

COl voting members to decide against McNair. (AA 502.) As Uphoff stated, after

Cooper drafted something up, a vote would be taken and "hopefully, it will come out the

right way." (AA 502.) Cooper and Uphoff made it clear that the "right way" would be to

destroy McNair's reputation and career.

But, even 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: it falsified the evidence in order to support a finding

against McNair. The NCAA published that Lake had said that Lake had called McNair

on January 8, 2006 at 1:34 a.m., even though Lake never said any such thing in his

21

statement. It published that Lake had threatened to go public, even though Lake never

said any such thing in his statement. It published that Lake made the call for the purpose

of asking McNair to intercede with Bush and getting him to adhere to the agency

agreement that Bush had allegedly made with Lake and his partner, even though Lake

never said any such thing. It published that Lake said that he told McNair that he did not

intend to lose the money that he had given to Bush and Bush's parents, even though Lake

never said any such thing. It published that Lake said he told McNair that he preferred

not to go public with the matter and implicate the institution, even though Lake never said

any such thing. (RA 321-322, RA 370.) All of these materially false statements were

fabricated to make Lake appear to be a credible and reliable witness, and to create a basis

to make a career-ending unethical conduct finding against McNair.

Worse, the NCAA COl then sent the final draft of the Infractions Report to the

NCAA Enforcement Staff for a stamp of approval as to the accuracy ofthe facts stated in

the report. (RA 422-423.) The Enforcement Staff, which had conducted the factual

investigation in the first place, approved of the fabricated facts and sent the draft report

back to the COl with its blessing. (RA 423-424, RA 479-481.) With both of these

departments of the NCAA (the Enforcement Staff and the COl,) knowingly approving of

these false facts, the report was published. (RA 321-322.)

Worse yet, in his appeal to the NCAA's Infractions Appeals Committee ("lAC"),

McNair's lawyer Scott Tompsett presented in writing, in painstaking detail, the facts that

had been fabricated and were not supported by the record. (AA 514-522.) The appeal

22

was denied, even though the lAC clearly was shown that the facts were fabricated. (AA

591-604.)

Thus, three different departments of the NCAA involved with enforcement

proceedings, each supposedly independent from the other, knowingly used or approved

the use of fabricated facts to find that Todd McNair had committed the serious career­

ending offense of violating the NCAA's Principles of Ethical Conduct by failing to report

violations and then lying to the NCAA.

The NCAA further failed to provide McNair basic tenets of fair process despite

their bylaws which made clear that institutions, staff and student-athletes be afforded "fair

procedures in the consideration of an identified or alleged failure in compliance" and that

the assurance of fair process is "essential to the conduct of a viable and effective

enforcement program." (AA 450 [Sections 2.8.2, 19.01.1].) Even Cooper conceded that

fair process was required. (RA 411-412.) In addition to the fabrication of facts in

violation of rules as set forth above, the NCAA conducted an interview ofLake which

excluded USC, McNair and his counsel from the process, and prevented cross­

examination of McNair's key accuser. (RA 467-468, RA 413-416.)

The reason why the NCAA took these steps is simple. The NCAA believed that in

order to punish USC to the extent it 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

23

as it was. In the limited discovery plaintiff has been afforded so far, NCAA officials have

candidly acknowledged that in order to sanction USC for the conduct involving Reggie

Bush it would be necessary to demonstrate knowledge by a USC employee of the

improper benefits allegedly received by Bush. (RA 469-474.) Furthermore, as stated

above, Cooper expressed his desire to ensure that McNair no longer had a coaching career

at ANY level. (AA 491.) This all fits in with the efforts of Cooper, Uphoff and Howard

as Uphoff articulated, "I agree that this case cries out for something dramatic." (AA 621.)

B. The NCAA's Motion to Strike.

The NCAA filed a special motion to strike McNair's entire complaint under Code

of Civil Procedure section 425.16. (AA 24.) The NCAA argued that the infractions

report and the conduct which form the basis for McNair's claims are matters of public

interest that are subject to anti SLAPP protections. (AA 35.) The NCAA then argued

that McNair could not establish a probability of prevailing on the merits because the

statements in the infractions report were not false (AA 36); were statements of opinion

(AA 37) and in any event, according to the NCAA, were made without malice. (AA 38.)

The NCAA then went on to argue that inasmuch as McNair allegedly could not establish

his defamation claims, he could likewise not establish his remaining claims. (AA 42.)

24

C. McNair's Opposition.

After he was given the opportunity to conduct limited discovery, McNair filed his

opposition to the motion to strike. (AA 256.) In that opposition McNair argued that there

was ample evidence satisfying his burden of establishing a probability of prevailing on

his claim that the NCAA published false written and oral defamatory statements about

him and that it engaged in tortious conduct that effectively ended his career as a football

coach. These statements and this conduct were sufficient to support each of the causes of

action alleged in the complaint. (AA 274-286.)

In support of that opposition, McNair submitted evidence supporting the facts

described above in the background portion of this section. In addition, McNair submitted,

among other things, his declaration where he unequivocally states that "The statements

about me, which are contained in the University of Southern California Public Infractions

Report ('Infractions Report'), particularly the statements made on pages 23 through 27 of

the report are false. At no time did I engage in any acts of unethical conduct as the report

improperly and wrongfully states. [,-r] I had absolutely no knowledge that either Reggie

Bush or any member of his family was receiving any improper benefits or money from

Lloyd Lake ('Lake') or any other agent during the time periods identified in the

infractions report. [,-r] I do not recall ever receiving a telephone call from Lake. I often

received calls from people, some that I knew and some that I did not know, looking for

Reggie Bush. However, I am absolutely certain that at no point did I ever discuss with

25

Lake anything related to alleged improper benefits or money received by Reggie Bush

and/or members of his family." (AA 288.) McNair then goes on to state that each of the

findings in the Infractions Report are false. (AA 288-289.) He then described that as a

result of the Order to Show Cause Findings against him by the NCAA, he has been

unable to find a job as a football coach. (AA 289.)

D. The NCAA's Reply.

The NCAA filed a reply memorandum arguing that it provided fair procedure to

McNair and that he purportedly failed to introduce the minimal evidence necessary to

satisfy his burden in opposing the motion to strike with respect to whether the Infractions

Report contains false facts, whether the NCAA acted with malice, whether the common

interest privilege applied and with respect to the non defamation claims alleged by him.

(AA 654.)

E. The Trial Court's Ruling and the NCAA's Appeal.

Following an extensive hearing on the matter, the trial court issued its ruling on the

motion to strike, ruling that the NCAA fabricated evidence regarding the late night two­

minute telephone call between Lake and McNair to support its conclusion that McNair

engaged in unethical conduct. (AA 1055-1056.) The Court found, among otherthings,

26

that "the Infraction Report's statement about the telephone conversation was false" and

that "the Infractions Report contained material false statements regarding the conclusion

that McNair violated NCAA ethical conduct legislation by providing false and misleading

information regarding his knowledge ofthis 118/06 1:34 a.m. phone call." (AA 1055-

1056.)

In addition the Court ruled that McNair was a public figure and therefore it will be

necessary for him to establish constitutional malice to prevail on his defamation claims.

(AA 1056.) The Court found that McNair submitted such evidence of malice based upon

the fact that the Infractions Report misrepresented Lake's statement to the NCAA; the

fact that the NCAA knew that when McNair was asked about the pivotal telephone call

during the NCAA"s interview the wrong date was used yet the NCAA declined to re­

interview McNair to clear the matter up; the fact that at least one member ofthe COl

expressly recognized that the interview with McNair was "'botched"' and that there was a

high standard the NCAA needed to reach to find against McNair. Yet the Infractions

Report stated that McNair lied about the telephone call, despite the botched nature of the

interview. (AA 1057-1058.) Further, the court referenced 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"' (AA 1059.)

As to the non defamation claims, the Court ruled that since they were not premised

on the alleged defamatory publications they were not within the protections of the anti-

27

SLAPP statue. (AA 1059.)

The NCAA appealed the order denying its motion to strike. (AA 1065.)

ARGUMENT

I. THE TRIAL COURT CORRECTLY DETERMINED THAT MCNAIR

ESTABLISHED A PROBABILITY OF PREVAILING ON THE MERITS

OF HIS DEFAMATION CLAIMS.

A. McNair Was Required to Demonstrate Only That his Claim Has

Minimal Merit.

Once the defendant makes the '"threshold showing that the challenged cause of

action is one "arising from" protected activity,"' the court '"then must consider whether

the plaintiff has demonstrated a probability of prevailing on the claim."' (Nygard, Inc. v.

Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) In determining whether a plaintiff

has made the requisite factual showing, the court considers the pleadings, and supporting

and opposing affidavits upon which the liability or defense is based. (§ 425.16, subd.

(b)(2).) However, the court neither weighs credibility nor compares the weight of the

evidence. Rather, it accepts as true the evidence favorable to the plaintiff, and evaluates

the defendant's evidence only to determine if it has defeated that submitted by the

28

plaintiff as a matter of law. If the plaintiff can show a probability of prevailing on any

part of its claim, the cause of action is not meritless and will not be stricken; once a

plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has

established that its cause of action has some merit and the entire cause of action stands.

(Oasis West Realty, LLC v. Goldman (2011) 51 Ca1.4th 811, 820.)

"The plaintiff need only establish that his or her claim has minimal merit to avoid

being stricken as a SLAPP." (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.)

The question whether the plaintiff has shown a probability of prevailing is reviewed

independently on appeal. (Ibid.)

As now explained, McNair demonstrated that his claims had much more than the

requisite minimal merit.

B. McNair Established That He Had a Probability of Prevailing on His

Defamation Claims.

In its detailed ruling, the trial court concluded that McNair had more than made the

showing necessary to establish that he had a probability of prevailing on the merits of his

defamation claims. (AA 1054-1058.) Nothing the NCAA argues undermines this ruling.

"The elements of a defamation claim are (1) a publication that is (2) false, (3)

defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special

damage." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) Libel is defamation in

29

written form. (Ibid.)

A statement that "[t]ends directly to injure [the plaintiff] in respect to his office,

profession, trade or business ... by imputing something ... that has a natural tendency to

lessen its profits" is actionable defamation. (Civ. Code,§ 46; Rosenaur v. Scherer (2001)

88 Cal.App.4th 260, 278; Mann v. Quality Old Time Serv., Inc. (2004) 120 Cal.App.4th

90, 106.)

Here, McNair has alleged two causes of action for defamation. The first is for

libel based on the reports published by the NCAA which falsely and maliciously stated

that McNair is unethical, has committed unethical acts, cannot adequately perform in his

profession, and is dishonest in his business. (AA 10.) The second is for slander alleging

that NCAA agents including Paul Dee (the Chairman of the COl), falsely proclaimed

among other things that McNair "attested falsely that he had no knowledge of NCAA

violations," and that he had "violated NCAA unethical conduct legislation." (AA 12.)

As now explained, nothing the NCAA argues establishes that the trial court erred.

1. McNair established a probability of proving his libel claim.

The NCAA argues that McNair's libel claim must be dismissed because the facts

disclosed in the Infractions Report are supposedly true. (AOB 18.) According to the

NCAA, in order to prove a false statement, McNair must present evidence that he did not

speak to Lake in the middle of the night on January 8, 2006.

30

This is a cramped and misleading characterization of McNair's defamation claims.

Those claims are not dependent upon whether a two-minute telephone conversation

occurred. Rather, those claims are based upon the materially false statements as to who

initiated the call and what transpired during that telephone call, which lead to the

NCAA's equally false statements that McNair engaged in unethical conduct. Even if a

two-minute telephone call took place between McNair and Lake on January 8, 2006, that

would not support an unethical conduct finding against McNair and would not have cast

McNair in a false light. McNair explained that while he does not recall that call, he

"often received calls from people ... looking for Reggie Bush." (AA 288.)

Rather, what was defamatory was the NCAA's demonstrably false statement that

McNair knew Bush had accepted impermissible benefits from Lake but was not going to

use Lake as his agent and, therefore, McNair wanted to intervene and resolve the dispute

before Lake went public with the violations. These manufactured statements were

attributed to Lake even though Lake never made these statements. And it is these

manufactured statements that form the basis for the false conclusion that McNair engaged

in unethical conduct in connection with his chosen profession as a football coach because

he violated certain NCAA rules relating to his duty to report suspected infractions by a

player under his charge. (AA140 -141.) Thus, the NCAA based a career-ending finding

of unethical conduct on manufactured and demonstrably false evidence concerning the

two-minute late night telephone call. (AA 140.) Absent the NCAA's fabrication of the

evidence about that telephone call, there would be no factual basis supporting the

31

NCAA's assertion that McNair engaged in this unethical conduct.

While the NCAA trumpets - and goes so far as to paste in its brief - a photograph

that had been taken at a nightclub with Lake and actor Faison Love and McNair (AOB 6)

this photograph was not and could not have been the basis for the NCAA's unethical

conduct finding against McNair. The mere fact that Lake had a celebrity photograph

taken which included McNair did not prove that McNair knew about the alleged improper

relationship between Lake and Bush. To repeat, the career-ending unethical conduct

finding was based entirely upon the one two-minute late night telephone call.

Because the telephone records conclusively established that it was Lake who

called McNair's number, while Lake told the NCAA that it was McNair who had called

him and then went on to describe the purpose and content of the telephone call in such a

way that could, in fact, have occurred only if McNair had called him- the NCAA had a

problem. If it were to credit Lake's statement, it would be necessary to materially alter it

to conform to the inalterable fact that it was Lake who made the call to McNair.

The NCAA now argues that the Report was accurate because, in the NCAA

interview, Lake supposedly never said that McNair called him. According to the NCAA,

it was the NCAA investigator who stated in a question to Lake that McNair called Lake

and "Lake then subsequently clarified that he called McNair in January 2006." (AOB 20

citing to 3 AA 763-76.) The NCAA is wrong.

The NCAA twists the record in an effort to avoid the truth that the only reasonable

interpretation of the Lake interview is that Lake was stating that it was McNair who

32

called him.

The verbatim excerpt from Lake's testimony describing the call on January 8,

2006, is set forth below.

(People laughing)

Mr. Johanningmeier:

Mr. Johanningmeier:

(AA 763-764.) (emphasis added).

Mr. Johanningmeier: --McNair makes a call to you at 2:32. I was asleep at the time--

Mr. Lake: Yeah. --personally, but, but in your case--Mr. Lake: I think that was like that was like him (McNair) trying to resolve it, you know, and like Reggie's wrong, he should make it right and basically don't implement the school. Because this, this is 2006 we are talking about. Mr. Lake: Yeah, that's when I went to jail, that's when everything started falling apart, I mean, it fell apart. Mr. Johanningmeier: What can you tell us that you specifically recall about that conversation with him? Mr. Lake: Uh,just telling about Reggie and all, he knew about the money he took, he knew that he had an agreement and--Ms. Cretors: Todd McNair indicated to you in the telephone conversation that he was aware that Reggie took money--Mr. Lake: I mean, he knew--Ms. Cretors: --from you? Mr. Lake: --Yeah, bee, he knew Reggie took money from me. There's no doubt he knew about that.

Thus, Lake said McNair interceded on his own initiative trying to resolve it, that

McNair acknowledged that Bush was wrong, and that McNair asked Lake not to

"implement" [sic] USC. It was therefore not just Lake's agreement with the question that

33

McNair called him- it was also how Lake characterized that conversation that confirmed

that Lake was testifying that it was McNair that initiated the call. Otherwise, Lake's

statement that the purpose of the call was so that McNair was trying to resolve the

situation makes no sense. Obviously if the purpose of the call was so that McNair could

try and resolve the matter, then it was McNair who allegedly initiated the call- precisely

what Lake testified to - and precisely the opposite of what the Committee on Infractions

stated in the career-ending unethical conduct finding.

According to the NCAA, later in the transcript Lake "confirmed" he called

McNair. (AOB 21.) The NCAA relies on a passage of the Lake interview a couple of

pages after the above passage. After discussing the January 8, 2006 call, which Lake

claimed McNair made to him, Lake was asked, "Did you ever call McNair?" (AA 766)

and Lake responded "Yeah, I called him a couple of times." He explained that the

purpose of these calls was "trying to get this resolved, just get my money back and make

it right." (AA 766.) He then clarified that he called in January 2006 before he went back

to jail. (AA 766.) Thus, Lake did not "confirm" that he called McNair on January 8,

2006, he claimed that he called McNair a couple times after the January 8, 2006 call,

which Lake had already explained was initiated by McNair. Moreover, the NCAA

ignores that it obtained all of McNair's telephone records and that the brief January 8,

2006 call is the only call from Lake's phone to McNair.

As the trial court correctly observed in rejecting this same argument, "The other

calls may have taken place, but it is the substance of the 1/8/06 conversation that is at

34

issue, and whether or not Defendant's report of it was a TRUE statement." (AA 1055.)

The NCAA's argument that the transcript establishes as a matter oflaw that the

report correctly characterized Lake's testimony misapplies both the standard governing

defamation actions in particular and the standard governing SLAPP motions in general.

Recently, in GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, this

Court reversed the grant of an anti-SLAPP motion to strike concerning a defamation

claim based on a press release. The press release stated that an FBI criminal investigation

was taking place. There was conflicting evidence as to whether such an investigation

actually was taking place and therefore the court reversed the aspect of the anti-SLAPP

order relating to the press release.

Here too, there was direct evidence which was not described by the NCAA in its

report which documented that McNair never engaged in the unethical conduct charged by

the NCAA. Instead of describing this evidence in the report, the COl fabricated evidence

to support its preordained findings.

The NCAA nevertheless argues its report contains the factual basis for its

conclusion that McNair engaged in unethical conduct. (AOB 21.) According to the

NCAA "[t]he unethical conduct finding in the Infractions Report is an opinion based on

disclosed facts that are true." (AOB 22.) The NCAA is wrong.

The cases describing the difference between an actionable statement of fact and a

non-actionable statement of opinion reason that "the question is not strictly whether the

published statement is fact or opinion. Rather, the dispositive question is whether a

35

reasonable fact finder could conclude the published statement declares or implies a

provably false assertion of fact." (Franklin v. Dynamic Details, Inc. (2004) 116

Cal.App.4th 375, 385.) It follows that '"[a] statement of opinion based on fully disclosed '

facts can be punished only if the stated facts are themselves false and demeaning.'

[Citations.]" (I d. at p. 3 87) However, when the facts which are disclosed are false, then

the "full disclosure" rule has no application. Overhill Farms, Inc. v. Lopez (2011) 190

Cal.App.4th 1248, 1263-64, is on point. There, the Court concluded that the "full

disclosure" rule on which the NCAA relies "is of no assistance to defendants, for the

simple reason that their statements do not fully and accurately disclose the facts

surrounding the firings" which were involved in that case because the defendants writings

did "not even begin to acknowledge the full story .... " (!d. at pp. 1263-1264.) The Court

summed up: "The evidence here was sufficient to demonstrate that defendants'

disclosure of facts underlying the employment termination was materially incomplete and

misleading, making their 'racist firing' claim sound far more credible than it actually is.

Consequently, the rule that '[a] statement of opinion based on fully disclosed facts can be

punished only if the stated facts are themselves false and demeaning [citation]'

(Franklin, supra, 116 Cal.App.4th at p. 387, 10 Cal.Rptr.3d 429), does not apply here."

(!d. at pp. 123-1264.)

Precisely the same is true here. The disclosed facts were demonstrably false and

materially misleading. The NCAA changed its description of Lake's statement because it

did not comport with the credible evidence or the undisputed facts. There was no

36

evidence that McNair knew about the agency agreement, much less that Bush was

backing out of the agreement. There was no evidence - even from Lake - that anyone told

McNair about the agency agreement either on or before January 8, 2006. (AA 289.)3

Further, Lake's statement was directly contradicted by the telephone records. Thus,

McNair would not have called Lake to discuss something he was not aware of. But that is

exactly what Lake claimed McNair did.

The Committee on Infractions ("COl") resolved this material contradiction in

Lake's statement by changing Lake's description of the call to make it appear like Lake

said he called McNair to ask him to intercede and get Bush to adhere to the agency

agreement. (AA 321-323.) That is not what Lake said in his interview (see AA 514-523

[McNair Appeal Brief]), and the COl has no authority to mold and shape a witness's

statement to make it appear more credible and reliable than it actually is or to make it fit a

predetermined result. According to its own bylaws, procedures and rules, the COl should

take a witness's statement at face value, not change it to fix inconsistencies and

contradictions.

Lake's bare, unsupported conclusory statement was insufficient to establish that

McNair knew that Bush had taken money in violation of NCAA rules. Without

competent evidence that McNair knew that Bush had taken money, there is no unethical

conduct finding. Thus, the COl embellished, changed and falsified Lake's statement to

3To be clear, McNair disputes that Lake told him on January 8 about the agency agreement.

37

support its finding that Lake specifically told McNair that he had given money to Bush

even though Lake never said that.

And this falsification of the evidence was no accident. As already described, on at

least three occasions, the NCAA had the opportunity to correct these errors- even after

they were called to its attention in detail. (See AA 514-523.) Despite knowledge of these

errors, the NCAA failed to make a single correction. The reason why is clear. The

NCAA knew that in order to sanction USC for the conduct involving Reggie Bush it

would be necessary to demonstrate knowledge by a USC employee of the improper

benefits allegedly received by Bush. (AA 469-474.) Unfortunately, McNair was the

sacrificial lamb. Thus, in order to make such a finding, it would be necessary to tar

McNair with unethical conduct, regardless of the facts or the truth. The NCAA's

defamatory writings are anything but a full and accurate disclosure of the facts on which

the NCAA based its conclusion. The characterization of McNair having engaged in

unethical conduct and the unethical conduct finding which effectively ended McNair's

career as a college football coach was thus defamatory. At a minimum, the evidence is

sufficient to allow a jury to make such a determination.

The NCAA asserts that because the report acknowledged that McNair disputed the

allegations, it presented both sides of the controversy and the "Report itself makes clear

that the committee's findings are merely its own opinions." (AOB 23.) Notably the

NCAA offers no record cite as to exactly where it is that the NCAA makes clear that the

findings are mere opinion.

38

While the report states that "the enforcement staff and the assistant football coach

were in disagreement regarding the findings of fact" the report then goes on to materially

mischaracterize and manipulate Lake's statement about the critical January 8, 2006 late

night telephone call. (See AA 318-322.) Accordingly, no one reading the report would

reasonably be able to evaluate the true facts because Lake's actual, unaltered statement

was not included in the report.

The NCAA's argument next morphs into a discussion of McNair's statements that

he did not recall ever speaking to Lake as justification for the Committee's conclusion

because the telephone records established that in fact there was a conversation between

the two. (AOB 25-26.) This is a smoke-screen attempting to obscure the true issue. The

NCAA was quite explicit that its finding that McNair engaged in unethical conduct which

formed the basis for the career ending penalties against him was the late night telephone

call in which McNair allegedly acknowledged knowing Bush had received impermissible

benefits and Lake supposedly asked McNair to intercede with Bush on his behalf. It was

McNair's alleged knowledge of the impermissible benefits and failure to report it to USC

that formed the basis of the unethical conduct finding, not the mere fact that there was a

two-minute call. The COl had to materially change Lake's testimony to support that

conclusion.

In short, McNair submitted evidence far greater than was necessary to meet his

minimal burden in demonstrating that there was a probability he will be able to prove that

the NCAA COl report defamed him by labeling that he engaged in unethical conduct

39

based upon the NCAA's contortion of the evidence.

2. McNair established a probability of proving his slander claim

against the NCAA.

The NCAA reorganizes its recently filed revised opening brief so that it begins

with an argument chastising the trial court for not addressing McNair's slander claim.

(AOB 16.) In its initial opening brief filed before its sealing motion was denied this was

not a focus of the NCAA's argument for good reason. The trial court supplied the parties

with an 11 page thoroughly analyzed tentative ruling in advance of the hearing and then

afforded the parties ample time to orally argue their respective positions respecting that

tentative. At no point during the extensive oral argument did counsel for the NCAA even

mentionMcNair's slander claim. Indeed, the NCAA's trial court briefing devoted to this

claim totaled two short paragraphs. (AA 38 [moving papers]; 671 [reply papers].)

The trial court was not required to issue a statement of decision at all. (Lien v.

Lucky United Properties Inv., Inc. (2008) 163 Cal.App.4th 620, 624.) The fact that it

rendered such a detailed ruling without specifically referencing the slander claim which

played such a minor role in the NCAA's briefing and no role in its oral advocacy does not

merit reversal. Shekhter v. Fin. Indemnity Co. (2001) 89 Ca1App.4th 89 Cal.App.4th 141,

150 cited by the NCAA (AOB 16) does not hold that the trial court must analyze each of

the plaintiffs claims in writing in an order denying an anti-SLAPP motion. Rather, in

40

that case the court considered the far different issue "whether a special motion to strike

can apply to one cause of action when other claims remain to be resolved." (Ibid.)

Next, the NCAA's argument as to this cause of action focuses on only one of the

numerous other statements contained in paragraph 23 of the complaint including charges

that McNair "attested falsely," he "violated NCAA unethical conduct legislation,"

impeded [USC] from [fulfilling] its obligations under the NCAA violations" and more.

(AA 12.) Since the NCAA did not even reference these allegations in its motion or in its

opening brief for that matter, it is presumably not challenging that they are actionable.

As to the one statement the NCAA does reference, its argument takes that

statement completely out of context. When NCAA President Emmert stated that "The

NCAA got it right" he was not simply making a vague accusation that could not be

understood as defamatory. Rather, that statement was made in the context of the very

detailed factual accusations and charges that the NCAA had already published against

McNair. An individual hearing Dr. Emmert- particularly someone involved with

collegiate sports- would know that Dr. Emmert was reasserting those accusations and

findings and was not just making the value statement the NCAA now depicts. This case

is therefore far different than Computer Xpress, Inc. v. Jackson (200 1) 93 Cal.App.4th

993, 1013, where the statements the Court found to be vague were not endorsements of a

document containing detailed defamatory statements. The NCAA's contention as to

McNair's slander claim therefore also fails.

41

3. McNair is not a public figure.

In its revised opening brief, the NCAA argues that McNair is an all purpose public

figure because of his career as a professional football player. (AOB 27-28.) In the trial

court the NCAA argued only that McNair was a limited public figure (AA 3 8) and that

was the basis for the trial court's ruling. Even if the NCAA could raise this argument for

the first time on appeal at this late date, it is wrong.

"For the most part those who attain [the status of public figure for all purposes]

have assumed roles of special prominence in the affairs of society. Some occupy positions

of such persuasive power and influence that they are deemed public figures for all

purposes. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 345.) This category is

designated 'all purpose' public figure. (Id at p. 351.) All-purpose public figure will not be

lightly assumed; in order for a plaintiff to be deemed an all-purpose public figure, there

must be 'clear evidence of general fame or notoriety in the community, and pervasive

involvement in the affairs of society ... "' (!d. at p. 352.)

Simply because McNair was a professional athlete falls far short of establishing

that McNair meets this exacting standard. The NCAA cites no authority and engages in

no meaningful analysis other than simply stating that this is the case.

The NCAA did argue below that McNair was a limited public figure and therefore

was required to establish actual malice in order to prevail on his defamation claims. The

trial court agreed, ruling that the weight of the evidence establishes that he was a public

42

figure. (AA 1056.) McNair disagrees with this limited aspect of the trial court's ruling.

(As explained below, even if the Court concludes that McNair was a limited public figure

it should affirm because, as the trial court correctly concluded, there is ample evidence

from which a jury could infer malice.)

In order to be entitled to Constitutional protection as a limited public figure a three

part test needed to be satisfied: "First, there must be a public controversy, which means

the issue was debated publicly and had foreseeable and substantial ramifications for

nonparticipants. Second, the Plaintiff must have undertaken some voluntary act through

which he or she sought to influence resolution of the public issue. In this regard it is

sufficient that the plaintiff attempts to thrust him or herself into the public eye. And

finally, the alleged defamation must be germane to the plaintiffs participation in the

controversy." (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577; see also

Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351 [absent unusual fame or notoriety,

an individual who voluntarily injects himself or is drawn into a particular public

controversy should be deemed to be a public figure only for purposes of defamation

arising from that controversy].)

In attempting to meet this standard, the NCAA argues that McNair was a limited

public figure because (1) McNair played professional football; (2) he accepted a position

coaching a very visible running back; (3) given USC's history it was reasonable to expect

public scrutiny; and (4) his arrival at USC was reported in the press. (AOB 29-30.) To

support this argument the NCAA cites Barry v. Time, Inc. (N.D.Cal.1984) 584 F.Supp.

43

1110. In Barry, the plaintiff was recruited and had accepted a position as head basketball

coach at a the University of San Francisco after his predecessor had been implicated in

NCAA violations. The plaintiff was hired in an effort to "clean" the program. (!d. at p.

1116.) The plaintiff then initiated his action against a former student-athlete and a

national publication which reported that the plaintiff was involved with the student­

athlete's improper receipt of money. The Court concluded that the plaintiff had injected

himself into a public controversy and therefore was a limited public figure.

In Warford v. Lexington Herald-Leader Co. (Ky. 1990) 789 S.W.2d 758, 767-69,

the Court, referencing the district court's opinion in Barry, rejected a similar argument in

a well-reasoned opinion explaining that "[t]he 'nationwide controversy regarding

recruitment of college athletes' is too general a statement of a public controversy to be the

axis of debate."

The Court went on to explain "[t]he First Amendment protects the 'principle that

debate on public issues should be uninhibited, robust, and wide open.' New York Times

v. Sullivan, 376 U.S. at 270, 84 S.Ct. at 721 (emphasis added). Newsworthy though

NCAA recruiting violations at the University of Pittsburgh may have been, public interest

alone does not create a public controversy, nor does it create a public figure. Walston v.

Reader's Digest, 443 U.S. at 167, 99 S.Ct. at 2707; Time v. Firestone, 424 U.S. at 454,96

S.Ct. at 965. A general public concern about recruiting violations, like the general public

concern about wasteful public expenditures is not sufficient to qualify a grant recipient or

assistant basketball coach as a public figure if neither is surrounded by a specific

44

controversy. See Hutchinson v. Proxmire, 443 U.S. at 135, 99 S.Ct. at 2688." (Ibid.)

The Warford Court got it right. "A person is not a public figure merely because he

happens to be involved in a controversy that is newsworthy. [Citation.] '[A] "public

figure" plaintiff must have undertaken some voluntary act through which he seeks to

influence the resolution of the public issues involved. As such, the mere involvement of a

person in a matter which the media deems to be of interest to the public does not, in and

of itself, require that such a person become a public figure for the purpose of a subsequent

libel action. [] ... [W]hen called upon to make a determination of public figure status,

courts should look for evidence of affirmative actions by which purported "public

figures" have thrust themselves into the forefront of particular public controversies.'

[Citations.]" (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 744-745.) In order

to elevate a person to public figure status, a fairly high level of public activity is required.

(!d. at p. 745.) Most significantly, '"those charged with defamation cannot, by their own

conduct, create their own defense by making the claimant a public figure.'" (Khawar v.

Globe Internat., Inc. (1998) 19 Cal.4th 254, 266.)

Here, as described above, McNair did not voluntarily inject himself into a matter

of public interest in an effort to sway public opinion. Unlike the plaintiff in Barry, there

is no evidence here that McNair was recruited and hired in an effort to clean up the USC

football program. Instead, McNair was involuntarily dragged into this matter by the very

entity that is now attempting to claim he is a public figure. As the Khawar Court so aptly

stated: "those charged with defamation cannot, by their own conduct, create their own

45

defense by making the claimant a public figure." That is precisely what the NCAA seeks

to do.

Simply because McNair made a voluntary choice to pursue a career as a

professional football player and then as an assistant coach does not dispense with the

requirement that he injected himself into a matter of public interest before constitutional

malice is required. The NCAA's reliance on McGarry v. University of San Diego (2007)

154 Cal.App.4th 97, 115 is misplaced. There, the head football coach at the University of

San Diego was terminated. Following his termination, employees of the school made

certain comments about the reasons for his termination and the plaintiff sued for

defamation. The Court concluded that the plaintiff was a limited purpose public figure

for purposes of the allegedly defamatory statements. (Ibid.)

Here, the fact that, years before any of the conduct that gave rise to this action,

McNair was a professional football player has nothing to do with the NCAA's actionable

conduct and therefore should play no role in determining whether he is a limited public

figure. Further, the fact that McNair was an assistant football coach is far different than

being a head football coach in the forefront of the public eye. While even casual fans

may know who the head coaches at major colleges only the most avid fans will likely

know who the assistant coaches are. Simply because someone happens to be an

employee at an institution that garners public attention does not automatically mean that

46

he or she thereby becomes a limited public figure. 4

In any event, as now explained even if McNair were a limited public figure, there

is ample evidence that the NCAA acted with malice.

4. Even if McNair is a public figure, there is ample evidence that

the NCAA acted with malice.

As the trial court correctly recognized, if the actual malice standard applies to

McNair's defamation claims, then McNair submitted sufficient evidence to satisfy this

standard. (AA 1057-1059.) As now explained, nothing the NCAA argues undermines

the finding.

The actual malice standard of New York Times v. Sullivan (1964) 376 U.S. 254,

requires a showing that the allegedly false statement was made "with knowledge that it

was false or with reckless disregard of whether it was false or not." (Id. at pp. 279-280.)

The reckless disregard standard requires a "high degree of awareness of. . . probable

falsity ..... " (Garrison v. Louisiana (1964) 379 U.S. 64, 74.) "There must be sufficient

evidence to permit the conclusion that the defendant in fact entertained serious doubts as

4Never missing an opportunity to smear McNair the NCAA claims that public scrutiny of McNair "intensified after his undisclosed conviction for animal cruelty surfaced." (AOB 29.) The NCAA references one article which again has nothing to do with the subject matter of this action. (AA 52-53.) It does not demonstrate that McNair was the subject of sufficient wide spread public scrutiny to render him a public figure and it certainly does not prove that any public scrutiny of McNair "intensified" as the NCAA claims.

47

to the truth of his publication." (St. Amant v. Thompson (1968) 390 U.S. 727, 731.)

Gross or even extreme negligence will not suffice to establish actual malice; the

defendant must have made the statement with knowledge that the statement was false or

with "'actual doubt concerning the truth of the publication."' (Reader's Digest Assn. v.

Superior Court (1984) 37 Cal.3d 244, 259, fn. 11.)

"The existence of actual malice turns on the defendant's subjective belief as to the

truthfulness of the allegedly false statement. (Reader's Digest, supra, 3 7 Cal.3 d at p. 257 .

. . ) Actual malice may be proved by direct or circumstantial evidence. Factors such as

failure to investigate, anger and hostility, and reliance on sources known to be unreliable

or biased 'may in an appropriate case, indicate that the publisher himself had serious

doubts regarding the truth of his publication.' (!d. at pp. 257-258.) However, any one of

these factors, standing alone, may be insufficient to prove actual malice or even raise a

triable issue of fact. (Id. at p. 258.)" (Annette F. v. Sharon S. (2004) 119 Cal.App.4th

1146, 1166-1167 emphasis added; see also Antonovich v. Superior Court (1991) 234

Cal.App.3d 1041, 1048 ["'Although failure to investigate will not alone support a finding

of actual malice, [citation], the purposeful avoidance of the truth is in a different

category.' (491 U.S. at p. 692 [105 L. Ed. 2d at p. 591].) '"[I]naction," i.e., failure to

investigate, which "was a product of a deliberate decision not to acquire knowledge of

facts that might confirm the probable falsity of [the subject] charges' will support a

finding of actual malice. (Ibid.)"].) Further, an inference of actual malice can also be

drawn when a defendant's analysis was designed to arrive at a predetermined conclusion.

48

(Suzuki Motor Corp. v. Consumers Union of United States, Inc. (9th Cir. 2003) 330 F.3d

1110, 1135 [evidence that the defendant's test was designed to support its conclusion that

plaintiffs vehicle rolled over too easily was sufficient to prove actual malice]; see also

Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 684, 109 S. Ct.

2678, 2694, 105 L.Ed.2d 562 [newspaper decided to publish unsubstantiated allegations

against political candidate to support its overall attack on candidate in spite of lacking

credible source for the allegations].)

The NCAA first argues that because Dr. Thomas testified in his deposition that the

'"committee believed that it got the facts correct,"' that establishes that there was no

malice. (AOB 32.) That one member of the COl made a self-serving conclusory

declaration is not sufficient to overcome the overwhelming direct and circumstantial

evidence of malice. "Typically --'since it is rare that there will be a 'smoking

gun' admission of improper motive-- malice is established 'by circumstantial evidence

and inferences drawn from the evidence."' (Paulus v. Bob Lynch Ford, Inc. (2006) 139

Cal.App.4th 659, 675 [Malice in context of malicious prosecution].)

The NCAA next argues that the fact it mis-characterized Lake's description of the

late night telephone call- which was the central basis for its finding that McNair engaged

in unethical conduct - does not support a finding that there is evidence of malice. (AOB

34-36.) In making this argument the NCAA parrots general legal principles standing for

the unremarkable proposition that not all alterations in a statement are sufficient to infer

malice. But, as described above and as the trial court correctly recognized, this was not

49

an inadvertent nonmaterial alteration. Rather, the alteration was necessary for the NCAA

to characterize the telephone call in a manner that supported its conclusion that as of the

date the call was made, McNair was aware that Bush had entered into an agency

agreement with Lake and had accepted impermissible benefits, all in violation of NCAA

rules. This was the key evidence supporting the NCAA's findings.

The NCAA materially falsified Lake's testimony to make it appear that Lake said

he called McNair and told McNair about the violations involving Bush when in fact, Lake

said McNair called him on his own initiative because McNair knew about the agency

agreement and the impermissible benefits, and McNair wanted to intercede to keep the

matter from becoming public. (RA 321-322.) But, as Lake's interview transcript shows,

Lake did not say he called McNair on January 8 and he did not say he told McNair about

the agency agreement and the impermissible benefits he gave Bush. (AA 370-374.)

Those are statements the NCAA invented in order to make Lake's testimony credible and

to comport to the phone records which show it was Lake who called McNair, and not the

other way around as Lake falsely testified. This was not just any alteration - this was an

alteration that went to the very essence of the defamatory statements against McNair.

Further, as described above, the false and defamatory statements were reviewed by

the Committee on Infractions and the enforcement staff before the initial publication in

June 2010. Thus, two separate departments of the NCAA approved of and ratified the

publication of the defamatory statements. More importantly for purposes of establishing

malice, McNair and his counsel explained in excruciating detail to the Infractions Appeal

50

Committee the material falsity of the unethical conduct finding, yet that committee

refused to set aside the finding or make a single change to the finding. A trier of fact

could thus certainly conclude that the NCAA was out to get McNair and was not simply

in search of the truth, as it now piously argues.

Next, the NCAA argues that the failure of its investigators tore-interview McNair

because, when he was asked about the key telephone call, the wrong year was used, was

not malice because McNair had denied ever speaking to Lake. (AOB 34-35.) This is a

non sequitur. For purposes of determining whether the NCAA acted with malice, the

issue is not whether, in hindsight, there interview of McNair would have changed any of

the facts. Instead, the issue is whether, at the time of the NCAA's investigation and then

at the time of its findings against McNair the NCAA acted with a reckless disregard for

the truth. The fact that the NCAA was aware that the most pivotal question it asked

McNair was framed factually wrong, but it never bothered to take even the small step of

re-interviewing him to clear matters up, will allow a trier of fact to find that the NCAA

was at the very least indifferent to the truth in its mission to find against McNair.

Further still, the NCAA ignores what is tantamount to direct evidence that it was

operating with ill will toward McNair. As the trial court recognized in its order, there is

"evidence showing a 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"' (AA 1059 see RA 491.)

51

If there is still any doubt about the NCAA's disregard for the truth, then this

should be dispelled by McNair's appeal where he pointed out in unmistakable, point­

blank detail that the factual statements in the report which were critical to the finding of

unethical conduct were false. (AA 506.) Yet, the NCAA elected not to change even one

of its falsifications. (AA 591.) In fact, the false COl report is still being published today

on the NCAA's website. The reason was clear. If it corrected the false characterization

of the evidence then there would not be any basis to conclude that McNair engaged in

unethical conduct. It follows that McNair in tum could not be used as justification for a

severe sanction against USC.

Even further, in addition to passing up repeated opportunities to investigate and

correct its false characterization of the evidence, malice in this case can be inferred by the

NCAA's disregard and violations of its own procedures in the infractions process and the

deliberations by the Committee on Infractions. When the COl was unable to reach the

requisite consensus to make the unethical conduct finding against McNair, NCAA

personnel who were not supposed to even participate in the deliberations hi-jacked the

process to ensure findings would be made against McNair regardless of the facts. NCAA

employee Cooper, who believed McNair "shouldn't be coaching at ANY level," helped

Howard and Uphoff improperly insert themselves into the deliberations with the sole

purpose of persuading the voting members of the COl to make the career-ending finding.

(See ante pp. 9-13.) Those three individuals were expressly prohibited by NCAA

enforcement procedure from participating in deliberations, but the NCAA violated its

52

own procedures to ensure an unethical conduct finding was made against McNair and a

basis established to impose unprecedented penalties on the USC football program.

In his memo, which Howard himself described as a "rant" (AA 490) against

McNair, Howard stated that "McNair should have all inferences negatively inferred

against him." (AA 486.) He advised that "we need not say why we disbelieve him we

need only to let the public, or whoever, know we do disbelieve him." (Ibid.) Howard

then went on to call McNair a liar based upon matters that were not in the record, and

which were in fact not true (relating to convictions of dog fighting) and questioning his

credibility based on the statement concerning the Marshall Faulk birthday party that

McNair attended that did not form a basis for the ultimate finding against McNair. (AA

488.) These efforts all worked. The NCAA found against McNair and effectively ended

his career based upon knowingly fabricated evidence.

In short, the trial court correctly concluded that McNair submitted sufficient

evidence of malice to defeat the NCAA's motion to strike.

53

C. The NCAA Fails to Undermine the Trial Court's Ruling Denying the

Motion to Strike as to the non Defamation Claims.

1. The trial court correctly concluded that McNair's non

defamation claims did not fall with the anti-SLAPP statute.

The trial court ruled that as to the non defamation claims since they were not

premised on the alleged defamatory publications they were not with the protections of the

anti-SLAPP statute. (AA 1059.) Those claims were for tortious interference with

prospective business advantage, tortious interference with contractual relations, breach of

contract, negligence and declaratory relief. (AA 13-19.)

The NCAA argued that McNair's defamation claims fell within the anti-SLAPP

statute because they arose from speech in connection with a public issue. (AA 35-36.)

This is not true with respect to McNair's non defamation causes of action. Those claims

each concern the deleterious impact the NCAA's order to show cause sanction had on

McNair's career and the propriety of the process the NCAA afforded McNair in arriving

at that sanction. Those claims are not based directly on the NCAA's written or oral

defamatory statements about McNair. Even if these causes of action may have some

relationship to McNair's defamation claims, that would not mean that they arise from

speech in connection with a public action as to bring them within the anti-SLAPP statute.

54

"[I]t is the principal thrust or gravamen of the plaintiffs cause of action that

determines whether the anti-SLAPP statute applies [citation] .... " (Martinez v.

Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) None of McNair's non

defamation claims "arise" from any speech in connection with a public issue. Rather,

they arise from the order to show cause sanction that was imposed on McNair. The

NCAA argues that because the non defamation claims reference the infractions report that

means that those claims necessarily arise from that report. That is not the case. "' [T]he

"arising from" requirement is not always easily met.' (Ibid.) A cause of action may be

'triggered by' or associated with a protected act, but it does not necessarily mean the

cause of action arises from that act. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 77-

78 [124 Cal.Rptr.2d 519, 52 P.3d 695] (Cashman).) As our Supreme Court noted:

'California courts rightly have rejected the notion "that a lawsuit is adequately shown to

be one 'arising from' an act in furtherance of the rights of petition or free speech as long

as suit was brought after the defendant engaged in such an act, whether or not the

purported basis for the suit is that act itself." [Citation.]' (!d. at p. 77.)" (Kolar v.

Donahue, Mcintosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537-1538.)

The NCAA assertion that the enforcement process and the publication of the

infractions report are so intertwined that they cannot be divorced from each other (AOB

42) is off-base. In Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604,

614, the plaintiff sued the defendant association after it evaluated plaintiff as not qualified

to be a judge. The plaintiff claimed that her claims for fraud and breach of contract did

55

not fall within the anti-SLAPP statute because "this case is not about the Bar

Association's evaluation, but rather, is about the process of that evaluation." (Id. at p.

614.) In rejecting this assertion, the Court concluded that "although Roberts's action was

an attack on the process of the evaluations, that process was inextricably intertwined with

and part and parcel of the evaluations. Thus, the action arose from the Bar Association's

exercise of its constitutional right of free speech in connection with a public issue, i.e., to

speak out on the qualifications of candidates for judicial office." (!d. at p. 615.)

The harm in Roberts occurred directly as a result of the defendant's evaluation and

there was no way to effectively separate that from the process leading to the evaluation.

That is not the case here. The actionable statements which form the basis for McNair's

defamation claims are separate from the NCAA's sanctions which form the basis for

McNair's remaining claims.

Accordingly, the trial court correctly concluded that McNair's non-defamation

claims were not protected under the anti-SLAPP statute. As now explained, even if this

Court disagrees with that determination then it should still affirm this aspect of the trial

court's ruling because there is a probability that McNair will prevail on these claims.5

5Citing to Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1065, the NCAA makes the bizarre argument that plaintiff should be precluded from defending the trial court's ruling that his non defamation claims did not fall with the anti-SLAPP statute. (AOB 41, fn. 10.) Oiye concerned whether a party could attack a trial court ruling based on grounds not urged below. The NCAA cites no authority (none exists) which precludes a party from defending a trial court ruling because it did not make a particular argument in the trial court.

56

2. Even if the anti-SLAPP statute applies, the trial court's ruling as

to the non defamation claims should be affirmed because

McNair has a probability of prevailing on them.

As now explained, the NCAA's arguments as to why McNair cannot establish that

his non defamation claims have even the minimal merit sufficient to overcome an anti­

SLAPP statute each fail:

Interference with contractual relations: The NCAA argues that McNair failed to

submit evidence that he had an actual contract; that the NCAA had knowledge of any

such contract or that the NCAA disrupted a contract. (AOB 43.) This argument is based

on the fact that the trial court sustained the NCAA's hearsay objection to the passage in

McNair's declaration describing assurances he received from USC that his contract would

have been renewed absent the NCAA's findings against him. (AA 290 [declaration];

1053 [ruling].) However, McNair's declaration as to the statements made to him by the

USC officials were admissible evidence of the mental state of those officials when they

decided not to renew McNair's contract. (Colarossi v. Coty US Inc. (2002) 97

Cal.App.4th 1142, 1150; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 38, pp. 831-

832.) Thus, McNair did submit evidence that the NCAA's sanction interfered with his

contract with USC.

Tortious interference with prospective advantage. The NCAA argues that this

claim is speculative because there is no evidentiary support that McNair had an economic

57

relationship with an identifiable entity; that the NCAA had knowledge of an existing

relationship and that the NCAA engaged in independently wrongful conduct to disrupt it.

(AOB 44.) The NCAA is mistaken. McNair directly declared that due to the NCAA's

conduct he has been unable to work as a college football coach. (AA 289.) The fact that,

prior to the sanctions, he was a successful college football coach at a well known Division

I school responsible for an award winning running back, is certainly sufficient to give rise

to an inference that absent the NCAA's conduct McNair would have been able to find a

job. Indeed, as just discussed, McNair was directly told by USC that the NCAA sanction

was the reason why his contract was not renewed.

The NCAA argues that this was a non actionable "lost opportunity" citing to

Westside Ctr. Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 524.

There, the plaintiff alleged that the manner in which defendant Safeway operated its store

as an anchor tenant in a shopping center interfered with the plaintiff's ability to

successfully lease other stores in that shopping center to unidentified potential lessees.

The Court concluded that the plaintiff's mere expectancy was not enough to allege a

prospective business advantage. (!d. at p. 523.) The circumstances here are far different.

The NCAA governs each school that is a potential employer of McNair in his profession

as a collegiate football coach. The sanctions which the NCAA wrongfully imposed on

McNair were issued with the direct purpose of interfering with any prospect of either

retaining his job at USC or finding a job elsewhere. The sanctions succeeded in their

intended effect. McNair was not retained by USC and he has been unable to find another

58

position despite the great level of success he had achieved. (AA 289-290.) Thus, the

NCAA intentionally polluted a very defined pool of potential employers.

Breach of Contract: McNair was an intended third party beneficiary of a separate

contract between the NCAA and USC. As such, in undertaking the actions alleged

herein, the NCAA breached that contract with McNair. The NCAA argues that McNair

failed to submit evidence that there was a promise made to him or a class to which he was

a member that the contracting parties intended to benefit him. The NCAA argues that

McNair fails to identify the contract that was intended to confer a contractual benefit on

him. (AOB 45.) Sure he has. McNair specifically alleges that the contract was between

USC and the NCAA. (AA 16.)

Negligence: The NCAA argues that McNair cannot prevail on his negligence

claim because he cannot show that the NCAA violated any of its own rules in connection

with the proceedings against McNair. (AOB 45-46.) The NCAA cherry picks two

examples where it claims its conduct was not in direct violation of its rules (interviewing

McNair without telling him he was a target of an investigation and interviewing Lake

without USC present and without providing any opportunity by anyone else to question

him). (AOB 44.) However, the NCAA utterly ignores the numerous other instances of

violations detailed at pages 9-14 above, ante. These included allowing improper

influence over the deliberations by permitting nonvoting members of the quasijudicial

panel to participate in the deliberations, and allowing adverse evidence from outside the

record to be considered during the deliberations without affording McNair notice or an

59

opportunity to address that adverse (and patently false) evidence.

Declaratory relief The NCAA challenges McNair's claim for declaratory relief

arguing that he has not identified which of its bylaws should be stricken. (AOB 46.)

Here, the bylaws that McNair challenges include the ability to issue an Order to Show

Cause penalty. (Ex. 9, 19.02.1.) This penalty which was leveled against McNair, was in

direct violation of California law, as an improper restriction on the right to work. (Bus. &

Prof. Code,§ 1660; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937.) According

to the NCAA section 1660 does not apply because there is no "contract" which prevented

McNair from engaging in his lawful profession. (AOB 44.) Of course there was. The

contract in question is the contract the NCAA requires member institutions and coaches

to sign which subjects them to the NCAA's penalties, including the order to show cause

penalty imposed on McNair. Further, the NCAA argues that this claim is moot because

the order to show cause penalty has expired. (AOB 45.) This argument ignores the

residual effect the penalty has had on McNair's career.

60

CONCLUSION

For the foregoing reasons, the order denying the NCAA's motion to strike should

each be affirmed.

Dated: July 15, 2015 GREENE, BROILLET & WHEELER, LLP

BOYER

Attorneys for Plaintiff and Respondent Todd McNair

61

CERTIFICATE OF WORD COUNT

This Respondent's Brief contains 13,925 words per a computer generated word

count.

62

PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California and over the age of eighteen years. I am not a party to the within action. My business address is 234 East Colorado Boulevard, Suite 7 50, Pasadena, California 91101.

I am readily familiar with the practice of Esner, Chang & Boyer for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, such correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, the same day I submit it for collection and processing for mailing. I served the document( s) listed below by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid, addressed as follows:

Date Served: July 15, 2015

Document Served: Respondent's Brief and Respondent's Appendix (1 volume under separate cover)

Parties Served: See attached Proof of Service

(By Mail) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Pasadena, California.

Executed on July 15, 2015, at Pasadena, California.

(State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

C cu 6-£~c("~W Carol Miyake l7

63

SERVICE LIST

Michael L. Mallow, Esq. Laura A. Wytsma Esq. Meredith J. Siller, Esq. Loeb & Loeb LLP 10100 Santa Monica Blvd., Suite 2200 Los Angeles, CA 90067 (Attorneys for Defendant and Appellant National Collegiate Athletic Association)

Bruce A. Broillet, Esq. Scott H. Carr, Esq. Greene, Broillet & Wheeler, LLP 100 Wilshire Blvd., Suite 2100 Santa Monica, CA 90407 (Attorneys for Plaintiff and Respondent Todd McNair - Brief only)

Jeffrey D. Glasser, Esq. Kelli L. Sager, Esq. Thomas R. Burke, Esq. Davis Wright Tremaine 505 Montgomery Street, Suite 800 San Francisco, CA 94111 (Attorneys for Intervener The New York Times Company)

64

Gregory G. Garre, Esq. Latham & Watkins LLP 555 11th Street, N.W, Suite 1000 Washington DC 2004 202-637-2207 (Attorneys for Defendant and Appellant National Collegiate Athletic Association)

Hon. Frederick Shaller Los Angeles County Superior Court Ill N. Hill Street Los Angeles, CA 90012 (Trial Judge - Brief only)

Clerk's Office California Supreme Court 350 McAllister Street San Francisco, CA 94102-3600 (Electronic Copy submitted to the Court of Appeal)