NCAA defamation testimony focuses on investigators’ mistake

LOS ANGELES -- NCAA investigators made mistakes regarding who placed a crucial phone call between an aspiring sports agent and assistant football coach that lead to historic sanctions levied against USC, but those mistakes were minor hiccups that did not affect the committee's ultimate findings, an NCAA witness testified Friday in a state court defamation trial.

Rodney Uphoff, a nonvoting member of the Committee on Infractions that made a finding against ex-assistant coach Todd McNair in the Reggie Bush benefits scandal, took the stand as a defense witness after testifying a day before for the defense. McNair v. the National Collegiate Athletic Association, BC462891 (L.A. Super. Ct., filed June 3, 2011).

Uphoff was previously described as wrongly influencing members of the committee to make a finding against McNair, who was found by the NCAA to have obstructed investigators regarding his knowledge of the payments.

NCAA defense attorneys on Friday painted the flip side of that view: that the committee was not out to get McNair and that their findings were reached independently.

"Did you have any reason, going into the matter, to be biased against USC or coach McNair?" asked NCAA defense counsel Rakesh Kilaru of Wilkinson Walsh & Escovitz.

"Absolutely not," said Uphoff, who is an attorney and professor at the University of Missouri School of Law.

Earlier in the trial, McNair's attorney, Bruce Broillet of Greene Broillet & Wheeler LLP, compared the penalties before and after factoring in the McNair discipline. Before penalizing McNair: a one-year, postseason ban and the loss of six scholarships. After making its finding that McNair was involved: a two-year, postseason ban and the loss of 30 scholarships.

On Friday, Kilaru addressed that issue.

"Did the penalties increase because of the findings against Mr. McNair?" asked Kilaru.

"The committee finding has nothing to do with McNair's penalties," said Uphoff, adding the penalties were higher in the end because they had not figured in a TV ban.

Broillet later said the issue of the television ban did not come up until after it was decided that McNair would be penalized. Uphoff said there was "zero connection" between McNair and the TV ban.

Kilaru sought to portray Uphoff as an unbiased, sympathetic voice on the commission, and not the prosecutorial hawk he was made out to be by the plaintiff. He asked the law professor to speak about his early legal career as a public defender and consumer attorney.

"I didn't enjoy seeing people losing licenses, so I would prefer defending people as opposed to prosecuting people," Uphoff said.

Uphoff also addressed a mistake made by enforcement staff investigators regarding the late night 2006 phone call between would-be sports agent Lloyd Lake and McNair. That call was the "linchpin" of the committee's finding against McNair, Uphoff testified.

Lake was the one who initiated the call, but an investigator said it was McNair who called Lake, and Lake did not correct that during an interview with investigators, Broillet said.

"They said they were honest mistakes," said Uphoff.

"Was it clear at the time of the hearing as to who had made the phone call?" asked Kilaru.

"I think it was crystal clear," Uphoff said.

Uphoff's testimony concluded a week of peering into the NCAA's sanctions process, specifically the amount of influence nonvoting committee members had on those who voted. Both Angie Cretors, an investigator on the NCAA enforcement staff, and Uphoff said they did not believe McNair to be credible, testifying that the committee reached its conclusion independently of their views.

Broillett, for his part, entered into evidence emails showing Uphoff communicating with committee director Shepard Cooper, who called McNair "morally bankrupt."

Broillet also sought to contrast the differences between Lake and McNair in the eyes of the jury. Lake was a low-level drug dealer whose testimony about the phone call was trusted by the NCAA, Broillet said. To the NCAA, McNair was not forthcoming about his relationship with Lake, initially saying he didn't know Lake, though he had spoken with him on the phone and was seen in photographs with him.

The trial, seven years in the making, saw a stop at the 2nd District Court of Appeal, which upheld an anti-SLAPP ruling in favor of McNair and the unsealing of emails and correspondence by committee members. The trial continues this week.