Former US attorney defends contacts with NCAA committee that sanctioned USC

LOS ANGELES -- The role of a nonvoting member on an NCAA committee that sanctioned University of Southern California over an amateur football payments scandal took center stage in the second week of a defamation trial.

There were no live witnesses Monday in ex-assistant USC football coach Todd McNair's trial against the NCAA. Superior court jurors instead viewed 41/2 hours of video deposition of Roscoe C. Howard Jr., a former U.S. attorney in Washington, D.C. and now a partner at Barnes & Thornburg LLP.

He is a Committee on Infractions member who the plaintiff says unethically influenced the committee to penalize McNair in its investigation regarding the Reggie Bush benefits scandal. Citing NCAA bylaws, Howard was not to deliberate or cast a vote in the matter, the plaintiff said.

Howard said he participated in the deliberations at the request of committee chair Paul Dee, but denied under questioning from McNair attorney Bruce Broillet that he was trying to get the committee to come down on McNair.

"You became concerned that the committee wasn't going to make a finding against Mr. McNair?" said Broillet, a partner at Greene, Broillet & Wheeler LLP.

"No, that wasn't my concern. The way I saw it is the Committee on Infractions asked my opinion. I was concerned they were not dealing with the evidence they were dealt with and not making certain connections that were fairly obvious," said Howard.

McNair attorneys have argued that the NCAA was under immense pressure to penalize the school, as it had a reputation for being too lenient on elite athletic programs.

Broillet zeroed in on what he characterized as a four-page "rant" sent by Howard in 2010 to committee members after they finished hearing evidence in the case. The letter expressed skepticism about McNair.

Howard said he sent the email in order to "make sure the committee understood my positions" and did not know if his email influenced committee members.

He wrote in his letter:

"I don't think this committee should be chained to a staff that has seemed to have fallen short with this investigation or an institution that has no intention of having us find out what actually happened here."

Broillet said this showed that Howard urged the committee to reject the evidence that was presented to them by a different body.

"So you were telling this committee that they shouldn't be chained to the facts as developed by the enforcement staff of the NCAA?" asked Broillet.

"I don't think this committee should be chained to a staff that has seemed to have fallen short with this investigation," said Howard.

Broillet asked why the committee didn't give McNair or his attorney a chance to respond to the allegations in the email.

Howard said it was standard policy to not share information about deliberations.

McNair was given a one-year, show-cause penalty after the NCAA determined he mislead investigators regarding his knowledge of the Bush payments. He was not re-signed by the school after his contract expired. As a result, McNair has struggled with employment, having to work odd jobs such as driving for Uber, according to his attorneys. McNair v. the National Collegiate Athletic Association, BC462891 (L.A. Super. Ct., filed June 3, 2011).

Broillet also questioned Howard about the committee's reliance on would-be agent Lloyd Lake, who made thousands of dollars in payments to Bush with the hopes of signing him as a client.

A two-minute, 30-second phone call from Lake to McNair was referred to by the NCAA as its smoking gun on McNair's knowledge of the payments, but Broillet has argued the organization relied on a flawed witness.

"You thought it was perfectly fair ... to be relying on Mr. Lake's interview when Mr. McNair's lawyer never got a chance to question him?" asked Broillet.

"Yes," said Howard.

At one point, Howard, a former U.S. attorney, appeared to grow agitated.

"You are cherry-picking facts without giving me the entire scenario," said Howard.

Under questioning from NCAA attorney Kosta Stojilkovic of Wilkinson Walsh & Eskovitz, Howard said McNair's motive to mislead investigators was "to distance himself from all these events here."

For years, NCAA defense attorneys sought to keep more than 400 pages of emails under seal until the 2nd District Court of Appeal ordered them released in 2015.

In 2012, the bench officer in this trial, Judge Frederick Shaller, said the NCAA was "malicious" in its investigation of McNair, saying the emails showed "ill will" toward him.