NCAA defeats 7-year defamation litigation

LOS ANGELES — After nearly seven years of litigation and a three-week jury trial, a superior court jury ruled Monday that the NCAA did not defame former assistant USC coach Todd McNair when it issued a report sanctioning him as part of the Reggie Bush benefits scandal.

The jury’s 9-3 defense verdict came after a full week of deliberations and moments of deadlock that nearly caused Judge Frederick Shaller to declare a hung jury. Deliberations began anew last Thursday and the jury, after seven more hours, returned its verdict.

By finding in favor of the NCAA, the jury ruled that it did not libel or slander McNair when it issued a wide-ranging 2010 report stating he misled investigators with regard to his knowledge of payments given to the star USC running back by would-be agent Lloyd Lake. The verdict form consisted of nine questions but the jury did not make it past the third one.

“Very disappointed,” said lead plaintiff’s attorney Bruce Broillet of Greene, Broillet & Wheeler LLP. “We’re assessing the situation and considering our next steps,” he said.

Kosta Stojilkovic, who defended the association for Wilkinson, Walsh & Eskovitz, declined to comment on the merits of the case.

“We really do appreciate how hard this jury worked. Six days is a long time. Having to restart the deliberations is tough,” said Stojilkovic, who did not speculate on a potential appeal.

“There are more things to be decided before we even get there,” he said.

The three-week trial was a split between live testimony and video depositions of those involved with the NCAA. Many of the witnesses were called by both sides.

Broillet, who examined all the witnesses for the plaintiff, argued that the NCAA botched its investigation of McNair by relying largely on accounts by convicted felon Lloyd Lake and a late-night, two-and-a-half-minute phone call between the two. The contents of that phone call are unknown.

During emotional testimony, McNair said he never knew Lake. He said he didn’t recall the phone call and didn’t know about the payments until he read a 2006 article mentioning his name in relation to the scandal.

NCAA attorneys said Lake told investigators that McNair knew about the payments because “he was around a lot.” Lake was never called as a witness,

Broillet argued that three nonvoting members on the sanctioning Committee on Infractions — director Shepard Cooper, appeals coordinator Rodney Uphoff, and new member Roscoe Howard — violated NCAA bylaws by lobbying voting members to implicate McNair about knowledge of the payments.

Uphoff at one point testified, “I wanted to influence the committee to make the right decision.”

Brian Halloran, a voting member, testified that it was routine for the NCAA to allow nonvoting members who were supposed to be strictly observers to take part in deliberations.

Voting members testified that they independently came to their conclusion on McNair, aside from the emails and lobbying.

NCAA attorneys argued that members were not seeking to sway voting members, but were exercising protected speech. They contrasted McNair’s contention that he didn’t know Lake to three phone calls made to Lake’s cell phone on an evening in 2005 when a group photo of the two was taken.

Outside, jurors talked about the difficulty of weighing this evidence.

“I think the entire jury really struggled with the case because we thought there were irregularities with how the NCAA behaved,” said jury foreman Anthony Bruno.

“I don’t know what happened on that call but I didn’t have what I needed to latch onto to say it was false,” said Bruno, who said he wished to hear from Lake.

But he stressed that although the jury didn’t find against the NCAA, the organization shouldn’t come away thinking its investigation was flawless.

“That really bothered the jury,” said Bruno. “We wanted to do something about it, but on the narrow question of truth or falsity on the defamation claims, I didn’t have enough to get to false.”

“He was in a no-win situation,” said another juror.

Jurors asked why claims of breach of contract and negligence were dropped on the eve of the trial’s end, leaving the jury to deliberate on a sole defamation cause of action.

“There was a sentiment those other two claims could have went for Mr. McNair,” said Bruno.

Broillet said the elements and instructions from the breach of contract and negligence causes of action were different than those for defamation.

McNair, who in the court halls exhibited some smiles in between moments of disappointment, later called over the pro-jurors to speak with him. One juror said the consensus from the jury in the beginning was in favor of McNair.

“We wished that we could have helped you,” a juror told him.