Ex-USC coach’s lawyers argue for new defamation trial against NCAA

A motion for new trial in former USC coach Todd McNair's defamation case against the NCAA argues that implied bias tainted the jury, which wrongly found that no false statements were made by the collegiate body regarding the ex-coach's knowledge of payments to player Reggie Bush.

The motion comes after NCAA attorneys at Wilkinson, Walsh & Eskovitz won a 9-3 defense verdict in the seven-year case last spring.

McNair's attorneys at Greene, Broillet & Wheeler LLP argued over the course of the Los Angeles County Superior Court trial that the NCAA defamed McNair when it issued a wide-ranging report that sanctioned USC and ultimately led to his firing over the Bush scandal.

McNair said he had no knowledge of such payments from would-be Bush agent Lloyd Lake to the star running back, despite the report claiming he did.

According to the motion, jury foreman Anthony Bruno should have been dismissed from the case because he was working for Latham & Watkins LLP, which for a time defended the NCAA in a previous appeal in the lawsuit. Latham stopped taking a role in the litigation following an anti-SLAPP appeal. McNair v. NCAA, BC462891 (L.A. Super. Ct., filed June 3, 2011).

Judge Frederick Shaller questioned Bruno during the trial but decided to leave him in on the grounds that he wasn't aware of the work Latham did for the NCAA.

"This was error and -- because of the critical role this juror played in arriving at a verdict -- it was prejudicial," according to the Nov. 30 motion, filed by McNair's attorney Bruce Broillet.

Bruno voted in favor of the NCAA on a sole defamation cause of action. He told the Daily Journal after the verdict, "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."

Just the idea of implied bias under Code of Civil Procedure 229 should have been enough to dismiss Bruno, according to Broillet's motion.

"Rather, this is all about the presumption that someone in this juror's position was under pressures -- real or perceived -- that a juror should not be under," the motion said.

The motion also argues that the jury wrongly found that no statements made by the NCAA with regard to McNair were false, stating that in order to reach that conclusion it would have to find that a number of statements made in the 2010 infraction report and appeals committee report were true.

"But even the NCAA admitted that statements in both of those reports were factually inaccurate," according to the motion.

"...There is literally no evidence that supports the jury's finding that none of the statements made by the NCAA which were the basis for plaintiff's claims were false," the motion states.

One of those false statements ended up in the two NCAA reports referencing a late night, two-and-a-half-minute phone call between McNair and Lake that the defense contended was about the payments. The NCAA said the phone call was the lynchpin for a finding of unethical conduct.

Lake told NCAA investigators that McNair called him that night in 2006, although phone records show that it was Lake who called McNair. The report falsely said Lake told investigators that he called McNair, the plaintiff said.

A hearing on the motion for new trial is set for Jan. 11.