McNair v. NCAA

Los Angeles County

Superior Court Judge Frederick C. Shaller

Defense Lawyers: Kosta Stojilkovic, Rakesh Kilaru, Wilkinson Walsh & Eskovitz

Plaintiff's Lawyers: Bruce A. Broillet, Scott H. Carr, Christian T.F. Nickerson, Greene, Broillet & Wheeler LLP

NCAA defense counsel scored a huge win last May after a Los Angeles County Superior Court jury ruled the NCAA did not defame former assistant USC football coach Todd McNair when it issued a report implicating him in the Reggie Bush benefits scandal.

The case took a turn when McNair was granted a new trial in January based on a finding of implied juror bias and a ruling against the evidence, breathing new life into the multimillion dollar suit. McNair v. NCAA, BC462891 (L.A. Super. Ct., filed June 3, 2011).

But NCAA attorneys are not giving up the nearly nine-year-long legal battle after recently filing a notice of appeal with the 2nd District Court of Appeal.

Wilkinson Walsh & Eskovitz attorneys have maintained that McNair knew about payments to Bush from aspiring agent Lloyd Lake, who said McNair had knowledge because "he was around a lot," then lied about it to NCAA investigators. The gravamen of the NCAA's case was a short, late night phone call the organization claims discussed the payments.

McNair sought $27 million in damages on a sole defamation cause of action, claiming the report led to him losing his USC job and a long unemployment stint.

Wilkinson Walsh Eskovitz partner Kosta Stojilkovic, lead counsel for the NCAA at trial, did not respond to a request for comment.

McNair's attorney, Bruce A. Broillet of Greene, Broillet & Wheeler LLP, argued the NCAA botched its investigation and made a scapegoat out of McNair due to media pressure surrounding the perception that the the NCAA was not sanctioning elite collegiate programs.

The plaintiff argued the Committee on Infractions, the body tasked with deciding penalties, was unethically influenced by nonvoting members to implicate McNair.

"We are looking forward to retrying the case," said Broillet, declining to comment further.

NCAA attorneys, through testimony of NCAA officials, said nonvoting members did not wrongly influence voting members. Voting members said they independently reached their conclusion about McNair.

Defense attorneys maintained the committee reached its decision by what was on the record. Counsel also showed jurors a group photo that included McNair and Lake as evidence the two knew each other.

McNair denied knowing Lake during emotional testiomony on the witness stand. Lake was never called to testify.

Superior Court Judge Frederick C. Shaller said a juror's employment by Latham & Watkins LLP, which had filed an interlocutory appeal in the case on behalf of the NCAA years ago, was grounds for implied juror bias.

The juror, foreman Anthony Bruno, cast the deciding vote in the 9-3 verdict in favor of the NCAA, but the judge said the result would likely have been different without him.

Shaller also criticized the NCAA for mischaracterizing an interview with Lake regarding the phone call between Lake and McNair.

"The court's conclusion is supported by the unprofessional interview taken by NCAA investigators," Shaller wrote.

-- Justin Kloczko