Appellate court panel issues tentative ruling in McNair case

Former USC Trojans running back coach Todd McNair during a practice session in 2009.

Staff Writer

Sept. 8, 2015 7:42 PM PT

A California appellate court issued a tentative ruling and then heard oral arguments Tuesday in former USC running backs coach Todd McNair’s defamation lawsuit against the NCAA.

The ruling by a three-justice panel in 2^nd District Court of Appeal was not made public, but Justice Lee Smalley Edmon said in court before hearing arguments that it gave attorneys an idea of the panel’s current thinking.

The judges gave no indication when a final ruling would be made.

Justice Patti S. Kitching cited emails included in the full record of the NCAA’s investigation and deliberative process in its case against McNair, which stemmed from the Reggie Bush extra benefits scandal at USC. Kitching said there was “very troubling evidence,” regarding the process followed by the NCAA’s Committee on Infractions.

McNair sued the NCAA in June 2011 after being sanctioned along with USC. The infractions committee ruled that McNair engaged in unethical conduct and saddled him with a “show-cause” order that leaves a coach essentially unemployable.

In 2012, a Los Angeles Superior Court ruling denied the NCAA’s attempt to strike McNair’s complaint and dismiss the case, writing that certain emails “tend to show ill will or hatred” by the NCAA.

The NCAA appealed the ruling, and the full record in the lawsuit became public in July.

Among the documents was an email from infractions committee liaison Shep Cooper to Rodney Uphoff, a University of Missouri law professor and nonvoting member of the 10-person committee.

“As [infractions committee member] Roscoe [Howard] said at some point during the Sunday morning deliberations, individuals like McNair shouldn’t be coaching at ANY level, and to think that he is at one of the premier college athletes programs in the country is outrageous,” Cooper wrote on Feb. 22, 2010. “He’s a lying, morally bankrupt criminal, in my view, and a hypocrite of the highest order.”

There also was an email from Uphoff to Howard, in which Uphoff wrote that he hadn’t been able to sleep for three nights because “I fear that the committee is going to be too lenient on USC on the football violations.”

On Tuesday, Kitching said it was “so troubling” that people who would not vote on the matter could influence the voting members.

NCAA attorney Laura Wytsma argued that there was no proof that Paul Dee, former chair of the NCAA Committee on Infractions, made a statement with “actual malice.”

She also argued that McNair was a public figure. She acknowledged that the NCAA made “honest mistakes” in the investigation but said “mistakes are not malice.” She said “there was no rush to judgment” in the case.

McNair attorney Stuart Esner noted that Cooper wrote the infraction committee’s final report and McNair was sanctioned with a show-cause order “to ruin” his career.

“They had one agenda and one agenda only,” he said, adding that they were going to get McNair “at any cost.”