The Next Tobacco?
By JOE NOCERA I December 3, 2012
Almost from the moment I started writing about the N.C.A.A. last year, I received periodic e-mails from fans of the University of Southern California football team still incensed about an N.C.A.A. ruling that had been issued against the school in 2010. They claimed that the case offered an unusually stark look at how the N.C.A.A. twists facts, tramples over due process and unfairly destroys reputations when it sets out to nail a school, a player or a coach.
I didn’t pursue it back then, partly because the story seemed stale; the alleged transgression had mainly taken place in 2005. Besides, the rules themselves are little more than a restraint of trade, meant to ensure that the athletes remain uncompensated despite the billions of dollars everyone else reaps from the sweat of their brows.
In the U.S.C. case, the N.C.A.A. made a series of allegations about Reggie Bush, the 2005 Heisman Trophy winner, the most memorable of which was that his parents had lived rent-free in a house owned — heaven forbid! — by one of two would-be agents. The N.C.A.A. views any transaction between a college athlete and an agent as a violation of its amateurism rules.
Ah, but what to do about it? Bush, safely ensconced in the N.F.L., was out of reach of the N.C.A.A. There wasn’t even all that much it could do to U.S.C. — unless, that is, its investigators could prove that a member of the U.S.C. athletic staff had known about the sub rosa relationship. Then it could throw the book at U.S.C. Which is exactly what happened.
The university official the N.C.A.A. singled out was Todd McNair, 47, an African-American assistant football coach. One of the would-be agents, Lloyd Lake, who has a history of prior arrests, claimed that he had told McNair about the relationship during an angry two-and-a-half minute phone call late on the night of Jan. 6, 2006. McNair, for his part, said that he had no recollection of ever meeting Lake, much less having an angry phone call with him. There was no evidence to corroborate Lake’s claim.
Not that that mattered. The N.C.A.A.’s Committee on Infractions concluded that Lake was believable, McNair was not, and that the coach was guilty of “unethical conduct.” Thus labeled, McNair’s coaching career was effectively destroyed.
McNair then sued the N.C.A.A. for defamation — and here, I happily concede, is where the story becomes anything but stale. About two weeks ago, Frederick Shaller, a superior court judge in Los Angeles, issued a tentative ruling, saying that McNair “has shown a probability of prevailing on the defamation claims.” He also denied the N.C.A.A.’s request to put the e-mails and other evidence that had led him to this conclusion under seal.
The evidence is simply beyond the pale. To find McNair guilty of unethical conduct, the enforcement staff had to put words into Lake’s mouth that he never uttered. It botched its questioning of McNair — and then, realizing its mistake, chose not to re-interview him. One enforcement official sent a back-channel e-mail describing McNair as “a lying, morally bankrupt criminal.” And that’s just for starters.
Because he is a public figure, McNair had to show that the N.C.A.A. had acted with “actual malice” — that is, it wrote things in the full knowledge that they were false. As any journalist knows, it is very difficult for a public figure to sue for defamation — precisely because actual malice is so hard to prove. At one point during the hearing, the judge told the N.C.A.A.’s lawyer that he well understood why the organization would want to keep evidence away from the public; if he were the N.C.A.A., he would want to keep it from the public, too.
If this evidence does become public — the N.C.A.A. has vowed to appeal — I think it will scandalize fans who have long been led to believe that N.C.A.A. investigators are the “good guys” trying to catch the “bad guys” in college sports. Nor are these the only N.C.A.A. documents that are coming to light. In a class-action lawsuit involving former players who object to the N.C.A.A.’s profiting from their likeness long after they have graduated, e-mails and documents have exposed the essential hypocrisy that underlies college sports. (A lawyer with Boies, Schiller & Flexner, where my fiancée works, is among those working on the case. She has no involvement.)
I think back to another time when the release of documents changed the way the public thought about a certain secretive institution. Back in the mid-1990s, whistle-blowers leaked documents to the news media showing that the tobacco industry had long known that cigarettes caused cancer — and had been involved in a massive cover-up. The ensuing litigation forced the tobacco industry to pay enormous sums in recompense, and ultimately to be regulated by the federal government.
Not that N.C.A.A. is the next tobacco.
Or is it?