NCAA: Mistakes in McNair case shouldn't mean unsealing Bush file

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The NCAA argues in defense of an ongoing defamation suit that possible "factual errors, inadequate investigation and overt hostility" by the association should not help the case of former USC assistant coach Todd McNair.

McNair as well as the Los Angeles Times and New York Times are seeking to unseal the entire investigative file of the landmark USC/Reggie Bush case. McNair is suing the NCAA for defamation of character. He has been joined by the two media outlets in their support of unsealing the files.

The NCAA has objected to unsealing the file on confidentiality grounds.

In an appellant's reply brief dated Feb. 10, the NCAA cites exhaustive examples of why its investigative methods and penalties against McNair should not be considered malice. In the process the association doesn't even spare itself.

"Even if the Infractions Committee reached an incorrect result, that still would not show malice," the association argues at one point in the 47-page filing. It then says in the Bush case, the NCAA did not "deliberately or recklessly [publish] a false report."

In the brief the NCAA is arguing against actual malice toward McNair and that the former coach is a public figure. The NCAA cites three past cases that says support its claim that fact errors, a botched investigation and hostility "even when proven -- do not support a finding of actual malice."

"There is no clear and convincing evidence establishing that the Infractions Committee deliberately lied," regarding the McNair case the brief goes on to state.

In arguing that McNair is a public figure, the NCAA references what it calls "an undisclosed conviction for animal cruelty" regarding the coach. It should be noted that the NCAA relied on the testimony of convicted felon Lloyd Lake to seal the case against USC and McNair.

At issue for the moment is whether three persons involved in the case administratively may have improperly influenced findings against McNair, USC's former running backs coach was charged with unethical conduct in the Bush case in June 2010 for what the NCAA said was lying to investigators.

McNair was given a one-year show-cause order as penalty. That scarlet letter essentially kept an NCAA school from hiring him during that time. McNair has not worked as a coach since the 2009 season.

After failing to win NCAA appeal of the case, McNair filed a lawsuit against the association in 2011 claiming defamation of character and other legal claims.

A judge in that case revealed 15 months ago that one NCAA administrative staffer called McNair "a lying morally bankrupt criminal, in my view, and a hypocrite of the highest order."

Emails between that administrator, Shep Cooper, and two non-voting members of the infractions committee were distributed "covertly" according to the judge's document. Another NCAA infractions committee member in the judge's file claimed an NCAA interview with McNair was "botched."

In November 2012, that judge, Frederick Shaller of the Los Angeles Superior Court concluded "the NCAA [had] reckless disregard for the truth." He also called the McNair's treatment by the NCAA "malicious." On the basis of those revelations, Shaller said he would unseal the investigative file. The NCAA then appealed. The appellant's rebuttal brief in question is a reply to the plaintiffs' response of the NCAA appeal.

The NCAA argues in the brief that "emails of two members of the Infractions Committee and its liaison" should not be considered proof of malice.

The NCAA further argues that the opinions of those two committee members cannot be "imputed" to the eight other members. Instead of accepting his penalty, the NCAA said McNair chose to accuse the infractions committee -- "10 independent law professors, lawyers, and institutional representatives of conspiring to make a scapegoat of him."

In finding McNair and USC guilty of rules violations almost four years ago, the NCAA used a phone call between the coach and Lake, a would-be marketer. The NCAA concluded that Lake's description of the call was credible and rejected McNair's version. An NCAA investigator got the year of the call wrong (2005, instead of 2006) while interviewing McNair.

The NCAA admitted it had telephone records showing that Lake initiated the call, contrary to his testimony to the association. Lake told the NCAA that McNair had called him in early hours of Jan. 8, 2006. That conclusion according to Shaller's decision "could reasonably cast doubt on the occurrence of the ... conversation." The NCAA "should have known" parts of the infractions report regarding that call were "demonstrably untrue."

Largely on the basis of that call and Lake's testimony, McNair was found guilty of unethical conduct. Shaller's decision says McNair's attorneys had proven the NCAA infractions report on USC "contained material false statements regarding" the phone call.

Back speaking on the USC campus Wednesday, former coach Pete Carroll described what he called "venom" the NCAA had for his program. "They made a terrible error," he said. The next step is oral arguments on whether the lawsuit should go forward and whether the investigative file will be unsealed. No date has been set.

CBS Sports Senior Writer

Dennis Dodd has covered college football for CBS Sports since it was CBS SportsLine in 1998. He is one of only seven media members to attend all 16 BCS title games and has chronicled conference realignment... Full Bio

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