In recent years transparency has become one of the buzzwords in NCAA criticism. Transparency is held out either as an end by itself (i.e. “The NCAA should release all information about investigations.”) and as a means to another (i.e. “Transparency would solve the athlete major clustering problem.”). The NCAA has moved toward being more open and transparent, with media events like the Enforcement Experience and press releases about secondary infractions and reinstatement cases.
But former USC assistant football coach Todd McNair has revealed the other edge of this sword. McNair is currently suing the NCAA for both forms of defamation, slander and libel, among other charges. As long as the NCAA continues to say more, it is more likely that the association will say something that someone does not just disagree with, but finds to be untrue and defamatory.
This Has Happened Before
Saying things people disagree with is nothing new for the NCAA. The association and its members have a stance on college athletics that is extremely unpopular in some circles. But recently the NCAA has been saying very specific things that specific people have taken offense to.
Like Ryan Boatright:
But Scott Tompsett, an attorney representing Ryan’s mother, Tanesha, issued a statement calling Saturday’s NCAA news release that announced the findings false and misleading. He said the people providing the benefits were friends of the Boatright family and had “no expectation of repayment or reciprocation.
Shabazz’s family is very distressed by the NCAA’s recent decision and the manner in which it was announced. Shabazz and his family have been cooperating with the NCAA for well over a year. Earlier this year, the NCAA asked Shabazz and his family not to reveal to each other or to the press facts related to the NCAA investigation. Despite the many untrue rumors which were circulating on the Internet, Shabazz and his family dutifully did what they were told. In order to entice Shabazz’s family and others to cooperate, the NCAA repeatedly gave assurances that it would keep details of the investigation strictly confidential. As recently as November 2012, the NCAA promised that it would not issue a Press Release.
And Indiana athletic director Fred Glass:
“While we are disappointed with the denial, we are even more disappointed in the case summary as communicated by the NCAA public relations staff,” Glass said in a release.
McNair has taken this displeasure to its logical conclusion: suing the NCAA for defamation. Defamation suits for public figures, which could include McNair and would almost certainly include star athletes and celebrity head coaches, are notoriously difficult to win. This is one reason McNair’s suit takes issue with the NCAA’s process in the USC investigation:
The disputed issues in McNair’s appeal centered on the believability of one of the NCAA’s key witnesses in the case, Lloyd Lake, the would-be sports marketer who allegedly provided substantial amounts of money to Bush over a two-year period while the star running back played for the Trojans. McNair, the NCAA ruled last June, either knew or should have known about Bush’s relationship with Lake and purposely misled investigators.
McNair’s Case is a Tough Sell
Essentially what McNair is arguing is that the NCAA, in believing Lloyd Lake and not allowing McNair to cross-examine him, willfully disregarded the truth. McNair is not just arguing that the NCAA made a mistake or has a flaw in its process, but that this flaw rises to the level of a concerted effort to ruin his life. That is a tough sell, but it appears McNair has found a receptive audience so far.
There are a number of hurdles to defamation suits becoming widespread. Not only is there the high bar of a willful disregard for the truth. Many athletes will find it difficult to prove damages if they do not lose their scholarships, given the traditional suspicion courts have for speculative professional earnings. As activist litigation, defamation also leaves a bit to be desired given that monetary damages are more likely than injunctions against NCAA rules and procedures.
If Successful, McNair’s Case Could Change the NCAA
But if McNair’s case is both successful and the start of a trend, defamation suits could have wide-ranging impact on the NCAA’s enforcement and reinstatement processes. For starters, it would mean more lawsuits against the NCAA, even when the athlete or coach got a favorable result. Witness the Boatright case where the release the family took exception with was one saying he would not be suspended for the violation.
The current practice of selective releases would need to change. Either the NCAA would need to release information as a matter of course in every case or will need to get much more selective about which cases get a press release. The catch–22 is that the cases the NCAA most wants to get the information out, those cases that are controversial or potentially misunderstood by the public, are exactly the type of cases that will draw a legal challenge. The push for improvement would also need to include the process by which the NCAA and the involved individual/school agree that the information can be released publicly.
Beyond press releases, defamation suits could impact case reports and the outcomes of cases. If public case reports, like every major infractions report, are a target of defamation claims, those reports will need to be edited even more carefully. That editing takes time, and will further delay decisions that almost everyone agrees take too long. And if a possible lawsuit is in the minds of the NCAA staff or Committee on Infractions, it could ultimately result in fewer or lesser charges against individuals. That would be a major step back for the NCAA after the increased penalties and individual accountability approved by the Board of Directors last month.
McNair’s case illustrates the push and pull with transparency in the NCAA. If sunshine is to be the disinfectant, it may be counter-productive to also throw bleach on anything the light touches. The NCAA is more likely to resist the release of unfiltered information and instead pick and choose its spots even more carefully. It might be that short term wins for athletes and coaches result in a long term slowing of the march toward a more open and transparent NCAA.