A Los Angeles Superior Court Judge has ruled that the National Collegiate Athletic Association was “malicious” in its investigation of Todd McNair, a former assistant football coach at the University of Southern California, allowing the coach’s defamation suit against the Association to proceed.  The coach had been linked in a report to a scandal surrounding former Heisman Trophy winner Reggie Bush.

McNair sued the NCAA in June of 2011. McNair claimed that the NCAA’s investigation, which concluded that he had lied about his knowledge of gifts that had been given to Bush’s family by two different sports marketing companies in violation of NCAA rules and regulations, was flawed. McNair claimed that the NCAA’s investigation was biased and one-sided and that his future earnings as a coach were hurt by its report on the scandal. The NCAA prohibited McNair from having any contact with recruits. McNair’s coaching contract at USC later was not renewed.

The NCAA had sought to have McNair’s action dismissed, but the Superior Court disagreed. Judge Frederick Shaller ruled that the actions of NCAA investigators were “over the top.”  In addition,  the decision states that emails between an NCAA investigative committee member, an NCAA worker and a person who works on the NCAA appeals division “tend to show ill will or hatred” toward McNair. Judge Shaller further stated that McNair had shown a probability he can win the defamation claims in his lawsuit.

McNair’s attorney declined formal comment following the ruling, but stated during the hearing that the NCAA knew it was relying on false statements about McNair’s conduct and that the NCAA wanted to “nail” the coach.

Despite objections from the NCAA, Judge Shaller intends to unseal the entire inquiry into McNair. NCAA attorney Laura Wytsma argued that the records in the case should not be unsealed because it would hurt future NCAA investigations inasmuch as the NCAA lacks subpoena power. The NCAA announced it will appeal the decision and release of the records will be delayed for a month pending that appeal.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.