NCAA’s dark side could be revealed

Joe Nocera

Saturday, Dec. 8, 2012 | 2:01 a.m.

Almost from the moment I started writing about the NCAA last year, I received periodic emails from fans of the University of Southern California football team, still incensed about an NCAA ruling that had been issued against the school in 2010. They claimed that the case offered an unusually stark look at how the NCAA 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 USC case, the NCAA 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 NCAA 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 NFL, was out of reach of the NCAA. There wasn’t even all that much it could do to USC — unless, that is, its investigators could prove that a member of the USC athletic staff had known about the sub rosa relationship. Then it could throw the book at USC. Which is exactly what happened.

The university official the NCAA singled out was Todd McNair, 47, a black assistant football coach. One of the would-be agents, Lloyd Lake, who has a history of arrests, claimed that he had told McNair about the relationship during an angry 2 1/2-minute phone call late on the night of Jan. 6, 2006. McNair, for his part, said 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 NCAA’s Committee on Infractions concluded that Lake was believable, McNair was not and the coach was guilty of “unethical conduct.” Thus labeled, McNair’s coaching career was effectively destroyed.

McNair then sued the NCAA 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 NCAA’s request to put the emails 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 email 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 NCAA had committed “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 the actual malice standard is so difficult to meet. At one point during the hearing, the judge told the NCAA’s lawyer that he understood why the organization would want to keep evidence away from the public; if he were the NCAA, he would want to keep it from the public, too.

If this evidence does become public — the NCAA has vowed to appeal — I think it will scandalize fans who have long been led to believe that NCAA investigators were the “good guys” trying to catch the “bad guys” in college sports. Nor are these the only NCAA documents that are coming to light. In a class-action lawsuit involving former players who object to the NCAA’s profiting from their likeness long after they have graduated, emails and documents have exposed the essential hypocrisy that underlies college sports. (A lawyer with Boies, Schiller & Flexner, where my fiancee 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 NCAA is the next tobacco.

Or is it?

Joe Nocera is a columnist for The New York Times.