[Vision2020] The Next Tobacco?

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

------------------------------
December 3, 2012
The Next Tobacco? By JOE NOCERA

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<http://articles.latimes.com/2010/jun/09/sports/la-sp-usc-20100610>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 <http://rivals.yahoo.com/ncaa/football/news?slug=ys-bushprobe>, 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<http://usc.ocregister.com/2010/08/18/usc-football-mcnair-appeals-ncaa-findings/45179/>.”
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<http://articles.latimes.com/2012/nov/21/sports/la-sp-newswire-20121122>,
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<http://www.oyez.org/cases/1960-1969/1963/1963_39>,
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<http://rivals.yahoo.com/ncaa/basketball/news?slug=dw-obannon020810>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<http://www.pbs.org/wgbh/pages/frontline/shows/settlement/case/yeaman.html>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?


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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