McNair v. Nat'l Collegiate Athletic Ass'n

• Decision Date: 07 December 2015
• Docket Number: B245475
• Court: California Court of Appeals Court of Appeals
• Parties: TODD McNAIR, Plaintiff and Respondent, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.

TODD McNAIR, Plaintiff and Respondent, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant.

B245475

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Published opinion filed in this case on February 6, 2015

December 7, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC462891)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick Shaller, Judge. Affirmed in part, reversed in part.

Loeb & Loeb, Michael L. Mallow, Laura A. Wytsma and Meredith J. Siller for Defendant and Appellant.

Greene, Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Respondent.

____________________

INTRODUCTION

Plaintiff Todd McNair, formerly an assistant coach of the University of Southern California (USC) football team, sued the National Collegiate Athletic Association (the NCAA) after the NCAA published the results of its investigation into whether former student-athlete Reggie Bush received improper benefits while he was at USC. The NCAA appeals from the order denying its special motion to strike the complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)¹ We hold that McNair has demonstrated a probability of prevailing on the merits of his defamation causes of action but not on his interference with contract and economic advantage causes of action. We further hold that McNair's negligence, contract, and declaratory relief causes of action do not arise from protected activity. Accordingly, we affirm the judgment in part and reverse it in part.²

FACTUAL AND PROCEDURAL BACKGROUND

We consider the evidence according to the applicable rules of review. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 820.)

1. The parties

The NCAA is a "voluntary organization composed of approximately 1,200 colleges, universities, and other educational institutions throughout the United States. Its purpose is ' "to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports." ' Toward that end, the NCAA adopted a constitution, bylaws, and regulations. One of the ways itaccomplishes its purpose is by enforcing its rules and regulations. Member institutions, their employees, student athletes, and alumni agree to comply with the rules and regulations and to submit to the NCAA's rule-enforcement process." (McNair v. National Collegiate Athletic Assn., supra, 234 Cal.App.4th at pp. 28-29.)

Under the enforcement process, when an alleged rule violation is reported to the NCAA, enforcement investigators attempt to interview everyone who may have knowledge of the alleged violation. If the enforcement staff concludes there is sufficient information indicating that NCAA rules have been violated, it provides the institution with a notice of allegations. The institution may file a response explaining its position. After a prehearing conference, the enforcement staff prepares and submits a case summary to the Committee on Infractions (the COI). The COI holds a hearing after which it deliberates in private. (NCAA Bylaw, § 32.8.8 (Bylaw).) The COI's findings and penalties are set forth in an infractions report. Any appeal of COI determinations is heard by the NCAA Infractions Appeals Committee (the Appeals Committee). (Bylaw, § 32.10.1.) The NCAA's bylaws require that the COI and Appeals Committee reports "be made available to the national wire services and other media outlets." (Bylaw, § 32.9.2.)

McNair was an assistant football coach at USC during the time that Bush was a running back on the school's football team. Prior to that, McNair played professional football for eight years.

2. The investigation

When Bush was in his third year of college, the NCAA received information indicating that he may have violated NCAA rules while a student at USC. The NCAA undertook an investigation in 2006.

The NCAA's enforcement division received information that Lloyd Lake, a convicted felon, and his associate Michael Michaels, among others, formed a sports agency and began providing Bush and his parents with cash and other improper benefits in exchange for Bush's promise to sign with Lake's agency when he began playing professional football (the agency agreement). Such benefits and agency agreementsviolate NCAA rules. In September 2009, the NCAA issued a notice of allegations to USC.

The notice of allegations charged McNair with unethical conduct in that "McNair knew or should have known that Bush, Lake and Michaels were engaged in possible violations." As evidence, the notice cited a two-minute 23-second telephone call on January 8, 2006 at 1:34 a.m., between Lake and McNair, during which Lake allegedly asked McNair to intercede with Bush and convince the student to adhere to the agency agreement (the two-minute call).

At the close of the enforcement process, on June 10, 2010, the COI issued its 67-page official infractions report containing numerous findings and imposing significant sanctions against USC's football program (the COI report). With particular respect to McNair, referred to as "assistant football coach" in the COI report, the NCAA found that he committed unethical conduct in violation of NCAA legislation and imposed sanctions on him that, inter alia, (1) prohibited him from engaging in recruiting activities or interacting with prospective student-athletes; and (2) required any institution that employed McNair during the penalty period to report to the COI about the institution's responsibility to monitor McNair's compliance and to affirm at the close of the period that he had complied with the penalties.

3. The operative statement

Of relevance to this appeal are five pages in the COI report discussing McNair. The operative, allegedly false and defamatory statement contained in the COI report is found in two paragraphs and reads:

"At least by January 8, 2006 [McNair] had knowledge that [Bush] and [Lake and Michaels] likely were engaged in NCAA violations. At 1:34 a.m. he had a telephone conversation for two minutes and 23 seconds with [Lake] during which [Lake] attempted to get [McNair] to convince [Bush] either to adhere to the agency agreement or reimburse [Lake and Michaels] for money provided to [Bush] and his family. Further during his September 19, 2006 and February 15, 2008, interviews with the enforcement staff, [McNair] violated NCAA ethical conduct legislation by providing false and misleadinginformation regarding his knowledge of this telephone call and the NCAA violations associated with it. [McNair] failed to alert [USC's] compliance staff of this information and later attested falsely, through his signature on a certifying statement, that he had no knowledge of NCAA violations." (Italics added.)

There follows a three and a half page discussion of McNair's credibility in asserting that he did not know Lake and Michaels (the three and a half page discussion). Continuing, the operative statement reads: "The [COI] nonetheless remains particularly troubled by the two minute and 32 second telephone call from [Lake] to [McNair] that took place at 1:34 a.m. on January 8, 2006. [McNair] claimed that he did not remember the phone call and denied [Lake's] description of what was said. The [COI] finds [Lake] credible in his report of the call. [Lake] said that he phoned [McNair] to ask him to intercede with [Bush] and get him to adhere to the agency agreement that he made with [Lake and Michaels]. [Lake] said he also told [McNair] that he did not intend to lose the money he had given [Bush] and his parents and preferred not to go public with the matter and implicate the institution."³ (Italics added.)

4. The interviews upon which the COI relied

It is undisputed that Lake called McNair on January 8, 2006. The NCAA enforcement staff's Rich Johanningmeier and Angie Cretors interviewed Lake in November 2007. The following portion of Lake's interview, not included in the COI report, is the support for the NCAA's findings against McNair:

"RJ: Well let me ask you this one, too, Lloyd, on uh, January 8, 2006, at 1:34 in the morning, there's a call, McNair . . . to you for two minutes and 32 seconds.

"LL: What time was that?

"RJ: This is January 8, 2006, [its] at 1:34 in the morning, and [its] a call, uh, McNair— "[¶] . . . [¶]

"RJ: -- McNair makes a call to you at 2:32. . . .

"[¶] . . . [¶]

"LL: I think that was like, that was like him trying to resolve it, you know, and like [Bush is] wrong, he should make it right and basically don't implement [sic] the school.

"RJ: Because this, this is 2006 we're talking about.

"LL: Yeah, that's when I went to jail, that's when everything started falling apart, I mean it fell apart.

"RJ: What can you tell us that you specifically recall about that conversation with him?

"LL: Uh, just telling about [Bush] and all, he knew about the money he took, he knew that he had an agreement and -

"AC: [McNair] indicated to you in the telephone conversation that he was aware that [Bush] took money -

"LL: I mean, he knew --

"AC: -- from you?

"LL: -- yeah bec [sic], he knew [Bush] took money from me. There's no doubt he knew about that.

"RJ: And why do you say that?

"AC: Yeah, we need to know why you, why you believe that [McNair] knew that?

"LL: 'Cause he was around a lot and, you know, [its] like he watched me get them guys, his friends, hotel rooms, [Bush] told me he knew about certain things he was doing but he's cool. You know what I mean? [Its] like basically through [Bush]." (Italics added.)

"A...