What are you seeing so far in terms of how each side is framing their case?
In approaching this trial there are two big things each side is going to have to address from a jury perspective. The McNair suit falls into two categories of claims; defamation (did the NCAA make false statements against him?) and contract claims (did the NCAA breach the contract with USC, and by extensionTodd McNair). With that being said you’re going to see each side boil things down to two main issues where the jury is going to have to decide, 1) Did the NCAA violate itwsown bylaws (Section 220.127.116.11 Duties of the Coordinator of Appeals) which goes to Rodney Uphoff and states that he’s not to be an active participant during hearings or deliberations, Were people like Uphoff, Rodney Howard and Shep Cooper involved at the time? That’s number one. 2) The issue of credibility between Lloyd Lake and Todd McNair. What happened between those two? Did McNair know what was going on in terms of any potential extra benefits? Who do you believe, a convicted felon in Lake or McNair?
One of the things that I think hasn’t gotten enough attention is that when the Committee of Infractions made their decision they had to abide by a certain standard of proof called clear and convincing evidence, which is a pretty high standard. I had a civil case abut a year and a half ago where the standard was preponderance of evidence, which means if all else is equal then one drop of sand on your side means you’ve proven your case. The NCAA’s burden of proof is much higher in this case, which means the jury must firmly believe them, and Lloyd Lake, so that’s where the belief of Lake or McNair comes in.
I’m glad to hear you bring up the e-mails from Uphoff, Howard and Cooper. To me, they were some of the most damning and slanted words at McNair, and they weren’t supposed to be weighing in to the committee at all.
Another thing that is not getting enough attention right now is the fact that all of these guys are unpaid members, they are nominated, they meet six times per year to do their work, but why would they spend their own time up and above to read the whole case and then write a 7-page memo with your thoughts? That’s a question I have separate to the language that was used but when you get to the language, about how he’s “losing sleep” or calling McNair “morally bankrupt”. I find it really interesting that these three individuals were allowed to weigh in, especially Uphoff who was the Coordinator of Appeals and would only come in later if he needs to defend them, so for him to chime in early on before a decision is made is kind of like the cart coming before the horse. It was amazing how many times Uphoff admitted that he was trying to influence the committee to, as he said, get to the right decision.
The NCAA tried to get out ahead of those mistakes by admitting them at the top, what did you think of that strategy, and then also going after McNair right away by questioning how hard he tried to get work in the time since the one-year show cause penalty was handed down.
I actually thought admitting that there were mistakes was a pretty good strategy. If you look at a trial like a chess game you want to be the one who brings something like that out, to take a little bit of control of the narrative, rather than have the other side slam it in your face at some point. As far as McNair and finding work, that’s something that will definitely be an issue when he takes the stand. If I’m a juror it’s something I would want to hear an answer from him. And he’ll try to show that he reached out to coaching contacts but that the NCAA cut his legs out from under him with this ruling, and that he had to work for Uber and high school coaching.
OK, let’s shift to the lawyers for each side, which is something you pay a lot of attention to. How are they doing? What do you think of their strategies?
Bruce Broillet is Todd McNair’s lawyer and I think he’s doing a masterful job. I also like that he’s 5-2 so he’s a fellow shorty. He’s got a good presence in the courtroom and I like a strategy that he uses that I call “death of a thousand cuts” where he just hammers away on a certain point. When Uphoff was on the stand Broillet kept bringing up his statement about how he was “losing sleep” over the thought that USC wouldn’t get punished enough. Broillet would keep on mentioning, “was that before you lost sleep?”, he is really good at keeping that in the juror’s mind. He’s also good at presenting things in a visual way for the jury. One of the things I tweeted about was how he questioned Uphoff about weighing in to the committee, and he compared it to someone who wasn’t on the jury coming in and telling the jury how to deliberate. It was really genius because he’s almost asking the jury, would you like it if someone came in and told you how to deliberate? It was a great visual and the jury got it. I’m sure he’ll continue it with Howard and Cooper, what are these three stooges doing here, why are they inserting themselves into this narrative when they aren’t voting members of the committee?
There is an old coaching axiom that the other team has coaches too. In this case, the NCAA has lawyers too, what do you think of the job they are doing?
Kosta Stojilkovic is a bit of a contrast to Broillet. He’s a lot younger (and taller) and his team appears to be younger too. He’s more formal which is common for defense attorneys, more “by the book”. When I was there he was interviewing Angie Cretors and attacking McNair’s credibility, saying regardless of a typo here or wrong date there, did you believe McNair? And he repeatedly got her to say “no, I don’t believe him”.
OK, where do things go from here from a procedural standpoint?
In this kind of 3-week trial the plaintiff goes first, they will call up all the witnesses to make their case and present all their evidence, and the defense will get to make their case. And since we’ve only seen testimony to make McNair’s case it seems like things are going good for him, but it’s his show right now, it will be interesting to see how things are perceived once the NCAA starts putting on their case. My guess is part of that will be putting on the voting committee members who will say “independently we would have still ruled this way” but I don’t know how that gets around the NCAA bylaws. I would be very interested in seeing Eleanor Myers testimony, she is a committee member who raised concerns early on about the strength of the case against McNair.
One thing to watch, I was recently involved in a 3-week trial and the plaintiffs have the advantage of going first because the jury is usually high energy at the start but by the third week they are usually ready to get out of there. It may be an exciting case but these jurors also have lives, you never know how that might impact things, but I definitely think it’s an advantage for the plaintiff to go first.
The last thing I would say is that I wish we could have Lloyd Lake or Reggie Bush taking the stand. That obviously goes to the credibility aspect of what happened but because of confidentiality agreements it’s not going to happen. If I was someone sitting on the jury that’s who I would want to hear from.
Click below to listen to the entire podcast interview with Lizelle Brandt