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Trials and Tribulations

The real action in sports takes place on fields and courts, in rinks and arenas. But as the stakes continue to rise and the NCAA continues its relentless drive to preserve “amateurism,” some of the more important drama is shifting to the courtroom.

Two landmark cases that have been moving through the legal process for quite some time are coming to a head, and both have potentially far-reaching effects for college athletics and the NCAA.

This week, almost seven years after former USC assistant football coach Todd McNair sued the NCAA for defamation, the long-awaited trial opened in a Los Angeles courtroom.

Some quick background: In 2010 the NCAA found that Trojan running back Reggie Bush, the Heisman Trophy winner, had received improper “extra benefits” in 2004 and ’05. Seems that an aspiring sports agent had provided Bush and his family with cash, travel expenses and the use of a home in San Diego.

So the NCAA levied some pretty serious sanctions on the SC football program. The Trojans lost 30 scholarships over three seasons, were banned from the post-season for two-years, and had to vacate 14 wins. Bush was forced to return his Heisman, and the school had to “permanently disassociate” itself from him.

McNair was Bush’s running backs coach, and the NCAA ruled that he “knew or should have known” about these benefits that violated Bush’s amateur status. He was banned from contacting recruits and given a one-year “show cause” penalty that essentially eliminated his ability to be hired by another university.

McNair was fired by USC in 2010 and has been unable to find a job since.

My feelings about USC have been well-documented in this space, but in this case, I think the NCAA sanctions were excessive. There is little question that the organization wanted to make an example out of one of the nation’s most storied football programs, even if the punishment clearly didn’t fit the crime.

The sole evidence implicating McNair was a two-and-a-half-minute phone call at 1:30 in the morning with Lloyd Lake, the agent who provided the benefits to Bush. Given that Lake lied about who initiated the call and McNair had no memory of it, the NCAA didn’t have much of a leg to stand on. That’s why the organization has tried very hard over the past seven plus years—without success—to get the case dismissed.

Yet McNair isn’t entirely blameless. His memory was faulty, and he didn’t enhance his prospects of finding another job by filing the lawsuit. To put it mildly, schools and pro teams are reluctant to hire coaches who like to litigate. He also reportedly suffered from depression and drinking issues.

At the same time, the Trojan suits didn’t help their cause by hiring Lane Kiffin as head coach after Pete Carroll bolted for the Seattle Seahawks.

The NCAA expected the Trojans to hire a “Mr. Clean” as a show of good faith. Instead they hired Kiffin, who not only had been a member of SC’s offensive coaching staff during the Bush violations, but also had been reprimanded by the NCAA and SEC for questionable tactics while serving as the head coach at Tennessee. In fact, Kiffin had earned the nickname “Lane Violation” from members of the local media.

Mike Garrett, USC’s Athletic Director at the time, also drew the NCAA’s ire by publicly telling a Trojan booster group that the NCAA and competing schools were “jealous” of USC’s success and out to get the Trojans.

So now twelve jurors in Los Angeles will wade through this ancient history and try to render justice. If McNair prevails, he and USC will get some long-awaited vindication while the NCAA will once again have egg on its face.

Amateurism on Trial: Another important case is moving forward. A few weeks ago, U.S. District Judge Claudia Wilken, who is proving to be quite a thorn in the side of NCAA lawyers, ruled that the NCAA must stand trial in her Oakland courtroom. (The trial was originally scheduled for June but the NCAA asked for more time to prepare and it’s now slated for December).

A group of plaintiffs, led by former Clemson defensive back Martin Jenkins, contend that the NCAA’s system of capping athletic scholarships violates anti-trust law.

You may recall that Judge Wilken presided over the “O’Bannon Trial,” a class action suit focusing on whether college football and basketball players should be compensated for the use of their name, image and likeness. In her landmark decision, Wilken concluded the NCAA and its member schools unlawfully conspired to prevent the athletes from negotiating such compensation.

As a result of that ruling, the NCAA allowed schools to increase the amount of athletic scholarships to cover the “full cost of attendance”—including such things as incidentals, laundry, travel expenses, etc.—rather than just tuition, room and board, and course-related books. The NCAA also permitted athletes to receive unlimited, 24-hour-a-day meals and snacks and receive bonuses related to Olympic competition.

The Jenkins case goes one step further, contending that even with the “cost of attendance” increases, the NCAA is still unlawfully suppressing the value of a scholarship.

Given the fact that colleges compete for these athletes by building state-of-the-art stadia, locker rooms and training facilities, and that assistant coaches now make $1 or $2 million a year, it’s difficult to imagine that the NCAA will prevail.

In their brief, lawyers for Jenkins and company suggest empowering conferences to set scholarship parameters for member institutions. Applying this model, the Power Five conferences, for example, might allow their schools to offer a scholarship worth twice the cost of attendance, or the cost of attendance plus $10,000. Smaller conferences might offer the cost of attendance plus $1,000.

Whatever the outcome, it’s likely that this case, if not settled out of court, will dramatically alter the landscape of amateur athletics in America.

(Note: Thanks to Kyle Bonagura of ESPN and Michael McCann of, whose reporting provided valuable background for this post).

Gary Cavalli - Bowl and League co-founder, author, speaker 

Gary Cavalli, the former Sports Information Director and Associate Athletic Director at Stanford University, was co-founder and executive director of the college football bowl game played in the Bay Area, and previously was co-founder and President of the American Basketball League.

Get in touch//@cavalli49//

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