Not a "parasite of intercollegiate athletics"

So alleges Robert Wendell Smith, plaintiff in the lawsuit against the NCAA for which Phillip Fulmer was served a deposition subpoena yesterday at SEC Media Days. Reading through the Complaint (pdf) piqued my interest, so I had to get in what will hopefully be one last comment on the whole thing before we can get on with talking about things that matter.

Here's a look at the Complaint, particularly the allegations, with a bit of commentary mixed in:

The Parties

The case is styled "Robert Wendell Smith v. National Collegiate Athletic Association" and a bunch of other folks, including four individuals in their individual capacities and as members of the NCAA's Committee on Infractions. Most notably to Vol fans is that the Complaint also names "Fictitious Defendants" A-H. Naming unknown defendants is basically a method to stop the statute of limitations from running against people you later discover have harmed you. If you're now thinking that the reason the plaintiff wants so desperately to depose Phillip Fulmer is to get information from him that will allow them to name him as a defendant, I'd say you're probably right. Yes, they're hoping that coach Fulmer is "Fictitious Defendant A, C, E, and G."

[Note by Joel, 07/26/08 11:10 AM EDT ] See Richard Pittman's comment below, correcting me on this issue.

The Allegations

Around February 1, 2002, the NCAA Infractions Committee released the findings of its investigation into alleged recruiting violations at Alabama. The allegations in Smith's Complaint object to the findings, particularly these (emphasis mine):

  • Smith was  "rogue booster" who "demonstrate[d] a profound a profound [sic] and worrisome immaturity . . . ."
  • "Even if sincere, [Smith's] claimed motivation for cheating -- helping a university to recruit blue-chip athletes -- betrays a lack of integrity and a 'win-at-all-costs' attitude . . . ."
  • Smith "corrupt[ed] the ethics and maturation process of the young people [he] claimed to be 'helping.'"
  • Smith "displayed contempt for ethical standards and behavior and for the positive values of fair dealing and good sportsmanship . . . ."
  • Smith is a "parasite of intercollegiate athletics."
  • Smith visited Kenny Smith, Jr. (no relation) at his home, asked him if there was anything he wanted, and when Kenny said he wanted "a truck," Smith "told the young man he would provide $20,000 cash but not a truck so as to avoid creating a paper trail."

There's more, but that's the gist. Smith alleges that the NCAA's publication of those allegations against him were defamatory and that he's been subjected to disgrace, ridicule, and contempt in the community. He also alleges invasion of privacy, that the defendants placed him in a false light, and that the whole thing constitutes intentional infliction of emotional distress.

In Alabama, truth is an absolute defense to defamation. Foley v. State Farm Fire and Cas. Ins. Co., 491 So.2d 934 (Ala.,1986). So, if those things the NCAA said about Smith are false, he might have a case, but if they're true, he only has the invasion of privacy and emotional distress claims -- which appear to be throwaways to me -- to fall back on.

By the way, Lawvol at Gate 21 and I are trying to locate a copy of the NCAA's Answer to the Complaint. If we can locate it, Gate 21 may walk you through the NCAA's defenses to the allegations against it, so be on the lookout for that. We may not find it without having to pay for it, and frankly, we (at least I) don't care enough to shell out any cash.

The Laywers

One other interesting thing about the Complaint. It's signed by Robert T. Ray and Scott P. Hooker, as attorneys for the plaintiff. So why did a different law firm have the subpoena served yesterday? Either the plaintiff has fired his original lawyers, or they've dropped him. You can read into that whatever you want, but as a defense lawyer, I usually consider it a good sign either way.

Anyway, there it is. The NCAA said publicly that Robert Wendell Smith is a "parasite of intercollegiate athletics" with a "profound and worrisome immaturity." Smith says those conclusions are based on false facts, or, in the alternative, that if they're true, the NCAA shouldn't have publicized them. A court or a jury will decide who's right in the end, but let me ask you: based on the events of yesterday, do you believe the NCAA or Mr. Smith?

 

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