(If I say Smith, I refer to both him and his legal team, for convenience.)

First, the NCAA has been down this road several times in the past, and not just from Alabama boosters. They run this risk every time they investigate, much less penalize, a program. And on the surface, a defamation suit is easy to conjure up. Anytime somebody says anything negative about me, for example, I can find a way to perceive it as defamation (even if it’s fully valid). While defamation is a serious concern, it’s also fertile ground for a frivolous suit. But at any rate, the NCAA knows to be careful about this and I find it highly unlikely that they’d issue a report like that without being very careful about the content.

Second, the NCAA’s ability to investigate the activities of boosters is well-documented. Probing such activities for violations is routine, so Smith will have to show that the NCAA report was beyond the accepted norm rather than showing it to be a report (as opposed to a one-time disclosure).

Third, I get the feeling that the Complaint was hastily written and may not have been a priority for that law firm. For example, 40. and 45. are identical, even though 40. is clearly included in Count Three. That may be normal, but it makes things read oddly. it’s nothing but a hunch, but it feels like the result of filling out paperwork more than seeking a powerful Complaint, which usually tells me that the law firm doesn’t believe in the suit.

Fourth, the Factual Allegations place a lot of weight on concrete evidence, such as tangible dollar-amount transactions. Given that the report is over six years old, problems in those Allegations should have surfaced much sooner. This is conjecture, but I can’t imagine the NCAA writing those phrases unless they were confident in their accuracy. There’s a lot more riding on the legitimacy of the NCAA violations reports than the risk of a lawsuit from a single booster. I think that would be and easy place for the defense to establish the reasonableness of the claims.

Fifth, I imagine that there has to be some leniency toward interpretation and wording in any defamation suit. If the NCAA can prove that a considerable majority of their statements are clearly appropriate and that the remainder is at best only slightlly exaggerated, then I could see that being discounted due to the good intentions of the NCAA. (I hope that made sense.)

In short, I guess I’m pretty strongly with the NCAA on this one. I have my complaints about the NCAA, but I have to concede that their legal team is top-notch and they keep both hands firmly on their derriers.

Whew. Interesting stuff. I intentionally used observations that had nothing to do with yesterday’s sorta-delivery. The validity of the claim is more important than the amateruishness of the legal team’s actions, so I wanted to see how that worked out.

Under Alabama law, a person may only be named as a fictitious defendant if you actually do not know his name. If you know the person’s name, but only later find out that he is the person you are seeking, you cannot beat the statute of limitations by naming him fictitiously. The idea is, you knew the guy existed and you knew his name, therefore you should have been able to figure out you had a cause of action against him.

If they really want Fulmer to be a defendant they’ve named fictitiously, I think they’re going to have real problems.

So based on everything written, if Fulmer is forced to give a deposition, wouldn’t he essentially regurgitate what he already told the NCAA under oath? If that’s the case, then how can that potentially be deemed an actionable republication?

Of course, I’m assuming Fulmer’s statements to the NCAA were under oath.

I think it’s safe to assume that there’s a real chance of this guy trying to find a way to bring a suit against Fulmer. If he (that is, his lawyers) think they can find a way to achieve that through the deposition, they just might try. With that being a real possibility, I do find it interesting to hear how that might be attempted (whether it’s realistic or not). At the very least, I’m certain that Fulmer’s lawyers are going to think through all the possibilities. I wouldn’t be surprised to find that they pursue a lot of restrictions on his deposition to minimize the threats.

Hypothetical: assuming that Smith’s lawyers do try to use the deposition as a republication (regardless of protection of privilege), could that be defeated by answering in terms of “this was what was said, ...” rather than the more direct ”...”? (Did that even make sense?)

... comments not all tantamount to statements of opinion? In fact, in the actual public record, Wendell Smith is not referred to by name at all, merely as “athletics representative B.“

For the record, I posted something on this a day or two ago, and it looks to me like Smith’s suit is absolutely meritless on its face. It should fail in preliminary motions, but for the fact that an Alabama jury already awarded one plaintiff $6 million dollars in a similar action. The presiding judge in that award immediately overturned the jury verdict on grounds that they were unsupported by the evidence, and the product of “passion and prejudice.”

This action is filed in the exact same venue, and given the publicity now thoughtfully generated by the law firm representing Wendell Smith, I suspect we could well wind up with a similar result.