Legal voices see plenty of weight in Reggie Bush’s case against the NCAA

Breaking down some of the key questions surrounding the former USC running back’s defamation lawsuit

Reggie Bush at L.A. Coliseum presser with attorneys Levi G. McCathern, right, and Ben Crump, left, to talk about Bush’s NCAA defamation lawsuit. (Photo by Hans Gutknecht, LADN/SCNG)

Luca Evans (OC Register)  —  In the early winter of 2019, following a string of legal battles that included a waiver for current Chicago Bears quarterback Justin Fields’ transfer from Georgia to Ohio State, lawyer Tom Mars (below) got a call from the NCAA requesting he join their “Complex Case Unit.” He was given a five-year contract, officially beginning that summer.

He left after one year.

The main reason, Mars said, was a disagreement with the NCAA’s conduct of investigations – largely with the NCAA’s lack of Supreme Court obligation to employ traditional due process rights.

“Their method of doing investigations is half-assed, and that’s on the record,” Mars said. “There’s no better way to put it.”

It was the same sentiment that formed the basis for biting remarks from Reggie Bush’s lawyers at an Aug. 23 press conference at the Coliseum, announcing a defamation suit against the NCAA and claiming the governing body’s original investigation into Bush – which led to the stripping of his Heisman Trophy and collegiate records – was “terrible work.”

Perhaps, in that moment, it would have been easy to paint such statements almost as slander: a public outcry held just hundreds of feet from the stretch of seats where Bush’s No. 5 should be commemorated, they argued.

But the credibility of Bush’s case, Mars said, comes within a string of holes poked over time in the NCAA’s original investigation. In 2015, in the midst of an investigation into former USC coach Todd McNair’s knowledge of violations surrounding Bush, the California Second District Court of Appeals held that the NCAA’s report on the case “was worded in disregard of the truth.”

So the NCAA’s widely-reported statement in 2021 alleging Bush had engaged in a “pay-for-play” scheme, Mars said, left the door open for Bush to wedge in a defamation suit that won’t just call for punitive damages – it will call into question the NCAA’s entire credibility in conducting investigations.

“I know if I were one of Reggie’s lawyers, I would have a pillar of my trial preparation being what all I just talked about … and that is why, in my opinion, the NCAA put themselves at risk,” Mars said.

The Southern California News Group spoke with Mars and two other lawyers, all with extensive backgrounds in high-profile litigation, for their professional insight on the path forward for Bush and the likely outcomes of a suit with massive implications. Here’s an analysis of some key questions.

What is Bush pushing for?

Simple answer, from Bush and his team at that August press conference: restore his Heisman Trophy glory. Restore his records. Win the fight he’s been fighting for over a decade.

But it’s clear, as personal injury lawyer David Ring said, that Bush’s goal is to not just win a case in court. He’s hired Ben Crump, one of the most visible litigators in the nation and an expert in weaponizing narrative, a man who launched incendiary phrases like “plantation mentality” against the NCAA in addressing media at the Coliseum. So a major part of Bush’s push, Ring said, is trying to galvanize public opinion – putting so much external pressure on the NCAA they back down before a lengthy legal battle.

“Reggie Bush has one goal with bringing this lawsuit,” Ring said, “and that’s to bring the NCAA to its knees with respect to his situation.”

What, then, will the NCAA’s response be?

When asked about their planned response to Bush’s suit and confidence in their original investigation, the NCAA declined to comment for this story.

Their most immediate and obvious course of action, though, would be to file a motion to dismiss the case. Winning such a motion, Ring said, would be difficult.

If the NCAA didn’t win that motion, that would then induce a lengthy period of discovery before the case hit a jury – a fight that will take years of trial and error and hemorrhaging cash to defend its original stance. Would the NCAA, Ring questioned, really want to go that far?

Yes, according to Mit Winter, an attorney with a wide range of experience representing collegiate organizations in business disputes and athletes in name, image and likeness matters. The NCAA’s litigation strategy throughout history, Winter said, has been to fight to the death, rarely settling out of court.

“It just takes the position that, ‘We haven’t done anything wrong, we’re right, and therefore we’re going to litigate this until the last dog is dead,’” Mars said.

What’s the legal heft of Bush’s case?

In a vacuum, it’s quite difficult for a public figure to win a defamation suit, due to the need to prove malice behind the defendant’s statements.

It might be tough, then, for Bush to prove that malice standard with the NCAA’s “pay-for-play” comment, Ring said. But this case is about more than simple defamation, as every lawyer pointed out. It’s about cracking open a sealed history box to re-evaluate the NCAA’s original findings.

“Fifteen years later, he wants to talk about it? Okay, that’s fine,” said Brian Stewart, who represents Lloyd Lake, a former sports marketer who testified to the NCAA he had provided benefits to Bush while at USC. “But like I said, if he wants to re-litigate that case, I don’t know how that’s actually going to work.”

“I see this as a desperate attempt to get his Heisman back,” Stewart said of Bush, “and it includes a frivolous lawsuit against the NCAA.”

It’s far from frivolous, however, Mars and Ring said, referencing the outcome of the McNair trial in which the Second District Court of Appeals eviscerated the NCAA’s investigation. Another factor, too, as Crump and a high-profile legal team tackle Bush’s case: the NCAA’s general reputation has taken a massive hit amid name, image and likeness and conference realignment madness, Mars said.

“There’s never been a better time, since the Earth cooled, to be a plaintiff against the NCAA than right now,” Mars said.

What’s the likely outcome?

There’s no likely outcome in a public figure defamation case, lawyers said. However, Ring, Winter and Mars all expressed strong belief in Bush’s chances to win a legal victory that could shake the very foundation of the NCAA.

“We’re not at a card table in Las Vegas or anything,” Mars said, “but if I got to choose which side of the case I’d want to be on, I’d want to be on Reggie Bush’s side.”

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