PETITION FOR RECONSIDERATION OF THE
UNIVERSITY OF SOUTHERN CALIFORNIA PUBLIC
INFRACTIONS REPORT (JUNE 10, 2010)
Submitted to the NCAA Committee on Infractions on behalf of
Petitioners University of Southern California and Reginald A. Bush, II
August 14, 2023
M
CCATHERN, PLLC
Levi G. McCathern, II
Texas Bar No. 00787990
lmccathern@mccathernlaw.com
Paul A. Grinke
Texas Bar No. 24032255
Ty M. Sheaks
Texas Bar No. 24042416
tsheaks@mccathernlaw.com
3710 Rawlins Street, Suite 1600
Dallas, Texas 75219
(214) 741-2662 Telephone
(214) 741-4717 Facsimile
Attorneys for Petitioners University
of Southern California and
Reginald A. Bush, II
TABLE OF CONTENTS
BACKGROUND
……………………………………………………………...…………………3
A. Bush’s Records and Achievements ................................................................ 4
B. Lloyd Lake ..................................................................................................... 6
C. The NCAA Investigation ................................................................................ 7
D. The 2010 Report ............................................................................................. 9
E. The Heisman Trophy Trust .......................................................................... 16
F. The McNair Litigation ................................................................................. 17
SUMMARY ........................................................................................................... 18
REASONS FOR GRANTING THE PETITION ................................................... 19
I. The Criteria for Granting Reconsideration Are Met .................................... 19
A. The McNair Litigation Revealed the NCAA Investigators Conducted a
“Sloppy’ and “Unprofessional” Interview of Key Witness Lloyd Lake and
That the Report Materially Misrepresented His Testimony ........................ 20
B. The Misrepresentations and Procedural Irregularities Related to McNair
Alone Warrant Reconsideration ................................................................... 30
II. Penalty No. 5 and the Portion of Penalty No. 8 Pertaining to Bush Should Be
Vacated ........................................................................................................ 32
A. NCAA Rules and Precedents Support Vacating the Penalties..................... 32
B. Recent Developments in Federal Antitrust Law and NCAA Rules Warrant
Reconsideration of the Penalties Pertaining to USC and Bush.................... 35
III. At a Minimum, the Committee Should Conduct a Full Review of
the Matter ..................................................................................................... 38
CONCLUSION ...................................................................................................... 38
APPENDICES ........................................................................................................ 39
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PETITION FOR RECONSIDERATION
The University of Southern California (“USC”) and Reginald A. Bush, II
(“Bush”), through undersigned counsel, respectfully petition under NCAA Bylaw
19.11.4 (2023) for reconsideration of the 2010 decision of the Committee on
Infractions vacating wins of the USC football team and vacating Bush’s personal
records and eligibility (Penalty Nos. 5 and 8 only). See NCAA Committee on
Infractions, UNIVERSITY OF SOUTHERN CALIFORNIA PUBLIC
INFRACTIONS REPORT 57–58 (June 10, 2010) (“Report”).
USC joins in this Petition insofar as its participation is required to overcome
any standing issue and joins in the request to vacate Penalty Nos. 5 and 8. See NCAA
June 21, 2022 letter Re: Bush Reconsideration Request. USC defers to Bush and
undersigned counsel for the substance of the Petition.
Substantial new information, which emerged in the litigation between the
NCAA and former USC assistant football coach Todd McNair, revealed that the
Report misrepresented the testimony of the critical witness in the investigation related
to the allegations and penalties involving Bush. Indeed, NCAA investigators
conducted the unsworn interview of that witness so unprofessionally that a court
concluded his testimony was entirely unreliable. That alarming revelation negates the
Report’s conclusions about Bush, which rest on the witness’s testimony as the
“linchpin” and which Bush has steadfastly denied. The recent disclosures thus
demonstrate both “new information that is directly related to the decision” and
“prejudicial error in processing of the case,” each an independent ground for
reconsideration under NCAA rules. See NCAA Bylaw 19.11.4.1 (2023).
Accordingly, this petition should be granted for reconsideration of Penalty Nos.5 and
8 only.
BACKGROUND
Bush was a student at the University of Southern California from 2003 to
2005. As a running back on the football team, Bush enjoyed one of the most
successful individual careers in the history of college football. USC won the 2005
BCS National Championship, and the following season Bush was awarded the
Heisman Trophy. In 2010, however, the NCAA Committee on Infractions
(“Committee”) issued a report concluding that Bush violated NCAA amateurism
rules and that USC failed to maintain adequate institutional control. The Committee
4
imposed a number of penalties on USC, including (as relevant here) vacating USC’s
wins in games in which Bush played and was purportedly ineligible—including all
of the 2005 Heisman campaign—and vacating Bush’s individual records in those
games. As a consequence of that decision, the Heisman Trophy Trust demanded that
Bush relinquish his Heisman Trophy, which he reluctantly did and the only player in
history to do so.
In the same Report, the Committee also found that a USC assistant coach,
Todd McNair (“McNair”), had been aware of some of Bush’s alleged infractions.
But in years-long judicial proceedings that resulted in a settlement in mid-2022, two
California state courts found that the Report’s claims about McNair were untrue.
Most troublingly, the courts concluded that the Report had misrepresented the
testimony of the central witness in the investigation, a convicted felon named Lloyd
Lake. Mr. Lake was the key witness and admitted “linchpin” against Bush. USC and
Bush accordingly now seek reconsideration of the Report’s findings against them and
the associated penalties (Nos. 5 and 8 only).
A. Bush’s Records and Achievements
Bush was born in 1985 in San Diego. His mother, Denise Griffin, has long
served the community as a sheriff’s deputy and a corrections officer. His biological
father left the family when Bush was just an infant. But his stepfather, LaMar Griffin,
a school security guard, came into his life when he was two years old. Bush considers
LaMar Griffin to be his father.
Bush grew up poor. His family lived in an impoverished part of San Diego
where children were targets for drug traffickers and gangs. Although his parents
worked hard, they could not earn enough money to move to a different neighborhood.
From an early age, Bush’s home life was troubled. As a child, he had a difficult and
contentious relationship with LaMar Griffin. Like many boys in similar situations,
Bush for a period resented his father because he was not Bush’s biological father. His
parents would often explode into heated arguments, although things never turned
physical. Because of what he felt to be “negative energy” in his home, Bush dreamed
of escaping to a different, more stable environment.
Then he discovered football. At the age of nine he joined the local Pop Warner
team. He was asked to play running back. His innate talent for the position instantly
emerged. In the second game he ever played, he rushed for 540 yards and scored eight
touchdowns. As he continued to compete and improve, he became something of a
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local star—a young kid from a poor part of town who had the potential to be the
greatest player that San Diego had ever produced. His dream was to play football in
college, like his heroes Marshall Faulk of San Diego State and Eddie George of Ohio
State.
Bush’s financial circumstances forced him to develop his talent largely on his
own. Unlike children for more affluent families, he did not attend elite football camps
or participate in other programs that cost money that his parents didn’t have. But he
took the opportunities where he could find them. Each summer he attended a free
football camp organized by former San Diego Charger Martin Bayless. He would
look back on those camps as the highlights of his childhood. One summer he even
met future NFL Hall of Famer Junior Seau.
From 1999 to 2003, Bush attended Helix High School in La Mesa, California.
By his sophomore year, Bush was the starting running back on the varsity team.
That year the team won the state championship. The team did it again his junior
year. In fact, Bush lost only one game his entire high school career: the state
championship his senior year. In 2003, the website Rivals.com rated him as a five-
star recruit and the top running back in the country.
As early as his sophomore year, Bush began receiving college recruiting
letters. By his junior year, scouts and midlevel coaches were calling him and
attending his games. During his senior year, it was head coaches in the stands.
Bush initially narrowed down his college choices to five schools. USC was
not on the list. But then USC assistant coach Ed Orgeron visited Bush and convinced
him to tour the campus. On that visit, Bush fell in love with USC—recalling years
later how it just “felt right” there. He marveled at the pageantry of the university and
valued its proximity to South-Central Los Angeles, where he had family. Without
consulting his parents, he decided to attend USC and play under coach Pete Carroll.
During his freshman year at USC, Bush was the football team’s back-up
running back. He had an up-and-down season. Vowing to improve in his sophomore
year, he dedicated himself to a rigorous summer training regimen. It paid off. In the
2004 season, he rushed for 908 yards and tallied an additional 509 yards receiving.
He finished fifth in voting for the Heisman Trophy, college football’s greatest
individual honor. USC capped the season by defeating the University of Oklahoma
in the 2005 BCS National Championship.
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Bush’s junior season (2005) was one of the greatest single seasons in NCAA
history. He rushed for 1,740 yards and 16 touchdowns. He caught 37 passes for 478
yards and two more touchdowns. He was a unanimous first-time All-American.
And this time he won the Heisman Trophy, with nearly 90 percent of first-place votes.
USC ultimately qualified again for the BC National championship, but lost to the
University of Texas.
Yet despite his incredible success on the field and his national profile, Bush
struggled financially. He initially lived in a dormitory on campus. But after the roof
caved in, he was relocated to off-campus housing. He was given a stipend of $1000
a month to cover all living expenses, including rent of $740. He was required to
allocate the other $260 for utilities, gas, and food each month. His car repeatedly
broke down, and he often could not afford repairs. Unlike many students, he received
no financial support from his parents. He thus found himself in the same situation as
many star student-athletes from disadvantaged backgrounds: Even though he could
expect to earn millions of dollars once he turned professional, he had difficulty
making ends meet while in college.
Eight days after the 2006 BCS National Championship, Bush declared for the
NFL Draft. The New Orleans Saints selected him with the second overall pick. He
went on to play 11 years in the NFL, winning the Super Bowl in 2009. He retired in
2017.
B. Lloyd Lake
Lloyd Lake is a former gang member who has served prison time for domestic
violence and drug trafficking. When Bush was a boy, the Griffins became friends
with Lake and his family, including his father, a businessman who sold a sports-balm
product, and his sister, who was a television news anchor in San Diego.
Bush himself first met Lake during his sophomore year in high school when
Lake and his father showed up out of the blue at one of Bush’s football practices
with their pet Rottweilers. The memory stands out for Bush because one of the dogs
bit his hand. As Lake recalled later, he and his father tried to convince Bush to use
the sports-balm product. Appendix A (Tr. of Recorded Interview, Lloyd Lake (Nov.
6, 2007)), at 3 (“Lake Tr.”).
The Griffins and the Lakes regularly socialized. The families spent time at
each other’s homes, barbecuing and watching football. Bush saw Lake as a family
friend. Even as a high school student, however, Bush was aware that Lake had been
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accused of criminal activity and had served time in prison. It was widely known that
he had served a six-month sentence relating to a drug trafficking offense. While Bush
was willing to look past Lake’s personal history, he did not see Lake as a legitimate
businessman, despite Lake’s efforts to market his father’s sports-balm product. But
because his parents had a relationship with Lake’s family, Bush trusted him.
While Bush was still in high school, Lake was indicted and was ultimately
sent to prison for two years. See Lake Tr. 4–5. LaMar Griffin and Lake’s father
maintained a relationship during that time. Id. at 5. According to Lake, when he was
released from prison during Bush’s sophomore year at USC, he began spending time
with LaMar Griffin and then eventually reconnected with Bush. Soon after, Lake
claimed to NCAA investigators, Griffin and Lake decided to start a sports agency,
later named New Era, that would feature Bush as its first client. Id. at 12. Lake
claimed that he introduced the Griffins to Michael Michaels, a San Diego
businessman who owned the Sycuan Casino Resort, during a San Diego Charters
game in fall 2004, as a potential investor in the business. Id. at 10. Lake alleged that
a few weeks after the meeting, he and Michaels obtained the consent of Bush (then
nineteen years old) to the sports-agency idea during a short conversation in the
parking lot outside his parent’s home, without his parents present. Id. at 12.
According to Lake’s story, over the ensuing months, he and Michaels
provided benefits to Bush and his parents on the under- standing that the sports-
agency venture would move forward, including inviting Bush’s parents to live in a
house owned by Mr. Michaels for a period of months after they had been evicted. See
Lake Tr. at 83-84. But after Bush turned professional in 2006, he did not seriously
consider New Era and ultimately selected a different agency. Both Michaels and Lake
then filed lawsuits in California state court against Bush and the Griffins. Bush
reached confidential settlements with Michaels in 2007 and with Lake in 2010.
Notably, Bush did not admit in either settlement that he had ever agreed to form a
sports agency with the men.
C. The NCAA Investigation
In 2006, the NCAA opened an investigation into USC that focused on Bush,
a men’s basketball player, and a women’s tennis player. Lake was interviewed in
November 2007—eight days after he had filed the lawsuit against Bush and his
parents seeking hundreds of thousands of dollars in compensation. See Lake Tr. 1.
The interview was conducted by two NCAA officials: Angie Cretors, an assistant
director of agent, gambling and amateurism activities, and Rich Johanningmeier, an
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associate director for enforcement. Lake was accompanied by two attorneys who
were also representing him in the lawsuit. During the interview, Lake claimed that
Bush had entered into an agreement to form a sports marketing agency with Lake and
Michaels in 2004; requested and received cash and other gifts from Lake at various
points in 2004 and 2005; and then refused to compensate Lake and Michaels for those
gifts after choosing a different agency. The interview was transcribed, but it was
not conducted under oath. It was subject to a confidentiality agreement that barred
the NCAA from sharing the transcript with USC, the institution under investigation,
without the consent of Lake’s attorneys. Lake Tr. 2.
As a California district court would later conclude, the “sloppy” Lake
interview fell far short of professional standards for conducting investigations and as
a result the Report was false in several material ways. Appendix B (Ruling on Motion
for New Trial, McNair v. National Collegiate Athletic Ass’n, No. BC462891 (Jan. 16,
2019)) 4–5 (“Dist. Ct. Op.”). The “unprofessional interview taken by NCAA
investigators,” the court explained, “was done informally, was not under oath, and .
. . was done by NCAA investigative personnel who clearly were not prepared . . . and
were making jokes and interruptions during the interview that obscured the actual
answers.” Id. at 5. The interviewers continually asked leading questions, suggesting
a preordained conclusion that Bush had violated NCAA rules. They interrupted Lake
repeatedly before he could finish his answers. Lake’s counsel made personal
representations as to key facts. One of his attorneys also spurred him to make certain
claims, and he was permitted to con- fer with his counsel in the middle of the
interview.
The interviewers spent little time scrutinizing Lake’s credibility, including his
criminal record, his pending lawsuit against Bush, and his failure to produce financial
documentation of alleged payments. Indeed, some of the key allegations—most
notably, that Bush had orally entered into an agreement to form a sports marketing
agency—were stated vaguely and with little detail. Rather than seeking further
clarification, hard facts or actual evidence supporting such key claims, the NCAA
investigators accepted Lake’s assertions at face value.
In addition, during the interview, Lake revealed that he had secretly recorded
two conversations with Bush and two conversations with LaMar Griffin—likely a
criminal offense under California law. Cal. Penal Code § 632. But instead of reporting
Lake’s crime to the appropriate law-enforcement authorities, it appears that the
NCAA investigators may have proceeded to listen to the illegally created recordings
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at the conclusion of the interview. See Lake Tr. 157–158.
NCAA investigators also interviewed some of Lake’s relatives after he told
them they would corroborate his story. It is not clear whether those interviews were
transcribed. The NCAA investigators did not interview Michaels.
Bush agreed to sit for an interview in April 2009. To Bush’s recollection, the
interview was not transcribed. During the interview, Bush “denied entering into any
type of agreement with [Lake and Michaels], or anyone else associated with their
attempts to form a sports agency.” Report at 10. He explained that he knew the men
through his parents, that his family’s relationship with Lake went back years, and that
he regularly communicated with Lake over the phone and via text message. Id. He
also acknowledged that in some conversations he had discussed the possibility of
forming a sports agency with Lake in the future. Id. But he made clear that he never
agreed to do so. Indeed, knowing Lake’s dearth of business or sports-marketing
experience and his criminal record, Bush never seriously entertained the possibility
of putting his career in the hands of Lake or New Era rather than an established
agency.
The Committee on Infractions held a hearing on the allegations in February
2010. USC officials testified at the hearing, but neither Lake nor Michaels appeared.
The Committee apparently did not review the full transcript of Lake’s testimony.
Rather, the NCAA enforcement staff presented only “a portion” of the interview to
the Committee through a “Case Summary.” Report 7, n.1. It appears that the
Committee may have considered a summary of Bush’s interview as well. See id. at
10.
D. The 2010 Report
The Committee issued the Report in June 2010. The Report discussed
allegations involving the USC football team, the USC men’s basketball team, and the
USC women’s tennis team. It imposed 23 penalties on USC. Report 57–63.
As relevant here, the Committee made two key findings involving Bush.
1
The first was that that Bush had “entered into an agreement with Lake and Michaels
to establish a sports agency to negotiate future marketing and professional sports
1
For ease of reading, this petition replaces the Report’s anonymous references to
particular individuals (e.g., “student-athlete 1” for Bush) with the individuals’ names.
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contracts.” Report at 4. That finding rested exclusively on the testimony of Lake. Id.
Because of that purported agreement, the Committee found that certain benefits
provided to Bush and his parents violated NCAA amateurism rules against receiving
benefits from agents. The second finding was that a sports marketer for whom Bush
completed a summer internship had provided benefits to Bush’s parents and friends.
As to that finding, with one exception, the Committee did not find that Bush had been
aware of the allegedly improper benefits.
Sport Marketing Agency. With respect to Lake’s alleged sports marketing
agency, the Report explained that “[t]he question facing the committee was whether
[Bush] agreed to become involved with the proposed agency and, if so, when
that happened.” Report at 12. The Report then concluded that Bush had agreed to
form a sport agency with his parents, Lake, and an investor group led by Michaels.
But the Report did not cite any documentary evidence that Bush had ever signed such
an agreement or otherwise signaled his consent. Rather, the only direct evidence that
Bush agreed to form a sports agency was the testimony of Lake—the full transcript
of which the Committee did not review.
Lake claimed that Bush “gave his consent” to the plan to form a sports agency
during a meeting with Lake and Michaels at his parents’ residence on an unspecified
date. Report 8. Lake also claimed that he and Bush had “agreed that everything would
be done with cash and that [Bush’s] name would not appear on any documents”—an
allegation that conveniently explained why Lake could not identify a single document
relating to the formation of a sports agency that bore Bush’s signature, or any written
record of his purported involvement whatsoever. Id. at 9. The Report also cited even
more attenuated evidence of Bush’s supposed consent to forming an agency that
likewise depended exclusively on Lake’s testimony. For example, Lake testified that
Michaels had told him that he “would not commit and provide funds unless [Bush]
was ‘on board’”—hearsay that the Report did not corroborate. Id. at 12.
The Report recounted the enforcement staff’s summary of supposedly
corroborative testimony from Lake’s family members. The Report did not evaluate
whether their relationship to Lake, or Lake’s violent criminal background, might have
influenced their testimony. But in any event, so far as the Report recounts, none of
the other witnesses claimed to possess any direct knowledge that Bush had agreed to
form a sports agency or had even been aware of that an agency had been established.
The Report states that Lake’s sister recalled only having discussed the agency with
the Griffins, not Bush. Id. at 9. Her former husband likewise acknowledged that he
11
had “never personally met [Bush]” and apparently made no claim about Bush’s
participation or knowledge. Id. at 10
Apart from Lake’s testimony, the Report reasoned that “[t]he agreement may
be inferred from [Bush’s] subsequent conduct and acceptance of benefits.” Id. at 10.
It is not clear what “conduct” the Report was referring to. And the Report did not
discuss whether Bush’s alleged “conduct and acceptance of benefits” was equally
consistent with a social relationship with a longtime family friend.
Moreover, substantial questions were raised about whether Bush had actually
accepted all of the benefits described in the Report. USC vigorously contested many
of those allegations, and a number of the Report’s findings about benefits rested,
again, exclusively on Lake’s testimony. For example, the most significant alleged gift
to Bush was an unquantified “substantial payment” towards the purchase of a used
car valued at $15,000 or $16,000. Report at 16. Lake claimed that he had obtained
cash from his sister for the car and had provided it to LaMar Griffin. Id. Lake further
claimed that he had paid for approximately $8,000 in improvements to the car with
money that he obtained from his mother. Id. at 17.
USC told the Committee that there was “no basis to conclude that [the
finding] is substantially correct” and pointed out that Lake had furnished “no
supporting documentation to corroborate the purchase.” Report at 16. Bush explained
to NCAA investigators that he had purchased the vehicle using $4,000 in savings,
$4,000 from his parents, and a $9,000 loan. Id. at 18. But the Report dismissed Bush’s
explanation because he had not “provide[d] financial records to substantial his
account of the purchase,” (Id. at 18) even though the Report credited Lake’s
testimony despite the fact that he likewise had “provided no supporting
documentation, such as bank withdrawal records.” Id. at 18.
The Report found only four other putative benefits that Bush allegedly
received:
• The Report found Bush “used” a San Diego hotel room—to change clothes—
before attending a birthday party in March 2005. Report 5, 19.
• The Report found that on the same date in March 2005, Lake provided Bush with
a limousine service to travel from the hotel room to a San Diego nightclub to attend
the birthday party. The Report did not identify the value of that benefit, nor did the
Report discuss whether Lake had independently purchased the limousine service
and merely invited Bush to ride along with a larger group (which is in fact what
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happened). Report at 5, 19.
• The Report found that, also in March 2005, Michaels had paid for two nights’
lodging in a hotel to Bush, at a value of $564. Report 4, 19–20. Bush explained to
NCAA investigators that the two-night stay was a birthday present from Michaels,
whom he regarded as a family friend. Id. at 19. But because the Committee was
not presented with evidence that Michaels had given similar gifts to Bush “before
he became recognized as an athlete,” the Report rejected that explanation. Id. at
20.
• The Report found that in June 2005, while Lake was incarcerated, Lake’s former
girlfriend transferred $500 from Lake’s bank account to Bush’s bank account.
Report 6, 21–22. USC objected that Lake “provided no corroborating records” of
the supposed transaction. Id. at 21. But, yet again, the Report nevertheless credited
Lake’s claim on the ground that the ex-girlfriend had known that Bush banked at
Washington Mutual.
Remarkably, the Report found that one of Lake’s allegations was not
sufficiently corroborated to credit. Lake claimed that Bush stayed for two nights in a
San Diego hotel room. Report 19. Bush steadfastly denied that he had ever stayed
overnight in the room, and the Report found that the evidence that Bush had stayed
overnight was insufficient. Id. Despite finding that Lake’s claim on this issue was not
believable, the Report did not consider whether that unsupported accusation cast
doubt on his credibility with respect to the other allegations.
More broadly, the Report conducted virtually no analysis of the credibility of
Bush’s explanation that Lake and Michaels were family friends and that he
understood the relatively modest gifts to have been provided in that capacity, not
because of a nonexistent business relationship. The Report briefly acknowledged that
Bush had first met Lake through his stepfather in 2001, when Bush was still in high
school. Report 7. It also acknowledged that Michaels was a friend of Lake. Id. at 7.
But the Report conducted no analysis of whether the alleged benefits were consistent
with gifts from family friends to a underprivileged college student who, despite his
national fame, had barely enough money to afford living expenses.
The Report also found that Lake and Michaels had provided benefits to
Bush’s parents. Report 5–6, 14–16, 20–21, 22–23. Those alleged benefits consisted
of (i) rent-free lodging in a house owned by Michaels for a period of months and
some furnishings for that home (which the Report did not find that the Griffins
13
retained after Michaels evicted them); (ii) funds for travel to the 2005 BCS National
Championship Game and a 2005 road game at University of Hawaii. Id. But the
Report did not find that Bush was aware of either set of benefits.
The Report also gave little consideration to Lake’s credibility in light of his
“troubled past,” i.e., his “prior criminal convictions” for drug trafficking and assault.
Report 7. Nor did the Report analyze the plausibility of his story in light of that
personal history. As USC told the Committee, Lake’s “‘extensive criminal
background [and] his history of gang-related and violent activity . . . make it highly
unlikely that [Bush] would have chosen [Lake] as his agent during the fall of 2004.”
Id. at 11. The Report nevertheless declared Lake “credible” because “what transpired
was confirmed by members of his family, telephone records and compelling
circumstantial evidence.” Id. at 7. As explained above, however, none of the other
evidence discussed in the Report supported the conclusion that Bush had “agreed to
become involved with the proposed agency”—the question that the Committee had
identified as critical. That conclusion rested solely on Lake’s allegations. And the
Report did not discuss whether Lake had an incentive to fabricate claims about Bush,
such as Bush’s refusal to capitulate to Lake’s demands for hundreds of thousands of
dollars or a desire for notoriety or lucrative publishing deals that he could secure by
positioning himself a key player in the downfall of a famous athlete.
Based largely on Lake’s claims, the Committee found a violation of NCAA
Bylaw 12.3, entitled “USE OF AGENTS.” Report 10. The “General Rule” under that
provision states that “[a]n individual shall be ineligible for participation in an
intercollegiate sport if he or she ever has agreed (orally or in writing) to be
represented by an agent for the purpose of marketing his or her athletics ability or
reputation in that sport.” NCAA Bylaw 12.3.1 (eff. Aug. 1, 2004). A subsection
entitled “Benefits from Prospective Agents” states that “[a]n individual shall be
ineligible per Bylaw 12.3.1 if he or she (or his or her relatives or friends) accepts
transportation or benefits from . . . [a]ny person who represents any individual in the
market of his or her athletics ability” or “[a]n agent . . . .” NCAA Bylaw 12.3.1.2
(eff. Aug. 1, 2004). The Report concluded Bush’s alleged agreement to form a sports
agency with Lake and Michaels and subsequent acceptance of benefits from the men
violated these rules.
Ornstein Internship. The Report’s second adverse finding about Bush also
originated with accusations made by Lake. Report 29. They related to an internship
Bush had with a marketing company run by Michael Ornstein in the summer of 2005.
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Id. 27–36. The Report found that the agency had qualified as a representative of
USC’s interests because the internships were available only to student-athletes. Id. at
31. That finding made applicable an NCAA rule barring representatives of
institution’s athletics interests from providing special benefits to student athletes.
NCAA Bylaw 16.02.3 (2004). The Report, however, made no finding that Bush was
aware of that alleged exclusivity.
2
The Report then found that sports marketers associated with the agency,
including Ornstein, had provided certain improper benefits. Report 28–29, 31–36.
But with one exception, all of those benefits were provided to other people, not
Bush himself, and the Report made no finding that Bush was aware of those benefits.
Most of the benefits arose out of the Heisman Trophy ceremony in New York
City in November 2005. The Report found that the agency had paid for two $400
roundtrip airline tickets for two individuals to attend the ceremony—one of the other
agency interns, who the Report claimed was one of Bush’s friends, as well as another
asserted friend. Report at 34–35. The Report also found that the agency had paid $150
in airline service fees for Bush’s parents and that Ornstein had used his credit card to
reserve a room for his parents (which Bush’s family ultimately paid for). Id. at 35-
36. The Report separately found that the agency had paid for transportation of Bush’s
family to a road game at the University of California at Berkeley in November 2005
valued at $850. An Ornstein associate adamantly maintained that Bush’s family had
repaid that amount, but the Report rejected that explanation, in part because it
questioned the validity of the documentation of the repayment that had been
provided. Id. at 31–34.
The Report found that Bush had received only one benefit from Ornstein:
payment for repairs to his car. Report 36. But the Report did not specify the amount
of that alleged payment, and it identified no documentary evidence to support the
2
USC argued and continues to assert there was no evidence that Bush had agreed to
form a sports agency and therefore that there was no basis to find that he had violated
the cited bylaws or was ineligible for the 2004 season (before the Report alleged he
accepted any benefits), including the 2005 BCS National Championship game. Report 7.
But USC advanced the position that Bush was ineligible for competition during the 2005
season because of benefits that he had allegedly received (although USC contested
certain alleged benefits, including those associated with Bush’s purchase of a used car).
Id. at 7, 16. USC contended that those benefits violated a separate bylaw that generally
prohibits “[p]referential treatment, benefits or services because of the [student’s]
athletics reputation or skill or pay-back potential as a professional athlete.” NCAA
Bylaw 12.1.2.1.6 (eff. Aug. 1, 2009); see NCAA Bylaw 12.1.1.1.6 (eff. Aug. 1, 2004) (same).
15
finding. In fact, the finding rested exclusively on the testimony of a sports
memorabilia dealer who claimed that he had been present at an un- named “New
York bar” with Ornstein “around the time of the 2005 Heisman Trophy presentation”
and had overheard a cell phone conversation between Ornstein and Bush, “the subject
of which was the payment for repairs to [Bush’s] vehicle by [Ornstein].” Id. The
Report rejected Bush’s explanation that he had paid for the repairs himself on the
ground that he had not provided documentation to support his recollection. Id.
Todd McNair. In addition to the findings against Bush, the Report found
USC assistant football coach Todd McNair had become aware of Bush’s alleged
violations of NCAA rules in January 2006 and lied to the NCAA enforcement staff
about his knowledge. Report 23–27. That finding was based on a two-minute phone
call between McNair and Lake at 1:30 in the morning of January 8, 2006. Id. at 23.
The Report claimed that Lake testified he had called McNair to convince him to
intercede with Bush about adhering to the purported agency agreement. Id. at 26. The
Report found that “the conversation occurred as described by [Lake] and, therefore,
that [McNair] violated NCAA ethical conduct legislation (Bylaw 10.1-(d)) by
providing false and misleading information to the enforcement staff regarding the call
and his knowledge of [Lake’s] activity.” Id. at 27.
Penalties. The Report determined that USC should be held accountable for
Bush’s alleged violations. The Report found that USC had displayed a “lack of
institutional control” because it had failed “to recognize warning signs, to be
proactive in monitoring its athletics program and to follow through on information
regarding possible rules violations.” Report 56. That finding appeared to depend to
a large degree on the Committee’s finding that McNair had been aware of the
violations. See id. at 61. In assessing penalties, the Report also determined that USC
was a “repeat offender” because it had been found liable for rules violations in the
past— twice in the 1950s and twice in the 1980s. Id. at 3, 57.
The Report imposed 23 penalties on USC, some of which were related to the
men’s basketball and women’s tennis teams. With respect to the football team, the
Report:
• Barred USC from postseason play in the 2010 and 2011 seasons (Penalty No.
4); Vacated all wins in which Bush played while allegedly ineligible (Penalty
No. 5);
• Vacated the individual records of Bush and required recon- figuration of
16
USC’s records to reflect the vacated wins (Penalty No. 8);
• Limited football scholarships for three academic years be- ginning in 2011
(Penalty No. 9);
• Imposed a fine of $5000 (Penalty No. 13);
• Required the disassociation of Bush from USC (Penalties Nos. 15 and 18);
3
• Prohibited non-institutional personnel (with certain exceptions) from
traveling on team charters, attending practices, and gaining other access to the
team from 2010 to 2014 (Penalty No. 20); and
• Required USC to inform recruits about the violations and penalties and
annually publicize that information (Penalty No. 21).
Report 57–61. The Report also imposed a “one-year show cause period” on McNair,
during which time he was barred from engaging in recruiting activities (Penalty No.
22). Id. at 61–62.
E. The Heisman Trophy Trust
After the Report was issued, Bush had a phone interview with representatives
of the Heisman Trophy Trust, the organization that awards the Heisman Trophy. The
representatives told Bush that they intended to strip him of the award. That was the
first time in the 75-year history of the award that the Heisman Trophy Trust had
requested the return of a trophy. Given that threat, and to avoid further controversy,
in September 2010 Bush reluctantly relinquished his Heisman Trophy. It was
crushing. He had put in years of work to becoming the best college football player in
the country. Now he was left without any formal recognition for his immense
accomplishments.
Eleven years later, in July 2021, the Heisman Trophy Trust issued a statement
about Bush in light of a recent change to NCAA rules about student-athlete
compensation. The statement cited a rule printed on the ballot used by voters for the
Heisman Trophy, which states in part that “[t]he recipient must be in compliance with
the bylaws defining an NCAA student athlete.” The statement explained that “Bush’s
2005 season records remain vacated by the NCAA and, as a result, under the rule set
forth by the Heisman Trust and stated on the Heisman Ballot, he is not eligible to be
awarded the 2005 Heisman Memorial Trophy.” But, the statement said, “[s]hould the
3
The Report noted that Penalties Nos. 13 and 15 were “Institution imposed.”
17
NCAA reinstate Bush’s 2005 status, the Heisman Trust looks forward to welcoming
him back to the Heisman family.”
F. The McNair Litigation
In June 2011, McNair sued the NCAA for libel, slander, and other claims in
California state court. Appendix C (Complaint for Damages, McNair v. NCAA, Case
No. BC462891 (Sup. Ct. Cal., Cnty. Of Los Angeles, June 3, 2011))(“McNair
Complaint”). After years of pretrial proceedings, the defamation claims were tried
to a jury in 2018. Although a divided jury returned a verdict for the NCAA, the trial
court granted a new trial for (among other grounds) insufficiency of the evidence that
the Report’s statements about McNair were true. Dist. Ct. Op. 1–5.
In an accompanying opinion, the district court concluded that the trial record
contained insufficient evidence that McNair knew of the purported agreement to
form a sports agency and the benefits allegedly provided to Bush. The court reviewed
the transcript of NCAA investigators’ interview with Lake—the key witness against
both McNair and Bush. The court found that the Re- port had misrepresented what
Lake had said about the key phone call with McNair in January 2006. Dist. Ct. Op.
4. Although the Report claimed that Lake had called McNair to discuss Bush’s
agreement to form the sports agency (as reflected in phone records), Lake had not in
fact said that. Id. Instead, the investigators had falsely told Lake that it was McNair
who called him, and “Lake was attributing a motive to McNair for the reason why
McNair purportedly called him.” Id. Of course, the court observed, “there was no
such phone call initiated by McNair, and McNair could have had no purpose in
making an unmade phone call.” Id.
Even more significantly, the court found that “the interview does not state that
McNair and Lake discussed the agency agreement between Lake and Reggie Bush
during the phone call, even though the report states that the reason that Lake called
McNair was to get him to adhere to the agency agreement.” Dist. Ct. Op. 4. The
court explained that “it appears that Lake was merely assuming that McNair ‘knew’
about the money that Reggie Bush allegedly took and the agreement between Bush
and Lake, not be- cause of anything said during the phone conversation.” Id.
More generally, the court described the interview as “sloppy” and
“unprofessional” and “full of interruptions.” Dist. Ct. Op. 4–5. The “interview was
done informally, was not under oath, and . . . was done by NCAA investigative
personnel who were clearly not prepared, as they were mistaken as to basic facts
18
pertaining to the phone call of 1/8/2006 and were making jokes and interruptions
during the interview that obscured the actual answers.”
Id. at 5. Moreover, “[t]he
answers made by Lake to interview questions were unclear and unresponsive to the
point of being unreliable and lacking in any value,” and “non-responsive and
speculative responses by Lake were recorded as being true.” Id. at 4. Had they been
“made in a court of law,” Lake’s “non-responsive” and “impossible vague” answers
“would have been stricken.” Id. at 5. Ultimately, the court held, the Report produced
a “fictional account” that “gave evidentiary weight to statements that were not
made,” and the NCAA’s attempts to justify “the variance between the actual content
of the Lake interview and the [Report] as ‘paraphrase’” were “ludicrous.” Id.
In February 2021, the California Court of Appeals affirmed the District Court
Opinion overturning the verdict. Appendix D (McNair v. NCAA, No. B295359,
2021 WL 405876 (Cal. Ct. App., 2d Dist. Feb. 5, 2021)) (“Ct. App. Op.”). In the
course of its analysis, the court explained that “[s]ome voting members of the
[Committee on Infractions] expressed difficulty with the interviews of McNair and
Lake,” with members noting that “the record was ‘recklessly’ constructed” and
another stating that “the investigation had ‘fallen short.’” Id. at *5. The court held
that the NCAA had failed to rebut McNair’s “credible denials . . . that he knew about
the NCAA violations” because “it relied solely on Lake’s vague, unresponsive,
unreliable, and inadmissible interview responses, that in any event did not
substantively support the operative statement.” Id. at *9.
The NCAA and McNair entered into a confidential settlement agreement in
July 2021.
SUMMARY
The Committee should grant reconsideration of the Report’s findings and
penalty determinations Nos. 5 and 8 as they relate to Bush and the USC football
program. The Committee should then vacate Penalty No. 5 and the portion of Penalty
No. 8 pertaining to Bush based on the new evidence and prejudicial errors in the
Report.
I. The criteria for granting reconsideration of the Report are met. The
revelations from the McNair litigation both “demonstrate the existence of new
evidence that is directly related to the decision” and “show that there was prejudicial
error in processing the case” resulting in the Report—each an independently
19
sufficient basis for reconsideration. NCAA D1 COI Internal Operating Procedures
(“COI OPI”) § 5-17-1 (2021); see NCAA Bylaw 19.11.4.1 (2023). California courts
have now found in the McNair litigation that the “sloppy” and “unprofessional
interview [of Lloyd Lake] taken by NCAA investigators” was replete with errors, that
the Report materially misrepresented Lake’s “non-responsive and speculative
responses” and thus was false in several material ways. Dist. Ct. Opp. 4–5.
Those same serious problems infected the portions of the interview pertaining
to Bush’s knowledge and conduct. Most significantly, a fair reading of the transcript
of Lake’s interview shows that there was no persuasive basis to conclude that Bush
had agreed to form a sports agency with Lake and Michaels—the finding that the
Report itself describes as central to its conclusion that Bush had intentionally violated
NCAA rules in allegedly accepting benefits from the men. See Lake Tr. And in any
event, the Report’s errors with respect to McNair alone warrant reconsideration,
because the finding that McNair knew about the alleged agency agreement was
critical to the Report’s determination that USC could be held accountable for the
alleged rules violations and was an important factor in the penalty analysis.
II. On reconsideration, the Committee should vacate the Report’s Penalty
No. 5, which vacated the wins of USC’s football team in games where Bush
participated while assertedly ineligible, as well as the portion of Penalty No. 8 that
vacated Bush’s personal records. The judicial findings in the McNair litigation and
a review of the Lake interview shows that key aggravating factors that the NCAA
has applied in imposing penalties— including “serious intentional violations” and
“direct involvement of a coach”—lack sufficient evidentiary support on the record
here. In reconsidering the appropriate penalty, the Committee should also take
account of the recent developments in federal antitrust law and the significant and
overdue change that the NCAA made to its rules about player compensation.
REASONS FOR GRANTING THE PETITION
I. The Criteria for Granting Reconsideration Are Met
This Committee should grant the petition for reconsideration. Under NCAA
Bylaw 19.11.4.1, “[a] hearing panel may reconsider a decision upon a showing of
new information that is directly related to the decision or upon a showing that there
was prejudicial error in processing the case.” NCAA Bylaw 19.11.4.1 (2023). Both
grounds for reconsideration are present here. California courts have found in the
McNair litigation that NCAA investigators conducted a “sloppy” and
20
“unprofessional” interview of the key witness in the matter— Lloyd Lake—that
produced answers that “were unclear and unresponsive to the point of being
unreliable and lacking in any value,” and that the Report misrepresented what Lake
had told investigators and was “false in several material ways.” Dist. Ct. Op. 4. That
finding both reveals a significant flaw at the heart of the process used to find that
petitioners had violated NCAA rules and qualifies as significant new information that
bears on the accuracy of the Report’s findings. See Report 7 n.1.
A. The McNair Litigation Revealed the NCAA Investigators Conducted a “Sloppy’
and “Unprofessional” Interview of Key Witness Lloyd Lake and That the
Report Materially Misrepresented His Testimony
In the McNair litigation, the district court found, and the court of appeals
affirmed, that the Report had significantly misrepresented Lake’s testimony to
NCAA investigators about a key phone call involving McNair. As the court of
appeals explained, “the only support for the [Report’s] finding that McNair ‘had
knowledge’ of NCAA violations was [a] late-night call” between Lake and McNair
in January 2006, and “[t]he only evidence adduced about what was said during the
late-night call was the transcript of Lake’s interview,” but the district court had
“reasonably found [that the transcript of Lake’s interview] did not support the
[Report’s finding].” Ct. App. Op. *8.
Moreover, the district court concluded that Lake’s interview was “sloppy”
and “unprofessional.” Dist. Ct. Op. 4. As a result, his answers “were unclear and
unresponsive to the point of being unreliable and lack in any value.” Id.
The
interview “was done informally, was not under oath . . . and was done by NCAA
investigative personnel who were clearly not prepared . . . and were making jokes
and interruptions during the interview that obscured the actual answers.” Id. at 5. “It
should have been obvious to the NCAA,” the district court concluded, “that the
statements made by Lake in response to the investigators[’] questions were non-
responsive and that if made in a court of law would have been stricken.” Id.
Ultimately, the Report presented “a fictional account of the Lake version of the phone
call.” Id.
Those are significant new revelations that bear directly on the accuracy of the
Report’s findings as well as the integrity and fairness of the procedure that ultimately
resulted in significant reputational harm to Bush and USC. And indeed, as explained
below, the same kinds of errors and omissions relating to the Lake interview that
undermined the Report’s conclusions about McNair cast overwhelming doubt on its
21
central conclusions about Bush.
The Report’s findings about Bush hinged on Lake’s testimony—the transcript
of which has now been made public in the McNair litigation. The “linchpin” of the
Report’s conclusion that Bush had violated amateurism rules was its conclusion that
he had “agreed to form a sports agency with [Lake and Michaels].” Report 12. That
conclusion was based principally on the following summary of Lake’s testimony:
Lake reported that, in the fall of 2004, he and Bush’s stepfather
engaged in discussions about the possible business opportunities the
step-father would have when Bush became a professional. The two
concluded that the establishment of a sports agency would be a
mutually beneficial endeavor for all involved as it would allow Bush
to avoid paying high commissions to an established sports agency.
Lake reported that Bush and his stepfather told Lake to recruit
the necessary individuals to establish an agency.
Shortly thereafter, again in the fall of 2004, Lake contacted his
friend, Michaels, about investing in the sports agency. Michaels had
ties with a local investor group that owns and operates a resort in the
San Diego area. Michaels was involved in the business aspects of
that enterprise. Lake arranged for Bush’s mother and stepfather to
meet Michaels in the investor group’s sky box at a San Diego
Charger’s [sic] home game in October 2004. Lake said that, during
the early planning stages, Michaels made it clear that his investor
group would provide financial support to the agency only if Bush
made a personal commitment to the agency. Lake reported that, a
few weeks later, Bush gave his consent to establish the sports
agency when he, Michaels and Bush met at Bush’s parents’
residence. Report at 8 (emphases added).
As with Lake’s testimony about McNair, however, his actual answers about
whether Bush “gave his consent” to form a sports agency are far vaguer and more
equivocal than what this passage of the Report states, and they differ in material
respects.
For example, the Report suggests that Lake testified that he had discussed
forming the agency with Bush before approaching Michaels and before the alleged
meeting at the Chargers game, claiming that Bush told Lake to “recruit the necessary
22
individuals to establish an agency.” Report 8. But nowhere did Lake say anything
like that. His testimony was only that he had spoken to LaMar Griffin (not Bush)
about a potential sports agency before approaching Michaels. He only “guess[ed]”
that La- Mar Griffin had discussed the matter with Bush, and he said nothing about
Bush seeking to recruit other individuals to fund the supposed venture:
LL: . . . . I guess him and Bush already talked about it to maybe save some of
his money for his marketing and, and commissions for a agent [sic], so. Lake Tr. 9.
More broadly, the Report presents the initial discussions between Lake,
LaMar Griffin, and Michaels leading up to the alleged meeting with Bush as far more
concrete than what Lake described. Lake explained that after he was released from
prison in 2004, he began “hanging out” with Griffin at his home and “talking and
conversating more and more.” Lake Tr. 9. Griffin was “kind of like lonely” so Lake
would “swing by, watch TV with him, maybe a football game.” Id. Griffin had
“watched what Lake’s dad was doing with his [sports balm] product and he wanted
to get in- volved in some type of business . . . .” Id. at 10. During those informal
conversations Griffin had raised the possibility of starting various kinds of ventures.
The two men “talked about real estate, uh, sports agency, music, different types of
things that they want- ed to get into.” Id. at 9. Griffin also “talked about maybe a
McDonald’s; he talked about other things but at the end [a sports agency] was
probably what made the most sense.” Id. at 8. It was at that point in the testimony
that Lake “guess[ed]” that Griffin had talked to Bush about the sports agency idea.
Id.
Lake then claimed that Griffin had met with Michaels at a San Diego Chargers
game. The Report describes this meeting as the “early planning stages” for the
proposed sports agency, a phrase connoting some level of formality and a detailed
discussion. Report at 8. But what Lake actually described had a very different
character. When asked by an NCAA investigator “how serious was the conversation
at the Chargers’ game about going into [the] sports marketing,” he said: “It wasn’t
too serious.” Lake Tr. 10. In fact, he did not appear to even know what had been
discussed: “I guess when LaMar Griffin and Michaels got to talking the sports agency
seemed like the thing to do ‘cause Michaels affiliated [sic] with [the] Sycuan [Casino
Resort] and, you now, they had plenty of money if we were gonna do it. So I guess
that’s what they end up running with.” Id. at 10 (emphases added). When NCAA
investigators pressed Lake to say that the parties had conducted at least an “informal
23
discussion of the business deal,” he resisted even that soft characterization: “It wasn’t
too much . . . talk about business . . . Michaels met ‘em at the game and it wasn’t
too much talk at the game, just the introduction.” Id. at 11–12. No one would
reasonably describe that kind of interaction as the “early planning stages” of a new
multi-million-dollar business.
That mischaracterization of the level of formality of the initial meeting is
significant, because the notion that the parties had already engaged in concrete
discussions about the agency (and that Bush was aware of those discussions) formed
the backdrop for the Report’s finding that Bush had consented to the purported
scheme a few weeks later. Had the Report explained that the “planning” up to that
point had consisted of little more than “conversating” while watching television and
an introduction “that wasn’t too serious,” Bush’s purported “consent” would have
been understood in a different light. In particular, Bush might have been viewed
simply as favoring the aspiration of starting a sports agency at some point in the
future—after he turned professional— rather than acceding to a plan to immediately
do so.
And indeed, Lake’s actual testimony about Bush’s “consent” is far more
consistent with a future aspiration than a current plan. Lake claimed that “a couple
weeks” after the Chargers game, he and Michaels met with Bush, which happened
“[a]fter some conversation in between about doing it.” Lake Tr. 12. (The
investigators inexplicably did not follow up with Lake about who was involved in
that “conversation in between” or what was said). The Report states that when Bush
met with Lake and Michaels at his “parents’ residence” he “gave his consent to
establish the sports agency”—again suggesting a level of formality and
deliberation consummate with launching a new business. Report 8. But here again,
Lake’s actual answers paint a far different picture. According to his testimony,
Bush—a teenager at the time—had a conversation with Lake and Michaels “in the
parking lot” of his parents’ house, without either of his parents present, that lasted as
little as ten minutes. Id. Indeed, Lake and Michaels deliberately chose to exclude
Bush’s father from the conversation: “[H]e wasn’t even out there when we were
talking,” Lake explained, “because we didn’t wanna have him.” Id. (The
investigators, again inexplicably, did not follow up with any questions about why the
men wanted to discuss a complex, multi-million-dollar business arrangement with a
teenager without his parents present—just one example of their consistent failure to
scrutinize whether Lake and Michaels might have been trying to take advantage of
24
Bush and his parents, rather than the other way around).
Lake then vaguely described a brief conversation in the parking lot:
Well, I remember [Michaels] asked him like, you know, basically tell
him what his dad was talking about and, uh, he asked Bush were you
serious about it that you wanna go and get involved before he, you
know, tried to make something happen. And Bush said yeah, and it
just moved on from there. Bush was like, yeah, I really wanna do this.
I wanna be in the business and really entrepreneur-type stuff, so. Lake
Tr. at 12.
The NCAA investigators did not ask any follow-up questions probing
precisely what Bush had expressed in this alleged exchange, despite Lake’s muddled
description. They did not ask whether, like Griffin’s conversation with Michaels at
the Chargers’ game, the discussion with Bush “wasn’t too serious.” And they did not
attempt to determine whether Lake and Michaels—a violent former gang
member and a wealthy businessman, respectively—had pressured the teenage
Bush into expressing some sort of consent to the idea.
Later in the interview Lake again testified that Bush had expressed “yeah, you
know, I wanna do it, a sports agency.” Lake Tr. 33. But as Lake started to clarify that
Bush had told him that he “didn’t wanna get involved just –” the investigators
interrupted Lake with a question about the length of the conversation. Id. They never
asked Lake to finish what he was going to say about Bush’s desire not to “get
involved.” Instead, the investigators asked whether Bush had provided “any other
insight into what he wants [the sports agency] to be, who he wants to be involved,”
Lake said “No.” Id. at 34. Refusing to take “No” for an answer, the investigators
pressured Lake to come up with something else that Bush had said about the sports
agency, but he reiterated, “No, that’s it.” Id.
Despite Lake’s testimony that Bush had expressed nothing more specific than
a general interest in starting an agency, the investigators then pressed Lake to suggest
that Bush had said something concrete about the nature of the proposed agency during
the meeting:
[Investigator]: ‘cause Lloyd, when you talked about sports agency,
what was, what was the understanding that you had or what did Bush
say because sports agency could be, you know, a, a lot of different
things, representing, marketing, it could be ---
[Lake]: It was all those, it was all one stop; marketing, contracts.
[Investigator]: So your understanding at that time and Bush’s
understanding was you guys were gonna put together and develop a,
25
a complete.
[Lake]: Yeah, his family, his family, he like, I can’t be on it but my
family gets half my percentage when we can do it right, the percentage
in his family. You’re always covering it up. Lake Tr. at 34.
This portion of Lake’s testimony—to the extent that his muddled and
nonresponsive statements indicate that Bush expressed a desire for a particular
financial arrangement—contradicted Lake’s previous statement that Bush had said
nothing more at the meeting than that he favored the idea of starting a sports agency.
Yet the investigators did not ask any follow-up questions to reconcile that
contradiction, nor did they inquire into how much of Lake’s claim was simply his
“understanding” of what Bush wanted, as opposed to something that Bush had
actually ex- pressed. They did not even repeat the actual question asked— what the
proposed agency would do—which Lake had completely failed to answer. (A truthful
answer to that question likely would have revealed that the “proposal” was so
amorphous and aspirational that no legally recognizable agreement to form an agency
had been formed at the time of the short conversation in the parking lot.) Instead,
remarkably, one of the investigators summarized what she thought Lake had meant
and did not even bother to ask whether he agreed with her characterization, but rather
simply moved on to a different line of questioning:
[Investigator]: You wanna break, you eyeing it? Uh, so he, he goes
along with this and says his family’s gonna be involved and, because
I wanna ask this question, was that the first time he had met Michaels?
Lake Tr. at 34 (emphasis added).
No professional investigator would ask one question (about the nature of the
agency) and then, after receiving a nearly inscrutable answer to a different question
entirely (about the financial structure of the agency) that contradicted the witness’s
previous statement, announce a conclusion about what the witness might have meant
and then move on to other topics. The district court in the McNair litigation thus had
ample reason to call this a “sloppy” and “unprofessional interview”—if anything, a
generous characterization of what transpired.
Virtually the entire basis for the Report’s claim that Bush had “agreed to form
a sports agency” with Lake and Michaels was premised on this testimony. As with
Lake’s statements about McNair at issue in the defamation case, Lake’s statements
“were unclear and unresponsive to the point of being unreliable and lacking in any
value.” Dist. Ct. Op. 4. The interview was seriously “botched,” id. at 5, because the
investigators failed to meaningfully explore any alternative explanations for the
alleged statements that did not fit their preordained narrative. Most critically, the
investigators did not explore whether Bush’s statements might have merely expressed
26
that he would like to start a sports agency in the future, after turning professional, or
were otherwise aspirational or noncommittal.
Nor did the investigators ask why a wealthy businessman and a convicted
felon would have sought to obtain a teenager’s consent to starting a major venture
that could have an enormous impact on his career (to say nothing of his college
eligibility) in a parking lot without his parents present. And the Report failed to
explain why the vague and non-responsive answers of a convicted felon with a
massive litigation interest in establishing that he had provided benefits to Bush in
exchange for an agency agreement should have been credited over the clear,
consistent, and adamant denials of Bush—an upstanding alumnus who had never
been in legal or academic trouble nor had ever been found to have violated NCAA
rules or cheated the game of football in any way—that he had never consented to
forming a sports agency with Lake and Michaels.
Apart from Lake’s self-serving, vague, and internally contradictory
testimony, the only other consideration that the Committee cited to establish that
Bush knowingly entered into an agreement to form sports agency was the following
sentence: “The agreement may be inferred from [Bush’s] subsequent conduct and
acceptance of benefits.” Report 4. It was a remarkable exercise in circular reasoning:
Bush’s acceptance of benefits violated NCAA rules because he entered into an
agreement to form sports agency, and that agreement may be inferred from his
acceptance of benefits. Such facially flawed reasoning would never have been
accepted in any ordinary adjudicatory proceeding.
The Report nowhere seriously addresses Bush’s explanation for the few
benefits that he acknowledged receiving—that Lake was a longtime family friend,
who had known his parents for years, and he understood that the benefits had been
provided in that capacity. Notably, even fully crediting all the Report’s claims about
the benefits (some of which Bush steadfastly denied), the benefits allegedly conferred
on Bush personally were limited— and fully consistent with a family friend
occasionally helping out a college student from a poor family. Those alleged benefits
were two nights in a Las Vegas hotel room for his birthday; the use of a San Diego
hotel room to change clothes and a limousine ride to a party; a gift of $500; and help
with a down payment and improvements on a nearly decade-old used car.
Significantly, the Report did not claim that Bush was aware of the benefits
allegedly given to his parents, such as the living arrangement they had made with
Michaels after they were evicted from Reggie’s childhood home. That is little
27
surprise, many college students have no insight into their parents’ financial affairs.
The Report provides no reason to think that Bush was any different.
Apart from the asserted benefits, the Report does not identify any other
“conduct” consistent with an agreement by Bush to form a sports agency. The Report
claims that an operating agreement was formalized in January 2005, but the Report
does not assert that Bush signed that agreement or was even aware of it. Report at 8,
13. And importantly, Lake testified that the agency conducted no operations during
the period in which Bush was still subject to amateurism rules: “I mean, we weren’t
even, like, when we first started we weren’t doing any recruiting or anything till Bush
was eligible. That’s when we started.” Lake Tr. 100. The supposed agency never
even secured office space. Id. at 100–101. The lack of any concrete operations makes
it even less likely that Bush would have become aware that an agency had been
formed; the supposed agency was not doing anything. Yet the Report inexplicably
fails to describe that part of Lake’s testimony.
Thus, in marked contrast to the narrative described in the Report, the critical
finding that Bush had consented to the formation of a sports agency comes down to
this: a felon’s vague recollection of a short conversation in a parking lot with a
teenage Bush (from which his parents had been excluded) where he may have done
nothing more than express an aspirational interest in forming a sports agency at some
point; an operating agreement that Bush did not sign or even apparently know about;
and a purported agency that conducted no operations whatsoever during the relevant
period. Yet the Report frames the evidence as far more concrete and certain, and gives
no weight to Bush’s adamant denials that he ever consented to the formation of an
agency.
Even putting aside the serious discrepancy between what Lake said in the
interview and what the Report recounted, Lake’s interview suffered from elementary
flaws that undermine the reliability of Lake’s answers. Throughout the interview,
both the investigators and Lake’s counsel engaged in a range of irregular (and at times
inappropriate) conduct:
• As the district court in the McNair defamation case found, the interview “was
done informally, was not under oath, and . . . was done by NCAA investigative
personnel who clearly were not prepared . . . and were making jokes and
interruptions during the interview that obscured the actual answers.” Dist. Ct. Op.
5. The investigators repeatedly interrupted Lake when he was providing critical
information about Bush’s knowledge and conduct, and they often failed to ask
28
obvious follow-up questions. See, e.g., Lake Tr. at 113-114 (Lloyd Lake
discussing the relationship between Bush and McNair); Id. at 116 (Lloyd Lake
discussing trip to Ferrari dealership).
• The interviewers asked leading questions apparently designed to guide Lake to
their preordained conclusion: that Bush had intentionally violated NCAA
amateurism rules. See, e.g., Id. at 55 (“AC: And Reggie called, did Reggie call
you and tell you I bought it, I got it?”); Id. at 56 (“AC: And so when you’re asking,
when you ask your sister, I’m assuming she took that out of a bank account.”).
• Lake’s attorneys (who were also representing him in a just-filed lawsuit seeking
hundreds of thousands of dollars) made representations about the facts to the
investigators. See, e.g., Lake Tr. 104 (attorney Paul Wong testifying that Lake’s
mother purchased furniture on a credit card); Id. at 151 (extended discussion by
attorney Brian Watkins of alleged threats to Lake by Bush’s attorney); cf. Id. at
106 (attorney Brian Watkins urging Lake to discuss a particular incident that he
had not raised).
• In the middle of the interview, Lake’s attorneys asked to speak with him privately,
but the investigators gave no admonition against discussing the facts of the case,
and there is no apparent assurance that Lake was not coached on his answers
during the break. Lake Tr. 79 (Paul Wong: “I wanna talk to the client for a little
bit”). In addition, the interviewers allowed Lake to go off the record to take a cell-
phone call in the middle of the interview. Id. at 91.
• Lake revealed during the interview that he had made secret recordings of two
phone calls with Bush and two with LaMar Griffin. Lake Tr. 157–158. That
conduct was likely a criminal offense under California law. See Cal. Penal Code
§ 632. Yet instead of reporting Lake’s crimes to the appropriate law-enforcement
authorities, the NCAA investigators apparently decided to listen to the illegally
created recordings themselves after the conclusion of the interview. Id. at 158.
4
The Lake interview (and as a result the Report) also suffered from another
problem: The interviewers made nearly no effort to scrutinize Lake’s account or test
his credibility. Several key areas went entirely unexplored. For example, the Report
noted that Lake had “filed a civil suit against Bush and his family.” Report at 8. But
the interviewers did not endeavor to determine whether Lake’s pending lawsuit—
4
On the advice of counsel, NCAA enforcement staff did present those tapes to the
Committee. Report 7 n.1.
29
filed a week before the interview—had influenced his testimony. In that lawsuit, Lake
alleged that Bush and his parents were indebted to him and New Era for “cash
payments advanced to [them] for living expenses and other things.” Lake v. Griffin,
Nos. D053583, D054311, 2009 WL 5067634, at *1 (Cal. Ct. App. 4th Dist. Dec. 28,
2009). But the investigators did not ask Lake whether the claims he made about
Bush’s supposed assent to the agreement to form the sports agency and his receipt
of benefits were important to the legal theories he was advancing in the case; how
much compensation he was seeking in his suit; or whether his attorneys had coached
him on answers.
Similarly, although USC had told NCAA enforcement staff about Lake’s
“extensive criminal record” and “his history of gang-related and violent activity”
(Report 11) the investigators failed to inquire into that criminal history or determine
whether Lake had ever previously given false statements or testimony in connection
with investigations. The Report gave no apparent weight to Lake’s history of violence
and legal violations, noting only that he had “admitted to the NCAA staff that he had
prior criminal convictions” and that “[b]ecause of his troubled past, he realized that
his credibility would be challenged.” Report 7. The Report did not explain why that
history should not in fact fatally undermine his credibility, or even explain which
crimes Lake had been convicted of—crimes that included not only drug trafficking,
but also domestic violence.
See Katie Thomas, Lawsuit May Force Ex-U.S.C.
Star to Talk, N.Y. TIMES (Feb. 10, 2008). Nor did the Report explain that Lake
claimed that he had formed a sports agency with Bush immediately upon being
released from a two-year prison term, as he told investigators, Lake Tr. 4–5, or that
shortly after that period Lake was sent back to prison for breaking his girlfriend’s
arm. Id. at 140. The Report also expressed no concern that Lake did not corroborate
his claims with financial records, while inexplicably discounting Bush’s testimony
on precisely that basis.
More generally, neither the investigators conducting the questioning, nor the
drafters of the Report examined the possibility that Michaels and Lake were
exploiting an unsophisticated teenager and his low-income parents by manipulating
them into going along with a business venture that would line the pockets of the
two men while enormously disadvantaging Bush himself. But that is exactly what
Lake’s testimony appears to depict: a nineteen-year-old cornered in a parking lot by
a wealthy businessman and a former gang member to obtain his “consent” to put his
enormously valuable marketing rights into their completely inexperienced hands.
30
The sloppy and unprofessional interview of Lloyd Lake, and the way in which
his answers were overstated or at times misrepresented in the Report, warrant
reconsideration of the sanctions related to Bush. A fair review of the interview
transcript casts substantial doubt on the Report’s conclusion that Bush “agreed to
become involved with the proposed agency.” Report 12. For the reasons discussed
below it is highly likely that the Committee would have reached a different
conclusion about the appropriate penalties without that finding. Accordingly, the
errors associated with the Lake interview were both “directly related” to the
Committee’s decision and “prejudicial,” satisfying both alternative prongs of the
standard for reconsideration under the NCAA Bylaws. See NCAA Bylaw 19.11.4.1
(2023).
B. The Misrepresentations and Procedural Irregularities Related to McNair Alone
Warrant Reconsideration
Even ignoring the significant flaws in Lake’s testimony about Bush and the
way that testimony was depicted in the Report, reconsideration would be warranted
based solely on the judicial conclusions that the Report’s findings with respect to
McNair were untrue and that the Report was “false in several material ways.” Dist.
Ct. Opp. 4.
The findings against McNair were critical to the Committee’s authority to
impose sanctions on USC. As the California Court of Appeals explained, “[t]o make
a finding against an institution such as USC, the NCAA had to find either a loss of
institutional controls or that an employee knew about a rules violation and failed to
report it.” Ct. App. Opp. *5. The Committee’s finding of lack of institutional control
rested in large part on the Report’s now-discredited conclusion that McNair knew
about Bush’s purported violations of amateurism rules. See Report 61 (“In
maintaining institutional control and a rules compliant athletics program, institutions
must rely on the efforts of coaches and staff to abide by the rules and to share any
information they have regarding potential rules violations. McNair had knowledge
that Bush and Lake and Michaels likely were engaged in NCAA violations.”). Indeed,
the Report’s findings about McNair were the Report’s only basis to conclude that
anyone at USC knew about the alleged violations.
The judicial determination in the McNair litigation— adopted by four
different jurists—that the Report identified no evidence that McNair had the requisite
knowledge is thus a sufficient ground to reconsider the penalties that the Report
imposed relating to Bush. Those penalties were as a formal matter imposed on USC
31
itself, despite their enormous practical impact on Bush. But now that it has been
established in court that McNair did not know about the alleged violations, there does
not appear to have been a sufficient basis to penalize USC in connection with Mr.
Bush and the football program. For that reason, the conclusion by California courts
that the statement about McNair’s knowledge was false constitutes “new information
that is directly related to the decision” and justifies reconsideration. NCAA Bylaw
19.11.4.1 (2023).
Even if the Committee would still have authority to impose penalties against
USC without the McNair findings, as a matter of punitive discretion, those penalties
should be reconsidered. Important aggravating factors for penalties include “a
finding of failure to monitor or a lack of institutional control” and “direct involvement
of a coach or high-ranking school administrator.” Georgia Institute of Technology,
Public Infractions Appeals Committee Report 14–15 (Mar. 9, 2012). The Committee
expressly cited the first factor as an important consideration for the penalties against
USC, and it seems likely that the second factor played a role as well. But in light of
the McNair judicial decisions, those considerations now merit little or no weight.
Accordingly, it is necessary, at a minimum, to conduct a fresh assessment of the
appropriate penalties in light of the now substantially different factual record.
The McNair findings also justify reconsideration on the ground of prejudicial
procedural error. NCAA Bylaw 19.11.4.1 (2023). The judicial findings revealed that
the interview of Lake was “sloppy” and “unprofessional” and replete with
irregularities and interruptions. They also established conclusively that his testimony
about McNair was misrepresented in the Report. That error prejudiced USC and Bush
insofar as the findings against McNair were important considerations in the finding
that USC lacked institutional control and in the penalties imposed against USC
related to its football program and Bush.
Finally, a separate but significant aspect of the McNair litigation further
warrants reconsideration. The courts found that the Report had misrepresented what
Lake had told investigators—in particular, that he had never said that he had
discussed the alleged agency agreement with McNair during the key phone call in
January 2006. But even though the Report was published in 2010, and McNair and
the NCAA engaged in widely reported litigation for nearly a decade over the veracity
of the findings, Lake never came forward publicly to explain that the Report had
misrepresented what he said about the phone call. That glaring failure to correct the
record—despite the error’s devastating impact on McNair’s career—casts further
32
doubt on Lake’s motives and credibility.
II. Penalty No. 5 and the Portion of Penalty No. 8 Pertaining to Bush Should Be
Vacated
The Committee should vacate the Report’s penalties that vacated USC’s wins
and Bush’s personal records from the games in which he was purportedly ineligible
(Penalties Nos. 5 and 8). When the record evidence is considered in light of the flaws
exposed by the McNair judicial proceedings and the problems with the Lloyd Lake
interview discussed above, those two severe penalties are not reasonably
proportionate to any remaining rules violations. In particular, there is insufficient
evidence that Bush intentionally broke NCAA rules. Vacating those two penalties,
moreover, would not affect the other 21 penalties imposed on imposed on USC. And
the NCAA has vacated penalties in previous cases where procedural problems came
to light that involved exponentially more serious misconduct.
In reconsidering the appropriate penalty, the Committee should also take
account of major recent developments in United States antitrust law and the NCAA’s
related changes to their rules about student-athlete compensation. See Nat'l Collegiate
Athletic Ass'n v. Alston, 210 L. Ed. 2d 314, 141 S. Ct. 2141 (2021). Were Bush a
college student today, he would be entitled to sign multimillion dollar endorsement
deals and would not have been tempted to accept even small benefits from a man like
Lloyd Lake. That reality should be factored into the Committee’s analysis of the
severity of his purported violations.
A. NCAA Rules and Precedents Support Vacating the Penalties
The NCAA bylaws provide that “[i]f reconsideration is granted, the panel [of
the Committee on Infractions] may reduce or eliminate a penalty but may not
prescribe any new penalty.” NCAA Bylaw 19.11.4.1.2 (2023). Because this case
involves conduct that occurred before October 30, 2012, the appropriate penalties are
either “the penalties set forth in [the current bylaws] or the penalties that would have
been prescribed pursuant to the [2012 bylaws], whichever is less stringent.” NCAA
Bylaw 19.9.1 (2021). The discussion here accordingly cites provisions from both the
current bylaws and the 2012 bylaws.
Under the 2012 bylaws, in deciding whether to vacate a team or individual
records, the Committee must take into account whether the violations involved
33
“academic fraud, serious intentional violations, direct involvement of a coach or
high-ranking school administrator, a large number of violations, competition while
academically ineligible, a finding of failure to monitor or lack of institutional control,
a repeat violator, or a case in which vacation or a similar penalty would be imposed
if the underlying violations were when vacation of a similar penalty would be
imposed if the underlying violations were secondary [i.e., relatively minor].” NCAA
Bylaw 19.5.2(h) (2012); see Georgia Institute of Technology, Public Infractions
Appeals Committee Report at 14–15 (Mar. 9, 2012). Under the current bylaws,
vacation of records is reserved for matters involving “extenuating circumstances.”
NCAA Bylaws 19.12.2, 19.12.8(g) (2023). Under either set of bylaws, vacating
records is a serious penalty that requires a significant violation.
In this case, a fair application of the factors and standards set out in the
bylaws, considered in light of the revelations of the McNair litigation and the major
flaws in the interview of Lloyd Lake, strongly favor vacating the penalties imposed
on USC that related to Bush (Nos. 5 and 8).
Academic fraud. The Report did not claim that Bush engaged in academic
fraud.
Serious intentional violations. Bush did not intentionally violate NCAA
rules. Contrary to the findings in the initial report, which rested on Lake’s flawed
testimony, Bush never knowingly entered into an agency agreement with Lake and
Michaels, and he was not aware that they had formed a sports agency and thus would
be considered “agents” or “person[s] who represent[] any individual in the market of
his or her athletics ability.” NCAA Bylaw 12.3.1. Accordingly, the Report’s key
finding—that Bush “agreed to become involved with the proposed agency” in 2005,
Report 12—was unsupported by the evidence presented to the Committee.
Before the Committee USC argued that in allegedly accepting certain
benefits, Bush had violated a separate NCAA bylaw that prohibits receiving
“[p]referential treatment, benefits or services because of the [student’s] athletics
reputation or skill or payback potential as a professional athlete.” NCAA Bylaw
12.1.2.1.6 (2009); see NCAA Bylaw 12.1.1.1.6 (2005) (same). But Bush did not
intentionally violate that prohibition either. To the extent he received any benefits at
all from Lake, he understood such minimal benefits to have been provided to him on
account of his family’s longstanding friendship with Lake, which went back to his
early high school days. If Lake had a different understanding of the purpose of the
benefits, Bush was not aware of it and there’s no reliable evidence otherwise.
34
The Report also found that Bush’s internship with Ornstein’s agency violated
NCAA rules because the internship was not made available to students other than
USC athletes. But the Report did not find that Bush was aware of that alleged fact.
Nor did the Report find that Bush was aware of the benefits that Ornstein allegedly
provided to Bush’s parents or two other students (one of whom was also an intern),
which all related to travel. And although the Report found that Bush had received an
unspecified amount of money from Ornstein for car repairs, that was based
exclusively on the claim by a sports-memorabilia dealer that he had overheard a cell-
phone conversation between Ornstein and Bush at a “New York bar,” and Bush
denied the accusation. That is hardly creditable evidence.
Direct involvement of a coach or high-ranking school administrator.
McNair’s alleged knowledge of Bush’s improper benefits presumably informed the
Committee’s penalty determination. But multiple courts have now concluded that the
conclusion was based on a misrepresentation of Lake’s testimony. There is no basis
to conclude that any coach or school administrator was involved in the alleged
violations. This factor thus weighs strongly in favor of a reduced penalty.
A large number of violations. For the reasons discussed above, there is
substantial reason to doubt that many of the benefits cited in the Report actually
violated NCAA rules. The cited evidence that a real sports agency was formed and
operating is paper thin, and many of the contested claims about benefits relied
exclusively on Lake’s suspect testimony. Both Bush and Ornstein vigorously
contested the claims about benefits supposedly provided by Ornstein’s agency to
Bush and his family. At a minimum, the number of intentional violations by Bush is
small—indeed, zero.
Competition while academically ineligible. The Report did not claim that
Bush competed with academically ineligible.
Ineligible competition in a case that includes a finding of failure to monitor
or a lack of institutional control. Although the Report found that USC had a lack of
institutional control with respect to the football team, that finding appeared to rely in
substantial part on the now-discredited findings against McNair. To the extent that
Committee would still find a lack of institutional control for other reasons, that factor
is at a minimum seriously diminished. And it would be particularly unfair to vacate
Bush’s records—a penalty that as a practical matter falls most heavily on Bush
personally—if the Committee were to conclude that he engaged in no intentional
violations, even if it continued to find that USC had lacked the requisite level of
35
institutional control.
When vacation of a similar penalty would be imposed if the underlying
violations were secondary. The Report made no claim about this factor.
Mitigating Considerations. On the other side of the penalty analysis, the
consequences of vacating Bush’s records and USC’s wins has been enormously
painful for Bush. Not only was his reputation tainted, even though he never cheated
the game, but he was forced to relinquish his Heisman Trophy. As a poor child in San
Diego, he dreamed about becoming a college star. He worked incredibly hard to hone
his talents and reach his goals. Nothing was handed to him. Yet, based on the
questionable testimony of a convicted felon, all of that was taken away from him.
That devastating impact on a good person should be considered reassessing the
penalties. See NCAA Bylaw 19.12.4.1(i) and 19.12.4.2(g) (2023) (providing that
“[o]ther factors warranting a lower penalty range” should be considered in mitigation
analysis). So should Bush’s voluntary submission to an interview, clean prior record,
and lack of intent. See NCAA Bylaw 19.12.4.2 (2023).
In short, the new revelations substantially change the multi-factor penalty
analysis and disfavor the extreme sanction of the vacation of USC’s wins and Bush’s
records and eligibility.
B. Recent Developments in Federal Antitrust Law and NCAA Rules Warrant
Reconsideration of the Penalties Pertaining to USC and Bush
Another factor related to Bush’s alleged acceptance of benefits should play a
role in the reconsideration of the appropriate penalties in this matter. In recent years,
courts and commentators have increasingly scrutinized the NCAA’s restrictions on
student-athlete compensation. The most accomplished student-athletes, such as Bush,
generate millions of dollars for NCAA member-institutions and other entities. Yet
NCAA amateurism rules have traditionally denied them most forms of compensation
for their efforts. But two developments in 2021 have fundamentally changed the rules
that govern student-athlete compensation in a way that should bear on how Bush’s
alleged violations are viewed and assessed.
First, in June 2021, the Supreme Court of the United States unanimously
upheld a ruling that the NCAA and certain member institutions had violated Section
1 of the Sherman Antitrust Act by colluding to deny athletes certain education-related
forms of compensation. See Appendix E Nat'l Collegiate Athletic Ass'n v. Alston,
210 L. Ed. 2d 314, 141 S. Ct. 2141 (2021) (“Alston Op.”). By the time that case
36
reached the Supreme Court, the only justification that the NCAA offered for the
restrictions at issue was that they “preserve amateurism”—i.e., that they enable the
NCAA to “provide a unique product” by ensuring that “amateur college sports” are
“distinct from professional sports.”
Id. at 10. The Supreme Court rejected that
justification. It affirmed a lower court’s conclusion that “the NCAA had not adopted
any consistent definition” of amateurism—assertedly the defining feature of the
“product”—even though the preservation of amateurism was its basis for denying
compensation to student-athletes. Id. at 18.
More broadly, the Court explained that the NCAA’s restrictions on athlete
compensation must be judged under the “rule of reason,” meaning that the restrictions
must generate procompetitive benefits that cannot reasonably be achieved through
less anticompetitive means and must otherwise be reasonable. Alston Op. 15–18. As
a result, all of the NCAA’s compensation rules are now vulnerable to legal
challenge, and for the first time the NCAA will be required to defend those
restrictions under the ordinary rules of competition that govern other businesses.
Although the Supreme Court’s opinion addressed only education-related
benefits, Justice Brett M. Kavanaugh forcefully explained in a concurring opinion
why the NCAA’s remaining limitations on student-athlete compensation are
vulnerable to challenge. As he wrote, “the NCAA and its member colleges are
suppressing the pay of student athletes who collectively generate billions of dollars
in revenues for colleges every year,” with “enormous sums of money flow[ing] to
seemingly everyone except the student athletes.” Alston Op. (Kavanaugh, J.,
concurring), at 22. While “[c]ollege presidents, athletic directors, coaches,
conference commissioners, and NCAA executives take in six- and seven-figure
salaries,” the “student- athletes who generate the revenues, many of whom are
African American and from lower-income backgrounds, end up with little or
nothing.” Id. at 22. Justice Kavanaugh wrote that the NCAA’s only justification for
that state of affairs—that denying athletes compensation for their work is “the
defining feature of college sports”—is “circular and unpersuasive.” Id. at 22. The
NCAA’s restrictions on compensation “would be flatly illegal in almost any other
industry in America,” he observed. Id.
The second development happened nine days after the Supreme Court’s
decision in Alston. The NCAA adopted an interim rule allowing student-athletes to
obtain benefits for their names, images, and likenesses. That change has produced
immediate, significant changes for student-athletes. For example, the winner of the
37
2021 Heisman Trophy—Alabama sophomore quarterback Bryce Young—signed
endorsement deals worth nearly a million dollars before the beginning of his first
season as a starter, even though by any account he had far less name recognition than
Bush did in 2005 and 2006. See Alex Scarborough, Alabama QB Bryce Young
approaching $1M in endorsement deals, says head coach Nick Saban, ESPN (July
20, 2021).
These developments bear directly on the appropriateness of the penalties
related to Bush. The complete bar on most forms of compensation for student-athletes
while Bush was a USC student arguably violated federal antitrust law. That should
be considered in deciding whether the harsh penalties imposed on Bush were
warranted. Indeed, had the new NCAA rule allowing athletes to sign endorsement
deals been available in the 2000s, Bush would have almost certainly signed lucrative
endorsement deals securing for him at least a fraction of the tremendous value that
his own efforts produced for others. It is unlikely that star college athletes would have
been tempted to accept benefits on the order of $500 or a night in a hotel room if they
had been allowed to engage in ordinary free-market transactions to license their
names and images. As one commentator has put it, by “cutting [student-athletes]
completely out of the financial success of college sports, the NCAA created an
underground economy” that encouraged athletes to obtain benefits elsewhere. Jemele
Hill, Give Reggie Bush His Heisman Back, THE ATLANTIC (July 3, 2021). That
was especially true for athletes from low-income families who struggled to afford to
live on elite college campuses, where many fellow students enjoyed financial support
from their parents.
Assuming arguendo that the allegations were true, in Bush’s case, it is
unlikely he would have been tempted to accept relatively modest benefits from men
he considered to be family friends if he had signed the sort of endorsement deals that
a player of his stature would have commanded. Immediately after he declared for the
NFL draft, Bush signed a multi-million-dollar endorsement deal with Adidas to
develop his own cleats. During his first year in the NFL, he signed multiple
endorsement deals with General Motors, Pepsi, Pizza Hut, and Subway. But instead
of earning income through such endorsements while eligible to play college
football, Bush was forced to get by on a $1000 per month stipend, the majority of
which was devoted to rent. Had the endorsement opportunities been available to him
during his Heisman season or before, he would not have been in the position where
accepting modest gifts from a man like Lloyd Lake was attractive.
38
The Committee should take serious account of that context when deciding an
appropriate penalty. Bush was vulnerable to men like Lloyd Lake only because the
NCAA had in place a restrictive rule on athlete compensation that it no longer
believes to be just or appropriate. That should be deemed a significant—indeed,
controlling—mitigating factor.
III. At a Minimum, the Committee Should Conduct a Full Review of the Matter
If the Committee elects not to immediately vacate the penalties pertaining to
USC and Bush, it should conduct a full review of the investigation and the
conclusions in the Report as they relate to him. In conjunction with that review, Bush
would welcome the opportunity to speak with the Committee. Petitioners also request
that the full record compiled by the NCAA enforcement staff, including transcripts
of all witness interviews that were transcribed and any documentary evidence, be
made available to them so that the investigation can be scrutinized through a fair
process of adversarial testing.
CONCLUSION
The Committee should grant the petition for reconsideration of the Report and
vacate Penalty No. 5 and the portion of Penalty No. 8 that pertains to Bush.
August 14, 2023 Respectfully submitted,
/s/ Levi G. McCathern, II
Levi G. McCathern, II
Texas Bar No. 00787990
lmccathern@mccathernlaw.com
Paul A. Grinke
Texas Bar No. 24032255
pgrinke@mccathernlaw.com
Ty M. Sheaks
Texas Bar No. 24042416
tsheaks@mccathernlaw.com
McCathern, PLLC
3710 Rawlins Street, Suite 1600
Dallas, Texas 75219
(214) 741-2662 Telephone
(214) 741-4717 Facsimile
Attorneys for Petitioners University of
Southern California and Reginald A. Bush, II
39
INDEX OF
APPENDICES
APPENDIX
TITLE
A Transcript of Recorded Interview, Lloyd Lake (Nov. 6,
2007).
B Ruling on Motion for New Trial, McNair v. NCAA, No.
BC462891 (Jan. 16, 2019).
C Complaint for Damages, McNair v. NCAA, Case No.
BC462891 (Sup. Ct. Cal., Cnty. Of Los Angeles, June 3,
2011
D McNair v. NCAA, No. B295359, 2021 WL 405876 (Cal.
Ct. App., 2d Dist. Feb. 5, 2021)
E Nat'l Collegiate Athletic Ass'n v. Alston, 210 L. Ed. 2d
314, 141 S. Ct. 2141 (2021)
