Petition for Writ of Certiorari — Cottrell v. National Collegiate Athletic Association (No. 07-288)

US.

ue 62 Supreme Court U

In The 07 ~ 288 AUG 30 2007

Supreme Court of the Matted States,

RONALD W. COTTRELL AND IVY WILLIAMS,

Petitioners,

Vv.

NATIONAL COLLEGIATE

ATHLETIC ASSOCIATION, ET AL.,

Respondents.

©

On Petition For A Writ Of Certiorari

To The Supreme Court Of Alabama

©

PETITION FOR WRIT OF CERTIORARI

—

THOMAS T. GALLION, III

Counsel of Record

HASKELL SLAUGHTER YOUNG & GALLION

305 South Lawrence Street

Montgomery, AL 36104

Telephone: (334) 265-8573

WILLIAM M. SLAUGHTER

J. MICHAEL REDIKER

MICHAEL C. SKOTNICKI

CHARLES M. ELMER

HASKELL SLAUGHTER YOUNG

& REDIKER, LLC

2001 Park Place North

1400 Park Place Tower

Birmingham, AL 35203

Telephone: (205) 251-1000

C. DELAINE MOUNTAIN

MOUNTAIN & BAIRD

P.O. Box 2885

Tuscaloosa, AL 35403

Telephone: (205) 349-1762

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342.2831

T.

QUESTIONS PRESENTED FOR REVIEW

Cottrell and Williams, former assistant football

coaches at the University of Alabama, were pulled

into an investigation of the football program by the

National Collegiate Athletic Association (“NCAA”).

The Alabama Supreme Court noted that the coaches

were “caught up in the controversy against [their]

will” and that they complied with a “gag order” im-

posed by NCAA rules. This Court has recognized that

the “first remedy of any victim of defamation is self-

help,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 344

(1974), and that public figures are more limited than

private figures in their legal remedy against defama-

tion as private figures because they have the “ability

to resort to effective ‘self-help’” to “counter criticism

and expose the falsehood and fallacies of defamatory

statements.” Wolston v. Reader’s Digest Ass’n, 443

U.S. 157, 164 (1979). The NCAA gag order precluded

the coaches from speaking out publicly or even an-

swering reporters’ questions during the investigation

and thus prevented them from acting in any way con-

sistent with public figure status to protect their repu-

tations after being defamed. Did the Alabama

Supreme Court violate the First Amendment

framework for defamation cases by holding, de-

spite Cottrell’s and Williams’s strict compliance

with the NCAA gag order, that they were “lim-

ited purpose public figures?”

During the NCAA investigation, news reporters in

Alabama published false and defamatory information

regarding Cottrell and Williams and attributed it to

“sources close to the NCAA investigation.” An Ala-

bama statute prohibited discovery from news reporters

of the identity of the sources. However, the coaches

QUESTIONS PRESENTED FOR REVIEW - Continued

demonstrated through indirect evidence that the

NCAA and the other defendants were alone in having

the means, motive, and the opportunity to leak the

falsehoods to the media. Yet the Alabama Supreme

Court held that Cottrell and Williams needed to pre-

sent direct evidence that the defendants were the

source of the published information in order for

coaches to avoid an adverse judgment as a matter of

law on their “media leak” defamation claims. Did the

Alabama Supreme Court violate Cottrell’s and

Williams’s rights to due process of law under

the Fourteenth Amendment by setting an evi-

dentiary burden in their case that could not be

met because of the statutory bar?

PARTIES TO THE PROCEEDINGS

etitioners:

Ronald W. Cottrell

Ivy Williams

Respondents:

National Collegiate Athletic Association (“NCAA”

Richard Johanningmeier, an NCAA employee

Thomas Yeager, an NCAA employee

~.

Thomas Culpepper, a “secret witness” for |

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

TABLE OF APPENDICES

OPINIONS BELOW

JURISDICTION OF THE COURT

STATEMENT OF THE CASE

I. BACKGROUND FACTUAL SUMMARY

II. TRIAL COURT LITIGATION

iI. APPEAL BELOW

REASONS FOR GRANTING THE PETITION

ARGUMENT

I. INTRODUCTION

II. COTTRELL AND WILLIAMS ARE “PRIVATE

FIGURE” DEFAMATION PLAINTIFFS AS TO

THEIR “MEDIA LEAK” CLAIMS

A. NCAA Bylaw 32.1.4 was a “gag order”

B. The Alabama Supreme Court’s reasoning

for holding that Cottrell and Williams

‘were limited purpose public figures vio-

lates the First Amendment framework es-

tablished by this Court for defamation

TABLE OF CONTENTS — Continued

Page

The Alabama Supreme Court applied

an unconstitutional Rosenbloom-type

analysis which focused on the scope of

the public controversy, and not the ex-

tent to which the plaintiffs thrust

themselves to its forefront

The Alabama Supreme Court’s factual

conclusions were erroneous: plaintiffs

did not interject themselves into a pub-

lic controversy; nor did they play a

prominent role

The NCAA gag order rendered Cottrell

and Williams private figures who could

not protect their reputations when they

were most vulnerable nor influence the

public controversy

Cottrell and Williams were private fig-

ures as to their claims based on the de-

famatory statements in the NCAA’s

“Penalty Summary” published on its

Internet web site

THE ALABAMA SUPREME COURT'S RUL-

ING THAT COTTRELL AND WILLIAMS

COULD ONLY AVOID SUMMARY JUDG-

MENT THROUGH DIRECT EVIDENCE

THAT THE DEFENDANTS LEAKED FALSE

AND DEFAMATORY INFORMATION TO

THE NEWS MEDIA VIOLATED THEIR DUE

PROCESS RIGHTS

CONCLUSION. ....ccccsccsseses: isiciscscacaehieeinciimatarimtaibatiaiial

TABLE OF AUTHORITIES

Page

CASES:

Addington v. Texas, 441 U.S. 418 (1979) ............... cece ee ees 29

Bell v. Colony Apts. Co., 568 So. 2d 805 (Ala. 1990)

BMW of North America, Inc. v. Gore, 517 U.S. 559

(1996)

Branzburg v. Hayes, 408 U.S. 665 (1972)............cccceseeeees 26

Curtis Publishing Co. v. Butts, 388 U.S. 13 (1967) ...... 8, 10

Dossey v. State, 489 So. 2d 662 (Ala. Crim. App.

Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953)

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

Gryger v. Burke, 334 U.S. 728 (1948)

Hutchison v. Proxmire, 443 U.S. 111 (1979)

Miller v. Transamerica Press, Inc., 621 F.2d 721

(5th Cir.), modified on reh’g, 628 F.2d 932 (5th

ie oo adacieciadiueeaaatmaeabennaeiaaicnlaadanian 26

National Collegiate Athletic Ass’n v. Tarkanian, 488

U.S. 179 (1988)

New York Times Co. v. Sullivan, 376 U.S. 25-<

(1964)

Patterson v. New York, 432 U.S. 197 (1977)

Price v. Chaffinch, 2006 WL 1313178 (D. Del. May

12, 2006) ae REN ODO RDO ONO

TABLE OF AUTHORITIES — Continued

Rea v. Missouri, 84 U.S. 532 (1873)

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971)

Thompson v. Bowie, 71 U.S. 463 (1866)

Time-Inc. v. Firestone, 424 U.S. 448 (1976)................:0008 17

United States Postal Service Bd. of Governors uv.

Aikens, 460 U.S. 711 (1983)

Warford v. Lexington Herald-Leader Co.,

S.W.2d 758 (Ky. 1990)

Wells v. Liddy, 186 F.3d 505 (4th Cir. 1999)

Whitney v. California, 274 U.S. 357 (1927)

Wolston v. Reader’s Digest Ass’n, 443 U.S. 157

CMR ae eh La Ne ibaa ato oe 9,10, 15,17

UNITED STATES CONSTITUTION:

U.S. Const. amend. I

U.S. Const. amend. XIV, § 1....

STATUTES:

28 U.S.C. § 1257(a).

Ala. Code § 12-21-142

1935 Ala. Acts 649.

TABLE OF AUTHORITIES — Continued

RULES:

Ala. R. Civ. P. 56

National Collegiate Athletic Association Adminis-

trative Bylaws, Committee on Infractions — Spe-

cial Operating Rule 32.1.4

OTHER AUTHORITIES:

Wright, C.A. and Graham, K.W., Jr., 23 Federal

Practice and Procedure Evidence, § 5426 (2007).......... 25

1X

TABLE OF APPENDICES

APPENDIX A — Opinion of the Alabama Supreme

RD EO GUIS 1, BOOT ...ccccccccccccsvncsccsccscevcsoeees App.

APPENDIX B —- Order of the Tuscaloosa County,

Alabama Trial Court on Summary Judgment

a App.

APPENDIX C — Order of the Tuscaloosa County,

Alabama Trial Court Granting a New Trial Filed

aoa cecccascesscceseeveseersscosuveseosees App.

APPENDIX D — Constitutional Provisions, Stat-

utes, and Regulations Involved ........................45 App.

APPENDIX E - Corrected Brief of — Filed

I IS Bo crsavcrevecessssesesveonscovececesevesssees App.

APPENDIX F —- Corrected Reply Brief of Appellants

Filed November 21, 2006 ..................0cccccseeceeeeeee: App. |

Page

OPINIONS BELOW

The opinion of the Alabama Supreme Court in Ronald

W. Cottrell and Ivy Williams v. National Collegiate Athletic

Ass’n, et al., [Ms. 104158 and 1050436, June 1, 2007] __

So.2d __ (Ala. 2007), is set forth in App. A, beginning at

App. 1. The opinion affirmed in part and reversed in part

the order of the Circuit Court of Tuscaloosa County,

Alabama. The effect of the Alabama Supreme Court

opinion was to dispose of the majority of Cottrell’s and

Williams’s claims and leave for a new trial only a narrow

defamation claim of Ronald Cottrell against only one of the

defendants, Thomas Culpepper.

JURISDICTION OF THE COURT

The Court has jurisdiction to review this matter

pursuant to 28 U.S.C. § 1257(a) to decide whether the

Alabama Supreme Court violated the Petitioners’ rights

under the First Amendment to the United States Consti-

tution, as well as Petitioners’ rights under the Due Process

Clause of the Fourteenth Amendment to the Constitution.

The judgment of the Alabama Supreme Court was entered

on June 1, 2007. This Petition, filed within 90 days of that

judgment, is timely.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provisions involved are: Amend-

ment I and Amendment XIV, §1 of the United States

Constitution. These provisions are set forth in App. D at

App. 1.

STATEMENT OF THE CASE

BACKGROUND FACTUAL SUMMARY

When Ronnie Cottrell was hired by the University of

Alabama (“Alabama”) in 1997 to be one of the football

team’s assistant coaches, his future appeared very bright.

App. E at App. 132. The same was true for Ivy Williams

when he was hired as an assistant coach by Alabama a few

2

years earlier in 1994. However, by 2001 both men were out

of college coaching when the entire Alabama coaching staff

was released following a losing season and the initiation of

a National Collegiate Athletic Association (“NCAA”) inves-

tigation of the Alabama football program that began in late

2000. Unlike the many cther college assistant football

coaches that have been involved in an investigation by the

NCAA and then gone on to successfully continue their

coaching careers after being cleared of allegations of major

rules violations, Cottrell’s and Williams’s reputations were

purposefully ruined by a conspiracy of persons inside and

outside the NCAA. They have since been unable to resume

their once-promising college coaching careers.

Since 2001, Cottrell worked for a time as a high school

football coach in rural Alabama, but now toils in obscurity

entirely out of the coaching profession. Williams worked for a

time as an assistant football coach at a small Georgia college,

then he worked in Alabama high school coaching and is now

an assistant coach at a junior college in Oklahoma. Both men

earn only a fraction of what they previously made a decade

before while assistant coaches at Alabama, and certainly do not

earn what they could earn if their reputations had not been

injured by the actions of the defendants in the case below.

The NCAA’s investigation of the Alabama football

program for violations of rules related to recruiting high

school players was focused almost entirely upon the actions

of Logan Young, a prominent “booster” of the program who

was found to have paid the head football coach of a Mem-

phis, Tennessee high school an astounding sum of money to

have a player named Albert Means accept an athletic

scholarship to play for Alabama. Jd. at App. 132-34. However,

in order to prove their case, the NCAA needed evidence and

needed to be able to tie Young’s actions to the Alabama

football program. For evidence against Young, the NCAA's

investigator Richard Johanningmeier (with the help of

Phillip Fulmer, the football coach of one of Alabama’s rivals)

convinced Tom Culpepper, a reporter for an internet sports

web site and other sports information venues, to become a

“secret witness.” Jd. at App. 135-36. Culpepper had knowl-

edge of Young’s boasting that he had “bought” certain

3

Memphis football players for Alabama. Jd. Yet the NCAA

could not tie Young’s individual actions to anyone in the

Alabama football program, so in his zeal Johanningmeier

targeted Cottrell, the “recruiting coordinator,” and Williams,

whose duties included recruiting high school players in the

Memphis area, to be the “fall guys.” The NCAA was greatly

aided in its effort by Culpepper, who made no secret that he

held a deep personal grudge against Cottrell and freely told

persons he hoped to destroy Cottrell’s coaching career. Id. at

App. 137-38. Culpepper repeatedly made false and defama-

tory falsehoods about both Cottrell and Williams to others,

including several media members. Jd. at App. 137-40.

During the NCAA investigation of the Alabama football

program that began in November 1999, NCAA Bylaw 32.1.4

required that all involved, including Cottrell and Williams,

keep all information about the investigation confidential.

App. D at App. 107. This bylaw was acknowledged by the

courts below to be a strict “gag order” prohibiting anyone

from speaking publicly or to news media regarding the

investigation. While Cottrell and Williams were forced to

remain silent because of the NCAA gag order, newspapers

began publishing stories with information attributed to

“sources close to the NCAA investigation.” App. A at App. 81.

Many of these stories presented Cottrell and Williams in a

false light and even contained defamatory falsehoods that

made it appear they were guilty of major rules violations. Jd.

However, because of the gag order imposed upon them by the

NCAA, Cottrell and Williams could not and did not respond

to media questioning nor otherwise speak publicly to defend

their reputations and influence the outcome of the public

controversy. Although the February 2002 NCAA Report on

Infractions cleared Cottrell and Williams of any major rules

violations in the recruitment of Albert Means, Jd. at App.

142, their reputations among the public, their coaching

peers, and college officials had already been ruined by more

than a year of repeated attack to which they frustratingly

had been unable to respond because of the NCAA gag order.

In addition to its written Report on Infractions, in Febru-

ary 2002 the NCAA also published on its publicly-accessible

4

internet web site a “penalty summary” relating to its investi-

gation of the Alabama football program. The penalty sum-

mary contained admittedly false and defamatory information

implying that Cottrell and Williams had had a “show cause

order” placed on them, such that for a period of eight years

they could not be hired by an NCAA member institution

without NCAA permission.’ Jd. at App. 142-43, 156-57. These

damaging falsehoods were republished on the web site each

day for month after month and were available to the public,

their coaching peers, and potential employers for nearly

three years until Cottrell and Williams discovered them and

demanded their removal. Id. at App. 157-59. While it is not

known exactly how many thousands or tens of thousands of

times these defamatory falsehoods were viewed, the NCAA’s

limited data demonstrated that during a short three month

period beginning more than a year after the initial publica-

tion, the penalty summary internet web page pertaining solely

to the Alabama investigation was accessed by the public 2,217

times. App. F at App. 331.

II. TRIAL COURT LITIGATION

In late 2002, Cottrell filed suit against the NCAA,

Johanningmeier, Yeager, Culpepper, and ethers in the Circuit

Court of Montgomery County, Alabama, for libel, slander,

defamation, false light invasion of privacy, wantonness, and

' The NCAA issued a press release on the same date as it issued its

Report on Infractions. Despite not finding Cottrell or Williams guilty of any

major violations relating to the recruitment of Albert Means, nor placing

any penalties on them in the Report on Infractions, the press release

contained the following damaging statement which exemplifies the NCAA's

gratuitous hostility to the coaches:

[Tihe committee considered imposing a show cause order on

one of the former Alabama assistant coaches but decided not

to do so because he was terminated by the university at the

conclusion of the 2000 season and since that time has been

out of college coaching, under what the committee consid-

ered to be a de facto show cause order

App. E at App. 142

on

civil conspiracy (hereinafter the claims are collectively

referred to as “defamation claims”). App. E at App. 117. The

court granted a defense motion and transferred the case to

the Circuit Court of Tuscaloosa County, where the University

of Alabama is located. Id. The complaint was amended to add

Williams as a plaintiff, and other defendants were dismissed.

Id. at App. 118.

On the eve of trial, in July 2006, the circuit court

granted in part and denied in part the defense motions for

summary judgment. Jd. at App. 123-24. The court held

that Cottrell was a limited purpose public figure, but that

Williams was a private figure. Jd. at App. 124. Most

notably, the court granted summary judgment to the

defendants on the claims against them based upon alleged

“leaks” of defamatory falsehoods about Cottrell and

Williams to the news media during the NCAA investiga-

tion and while the coaches were under the NCAA gag

order. The only claims that went to trial were defamation

claims by Cottrell and Williams against Culpepper, and

defamation claims by Williams against the NCAA relating

to the falsehoods published in the Alabama penalty sum-

mary or the internet web site. Jd.

During trial and after the coaches had put on their

case, the court reversed its pretrial ruling, held that

Williams was a limited purpose public figure, and granted

a judgment as a matter of law to the defendants. Id. at

App. 126. Based on the nature of Cottrell’s defamation

claims against Culpepper that were to be submitted to the

jury, the court reversed its pretrial ruling that Cottrell was

a limited purpose public figure and held he was a private

figure as to those claims. Jd. The jury returned a substan-

tial verdict in Cottrell’s favor awarding both compensatory

and punitive damages. Jd. Thereafter, Cottrell sought a

jury trial on the issue of whether an indemnity agreement

between Culpepper and the NCAA applied to cover the

jury verdict. Jd. at App. 127. However, the circuit court

granted Culpepper’s motion for new trial and no such trial

was held. App. C at App. 103.

Ill. APPEAL BELOW

Cottrell and Williams filed a timely notice of appeal to

the Alabama Supreme Court. They appealed the rulings of

the Tuscaloosa Circuit Court that had granted judgments

as a matter of law in favor of the defendants, as well as

the ruling which granted a new trial on Cottrell’s claims

against Culpepper. App. E at App. 129-30. They also

sought an order from the Alabama Supreme Court requir-

ing the recusal of the trial judge in any further proceedings,

based upon evidence of improper ex parte communications

between the judge and counsel for the NCAA defendants, as

well as other improper judicial conduct. Jd. at App. 218-20.

Defendant Culpepper cross-appealed from the circuit

court’s denial of his motion for judgment as a matter of

law on certain claims brought against him by Cottrell that

had been ordered to a new trial.

REASONS FOR GRANTING THE PETITION

Certiorari should be granted to address what is to this

Honorable Court a question of first impression of First

Amendment defamation law, as well as a second related

question, also of first impression, regarding the Due

Process Clause of the Fourteenth Amendment. This

Court’s First Amendment opinions such as Gertz v. Robert

Welch, Inc., 418 U.S. 223, 345 (1974), describe the nature

of the relationship of the First Amendment to defamation

common law and have established that the standard for a

defendant’s liability is based upon the status of the plaintiff

and whether or not he is a public official or public figure.

This Court has further established that whether a plaintiff

is considered a public figure is principally based on two

factors: (1) whether the plaintiff voluntarily assumed a

public life, and (2) the degree of his or her ability to access

public media to counteract the defamatory statements and

influence the outcome of a public controversy.

However, this Court has never addressed the

Constitutional status of a plaintiff as a public figure

where the second and arguably most important

factor - the plaintiff’s opportunity to use media

7

access to protect his reputation at the time of defa-

mation and thus influence the public’s perception of

him and the public controversy - is entirely pre-

cluded by some action of the defendant or another

entity. The issue is ripe for review in this case where it is

undisputed that an NCAA bylaw imposed a strict “gag

order” on Cottrell and Williams during its investigation of

the Alabama football program and, as noted by the trial

court and Alabama Supreme Court, the coaches fully

complied with the order despite their natural desire to

respond publicly to correct defamatory statements and thus

protect their professional and personal reputations.’

Certiorari should also be granted as to the second issue

of Constitutional due process arising from one of Cottrell’s

and Williams’s two defamation claims at issue in this Peti-

tion. In holding that the coaches had not presented substan-

tial evidence in support of their claim alleging that the

NCAA defendants and “secret witness” Culpepper had

conspired to leak defamatory falsehoods about them to

newspersons, the Alabama Supreme Court failed to consider

the negative effect of, or even reference, the statutory privi-

lege that they had argued to the court, Ala. Code 1975, § 12-

21-142. The court instead applied a burden of proof that

required them to present evidence from the news reporters

directly naming one or more of the defendants as the source.

Thus, this Petition presents the opportunity for this Court to

address the issue of how the Due Process Clause of the

Fourteenth Amendment applies to a plaintiff's evidentiary

burden when the type of evidence a state court insists

is necessary is actually barred by the state itself. Here, the

only evidence available to Cottrell and Williams to prove

their claim was the indirect evidence they presented of the

defendants’ means, motive, and opportunity to commit the

* The effect of a gag order or other imposed restraint on a defama

tion plaintiff’s possible media access has been discussed by just a few

lower courts, though it is an issue which is highly likely to arise again

8

defamation, but which the Alabama Supreme Court refused

to allow a jury to consider.°

ARGUMENT

INTRODUCTION

More than forty years ago, in New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), this Court reversed a ruling

of the Alabama Supreme Court and defined the extent to

which defamatory speech about a public figure was pro-

tected by the First Amendment. This Court established

that a defendant in a defamation case could not be held

liable where the plaintiff was a public official unless the

defendant acted with “actual malice.” Jd. at 279-80. Just

three years later in Curtis Publishing Co. v. Butts, 388

U.S. 13 (1967), this Court held that the same “actual

malice” standard also applied where the plaintiff, a well-

known former head coach of the University of Georgia

football team who was then the athletic director, was

deemed to be a “public figure.” Then in Gertz v. Robert

Welch, Inc., 418 U.S. 223, 345 (1974), this Court stated

that there were two types of public figures, those who were

public figures for “all purposes,” and those who achieved

such status in the limited context of a particular public

controversy by “thrust{ing] themselves to the forefront” of

the controversy in order to influence its outcome.

Certiorari should be granted here to once again reverse

an erroneous First Amendment ruling of the Supreme Court

of Alabama, and to hold that where a defamation plaintiff,

who like Cottrell and Williams is neither a public official nor a

* Under Alabama law, the State may prove even the crime of murder

to the highest standard of beyond a reasonable doubt solely through

circumstantial evidence of means, motive, and opportunity by the defen-

dant to commit the act. See, e.g., Dossey v. State, 489 So. 2d 662, 667 (Ala.

Crim. App. 1986). But under the holding of the opinion below, a defamation

claim against the originator of the falsehood cannot be established in that

manner even where there is state statutory privilege clothing a news

reporter’s knowledge of that information in absolute secrecy

9

general purpose public figure, is barred by a defendant from

the ability to use self-help to protect his reputation through

access to the media or other use of a public voice, such

plaintiff must be considered a private figure to whom the

New York Times actual malice standard simply does not

apply. Given that the NCAA gag order prevented Cottrell

and Williams from even responding to reporters when sought

out and asked for comment, they had even /ess ability than

private figures to protect their reputations and thus cannot

equitably be burdened with the status of limited purpose

public figures. Without the protection of such a principle, the

NCAA can silence all persons under its authority and defame

them without redress.

Ii. COTTRELL AND WILLIAMS ARE “PRIVATE

FIGURE” DEFAMATION PLAINTIFFS AS TO

THEIR “MEDIA LEAK” CLAIMS’

This Court’s opinions provide two justifications for

advancing First Amendment protections to defamatory

speech against public officials, general purpose public

figures, and limited purpose public figures. First, this Court

has stated that public officials and public figures are less

deserving of protection from defamatory speech because they

have voluntarily exposed themselves to an increased risk of

injury from such speech. See Gertz, 418 U.S. at 345; Wolston

v. Reader’s Digest Ass’n, 443 U.S. 157, 164 (1979). Second,

this Court has noted that public officials and public figures

are less susceptible to injury to their reputation from de-

famatory speech because, consistent with their public life or

* Two of the Plaintiffs’ defamation claims are at issue in this Petition.

As noted in the Statement of the Case, supra, the first claim is based upon

a conspiracy involving all the Defendants to leak false and defamatory

information regarding the Plaintiffs to the media during the period of the

NCAA investigation. The second defamation claim is based upon the

NCAA's actions in publishing false and defamatory information regarding

the Plaintiffs on its internet web site immediately following the release of

its Report on Infractions at the close of its investigation of Alabama for

rules violations, and then maintaining such false information on the web

site for a protracted period of time.

10

public actions seeking to influence a controversy, they have

ready access to the media and thus are more able than

private persons to effectively counter criticisms and expose

falsehoods. Gertz, 418 U.S. at 344; Wolston, 443 U.S. at 164.

In a statement reflective of the long tradition in Ameri-

can jurisprudence of personal responsibility requiring that

aggrieved parties act to mitigate their damages, this Court

stated in Gertz that “(t]he first remedy of any victim of defa-

mation is self-help using available opportunities to contradict

the lie or correct the error and thereby minimize its adverse

impact on reputation.” 418 U.S. at 344.° The Gertz court

further acknowledged that public figures are better able to

engage in such self-help than are private figures:

Public officials and public figures usually enjoy

significantly greater access to the channels of ef-

fective communication and hence have a more

realistic opportunity to counteract false state-

ments than private individuals normally enjoy.

Private individuals are therefore more vulner-

able to injury, and the state interest in protecting

them is correspondingly greater.

418 U.S. at 344. See Butts, 388 U.S. at 154; Hutchison v.

Proxmire, 443 U.S. 111, 136 (1979). This special characteris-

tic of public figures was also noted by this Court in Wolston:

[W]e recognized that public figures are less vul-

nerable to injury from defamatory statements be-

cause of their ability to resort to effective “self-

help.” They usually enjoy significantly greater ac-

cess than private individuals to channels of effec-

tive communication, which enable them through

* The concept of a counter-speech remedy was artfully expressed by

Justice Brandeis in his special concurrence in Whitney v. California,

274 U.S. 357, 377 (1927), where he explained: “If there be time to

expose through discussion the falsehoods and fallacies, to avert the evil

by the processes of education, the remedy to be applied is more speech,

not enforced silence.”

11

discussion to counter criticism and expose the

falsehood and fallacies of defamatory statements.

443 U.S. at 164. Thus, this Court’s foundational opinions

regarding the First Amendment and defamatory speech

recognize that both general purpose public figures and

limited purpose public figures do not engender the same

level of protection in the law from defamatory statements

because they have, through the prominence in society,

achieved the unique and powerful ability to defend their

reputation in the public media that private figures simply

do not possess. Therefore, just as media access is a

characteristic of public figure status, the absence of

such opportunity for a defamed person to publicly

answer critics and defend his reputation must logi-

cally be a defining characteristic of private figures.

The facts of this case demonstrate that a gag order that

was imposed upon Cottrell and Williams by the NCAA

during the period of the investigation rendered the coaches

powerless to engage in self-help to protect their reputations

at the most critical time, when their reputations were

under attack in the media as a result of the defendants’

“leak” of defamatory falsehoods to the media.* This Honor-

able Court should clarify that under the First Amendment

framework for defamation actions, the NCAA gag order

imposed upon, and observed by, these assistant coaches

vested them with the characteristics of mere private fig-

ures, and that the Alabama Supreme Court ruling has

violated the First Amendment in holding otherwise.

* The deleterious effect of the NCAA gag order on Cottrell and

Williams did not end when it was lifted in February 2002 when the

NCAA released its Report on Infractions relating to Alabama and closed

the investigation. By that time, Cottrell and Williams were no longer

Division I college football assistant coaches and had long faded from

public view and permanent damage to their reputations had already

been inflicted. Because of the existing damage to their reputation, when

the NCAA subsequently published false and defamatory statements

about them on its internet web site, those lies were more easily believed

by the thousands of persons that viewed that web page

12

A. NCAA Bylaw 32.1.4 was a “gag order”

Although Cottrell and Williams may have had a limited

degree of media access in their years as assistant coaches for

the Alabama football team (and indisputably not the kind

and level of access enjoyed by a head coach), once the NCAA

began its investigation in November 2000, they were under a

strict order imposed by Bylaw 32.1.4 of the NCAA Division I

Manual to maintain the confidentiality of the investigation

and not to speak publicly about any aspect of it. App. D at

App. 107. Both the trial court, App. B at App. 96, and the

Alabama Supreme Court recognized the effect of Bylaw

32.1.4 to be a “gag order” which “prevented Cottrell and

Williams from discussing their role in the NCAA investiga-

tion with the press.” App. A at App. 54. The NCAA enforced

this bylaw by threat of an “unethical conduct” sanction if it

was violated. App. E at App. 193. The NCAA gag order

applied to Cottrell and Williams until the NCAA released its

Report on Infractions regarding its investigation of Alabama

in February 2002.

B. The Alabama Supreme Court’s reasoning for

holding that Cottrell and Williams were lim-

ited purpose public figures violates the First

Amendment framework established by this

Court for defamation claims

The Alabama Supreme Court held that Cottrell and

Williams were limited purpose public figures whose defa-

mation claims involving the NCAA were subject to the New

York Times actual malice standard. The court made this

ruling despite the fact that these assistant coaches never

commented on any public controversy and despite recogniz-

ing that the NCAA gag order eliminated any opportunity

they would have had to counter defamatory statements and

protect their reputations at the time their reputations were

most vulnerable. App. A at App. 54. The court concluded

that the effect of the gag order was merely one factor of

many to consider in determining the status of the Plaintiffs,

and that it was outweighed by the court’s own conclusions

that Cottrell and Williams had (1) “injected themselves into

13

the public controversy,” id. at App. 57, and had (2) “played a

prominent role in the public controversy.” Jd. at App. 63.

However, in reaching this conclusion the Alabama Supreme

Court ignored that several of this Court’s controlling

opinions, such as Gertz and others cited above, have recog-

nized that the opportunity for self-help through media

access is one of the defining characteristics of a limited

purpose public figure. Instead, the court relied upon two

obscure federal district court opinions, the more recent of

which had relied upon the other as its supporting author-

ity.’

The Alabama Supreme Court’s opinion transgresses the

First Amendment defamation framework because it fails to

give sufficient weight to the effect of a gag order in control-

ling the status of a defamation plaintiff, particularly where

the gag order was imposed by the defamation defendant. The

NCAA gag order acted to create a set of facts involving

Cottrell and Williams that, under the First Amendment

framework this Court has established for defamation claims,

required the Alabama Supreme Court to hold they were

private figures not subject to the New York Times actual

malice standard. The lower court’s contrary ruling should be

reversed.

" The Alabama Supreme Court relied upon Sculimbrene v. Reno, 158

F. Supp. 2d 8 (D.D.C. 2001), and Price vu. Chaffinch, 2006 WL 1313178 (D.

Del. May 12, 2006). Both these federal district court cases are distinguish-

able and the unpublished opinion in Price should not have been used as

supporting authority. In Sculimbrene, the defendant at issue with the court

had not imposed the gag order on the plaintiff, as the NCAA defendants

had done to Cottrell and Williams. In Price, unlike the coaches here who

had secondary involvement in the NCAA investigation that focused on

Alabama booster Logan Young rather than any of the coaching staff, the

plaintiff actively sought to take a leading role in an ongoing public

controversy. Moreover, to the extent that these opinions have any persua-

sive authonty, Petitioners assert they are wrongly decided

14

The Alabama Supreme Court applied an

unconstitutional Rosenbloom-type analy-

sis which focused on the scope of the

public controversy, and not the extent

to which the plaintiffs thrust them-

selves to its forefront

The Alabama Supreme Court acknowledged in its

opinion that both Cottrell and Williams had no choice but

to take part in the NCAA investigation of Alabama’s

football program once it began in late 1999, and that they

were caught up in the public controversy that ensued

“against [their] will.” Jd. at App. 51. However, even though

the NCAA investigation in which Cottrell and Williams

were participsnis did not begin until November 1999 and

lasted until February 2002, the Alabama Supreme Court

found that they had, merely by accepting assistant coach-

ing positions in 1997 and 1994, “injected themselves into

the [larger] public controversy” of Alabama’s compliance

with NCAA rules.” Jd. at App. 57. The court stated:

The public controversy surrounding [Alabama’s]

compliance with NCAA rules began in 1995.

Thus, by accepting coaching positions, Cottrell

and Williams “show/[ed] a voluntary decision to

place [themselves] in a situation where there was

a likelihood of public controversy.” Therefore, be

cause Cottrell and Williams voluntarily accepted

positions with [Alabama’s] football program un

der such circumstances, we conclude they in-

jected themselves into the public controversy.

Id. (footnote omitted).

The Alabama Supreme Court further concluded that

when Cottrell and Williams accepted assistant coaching

positions with Alabama's football program they knew that it

* The Alabama Supreme Court noted that Alabama's football

program had previously been investigated for certain NCAA rules

violations in 1995, App. A at App. 7, and that in 1998 the NCAA investi

gated the basketball program for rules violations. /d. at App. 9-10

15

was a high profile program and thus were limited purpose

public figures because they assumed the risk of later being

defamed. Jd. This reasoning (which effectively creates a rule

that all assistant football coaches for Division 1-A teams are

public figures at all times) conflicts with this Court’s opinion

in Wolston, supra, where it was noted that “[a] private

individual is not automatically transformed into a public

figure just by becoming involved in or associated with a

matter that attracts public attention.” 443 U.S. at 167

(emphasis added). Like the plaintiff in Wolston, whom this

Court held was not a limited purpose public figure, Cottrell

and Williams were “dragged unwillingly into [a] controversy”

when the NCAA “pursued [them] in its investigation.” 433

U.S. at 166. Moreover, like the plaintiff in Wolston, because

of the NCAA gag order, the coaches here “never discussed

[the] matter with the press and limited [their] involvement

to that necessary to defend [themselves] against the .

charges.” Jd. at 167.

Additionally, the reasoning of the Alabama Supreme

Court is troubling in that it shifts the focus of the question of

Cottrell’s and Williams’s status from the facts relating to the

controversy that existed at the time of the defamatory

speech, back to the facts of a time years earlier. The lower

court also based the coaches’ legal status in large part on

events with which they had no involvement.’ The Alabama

Supreme Court’s analysis judicially creates a never-ending

“controversy risk” for First Amendment purposes, based

on the concept of a high-profile employer which might

become embroiled in controversy from time to time, such

that private figures hired to work for it at a time when no

actual controversy exists nevertheless become public figures.

* Williams began his position as an assistant football coach with

Alabama in 1994, which was before the public controversy identified by

the Alabama Supreme Court as beginning in 1995. Thus, as to Wil

hams, the Alabama Supreme Court's ruling is plainly inconsistent with

the facts it relies upon. Additionally, it should be noted that Cottrell’s

employment as an assistant coach with Alabama beginning in 1997

preceded the 1998 commencement of the NCAA investigation of the

Alabama basketball program

16

This overbroad standard for determining limited purpose

public figure status would encompass an immeasurable

number of persons, based merely on their having sought

employment with a particular employer, rather than being

based on the characteristics of the plaintiff himself or those

of the specific controversy to which the defamatory speech

against the plaintiff relates.”

This standard not only conflicts with this Court’s prece-

dent, it is also just as unconstitutional as that applied by the

plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43-

44 (1971), which held that the New York Times standard

° The Alabama Supreme Court acknowledged that its ruling that

Cottrell and Williams are limited purpose public figures was based on

voluntary assumption of risk from their acceptance of assistant coaches

positions with Alabama (a college football program that had previously

been investigated by the NCAA), is inapposite to that of the Kentucky

Supreme Court in Warford v. Lexington Herald-Leader Co., 789 S.W.2d

758 (Ky. 1990), which held that under similar facts a college basketbal!

assistant coach at the University of Pittsburgh was merely a private

figure. App. A at App. 57-58, n.12. However, the court determined that the

two cases were “easily distinguishable,” based upon its conclusion that

Pittsburgh’s basketball program “received little recognition,” while it

asserted that Alabama’s football program had national prominence. /d. at

App. 58, n.12. The Alabama Supreme Court's attempt to distinguish

Warford ignores this controlling standard of Gertz and substitutes an

improper modified-Rosenbloom analysis that focuses on the relative size

or import of the public controversy, concluding that Cottrell and Williams

are limited purpose public figures because, in the court’s opinion, the

Alabama football program is more prominent than the Pittsburgh

basketball program at issue in Warford. This reasoning is both contrary

to this Court’s precedent and not viable as a judicial standard. By what

means is a court to judicially determine the level of prominence of a

college athletic program? Is a newly-hired assistant football] or basketball

coach at Stanford University a limited purpose public figure based simply

on his acceptance of the position? Does it depend on whether a judge in

Sacramento, California is making that evaluation, or one across the

country in Montgomery, Alabama? A state court’s judge’s own degree of

pride in his alma mater or local college and belief that it is nationally

prominent should not determine a defamation plaintiff's First Amend-

ment status

17

applied to a plaintiff whenever the defamatory speech

involved “an issue of public or general concern,” without

regard to the plaintiff's “prior anonymity or notoriety.” The

Fourth Circuit Court of Appeals noted in Wells v. Liddy, 186

F.3d 505, 541 (4th Cir. 1999), that a court may easily fall

prey to the simplistic test of Rosenbloom where everyone

associated with a public controversy becomes some type of

public figure, but recognized that such was simply not the

law:

There is a great temptation when evaluating a

controversy as longstanding and significant as

Watergate to allow the controversy itself to take

precedence in the analysis and let it convert all

individuals in its path into public figures. The

Supreme Court has admonished us strongly

against allowing the public event with

which the individual is connected to be the

determinative factor governing an individ-

ual’s public figure determination.

(emphasis added). As the Fourth Circuit recognized, the

Rosenbloom standard focusing on the existence of a public

controversy and thus sweeping all varieties of plaintiffs into

the same public figure category requiring the heavy burden

of proving actual malice by the defendant, was rejected by

this Court in Gertz, 418 U.S. at 343, rejected again in Time-

Inc. v. Firestone, 424 U.S. 448, 456 (1976), and rejected yet

again in Wolston, 443 U.S. at 167-68. In those opinions, this

Honorable Court “eschew([ed] a subject-matter test for one

focusing on the character of the defamation plaintiff.” Fire-

stone, 424 U.S. at 456.

The Alabama Supreme Court’s decision below is uncon-

stitutional because it did not apply the test for a limited

purpose public figure set forth in this Court’s controlling

precedent. The court merely gave “lip service” to the required

analysis of whether Cottrell and Williams “thrust themselves

to the forefront of particular controversies in order to influ-

ence the resolution of the issues involved.” Gertz, 418 U.S. at

345. This Court should grant this Petition and issue an

18

opinion which once again rejects the overly broad Rosen-

bloom approach, which improperly allowed the Alabama

Supreme Court to give little or no weight to the effect of the

NCAA gag order on Cottrell’s and William’s status as defa-

mation plaintiffs.

2. The Alabama Supreme Court’s factual

conclusions were erroneous: plaintiffs

did not interject themselves into a public

controversy; nor did they play a promi-

nent role

In addition to basing its opinion on an unconstitutional

standard, the Alabama Supreme Court ignored many of its

own factual conclusions in reaching its ruling that both

Cottrell and Williams were limited purpose public figures.

The court ignored its conclusions that Cottrell and Williams

were (1) caught up in the controversy regarding the year

2000 NCAA investigation “against [their] will,” App. A at

App. 52, (2) that “the public controversy did not focus on the

actions of the coaching staff,” such as Cottrell and Williams,

id. at App. 48, and (3) that “[t]he evidence does not support a

conclusion that Cottrell and Williams tried to purposely

influence the outcome of the public controversy.” Jd. at App.

50. These facts demonstrate that the NCAA gag order had an

undeniable preclusive effect on Cottrell’s and Williams’s

opportunity to engage in self-help defense of their reputa-

tions or otherwise attempt to influence the outcome of the

public controversy. Under the controlling standard estab-

lished in Gertz and other precedent of this Court, these

factual conclusions should have dictated a ruling that the

coaches were private figures.

19

The NCAA gag order rendered Cottrell

and Williams private figures who could

not protect their reputations when they

were most vulnerable nor influence the

public controversy

The Alabama Supreme Court violated this Court’s First

Amendment framework for defamation cases with regard to

Cottrell’s and Williams’s claims based on the defendants’

media leaks during the NCAA investigation, as well as the

separate claims relating to the NCAA’s subsequent internet

web site publication of its “penalty summary” against Ala-

bama. The court’s error lies, as noted above, in its application

of a Rosenbloom-type standard focusing on the existence of a

public controversy instead of the proper standard established

in Gertz. As noted above, the courts below acknowledged that

NCAA Bylaw 32.1.4 acted as a gag order on Cottrell and

Williams during the period of the investigation. The coaches

complied with the NCAA gag order by not affirmatively

seeking media attention to counteract the falsehoods stated

about them and repeated to the public in newspaper stories

or to influence the outcome of the controversy, but also by

even declining to respond when members of the news media

made inquiries for their comments.

This is evidenced by the following brief excerpts of

some of the newspaper articles presented to the trial court,

which note the existence and effect of the NCAA gag order:

¢ “Cottrell was not available for comment... ” Tus-

caloosa News, December 31, 2000.

“*T can’t comment on anything because of the situa-

tion with the other stuff (NCAA investigation), but

I never had that conversation,’ Williams said.” Tus-

caloosa News, January 11, 2001.

“Williams declined to comment about the call re-

cords, citing the NCAA investigation.” Tuscaloosa

News, February 22, 2001.

“NCAA bylaws require that all UA officials in-

volved in the investigation refrain from discussion

20

or comment that might impede the continuing in-

vestigation.” Tuscaloosa News, February 23, 2001.

“Cottrell, reached at his Tuscaloosa home, declined

to comment, citing the ongoing NCAA investiga-

tion.” Tuscaloosa News, June 1, 2001.

“Williams, contacted by The Tuscaloosa News, de-

clined comment.” Tuscaloosa News, August 12, 2001.

App. E at App. 192.

The NCAA gag order had a devastating effect on Cottrell

and Williams because it was in effect during the critical

period of time when they were seeking employment after the

entire Alabama coaching staff had been fired following the

year 2000 three-win and eight-loss season." The gag order

prevented them from protecting their reputations when a

negative perception of them by the public and their coaching

peers was being formed due to the falsehoods the defendants

leaked to the media. Id. at 191-95. For example, during

deposition cross-examination by NCAA counsel, Cottrell

expressed his deep frustration regarding his inability to

defend his reputation when he most needed to do so.

Q. So there is this whole bunch of rumors

and what you believe to be false statements that

were being circulated about you out in the media

about this time, right?

A. Yes.

Q. And you felt those were very damaging

to you and your reputation?

" After the 2000 football season, in which Alabama finished with only

three wins and eight losses, the entire coaching staff was terminated from

their positions. App. A at App. 14. Cottrell did not obtain employment as a

football coach until 2005, and then it was only a position as the head coach

of a high school team in rural Alabama at less than one-half his former

salary. App. E at App. 143, 164-65. He is now out of coaching entirely.

Williams did not obtain employment as a football coach until 2002. His

position was as an assistant coach at a much smaller college in Georgia at

less than one-half his former salary, id. at App. 143, 165-66. Williams has

since been a coach at a high schoo! in Alabama and is now an assistant

coach at a junior college in Oklahoma earning even less than he did as

a high school coach.

21

A. Yes, sir, and probably the most dam-

aging thing was not really being able to re-

spond during that time. Robert, it was

probably the most frustrating for somebody -

for media to ask and not being able to re-

spond to allegations, things that were being

said, that was very frustrating.

Id. at App. 193-94 (emphasis added). The NCAA gag order

left these assistant coaches completely powerless to affect

public opinion about them during what was for them, the

worst possible time. The effect of the gag order was to render

them with even less ability to protect their reputations or

influence the outcome of a public controversy than private

figures, who at least are free to respond to questions and

inquiries from the media.”

The NCAA and its co-defendants should not be

allowed by this Court to have the benefit of Cottrell

and Williams being categorized as limited purpose

public figures in relation to the “media leak” defama-

tion claims, when it was the NCAA itself who imposed

the gag order and prevented the coaches from using

media inquiries to engage in the self-help deferse of

their reputations. The rulirg of the Alabama Supreme

Court that reached such a distorted result improperly

diminished the importance of the opportunity for effective

self-help as a characteristic of limited purpose public figures,

and ignored the fact that when deprived of such opportunity

by the NCAA gag order, Cottrell and Williams were placed in

an even more vulnerable position of needing the fullest

protection of defamation law than are private figures.

The lower court also avoided addressing the important

equitable question of whether a defamation defendant who

imposed the gag order can be allowed to receive the benefit of

the more strenuous New York Times actual malice standard

for recovery of damages being placed on a plaintiff held to

be a limited purpose public figure, where at the same time

* An old saying of anonymous origin is worth noting here. “An

unopposed lie, oft repeated, becomes accepted as the truth.”

22

the plaintiff's ability to defend his reputation from the

defamation was precluded by the defendant.” This gross

inequity alone should be sufficient to preclude such a plain-

tiff from being held to be a limited purpose public figure,

except for a showing of exceptional circumstances. This

Court should reverse the Alabama Supreme Court and hold

that Cottrell and Williams are private figures with regard to

the defamation claims based on the “media leaks” that

occurred while the NCAA gag order was in effect.

4. Cottrell and Williams were private figures

as to their claims based on the defamatory

statements in the NCAA’s “Penalty Sum-

mary” published on its Internet web site

On the day in February 2002 that the NCAA released

its Report on Infractions for the investigation of the

Alabama football program, it also published a “penalty

summary” on its internet web site that it has since admit-

ted contained false and defamatory statements implying

that Co-trell and Williams had been placed under a “show

cause” order as punishment for rules violations. The

Alabama Supreme Court held that Cottrell and Williams

were limited purpose public figures in relation to the

claims they brought based on the internet web site defa-

mations, and thus had to show that the NCAA had acted

with actual malice instead of merely negligence. App. A at

App. 63-64. However, this Court should hold that the

* This inequity in favor of the NCAA is amplified by the fact that

during an investigation of a member institution and its athletic

department coaches, the NCAA is not considered a state actor subject to

the Fourteenth Amendment, so that it is not required to follow the

established standards for due process, National Collegiate Athletic

Ass'n v. Tarkanian, 488 U.S. 179, 199 (1988), and may easily misuse

that power. For example, in this instance, the NCAA used a “secret

witness,” Tom Culpepper, whose identity was not publicly discovered —

and thus his credibility publicly examined — until long after the NCAA

completed its investigation and issued its Report on Infractions.

23

proper status of the coaches as to these claims is as pri-

vate figures, just as it is for their claims regarding the

earlier-occurring defamatory media leaks. Although the

NCAA gag order that had prevented them from defending

their reputations in response to the media leak defama-

tions was lifted at the time of this later publication, their

potential for media access was then limited and should not

alter their status as private figures. Moreover, additional

factors weigh in favor of private figure status as to these

claims.

First, although the NCAA gag order was lifted, its

damaging effect endured. While the coaches were finally

able, some fourteen months after the NCAA investigation

began, to proclaim publicly that they had been cleared of

allegations of major rules violations, by that time their

reputations had already been permanently injured by the

combination of the defendants’ defamatory media leaks

and the coaches’ inability to respond to them. As a result,

the NCAA internet web site defamations were naturally

all the more believable by those who read them. Thus, any

attempt to engage in self-help defense of their reputations

by the coaches and successfully cure the additional inju-

ries would have been even more difficult.

Cottrell and Williams were also by that point in time

approximately one and one-half years removed from their

prior positions of assistant football coaches at Alabama,

and had faded into the relative obscurity of completely

private lives. See n.9, supra. Thus, in this later, post-

NCAA gag order period, the coaches had none of the

characteristics of limited purpose public figures. As ac-

knowledged by the Alabama Supreme Court, they did not

thrust themselves to the forefront of any public contro-

versy. They did not have the same small “egree of poten-

tial media access that they had had while assistant

coaches at Alabama. They simply began what would be a

futile search to find coaching positions similar to those

they had held at Alabama, and then when that failed, to

find any work at all to support their families.

24

Moreover, Cottrell and Williams did not actually

engage in self-help to protect their reputations from the

continuing defamatory falsehoods maintained on the

NCAA’s internet web site because, for a period of two years

they were personally unaware of the defamation.“ This

may be perhaps this Court’s first opportunity to consider

the issue of defamation via an internet posting, as opposed

to the heretofore more commonplace defamation spoken

personally to the plaintiff’s friends, neighbor’s or co-

worker’s, or published in newspaper or magazine of

widespread readership. In these instances of local publica-

tion, the plaintiff is most likely to learn of the defamation

quickly and thus have the opportunity for self-help defense

of his reputation, particularly if he has sufficient access to

the media for effective counter-speech. However, while a

defamatory falsehood posted on an internet web site may

be more widely available, the person defamed may not

promptly learn of it, making the factor of media access for

self-help much less meaningful.

For these reasons, although these coaches gained the

right to speak out publicly when the NCAA gag order was

finally lifted, their correct status as private figures regard-

ing their “media leak” defamation claims is not altered in

relation to the subsequent NCAA internet web site defa-

mations. This Court should reverse the ruling of the lower

court and hold that Cottrell and Williams are private

figures as to these defamation claims.

* Even though the coaches were unaware of the defamatory

statements on the NCAA web site, it is certain their reputations were

further damaged because many persons did receive this additional

defamatory publication. The NCAA’s own information proves that that

particular web page was accessed by the public 2,217 times over a

three-month period, App. F at App. 331, even though the period was far

removed from the initial publication of the penalty summary when it

would have received its heaviest traffic. Thus, those persons most

interested in the NCAA investigation of Alabama, who were likely to

also have been aware of the media leak defamations, were the persons

who received the NCAA’s additional defamatory publication.

25

Ill. THE ALABAMA SUPREME COURT’S RULING

THAT COTTRELL AND WILLIAMS COULD ONLY

AVOID SUMMARY JUDGMENT THROUGH DI-

RECT EVIDENCE THAT THE DEFENDANTS

LEAKED FALSE AND DEFAMATORY INFOR-

MATION TO THE NEWS MEDIA VIOLATED

THEIR DUE PROCESS RIGHTS

In its June 1, 2007 opinion, the Alabama Supreme

Court held that Cottrell and Williams had supported their

claim that the NCAA Defendants and Defendant

Culpepper conspired to “leak” false and defamatory

information about them to the news media with only

“speculation and conjecture,” and affirmed the summary

judgment in favor of the Defendants. App. A at App. 81.

The court took particular care to note the following:

The news articles that Cottrell and Williams

cite, however, referred to their sources as “sources

close to the NCAA probe” and “sources close to the

investigation.” None of the articles cited by

Cottrell and Williams stated that “the infor-

mation contained therein emanated from

conversations with NCAA personnel.”

Id. (emphasis added). Thus, in holding that Cottrell’s and

William’s indirect evidence was speculative, the court re-

quired the Plaintiffs to provide direct evidence that NCAA

representatives had published false and defamatory state-

ments about them to the news media, which were then

repeated in news stories. However, any direct evidence from

news reporters that the Plaintiffs could have possibly pre-

sented to the trial court was precluded by Ala. Code 1975,

§ 12-21-142, which, similarly to many other states,” provides

an evidentiary privilege to news reporters barring discovery

‘* By 1977, twenty-six states had enacted similar such “reporter’s

shield” statutes designed to protect the confidentiality of reporter’s

sources of information. Wright, C.A. and Graham, K W,, Jr., 23 Federal

Practice and Procedure Evidence, § 5426 (2007)

26

of the identity of their sources for published information.

Section 12-21-142 states:

No person engaged in, connected with or employed

on any newspaper, radio broadcasting station or

television station, while engaged in a news-

gathering capacity, shall be compelled to disclose in

any legal proceeding or trial, before any court or

before a grand jury of any court, before the presid-

ing officer of any tribunal or his agent or agents or

before any committee of the Legislature or else-

where the sources of any information procured or

obtained by him and published in the newspaper,

broadcast by any broadcasting station, or televised

by any television station on which he is engaged,

connected with or employed.

App. D at App. 106-10.

The First Amendment privilege of reporters acknowl-

edged by this Court in Branzburg v. Hayes, 408 U.S. 665

(1972), and other case law such as Miller v. Transamerica

Press, Inc., 621 F.2d 721 (5th Cir.), modified on reh’g, 628 F.2d

932 (5th Cir. 1980), is not an absolute privilege and will

ultimately yield in a defamation case. In: contrast, the Ala-

bama statute provides newspaper reporters with an absolute

shield from discovery of the identity of their confidential

sources that will not yield. This statute, first enacted by the

Alabama Legislature in 1935, see 1935 Ala. Acts 649, has been

found to “cloth[e] the sources of a journalist’s information with

secrecy.” Ex parte Sparrow, 14 F.R.D. 351, 353 (N.D. Ala

1953). Given the complete discovery bar of § 12-21-142,

Cottrell and Williams were unable to obtain the direct evi-

dence the Alabama Supreme Court required im order to

sufficiently support their “media leak” defamation claims.

However, Alabama law recognizes that a plaintiff in a

civil lawsuit may meet his burden under Alabama Rules of

Civil Procedure 56 and may prove his claim at trial with a

preponderance of the evidence solely by virtue of indirect, or

27

“circumstantial,” evidence.” Here, Cottrell and Williams met

their burden of presenting substantial evidence in support of

their claims through the use of indirect evidence” showing

that the Defendants had the means, motive, and opportunity

to “leak” false and defamatory information about the coaches

to news reporters, including evidence which showed the

following:

e that Defendants Johanningmeier and Yeager were

the NCAA representatives in control of the investi-

gation of Alabama’s football program and thus

were aware of its details, App. E at App. 133, 135-

37, 140-42;

that Johanningmeier had admitted to speaking to

certain members of the news media regarding the

investigation of Alabama, id. at App. 140, 197;

that on the day the NCAA released its Report on

Infractions about Alabama, it also issued a press

release in which it made the unnecessary state-

ment that one of the coaches was under a “de facto

show cause order,” evidencing bias against them,

id, at App. 142;

that Defendant Culpepper, who was involved in

television and internet sport media, became a “se-

cret witness’” for the NCAA's investigation at the

behest of the NCAA and others, id. at App. 135-36,

181;

that Johanningmeier provided confidential infor-

mation about the investigation to Culpepper who

'° Palm Harbor Homes v. Crawford, 689 So. 2d 3, 9 (Ala. 1997); Bell

v. Colony Apts. Co., 568 So. 2d 805, 810-11 (Ala. 1990).

’ The Alabama Supreme Court stated in its opinion that “Cottrell and

Williams conceded in their depositions that they had no facts or evidence

indicating that anyone at the NCAA leaked information to the press during

the investigation.” App. A at App. 81. However, the type of “facts or

evidence” that was referred to in that instance was direct evidence, not

indirect evidence. Neither Cottrell nor Williams ever conceded that they

lacked indirect evidence of the NCAA’s involvement in the defamatory

“media leaks.”

28

then shared it with members of the news media, id.

at App. 197;

that Culpepper hated Cottrell and wished to de-

stroy him, that he had repeatedly spread defama-

tory rumors about both Cottrell and Williams to

media members, and that he had a motive to harm

them, id. at 137-40; and

that the only other persons who could be consid-

ered “sources close to the investigation,” were Law

School professor Gene Marsh and Marie Robbins,

representatives of the Alabama Athletic Depart-

ment, who had no motive to make it appear to the

public that either Cottrell or Williams had commit-

ted major violations of NCAA rules, and who actu-

ally had motivation to present Cottrell and Williams

in a most favorable light, id. at App. 199-200.

In sum, the coaches presented evidence that the number of

persons who would be considered “close” to the NCAA

investigation was extremely small, and that among that

small group the NCAA defendants and Culpepper were alone

in having the motive to wish to defame and injure them.

Despite the abundant indirect evidence presented to the

trial court by Cottrell and Williams that the defendants had

conspired together to leak defamatory falsehoods about them

to the news media, the Alabama Supreme Court focused on

the coaches’ failure to provide direct evidence in support of

the claim. In doing so, the lower court effectively

raised the burden of proof in a manner which, when

combined with the discovery bar of § 12-21-142, vio-

lated their right to due process of law protected by

the Fourteenth Amendment. While a simple error of state

law is not a denial of due process, Gryger v. Burke, 334 U.S.

728 (1948), what is at issue here is not mere error by the

Alabama Supreme Court, but an insurmountable conflict

created by the court’s requirement that the coaches prove

their claims with evidence that the Alabama Legislature

prohibited them from obtaining. It is that conflict that

violates “elementary notions of fairness enshrined in our

jurisprudence.” BMW of North America, Inc. v. Gore, 517

U.S. 559, 574 (1996). Here, the coaches were unfairly

29

burdened with the Alabama Supreme Court's expectation of

direct evidence and the Alabama Legislature’s bar to such

evidence created by § 12-21-142.

Just as the Due Process Clause requires a certain burden

of proof on different types of legal cases,” it must also require

that a plaintiff in a civil case have a fair opportunity to meet

that burden. This Court has stated that due process is violated

if the State regulation of procedural burdens “offends some

principle of justice so rooted in the traditions and conscience of

our people so as to be ranked fundamental.” Patterson v. New

York, 432 U.S. 197, 201-02 (1977). The deeply rooted principle of

justice at issue here is the right of a plaintiff to prove his claim by

indirect, ie., circumstantial evidence, which has long been

recognized by this Court.” For example, in United States Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983),

this Court agreed with the Court of Appeals that the district

court had erred in holding that a plaintiff alleging a claim of

racial discrimination under Title VII of the Civil Rights Act of

1964 had to prove discriminatory intent by direct evidence. This

Court found the ruling to be in error, and stated that “in any

lawsuit, the plaintiff may prove his case by direct or circum-

stantial evidence.” 460 U.S. at 714 n.3.

Here, Cottrell and Williams presented sufficient circum-

stantial evidence to prove their “media leak” defamation claims

to the trier of fact, but the Alabama Supreme Court deemed

direct evidence necessary. Thus, the coaches’ fundamental right

to prove their claims with circumstantial evidence, particularly

* This Court had acknowledged that the Due Process Clause has been

the basis for states establishing the standards of proof for different types of

cases. Addingtcn v. Texas, 441 U.S. 418, 423 (1979).

" See Rea v. Missouri, 84 U.S. 532, 543 (1873) (This Court noted that as

to a claim of fraud, “[cjircumstantial evidence is not only sufficient, but in

most cases it is the only proof that can be adduced.”), Thompson v. Bowie, 71

U.S. 463, 473 (1866) (“Circumstantial evidence is often as convincing to the

mind as direct testimony, and often more so.”) In the case below, just as Rea

and Thompson, direct evidence of the misconduct was not available, due to

the effect of § 12-21-142, and the only proof that could be adduced was the

circumstantial evidence of the NCAA defendants and Culpepper’s means,

motive, and opportunity to commit the “media leak” defamations.

30

in light of the preclusive effect of § 12-21-142, was violated by

the lower court. The violation of that right by the creation of a

burden of proof the coaches could not meet because of the

reporter’s shield statute was a violation of their right to due

process of law protected by the Fourteenth Amendment. This

Honorable Court should grant this Petition and reverse the

ruling of the lower court which had affirmed a summary

judgment for the defendants.

CONCLUSION

This Petition for a Writ of Certiorari should be granted in

order for this Court to answer the questions of first impression

raised herein. The opinion of the Alabama Supreme Court

reached an unconstitutional result in holding that Cottrell

and Williams were limited purpose public figures that must

have met the New York Times actual malice standard on the

defamation claims at issue in this Petition, even though they

were placed under a gag order by the NCAA during its inves-

tigation and thus could not influence the public controversy or

use self-help to defend their reputations from defamatory

falsehoods circulated by the defendants. Because of the gag

order, the coaches could not even respond to reporter’s ques-

tions, and thus had even less media access than a private

figure. The lower court’s Rosenbloom-type analysis that held

the coaches to be limited purpose public figures because of

their association with a prominent college football program

violates this Court’s First Amendment framework for defama-

tion claims. Additionally, this Petition should be granted to

review the issue of whether Cottrell’s and Williams’s due

process rights were violated by the Alabama Supreme Court’s

requirement that they prove the defendants were the source of

the “media leak” defamations by direct evidence, even though

Alabama’s “reporter’s shield” law prevents discovery of such

evidence.

Respectfully submitted,

THOMAS T. GALLION, III

Counsel of Record

HASKELL SLAUGHTER YOUNG & GALLION

305 South Lawrence Street

Montgomery, AL 36104

Telephone: (334) 265-3573

WILLIAM M. SLAUGHTER

J. MICHAEL REDIKER

MICHAEL C. SKOTNICKI

CHARLES M. ELMER

HASKELL SLAUGHTER YOUNG

& REDIKER, LLC

2001 Park Place North

1400 Park Place Tower

Birmingham, AL 35203

Telephone: (205) 251-1000

C. DELAINE MOUNTAIN

MOUNTAIN & BAIRD

P.O. Box 2885

Tuscaloosa, AL 35403

Telephone: (205) 349-1762

Counsel for Petitioners

App. 1

Appendix A

APPENDIX A - OPINION OF THE ALABAMA

SUPREME COURT FILED JUNE 1, 2007

Notice: This opinion is subject to formal revision before

publication in the advance sheets of Southern Reporter

Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery,

Alabama 36104-3741 ((334) 229-0649), of any typographical

or other errors, in order that corrections may be made before

the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2006-2007

1041858 and 1050436

Ronald W. Cottrell and Ivy Williams

v.

National Collegiate

Athletic Association et al

1050437

[fom Culpepper

Vv.

Ronald W. Cottrell

ils from Tuscaloosa Circuit Court

(CV-03-810)

J ine |

App. 2

Appendix A

STUART, Justice.

Ronald W. (“Ronnie”) Cottrell and Ivy Williams sued

the National Collegiate Athletic Association (“the NCAA”),

Tom Culpepper, and others alleging defamation, false-light

invasion of privacy, negligence, wantonness, and civil

conspiracy. The only claim that was presented to the jury

was Cottrell’s defamation claim against Culpepper. The

jury returned a verdict for Cottrell in the amount of $6

million in compensatory damages and $24 million in

punitive damages. Culpepper then filed a renewed motion

for a judgment as a matter of law and a motion for a new

trial. The trial court granted Culpepper’s motion for a new

trial. Cottrell and Williams appeal; Culpepper cross-

appeals.

Cottrell and Williams are former assistant football

coaches at The University of Alabama (“The University’).

The University is a member of the NCAA, a nonprofit,

unincorporated association whose members include

“virtually all public and private universities and 4-year

colleges conducting major athletic programs in the United

States.” NCAA v. Tarkanian, 488 U.S. 179, 183 (1988). The

NCAA is governed by its member institutions, and one of

its main goals is

“‘to maintain intercollegiate athletics as an inte-

gral part of the educational program and the ath-

lete as an integral part of the student body, and

by so doing, retain a clear line of demarcation be-

tween college athletics and professional sports.’”

App. 3

Appendix A

488 U.S. at 183. The bylaws of the NCAA provide rules for

the operation of a member institution’s athletic programs,

including recruitment and eligibility of prospective student-

athletes and student-athletes, the salaries and the bene-

fits of coaches and athletic staff, and the conduct and level

of interaction between alumni and “athletic representa-

tives” (better known as “boosters”) of a member institu-

tion, on the one hand, and prospective student-athletes

and enrolled student-athletes, on the other. As a member

of the NCAA, the institution and its employees, student-

athletes, alumni, and athletic representatives agree to

comply with the NCAA rules and to submit to the NCAA’s

rule-enforcement process. If the NCAA investigates an

alleged rule violation by a member institution, the mem-

ber institution and its employees, student-athletes,

alumni, and athletic representatives are required by

NCAA rules to cooperate fully with the investigation into

and the resolution of the alleged rule violation. Gene

Marsh, the faculty athletic representative at The Univer-

sity from 1996 to 2003, explained the role of the institution

and its representatives in the NCAA investigative process,

stating: “{F'Jull cooperation {with the NCAA rule-enforcement

process] is not a strategy, but a duty if [an institution]

chooses to remain a member of the NCAA.”

The NCAA has two groups that are responsible for

resolving an alleged rule violation committed by an insti-

tution. The enforcement staff' investigates the alleged

rule violation, charges a member institution with a specific

rule violation, and essentially prosecutes the case before

The enforcement staff consists of full-time employees of the

App. 4

Appendix A

the committee on infractions (“COI”). The COI conducts a

hearing to adjudicate the charge, and it imposes a penalty

if it finds that a rule violation occurred.

When an alleged rule violation is reported to the

NCAA, the enforcement staff investigates. Initially, the

enforcement staff sends an investigator to the member

institution to determine if the alleged rule violation can be

substantiated. The investigator interviews the individual

who has alleged the rule violation and any other persons

who may have knowledge of the alleged rule violation. The

investigator then reports his or her discoveries, which may

support charges of additional rule violations by the mem-

ber institution, to the enforcement staff, which determines

whether the information adequately establishes that the

member institution has violated a NCAA rule or rules. If

the enforcement staff believes that the findings of the

investigator support a charge of a rule violation or viola-

tions by the member institution, the enforcement staff

sends a letter of preliminary inquiry to the member

institution. This letter notifies the member institution

that a preliminary investigation of alleged rule violation

will be conducted. This phase of the rule-enforcement process

involves extensive interviewing by the enforcement-staff

investigator of employees of the institution, student-

athletes, and any other individuals who may have knowl-

edge of the alleged rule violation. If this inquiry indicates

that the allegations may be meritorious, a letter of official

* The COI consists of individuals who are not “employees” of the

NCAA, but who serve on a voluntary basis. Members of the COI include

law professors, state or federal judges, attorneys, athletic directors,

athletic-conference directors, and faculty athletic representatives

App. 5

Appendix A

inquiry (“LOI”) issues to the member institution, detailing

the facts surrounding the alleged rule violation and the

specific rule or rules the enforcement staff believes the

institution, its staff, alumni and/or athletic representatives

have violated. A LOI may also be sent to various employ-

ees or athletic representatives of the institution who are

alleged to have involvement in the rule violation. The

institution and other recipients of a LOI file a response

‘vith the NCAA, explaining their positions on each alleged

rule violation.

After the recipients of the LOIs have responded, the

enforcement staff meets with them. This conference

provides an opportunity for all parties to explain their

positions on each violation. If the enforcement staff deter-

mines that a party’s response adequately establishes that

an alleged rule violation did not occur or that there is

insufficient evidence to pursue the alleged rule violation,

the enforcement staff can dismiss the charge. After the

conference, the enforcement staff prepares a case sum-

mary, which sets forth the charged rule violation and the

positions of the enforcement staff, the institution, and

other recipients of LOIs with regard to each charged rule

violation. The case summary is then submitted to the COI

in preparation for the hearing. Essentially, this case

summary details the alleged rule violation the enforce-

ment staff charges against the member institution, its

staff, and/or its athletic representatives.

The COI conducts a hearing at which all parties

present their positions. Opening statements are made by

each party. The enforcement staff then presents each

charge and its evidence. The institution and any affected

employee, staff member, or representative of the institution

App. 6

Appendix A

then presents evidence as to why the charge lacks merit.

Members of the COI ask questions of the parties involved

at the hearing to develop the evidence. After each charge is

fully addressed, each party presents a closing argument to

the COI. The COI adjourns the hearing, deliberates, and

returns with findings of fact with regard to each charged

rule violation and a determination of the penalty to be

imposed.

NCAA rules require that the investigation of alleged

rule viclations by the enforcement staff and the proceed-

ings of the COI be conducted with confidentiality. The

NCAA investigator, the member institution, and others

involved in the investigation are required to maintain

confidentiality throughout the entire process. Bylaw 32.1.4

of the NCAA Division I Manual, provides:

“The cooperative principle imposes an af-

firmative obligation on each member institution

to assist the NCAA enforcement staff in develop-

ing full information to determine whether a pos-

sible violation of NCAA legislation has occurred

and the details thereof. An important element of

the cooperative principle requires that all indi-

viduals who are subject to NCAA rules protect the

integrity of an investigation. A failure to do so

may be a violation of the principles of ethical

conduct. The NCAA enforcement staff will usu-

ally share information with the institution dur-

ing any investigation; however, it is understood

the staff, to protect the integrity of the investiga-

tion, may not in all instances be able to share in-

formation with the institution.”

(Emphasis added.)

App. 7

Appendix A

When the COI issues its findings of fact and penalty

determinations, it announces the decision via a press

release and a published “Infractions Report.” The press

release and the report identify the member institution, but

do not include the names of any staff members or athletic

representatives who have been found to have violated a

rule. The release and report may, however, refer to an

individual by his or her position, such as “recruiting

coordinator.” The ruling of the COI may be appealed by

any party to an appeals committee. The decision of the

appeals committee is final.

The evidence submitted at trial indicated that The

University had been investigated by the NCAA, charged

with rule violations, and penalized on two prior occasions

before 2000. In 1995, the NCAA had investigated allega-

tions that a prospective student-athlete had received

money in exchange for signing a scholarship to play

football at The University and that after the student-

athlete enrolled at The University he had received special

treatment in securing a loan from a bank at which an

athletic representative was an officer. The NCAA investi-

gation did not substantiate the allegation that the pro-

spective student-athlete had received money during his

recruitment. The investigation did reveal that the enrolled

student-athlete had secured loans to pay for disability

insurance without making proper arrangements with The

University.

During the 1995 investigation, the NCAA also focused

on an allegation that The University had allowed a student-

athlete to participate in football practices and games after

he had signed a contract with a sports agent to represent

him. NCAA rules provide that a student-athlete is ineligible

App. 8

Appendix A

to participate in collegiate athletics if the student-athlete

has indicated, by signing a contract with a sports agent,

that he wants to pursue a career in professional sports.

The contract between the student-athlete and the agent

was written on a napkin and stated that the agent agreed

to represent the student-athlete for $400. The investigation

revealed that the student-athlete had informed The Univer-

sity that he had signed up to be drafted to play profes-

sional football but had removed his name from the list of

potential draftees and had taken no additional steps

toward a professional football career. The student-athlete,

however, did not inform The University that he had signed

a contract with an agent.

The NCAA concluded as a result of the 1995 investiga-

tion that The University had violated NCAA rules with

regard to the student-athlete’s securing the loan and by

allowing a student-athlete who had entered into a contract

with a sports agent to participate in football practices and

to play in college football games. The NCAA found that

The University’s athletic department’s compliance office,

i.e., the office responsible for ensuring compliance with the

NCAA rules, was not well organized and should have been

more diligent in informing student-athletes about how to

secure loans without violating NCAA rules. Additionally,

the NCAA criticized The University for failing to conduct a

more thorough in-house investigation of the circumstances

surrounding the student-athlete’s signing with an agent

and for failing to self-enforce NCAA rules. The University

recognized that it had violated NCAA rules, and it self-

imposed penalties, including the disassociation of the two

athletic representatives involved in the loans and a reduc-

tion in the number of potential scholarships in its football

program by four for one year. The COI, however, increased

App. 9

Appendix A

the penalties to include public reprimand and censure, a

three-year probationary period, a one-year loss of partici-

pation in postseason competition by the football team, and

the loss of an additional 22 scholarships for prospective

student-athletes in football.

Newspaper and Internet articles admitted into evi-

dence establish that the public was outraged by the

harshness of the penalties and voiced its lack of under-

standing as to why the NCAA chose to impose such stiff

penalties on The University. The discussion indicated that

the public did not believe that the penalties issued against

The University were equitable and fair, compared to

penalties the NCAA had imposed on other member institu-

tions for similar violations. Much of the discussion focused

on the fact that The University recognized that it was not

innocent of the violations, but that the punishment did not

fit the offense, in light of The University’s self-imposed

penalty of disassociation of the boosters and loss of schol-

arships and The University’s aggressive restructuring of

its compliance department.

In 1998, The University was investigated after The

University reported to the NCAA that it had violated

certain rules when an assistant basketball coach contacted

two athletic representatives and attempted to solicit

money from them to pay high school coaches to “steer”

their players to Alabama. When The University learned of

the potential rule violations, The University initiated an

internal investigation, a step The University had been

criticized for not taking in the 1995 case; verified that

violations had occurred; fired the coach, and, in compliance

with NCAA procedures, which require an institution to

notify the NCAA of rule violations, reported the violations

App. 10

Appendix A

to the NCAA. The NCAA praised The University’s compli-

ance team, placed a show-cause order on the fired coach

for four years, and extended The University’s probationary

period.

Once again, public discussion was generated about

the NCAA’s treatment of The University. The public

was dismayed that, although The University did exactly

what the NCAA and its rules required, complied with the

rule-enforcement process by self-reporting the violation to

the NCAA, and imposed an appropriate self-punishment,

the COI extended the probationary period. The public

voiced frustration that despite The University’s compli-

ance with the enforcement process, The University was

not rewarded for its efforts. Public debate focused on

whether The University should self-report rule violations

and actively comply with the enforcement process when

there appeared to be no benefit to The University in doing

80.

In February 2000, the enforcement staff began inves-

tigating various alleged rule violations by The University’s

football program, its staff, and its athletic representatives.

Initially, The University’s football program was suspected

of violating various rules with regard to the recruitment of

prospective student-athlete Albert Means from Memphis,

Tennessee, who in February 2000 had signed a scholarship

to play football at The University. The evidence indicates

that in 1999 the NCAA and the Southeastern Conference

(“the SEC”), of which The University is also a member, had

been notified that Means’s high school coach was attempt-

ing to solicit money from coaches at various universities

and colleges in exchange for granting the coaches the

opportunity to recruit Means to play football at their

App. 11

Appendix A

university or college. The evidence further indicates that

although the NCAA and the SEC were aware that The

University was recruiting Means, they did not notify The

University or its compliance staff about the potential rule

violations with regard to this solicitation of money. The

investigation expanded to include other alleged rule

violations with regard to recruiting that occurred in 1997

and rule violations involving enrolled student-athletes by

athletic representatives and a coach.

During the course of the investigation, Phillip Fulmer,

the head football coach for the University of Tennessee,

informed Richard A. Johanningmeier, the enforcement-

staff investigator assigned to The University’s case, that

he believed Tom Culpepper, an indenendent recruiting

scout and sportswriter, had information about the role

that Logan Young, an athletic representative of The

University, had played in recruiting Means to sign a

scholarship to play football for The University.

In August 2000, Johanningmeier telephoned

Culpepper to request an interview. After Johanningmeier

agreed that any information Culpepper provided duriny

the interview would be confidential, Culpepper agreed to

be interviewed. During the interview, Culpepper stated

that in January 2000 he drove Young from The Univer-

sity’s postseason football game in Miami, Florida, to

Young’s residence in Memphis, Tennessee. During the

drive, Culpepper and Young discussed football recruiting

at The University. According to Culpepper, Young stated

that he was going to pay Means’s coach and others to

secure Means’s commitment to sign a scholarship to play

football for The University. During this interview,

Culpepper also stated that Young informed him that he

App. 12

Appendix A

had recruited Cottrell to be the recruiting coordinator for

The University’s football team, that Young had given

Cottrell money to purchase his house in Tuscaloosa, that

Cottrell had abandoned his wife and children in Tallahas-

see, Florida, that Young had paid one of Cottrell’s gam-

bling debts, and that Cottrell had arranged at least one

fraudulent American College Test (“ACT”) score for a

prospective student-athlete. Lastly, Culpepper told Johan-

ningmeier that although Young did not mention that

Williams was involved in violations of NCAA rules,

Culpepper believed that he was.

It also appears that during the period the NCAA was

investigating these alleged rule violations and/or immedi-

ately thereafter, Culpepper made statements about

Cottrell to “friends” who were members of the media.

Culpepper told “friends” that Cottrell was a liar “without a

job, and he’s going to have a damn hard time finding one.

And that’s all there is to it,” and that Cottrell had tried to

ruin him, explaining “[Cottrell] slapped me, I slapped

(him) back harder.” He also made references to the coaches

at The University as being “cheaters — recruiting cheaters”

and to Williams as being a person who “funneled money”

from Young to Means. These “friends” published the

information Culpepper communicated about Cottrell and

Williams in various media forums.

In October 2000, Cottrell became so conc"rned about

the mumber and frequency of Culpepper’s statements

about him that he met with Culpepper in the presence of

others in an attempt to resolve Culpepper’s animosity

toward him and to end Culpepper’s verbal attack on his

character and reputation. The evidence indicated, how-

ever, that Culpepper continued to make statements about

App. 13

Appendix A

Cottrell and that, sometime after December 2000, he told

Terry Harrington and Bruce Parrish, both members of the

media, that Cottrell had abandoned his family in Talla-

hassee; that Cottrell and his assistant had stolen video-

tapes from The University’s athletic department; and that

Cottrell had stolen funds from the Shaun Alexander

Foundation.”

In November 2000, Johanningmeier began conducting

on-campus interviews at The University. Typically, during

these interviews, in addition to Johanningmeier, Gene

Marsh, Marie Robbins, the compliance director for The

University’s athletic department, and counsel for The

University were present. Cottrell and Williams were both

interviewed.

The evidence indicated that Cottrell was hired by The

University’s athletic department in 1997 as an assistant

coach and recruiting coordinator for the football program.

As part of his responsibilities as an assistant coach,

Cottrell spoke to “Red Elephant Clubs” and individual

chapters of The University’s National Alumni Association

and played in charity golf tournaments. Cottrell stated

that he was frequently interviewed by sports writers and

radio broadcasters about recruiting at The University.

Indeed, Cottrell admitted that he was well known among

the sports media and that he was regarded as a recruiting

specialist. Additionally, the evidence established that

before the 2000 NCAA investigation began, Cottrell had

committed “minor” violations of NCAA rules and had been

* Shaun Alexander was a running back at The University of

Alabama. He currently plays professional football

App. 14

Appendix A

suspended from participating in recruitment for at least a

month. In November 2000, following a season where the

record was 3-8, Cotirell and the rest of the football coach-

ing staff were fired. Nothing in the record indicates that

Cottrell’s firing was related to the violation of any NCAA

rule.

The NCAA investigation established that although

Cottrell had little involvement in recruiting Means, he did

have a relationship with Young. The investigation also

revealed information that Cottrell had violated several

NCAA rules, including improperly accepting two loans

from Young and improperly interacting with prospective

student-athletes and enrolled student-athletes.

Johanningmeier also interviewed Williams, who was

hired in 1994 as an assistant coach to coach running backs

for The University’s football team. In addition to coaching

running backs, Williams, like other assistant coaches on

The University’s football staff, had recruiting duties.

Williams was responsible for recruiting prospective student-

athletes in the Memphis, Tennessee, area. Also, like

Cottrell, Williams spoke to Red Elephant Clubs and

individual chapters of The University’s National Alumni

Association, played in charity golf tournaments, and

answered media questions, providing team and individual-

player information.

Over 200 copies of articles published from 1994 to

2000 were submitted in evidence containing statements

and comments made by Williams about various players,

the team’s preparation for games, the performance of

football players during games, and the recruitment of

prospective student-athletes. Like Cottrell, Williams was

App. 15

Appendix A

fired in November 2000, and nothing in the record indi-

cates a relationship between his termination and any

NCAA rule violations.

When Johanningmeier interviewed Williams, he ques-

tioned Williams about recruiting in general and specifi-

cally about Means. He also questioned Williams about

Williams’s relationship with Young. The enforcement staff

concluded from the investigation that Williams had had an

inappropriate relationship with Young and had violated

NCAA rules with regard to his recruitment of prospective

student-athletes in the Memphis area and, in particular,

Means.

Throughout the NCAA investigation that began in

2000, the media published detailed reports about the

investigation on the radio and in the newspapers. The

record contains copies of over 100 articles detailing infor-

mation about the investigation and certain interviews.

Even though the investigation and the interviews con-

ducted by Johanningmeier were supposed to be confiden-

tial, the evidence at trial established that the media were

continually informed of the status of the investigation and

the contents of some of the interviews. Indeed, testimony

indicated that journalists often were aware of upcoming

‘

The record also contains copies of articles about the federal

prosecution of Young, who was convicted of bribing a public official -

Means’s high school football coach. This prosecution evolved from

Young’s involvement in recruiting Means to sign a scholarship to play

football for The University and his alleged payment of over $100,000 to

Means’s coach to guarantee that Means would commit to The Univer-

sity. The articles indicate that one of the witnesses in that trial testified

that Williams assisted Young in paying Means’s coach to secure Means’s

‘ommitment to play football] at The University

App. 16

Appendix A

interviews and immediately following an interview would

publish an article detailing the contents of the interview,

including speculation about the impact the information

revealed in the interview would have on the investigation.

Cottrell and Williams testified that they were astounded

by the specificity of the information reported by the media;

neither Cottrell nor Williams, however, identified any

specific source of the information they allege was “leaked”

to the media.”

Johanningmeier reported the results of his investiga-

tion to the enforcement-staff team assigned to The Univer-

sity’s case. The director then consulted with other

enforcement-staff directors, and they determined, based on

the information gleaned in the investigation, the specific

charges to be made against The University, its staff, and

its athletic representatives.

On February 2, 2001, the NCAA issued a preliminary

LOI to The University. In September 2001, official LOIs

were sent to The University, Cottrell, Williams, and

others, listing various alleged rule violations and request-

ing a response to each alleged violation. The alleged rule

violations occurred from 1997 through 2000 and included

improper “offers and inducements” to prospective student-

athletes and enrolled student-athletes by athletic repre-

sentatives, “potential academic impropriety with student-

athletes prior to their enrollment,” and possible “unethical

° However, in their third amended complaint, Cottrell] and Wil

liams alleged “that a newspaper article revealing information contained

n (Cottrell’s) first interview was published which, based on Marsh’s

own statements, had to come from him or someone connected to him.”

App. 17

Appendix A

conduct” by coaches who either knew of or participated in

the rule violations.

The LOI to The University charged the institution with

various rule violations. On November 17, 2001, the COI

conducted a hearing on the alleged rule violations against

The University. The University defended the allegations. On

February 1, 2002, the COI issued its infractions report,

finding that The University had committed numerous rule

violations and imposed several penalties, including a ban

from postseason game appearances for two years, the loss

of 21 scholarships over a three-year period, and placement

on a five-year probationary period. The penalties severely

affected The University’s ability to compete in football, the

amount of revenue The University generated from football,

and the amount of revenue The University received in its

general scholarship fund from the football division of its

athletic department.

Thomas Yeager, the chairman of the COI, during the

teleconference announcing the penalties, stated that The

University football program was “staring down the barrel

uf a gun” at a “death penalty” — a punishment that would

terminate The University’s football program. Classifying

the violations as some of the worst that have ever been

presented to the NCAA, Yeager stated that the determina-

tion of the penalty to impose for the violations was compli-

cated by the fact that The University was a repeat

offender and was on probation at the time of the miscon-

duct.

In finding that The University had violated various

NCAA rules, the COI focused mainly on the conduct of a

“rogue” football athletic representative and some of “the

App. 18

Appendix A

largest money amounts” alleged in any NCAA rule-violation

case involving the recruitment of a prospective student-

athlete. The infractions report stated:

“While several serious allegations in this

case involved the provision of extra-benefits to

enrolled football student-athletes, at the heart of

the case were football recruiting violations in-

volving some of the largest money amounts al-

leged in any infractions case in the NCAA's

history. ...

A

u

... Because of the university’s repeat-

violator history, including its experience with

athletics representative misconduct, the number

and sericusness of the violations, the visibility,

prominence, and known predilections of the ath-

letics representatives at the center of the viola-

tions, the committee seriously considered

whether a finding of failure of institutional con-

trol might be warranted. The violations charged

and the evidence presented by the enforcement

staff cited athletics representatives as primarily

culpable for the violations, not members of the

university's current or prior staffs. The committee

noted that it was limited by the scope and con-

tours of the case as presented. Under the circum-

stances, the committee concluded that information

in the case as presented was too tenuous and insuf-

ficient to form the basis of a lack of institutional

control.”

(Emphasis added.) Despite the COI’s scathing public

censure and the imposition of severe penalties, it compli-

mented The University and the efforts of its compliance

team to investigate the rule violations. Yeager stated in

App. 19

Appendix A

the teleconference that he “did not see what else [The

University] could have done” to prevent the violations by

the athletic representatives.

Cottrell and Williams were the only two coaches on

the coaching staff to receive LOIs. Williams’s LOI charged

that he had committed rule violations when he allegedly

knew that Means’s high school coach had requested money

and a vehicle from Young to encourage Means to sign a

scholarship to play football for The University and did not

report the recruiting misconduct to The University, the

SEC, or the NCAA; when he allegedly provided false and

misleading information to Johanningmeier about the

recruitment of Means; and when he allegedly exceeded the

number of permitted visits to high schools in the Memphis

area during the fall football-scouting evaluation period for

1999-2000. Before the COI hearing, the enforcement staff

dismissed the charge against Williams with regard to the

recruitment of Means and the charge that Williams failed

to fully cooperate with Johanningmeier. Williams, how-

ever, admitted to exceeding the number of permitted visits

to the Memphis area. The COI, recognizing the violation

as one committed by The University, did not impose a

penalty against Williams.

Cottrell’s LOI alleged the following three major rule

violations:

1. That Cottrell’s receipt of two loans from

Young for $1,600 and $55,000, respectively, vio-

lated the rule against unauthorized salary en-

hancements;

App. 20

Appendix A

2. That Cottrell had engaged in unethical

conduct by “knowingly providing misleading in-

formation regarding the loans” to Johanning-

meier; and

3. That Cottrell had failed to report aca-

demic fraud in connection with a prospective

student-athlete’s ACT score.

Cottrell’s LOI also charged three secondary rule viola-

tions:

1. That Cottrell improperly allowed a pro-

spective student-athlete to make long-distance

telephone calls from his office;

2. That Cottrell improperly intervened with

state police on behalf of a student-athlete to have

a speeding ticket dismissed; and

3. That Cottrell had improperly made ar-

rangements for an athletic department’s staff

member to drive a prospective student-athlete to

Cottrell’s home to rest after the student-athlete

had received over-the-counter medications from

The University’s training room.

In his response to his LOI and/or during the prehear-

ing conference between Cottrell and the enforcement staff,

Cottrell admitted to receiving the loans from Young, denied

knowingly misleading the enforcement staff about the loans,

denied committing academic fraud with regard to a prospec-

tive student-athlete’s ACT score, admitted that he had

allowed a prospective student-athlete to make long-distance

* These secondary rule violations had been self-reported to the

NCAA by the University

App. 21

Appendix A

telephone calls from his office, admitted assisting a stu-

dent-athlete with a speeding ticket, and admitted assist-

ing a prospective student-athlete when he was ill. Cottrell

also admitted that he had arranged two free football

tickets for a high school guidance counselor and that he

had sold four postseason football game tickets to a stu-

dent-athlete. These two latter violations were not charged

in Cottrell’s LOI.

At the prehearing conference, the enforcement staff

dismissed the charge against Cottrell alleging that he had

committed academic fraud with regard to a prospective

student-athlete’s ACT score but decided to pursue the rest

of the alleged violations against Cottrell. After the hear-

ing, the COI found that Cottrell did accept an improper

salary enhancement when he accepted the loans from

Young and that he had failed to fully and completely

disclose information during his interview with Johan-

ningmeier. The COI did not impose a penalty against

Cottrell for these violations. However, in its “news re-

lease,” the NCAA stated:

“{T]he committee considered imposing a show

cause order on one of the former Alabama assis-

tant coaches but decided not to do so because he

was terminated by the university at the conclu-

sion of the 2000 season and since that time has

been out of college coaching, under what the

committee considered to be a de facto show cause

order.”

The COI also found that Cottrell was not guilty of

unethical conduct with regard to his failure to disclose the

loans. The COI did not find the other alleged rule viola-

tions against Cottrell to be specific violations by Cottrell,

App. 22

Appendix A

but did find that the violations occurred, and they were

considered violations committed by The University. No

individual penalties, however, were assessed against

Cottrell for the violations.

Cottrell appealed the COI’s finding that he failed to

provide complete disclosure of the loans to Johanning-

meier during his investigatiou. The appeals committee

affirmed the COI’s decision.

The COIls findings and a penalty-summary report

with regard to The University’s case were published on the

NCAA’s Web site on February 1, 2002. Even though the

COI had not imposed any penalties against Cottrell, the

published penalty-summary report stated that an eight-

year show-cause restriction was imposed against the

“recruiting coordinator.” Additionally, the penalty-

summary report indicated via a checkbox that a show-

cause restriction had been placed on employees. These

false statements were not corrected when the Web site

penalty summary was updated to indicate that the COI’s

decision had been affirmed, and they remained on the

NCAA Web site for nearly two years until Cottrell and

Williams brought the false statements to the NCAA's

attention.

The NCAA admitted that the information contained in

the published penalty-summary report was false but

maintained that its publication of the false information

was a clerical mistake. It is without dispute that the

statements were false because “The University of Ala-

bama, Tuscaloosa Public Infractions Report” issued by the

COI did not indicate that a show-cause provision had been

App. 23

Appendix A

imposed upon the recruiting coordinator or that a show-

cause provision had been placed on “employees.”’

Testimony at trial established that Cheryl DeWees,

the administrative assistant for the director of the com-

mittee on infractions, created the penalty-summary report

from the COI infractions report in The University’s case

and entered it onto the NCAA’s Web site on the same day

she created and entered on the Web site the penalty-

summary report for the University of Kentucky case. She

stated that she inadvertently typed the false statement

regarding the show-cause provision for the recruiting

coordinator from the University of Kentucky report into

The University’s report. She also stated that this mistake

" Indeed, when Cottrell and Williams made their second request

that the Web site information be corrected, the NCAA made the

correction and included the following explanation on its Web site:

“The NCAA's web site contains a searchable database of ma-

jor infraction reports and contains summaries of those re-

ports. The penalty summary relating to the February 1,

2002, Public Infractions Report regarding The University of

Alabama-Tuscaloosa, erroneously stated the recruiting co-

ordinator had received un eight-year show cause rcquire-

ment. This erroneous information was placed on the major

infractions database through clerical error and has been

corrected. The error appears to have been due to a sentence

being transposed from the University of Kentucky's Public In-

fractions Report, whose recruiting coordinator did receive an

eight-year show cause provision. The Alabama Public Infrac-

tions Report and the accompanying press release both correctly

reflect that the former assistant coach did not receive a show

cause requirement. The error was in the summary only. Al-

though the former Alabama assistant coach also had the col-

lateral responsibilities of recruiting coordinator, he was

never identified as ‘the recruiting coordinator’ in either the

Alabama Public Infractions Report or the press release. The

NCAA regrets the error.”

App. 24

Appendix A

resulted in a default box being checked inadvertently,

which indicated that a show-cause provision had been

imposed against employees at The University.

Speculation about a pending NCAA investigation, the

investigation of the alleged rule violations by The Univer-

sity, its staff, and its athletic representatives, and the

findings of the COI and the penalties imposed received

substantial media coverage. For example, the parties

submitted over 100 published newspaper and/or Internet

articles from across the State discussing the alleged rule

violations by The University, particularly the facts sur-

rounding Means’s recruitment, the NCAA’s investigation

into the alleged rule violations, and the penalties imposed.

The articles discussed not only facts surrounding the

alleged violations, investigation, and penalties, but also

the NCAA’s past treatment of The University with regard

to rule violations and its present treatment of The Univer-

sity throughout the process. In light of the NCAA’s past

criticism that The University did not adequately enforce

institutional control or investigate alleged violations,

many of the articles published before the infractions report

issued specifically focused on whether the NCAA would

consider as mitigation The University’s self-reporting of

numerous violations, its self-imposition of penalties, and

its aggressive internal investigation of the alleged rule

violations in an effort to show compliance with the rules

and the NCAA enforcement process.

The severity of the penalties imposed in the 2000 case

rekindled the public debate as to whether the NCAA

treated The University unfairly. Discussion focused on the

fact that the NCAA and the SEC knew of the Means

recruiting situation, but did not warn The University.

App. 25

Appendix A

Additionally, the public questioned the equity of the

NCAA’s treatment in light of the fact that The University

was on probation for the self-reported 1998 NCAA rule

violation and had received a harsh penalty in that case,

despite the fact that The University had self-reported.

Consequently, public debate focused on the propriety of the

involvement of The University’s compliance staff in the

investigation, the benefit of self-reporting rule violations

to the NCAA, and the NCAA’s past and present treatment

of The University.

Additionally, discussion focused on the NCAA’s level of

accountability with regard to the fairness of the investiga-

tive process and whether the penalties fit the violations.

Specifically, the public debated the fairness of the NCAA’s

failure to inform The University of known information

regarding potential recruiting-rule violations involving

Means to allow The University an opportunity to prevent

any improper conduct by its athletic representatives before

it occurred. As in the 1998 debate, the public recognized

that The University had violated NCAA rules, but it

questioned the NCAA’s treatment of The University in

light of The University’s proactive efforts to comply and to

enforce the rules and the treatment of The University as

compared to the treatment of other universities that had

been found guilty of NCAA rule violations.

in late 2002, Cottrell and Williams sued the NCAA,

Culpepper, and others, alleging against the NCAA and

Culpepper claims of claims of defamation, civil conspiracy,

false-light invasion of privacy, negligence, and wantonness.

App. 26

Appendix A

These claims evolved from the NCAA investigation into

The University’s football program."

With regard to the claim of defamation, Cottrell and

Williams alleged that the NCAA and Culpepper published

false statements that Cottrell and Williams were “involved

in payoffs to a college football player and involved in

various criminal activities.” They further alleged that the

NCAA made false statements to various media sources to

the effect that Cottrell and Williams had been involved in

illegal recruiting practices, such as giving football tickets

to and paying prospective student-athletes. Additionally,

Cottrell and Williams alleged that the NCAA published

false statements on its Web site that a show-cause provi-

sion had been imposed against them.

With regard to the false-light invasion-of-privacy

claim, Cottrell and Williams alleged that the NCAA,

Culpepper, and others by their false statements placed

them in a false light before the public. Specifically, they

alleged that the NCAA placed them in a false light before

the public by publishing on its Web site for over two years

false statements that a show-cause provision had been

imposed against them. The negligence and wantonness

clarms against the NCAA also addressed the publication of

the statements on the Web site.

Lastly, Cottrell and Williams alleged that the NCAA,

Culpepper, and others entered into a conspiracy to destroy

* Cottrell and Williams sued other individuals and entities and

pleaded numerous claims in their complaint and amended complaints

Only the claims mentioned and the defendants that are before us will

be discussed in this opinion

App. 27

Appendix A

their coaching careers and personal reputations by making

them the “scapegoats” in the investigation and sanctions.

Specifically, they alleged that the NCAA, Culpepper, and

others entered into a conspiracy that “caused and partici-

pated in actions to cause [false] statements [about them]

to be published in the statewide news media and sent to

various people in college football programs,” which de-

stroyed their reputations and ended their careers as

college football coaches.

In May 2005, the NCAA and Culpepper moved for

summary judgments. In their motions, they argued,

among other things, that because Cottrell and Williams

were limited-purpose public figures and they could not

produce substantial evidence indicating that the NCAA or

Culpepper had acted with actual malice in publishing the

allegedly false statements, they were entitled to summary

judgments. In June 2005, the trial court conducted a

hearing on the summary-judgment motions and on July 7,

2005, the trial court entered an order stating:

“The plaintiffs bring five (5) counts in their com-

plaints. The claims are as follows:

Libel and slander [defamation claims]

Invasion of privacy.

Negligence.

Wantonness.

Civil conspiracy

“Prior to addressing the claims, however,

there are some questions of law that must be ad

dressed by the court.

App. 28

Appendix A

“First, if the plaintiffs are public figures, the

plaintiffs must prove actual malice by the defen-

dants on the defamation claims. The parties are

all in agreement as to the legal standard to be

applied to determine if the plaintiffs are public

figures. The dispute arises in applying the prof-

fered facts to the law.

“As one court stated: ‘Defining a public

figure is like trying to nail a jelly fish to the

wall.’ (Rosanova v. Playboy Enterprises Inc., 411

F.Supp. 440 [(D.C.Ga. 1976)]). A public figure can

be a general-purpose public figure, or a limited

purpose public figure. This court can say as a

matter of law, without going into a lot of detail,

that the plaintiffs do not satisfy the criteria of a

general-purpose public figure. This would require

the plaintiffs to have general fame or notoriety in

the community, and pervasive involvement in or-

dering the affairs of society (Gertz v. Welch{, 418

U.S. 323,] 94 S.Ct. 2997 [(1974)]).

“A limited purpose public figure is deter-

mined by reference to the individual’s participa-

tion in the particular controversy giving rise to

the defamation (Gertz, infra). A person may be-

come a limited purpose public figure in a matter

of general public concern in one of four ways. By

virtue of his position, by purposeful activity in

thrusting [himself] into the public controversy,

his close involvement with the resolution of mat-

ters of public concern, or by being drawn into the

controversy. It is undisputed that the controversy

regarding the charges against the University of

Alabama was a matter of public concern.

“The court will then examine the four factors

in reverse order. Since the Supreme Court decided

App. 29

Appendix A

Gertz, it has never again mentioned the ‘drawn

into the controversy’ factor again. This court has

also not been able to find any other significant

case whereby public figure status has been de-

termined on that factor. Many legal experts feel

that the Supreme Court has abandoned this fac-

tor (quote in Dombey v. Phoenix Newspapers

Inc.|, 150 Ariz. 476,] 724 P.2d 562 [(1986)]). Since

there exists no guidance or recent authority on

this factor, this court is not going to bestow pub-

lic figure status on the plaintiffs’ based on the

plaintiffs’ being involuntarily drawn into the con-

troversy.

“The third factor involves whether or not the

plaintiffs have had a close irivolvement with the

resolution of the controversy. The plaintiffs’

names were mentioned early in the controversy,

but they had little involvement with the resolu-

tion of the controversy other than giving their

statements, and testifying at the infractions

committee hearing.

“Factor two involves any purposeful activity

in thrusting themselves into the controversy. The

plaintiffs were under a gag order by the Univer-

sity of Alabama and the NCAA. They made no

comments to the media, and quietly sat back dur-

ing the NCAA investigation.

“The final factor involves looking at the indi-

viduals position with respect to matters of public

concern, i.e., do the plaintiffs’ positions give them

regular access to the media on a regular and con-

tinuing basis. The defendants have presented

evidence that from time to time the plaintiffs

spoke to Red Elephant Clubs and quarterback

clubs. Further, from time to time articles [were

App. 36

Appendix A

written in which they are cited or quoted], and

interviews were given by them. There is also evi-

dence that the head coach at The University of

Alabama retains the duty to have regular access

to the media, and to comment on the team status

in all areas, and al] areas of publicity. The assis-

tant coaches [do] not. From this point the evi-

dence stops as to plaintiff Ivy Williams. The

court finds that as to plaintiff Ivy Williams, the

facts of this case are similar to the Kentucky Su-

preme Court case of Warford v. Lexington Herald

Leader|,) 789 S.W. 2d 758 [(Ky. 1990)}. Under the

facts of that case the assistant basketball coach

was found not to be a public figure. Likewise,

this court finds that plaintiff Ivy Williams’s posi-

tion was neither in such a position of public

prominence that he was in a position to influence

others, or the outcome of the controversy, nor did

he enjoy regular and continuing access to the

media.

“Plaintiff Ronnie Cottrell, on the other hand,

was the recruiting coordinator at The University

of Alabama. He was prominent enough that he

was asked to have a charity golf tournament

named after him. SEC Commissioner Roy

Kramer stated in his deposition at page 256: ‘I

told him since he got a lot of publicity, which he

did for the good recruiting job he did at Alabama,

he would always be under the scrutiny of other

coaches, and other schools. We talked about that

was a burden you pay as a publicized recruiting

coordinator at a high profile school such as The

U of A.’ ... In Alabama, football recruiting is a

matter of intense public concern, and invited

public attention. The recruiting coordinator posi-

tion at Alabama is a high profile position through

App. 31

Appendix A

which the plaintiff Ronnie Cottrell could be ex-

pected to assume a role of public prominence, as

pointed out by Commissioner Kramer. As such,

plaintiff Cottrell would have access to the media,

and a potential to influence the outcome of the

controversy that a private person would not

have. Based on the facts, and caselaw presented

the court finds, as a matter of law, plaintiff

Ronnie Cottrell was a limited purpose public fig-

ure.

“ ... The plaintiffs’ defamation, false light,

and conspiracy claims arise out of statements

made during and after the investigative process.

“The third issue is whether or not the af-

firmative defense of the two (2) year statute of

limitations defeats recovery for any of the plain-

tiffs’ claims. The Alabama case of Poff v. Hayes,

763 So.2d 234 (Alja.2000), as cited by the defen-

dants, stands for the proposition that in defama-

tion cases, the two (2) year statute of limitations

runs from the date of the publication. That date

is the date the injury to reputation occurs. This

lawsuit was filed on 12/20/02; therefore any de-

famatory statements rnade prior to 12/20/00 are

barred by the two (2) year statute of limitations.

Likewise, any other claims arising before

12/20/00 are time-barred.

“The fourth issue arises out of the defen-

dants’ affirmative defense of qualified privilege.

The qualified privilege may apply where one acts

in good faith in complying with a request for in-

formation from a third party (see Clark v. Amer-

ica’s First Credit Union, 585 So.2d 1367

(Ala.1991)). It also applies if it is prompted by a

duty owed either to the public or a third party, or

App. 32

Appendix A

the communication is one in which the party has

an interest and is made to another having a cor-

responding interest, if made in good faith, and

without actual malice. The conditional, or quali-

fied privilege would apply to the plaintiffs’ claims

arising out of the NCAA’s letter of inquiry (LOD.

It would also apply to the statements made by

Tom Culpepper to defendant Richard Johan-

ningmeier during the course of the investigation,

and in the January and April 2001 conferences.

The privilege can be overcome by proof that cer-

tain statements were not relevant to the investi-

gation, were made in bad faith, or with actual

malice. There is evidence before the court from

which the jury could find that the privilege does

not apply to some statements of defendant Tom

Culpepper. There is no legally admissible evi-

dence to overcome the privilege defense to the

statements in the NCAA’s LOI.

“These legal issues being decided, the court

will now turn to the summary judgment motion.

As a preliminary matter, this court was struck by

the detailed time consuming, and thorough re-

construction of the NCAA investigation by the

plaintiffs’ attorneys. One cannot help but con-

clude that Dr. Marsh and Ms. Robbins are good

and law-abiding individuals who strove to run a

clean program. If the NCAA and SEC had made

them privy to what Logan Young was doing, he

would have been disassociated, Albert Means not

signed, and the penalties against the University

would have been less severe. There were two other

major violations not involving the plaintiffs, which

would have still resulted in severe sanctions

against the U of A. However, after saying all this,

The University of Alabama investigation is only

App. 33

Appendix A

peripherally related to this case. The conspiracy

that is relevant is a conspiracy by the defendants

to defame the plaintiffs, and make them ‘the fail

guys.

_

“The court will next examine plaintiff Ivy

Williams’s claims against the remaining defen-

dants. Plaintiff’s claims are limited to events

that took place on, or after 12/20/00. Considering

the evidence most favorably to said plaintiff,

there is substantial evidence supporting a defa-

mation claim of libel and slander against defen-

dant Tom Culpepper. There is also substantial

evidence supporting plaintiff’s defamation, and

invasion of privacy (false light) claims against

the NCAA as a result of the publication on the

NCAA web site. The negligence and, wantonness

claims are subsumed within plaintiff’s defama-

tion claims, because that culpability is an ele-

ment of the defamation claims.

“There being no dispute of a material fact,

and remaining defendants being entitled to

judgment as a matter of law on all other claims,

summary judgment is granted in favor of the re-

maining defendants on all other claims.

“As to the cleuns e7 plaintiff Ronnie Cottrell

against the NCAA, there is insufficient legally

admissible evidermcs tc support this plaintiff’s

burden of proving ty clear and convincing evi-

dence, actual malice, to support any defamation

claims. The plaintiff’s negligence and wanton-

ness claims must also fail, because these degrees

of culpability will not support a cause of action

arising out of defamatory acts against a public

figure. The admissible facts do not support a

App. 34

Appendix A

separate negligence or wantonness claim. There-

fore, defendant NCAA being entitled to judg-

ment, as a matter of law, on all plaintiff’s claims

against defendant NCAA, summary judgment is

granted in favor of defendant NCAA, and against

plaintiff Ronnie Cottrell.

“As to plaintiff Cottrell’s claims against

Thomas Culpepper, there is substantial evidence,

if believed by a jury, supporting actual malice

on said defendant’s part, and defamatory state-

ments which defendant Culpepper, either knew

were false, or which were published with reckless

indifference to their truth or falsity. As to the in-

vasion of privacy claim, there was no substantial

evidence, that the defendant made a publication

to the public at large after 12/20/00. Further,

there was no clear and convincing evidence of

a conspiracy, to defame plaintiff Cottrell, specifi-

cally after 12/20/00 in support of a civil conspir-

acy claim. Further, there was no substantial legally

admissible evidence that defendant Culpepper

conspired with anyone to defame either plaintiff.

Therefore, summary judgment is granted in fa-

vor of defendant Tom Culpepper, and against the

plaintiff Ronald W. Cottrell on the civil conspir-

acy, and invasion of privacy claims. Summary

judgment is denied as to the defamation and

slander claim.

“As a footnote on the damage issue, there is

a great deal of evidence that plaintiffs’ damage,

or injury to reputation was attributable to fac-

tors, other than the defendants’ actions, such as:

App. 35

Appendix A

Milton Kirk’s” revelations, statements by the

U.S. Attorney in Memphis, media articles, com-

ments, and rumors proliferated by sports talk

shows, and internet web sites. The degree of

damage attributable to the defendants will, how-

ever, be a question for the jury to determine from

all the evidence.”

On July 12, 2005, the trial began governed by the trial

court’s pretrial determination that Cottrell was a limited-

purpose public figure and Williams was a private person.

Cottrell presented evidence indicating that in October

2000 he had met with Culpepper in the presence of others

to discuss Culpepper’s attack on his reputation «and

character. The testimony indicated, however, that after

December 2000, Culpepper had made statements to

individuals, who subsequently published the statements,

to the effect that Cottrell had abandoned his family in

Tallahassee, Florida; that Cottrell had stolen funds from

the Shaun Alexander Foundation; and that Cottrell and

his assistant had stolen videotapes of prospective student-

athletes from The University’s athletic department.

Cottrell presented evidence indicating that these state-

ments by Culpepper were not true. Additionally, the

evidence indicated that Culpepper made statements

creating the inference that Williams was unethical in

recruiting and that he had assisted Young in funneling

money to Means. According to the testimony, Culpepper

made these statements about Cottrell and Williams in an

angry, belligerent, vindictive tone. With regard to Cottrell,

* Kirk was an assistant high school football coach at the school

Means attended in Memphis

App. 36

Appendix A

the evidence indicated that Culpepper had hostile feelings

about Cottrell and wanted Cottrell out of college coaching.

The evidence tended to establish that Cottrell had

suffered mental and emotional injury. Cottrell testified

that he had been unable to obtain a job in college coaching

and that he had been told that he needed to find a career

outside college coaching. Cottrell, however, was not able to

identify any potential employer who had relied on

Culpepper’s statements in refusing to offer Cottrell a

college coaching job. He further explained that because he

had been unable to obtain a job, he had been unable to

provide financially for his family and had had to seek

financial assistance from his parents, his brother, and his

wife’s mother. He testified that he has had to take pre-

scribed medications to manage the stress and emotional

upset. Cottrell’s wife testified that Cottrell has trouble

sleeping at night and that their personal finances and

their marriage has suffered.

Williams testified that he had suffered mental and

emotional injury. He too has been unable to find a steady

job in college coaching. Williams stated that although he

had had an offer to coach football at Miles College, the

offer was rescinded when the Miles College athletic

director learned of the NCAA investigation. Williams,

however, admitted that he could not identify any potential

employer who had relied upon the false statement in the

NCAA penalty-summary report or the statements made by

Culpepper as a reason not to hire him. Williams explained

that he had suffered stress over financial issues and that

he and his wife had had to sell their home and move into

an apartment. The testimony indicated that as a conse-

quence of what he considered to be an attack on Williams’s

App. 37

Appendix A

reputation, Williams became disheartened, depressed, and

lifeless.

At the close of Cottrell and Williams’s case-in-chief,

the trial court reconsidered Williams’s status as a private

person and held that Williams was a limited-purpose

public figure. Additionally, the trial court held that be-

cause none of the evidence established that any of the

alleged defamatory statements were actionable per quod,

i.e., tha’ the statements resulted in special damages,” only

the alleged defamatory statements that were actionable

per se, i.e., that involved a crime of infamy or moral

turpitude, would be submitted to the jury. The trial court

then entered a judgment as a matter of law for the NCAA

and for Culpepper on Williams’s defamation claims. The

trial court entered a judgment as a matter of law for the

NCAA because Williams had not produced clear and

convincing evidence that the NCAA acted with actual

malice in publishing the defamatory statements on its Web

site. With regard to Williams’s defamation claim against

Culpepper, the trial court found that the alleged defama-

tory statements were not actionable because Culpepper’s

statement that Williams funneled money to Means was

not slander per se and Culpepper’s other statement that

Williams engaged in unethical recruiting was not action-

able because it was a statement of op*nion.

Evidence of special damages is evidence that the untrue state-

ments resulted in a “‘“material loss capable of being measured in

money.”’” Butler v. Argo, 871 So. 2d 1, 19 (Ala. 2003) (quoting Shook v

St. Bede School, 74 F. Supp. 2d 1172, 1180 (M.D. Ala. 1999), quoting in

—

turn Restatement (Second) of Torts § 575 cmt. b. (1977))

App. 38

Appendix A

Culpepper, the sole remaining defendant, then pre-

sented his defense to the claims of Cottrell, the sole

remaining plaintiff in the case. Culpepper’s defense

focused on whether Culpepper knew that the statements

he made were false or whether he acted with reckless

disregard as to whether they were true or not. He testified

that the statements he made about Cottrell were based on

information he had received from various present or

former employees of The University’s athletic department

and that he had assumed that the statements were true.

He admitted that he did not exercise good judgment when

making the statements.

At the close of all the evidence, the trial court recon-

sidered Cottrell’s status as a limited-purpose public figure

with regard to the statements made by Culpepper to the

effect that Cottrell had abandoned his family, had stolen

funds from the Shaun Alexander Foundation, and had

stolen videotapes from The University’s athletic depart-

ment. The trial court determined, based on all the evi-

dence presented, that Cottrell was a private figure with

regard to these statements. The trial court, therefore,

instructed the jury that Cottrell had to prove by only a

preponderance of the evidence that Culpepper negligently

made the statements. The trial court did instruct the jury

that to award punitive damages Cottrell had to establish

that Culpepper made the statements with malice.

The jury returned a verdict in favor of Cottrell;

Culpepper filed a motion for a new trial. Additionally,

Cottrell filed a motion asking the trial court to address the

applicability of am agreement between the NCAA and

App. 39

Appendix A

Culpepper to a determination of Culpepper’s ability to pay

damages." On November 15, 2005, the trial court issued

an order rranting Culpepper a new trial, holding that

Culpepper was prejudiced when the court changed

Cottrell’s status from a limited-purpose public figure to a

private person at the close of the evidence. Specifically, the

trial court held that if it had determined earlier in the

proceedings that Cottrell was a private figure, Culpepper

would have defended the case differently. The trial court

further held that Cottrell’s request regarding the applica-

bility of the agreement between the NCAA and Culpepper

to Culpepper’s ability to pay damages was moot in light of

its ordering a new trial.

Cottrell and Williams appeal; Culpepper cross-appeals

Standard of Review

This Court conducts a de novo review of rulings on a

motion for a summary judgment and on a motion for a

judgment as a matter of law. Bailey v. Faulkner, 940 So. 2d

247, 249 (Ala. 2006). In Butler v. Town of Argo, 871 So. 2d

1, 11-12 (Ala. 2003), we recognized:

““(T}his Court uses the same standard the

trial court used initially in granting or denying a

{judgment as a matter of law]. Palm Harbor

Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997

Regarding questions of fact, the ultimate question

|

Culpepper and the NCAA entered into an agreement pursuant t

which the NCAA agreed to pay Culpepper’s expenses in litigatio

resulting from his being a confidential witness for the NCAA. (This

4

statement is a genera! description of the agreement and is not a finding

as a matter of law.)

I) t]

App. 40

Appendix A

is whether the nonmovant has presented suffi-

cient evidence to allow the case or the issue to be

submitted to the jury for a factual resolution.

Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992).

For actions filed after June 11, 1987, the non-

movant must present ‘substantial evidence’ in

order to withstand a motion for a [judgment as a

matter of law]. See § 12-21-12, Ala.Code 1975.

West v. Founders Life Assurance Co. of Florida,

547 So. 2d 870, 871 (Ala. 1989). A reviewing court

must determine whether the party who bears the

burden of proof has produced substantial evi-

dence creating a factual dispute requiring resolu-

tion by the jury. Carter, 598 So. 2d at 1353. In

reviewing a ruling on a motion for a |judgment as

a matter of law], this Court views the evidence in

the light most favorable to the nonmovant and

entertains such reasonable inferences as the jury

would have been free to draw. Motion Industries,

Inc. v. Pate, 678 So. 2d 724 (Ala. 1996). Regard-

ing a question of law, however, this Court in-

dulges no presumption of correctness as to the

trial court’s ruling. Ricwil, Inc. v. S.L. Pappas &

Co., 599 So. 2d 1126 (Ala. 1992)

“é

“1.C.U. Investigations, In

685, 688 (Ala.2000).”

With regard to review of a trial court’s ruling

yn for a new trial, this Court has stated

“*It is well established that a ruling on a mo

tion for a new trial rests within the sound discre-

tion of the trial judge. The exercise of that

liscretion carries with it a presumption of cor

tness, which will not be disturbed by this

App. 41

Appendix A

Court unless some legal right is abused and the

record plainly and palpably shows the trial judge

to be in error.’”

Curtis v. Faulkner Univ., 575 So. 2d 1064, 1066 (Ala. 1991)

(quoting Kane v. Edward J. Woerner & Sons, Inc., 543

So. 2d 693, 694 (Ala. 1989)).

Discussion

|. __ Whether the trial court erred in its determinations

with regard to the defamation claims.

A. Cottrell’s and Williams’s classifications in the

context of their defamation claims.

Because many of the allegations of error hinge upon

the classification of Cottrell and Williams as either public

or private figures, the Court will first address the classifi-

cation of Cottrell and Williams in the context of their

defamation claims.

|. General law regarding a claim of defamation.

A court must determine as a matter of law a plain-

tiff’s classification in the context of a defamation claim.

White v. Mobile Press Register, Inc., 514 So. 2d 902 (Ala.

1987). This determination will establish the plaintiff's

burden of proof. New York Times Co. v. Sullivan, 376 U.S

254 (1964). In defamation actions, a plaintiff is either a

private person, a public official, or a public figure, either in

general or for the limited purpose of a particular public

controversy. Mead Corp. v. Hicks, 448 So. 2d 308 (Ala

1984). If a plaintiff is determined to be a public official,

public figure, or limited-purpose public figure, then the

plaintiff has the burden of establishing by clear and

App. 42

Appendix A

convincing evidence that the defamatory statement was

made with “ ‘actual malice’ — that is, with knowledge that

it was false or with reckless disregard of whether it was

false or not.” New York Times, 376 U.S. at 280; Curtis

Publ’g Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974); and White, 514 So. 2d at

904. If it is determined that the plaintiff is a private

figure, then the plaintiff has the burden of establishing by

a preponderance of the evidence that the defendant

negligently published the defamatory statement. Mead

Corp., 448 So. 2d at 312 (holding that “defendants who

made false defamatory statements about private figures

may be held liable if their conduct created an unreason-

able risk of harm to the plaintiff”). Whether an individual

is a public figure, limited-purpose public figure, or private

figure is a question of law to be determined by the court.

Mobile Press Register, Inc. v. Faulkner, 372 So. 2d 1282

(Ala. 1979). This determination must be made by the trial

court before the jury is charged so that the court can

properly instruct the jury. Faulkner, 372 So. 2d at 1285.

A public figure is one who either has gained notoriety

from his achievements or seeks public attention through

vigor and success. New York Times, supra. In Gertz, the

United States Supreme Court reduced the “public-figure

question to a more meaningful context by looking to the

nature and extent of an individual’s participation in the

particular controversy giving rise to the defamation.” 418

U.S. at 352. Thus, the Court recognized a limited-purpose

public figure as “an individual [who] voluntarily injects

himself or is drawn into a particular public controversy.”

418 U.S. at 351.

App. 43

Appendix A

In this case, the NCAA and Culpepper agree that

neither Cottrell nor Williams is a public official or a

general-purpose public figure. The NCAA and Culpepper,

however, maintain that the evidence established that both

Cottrell and Williams are limited-purpose public figures;

Cottrell and Williams disagree, claiming that the evidence

established that they are private figures. Therefore, we

must determine whether the NCAA and Culpepper estab-

lished that Cottrell and Williams were limited-purpose

public figures.

2. The test for determining whether a plain-

tiff is a limited-purpose public figure and

its application to the facts of this case.

In Gertz, the United States Supreme Court provided

that it is the “nature and extent” of an individual’s in-

volvement in a public controversy, i.e., the extent to which

the individual’s participation is voluntary, the extent to

which the individual has access to the media to counteract

the false statements, and the prominence of the individ-

ual’s role in the public controversy, that determines

whether an individual is a limited-purpose public figure.

418 U.S. at 344-45. In Little v. Breland, 93 F.3d 755, 757

(11th Cir. 1996), the United States Court of Appeals for the

Eleventh Circuit recognized that in Silvester v. American

Broadcasting Co., 839 F.2d 1491 (llth Cir. 1988), it

adopted the three-pronged test from Waldbaum v. Fair-

child Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), to

determine whether a plaintiff in a defamation action is a

limited-purpose public figure with regard to a public

controversy. Under the test, a court determining whether a

plaintiff is a limited-purpose public figure must “‘(1)

App. 44

Appendix A

isolate the public controversy, (2) examine the plaintiff’s

involvement in the controversy, and (3) determine whether

the alleged defamation [was] germane to the plaintiff’s

participation in the controversy.’” In Hutchinson v. Prox-

mire, 443 U.S. 111 (1979), and Wolston v. Reader’s Digest

Ass’n, 443 U.S. 157 (1979), the United States Supreme

Court unequivocally established that it is the plaintiff’s

role in the controversy, not the controversy itself, that

determines whether a person is a limited-purpose public

figure with regard to the alleged defamatory statements.

The three-pronged test applied in Little provides a worka-

ble means of determining whether a plaintiff in a defama-

tion action is a limited-purpose public figure because of his

role in a public controversy; this Court adopts it and will

now apply it to the facts of this case.

a. Isolation of the public controversy.

In Waldbaum, the United States Court of Appeals for

the District of Columbia provided the following discussion

on how to address the first prong of this test, stating:

“As the first step in its inquiry, the court

must isolate the public controversy. A public con-

troversy is not simply a matter of interest to the

public; it must be a real dispute, the outcome of

which affects the general public or some segment

of it in an appreciable way... . [A] public contro-

versy is a dispute that in fact has received public

attention because its ramifications will be felt by

persons who are not direct participants.

“To determine whether a controversy indeed

existed and, if so, to define its contours, the judge

must examine whether persons actually were

App. 45

Appendix A

discussing some specific question. A general con-

cern or interest will not suffice. [Hutchinson uv.

Proxmire, 443 U.S. 111 (1979)]. The court can see

if the press was covering the debate, reporting

what people were saying and uncovering facts

and theories to help the public formulate some

judgment. It should ask whether a reasonable

person would have expected persons beyond the

immediate participants in the dispute to fee] the

impact of its resolution. If the issue was being

debated publicly and if it had foreseeable and

substantial ramifications for nonparticipants, it

was a public controversy.”

627 F.2d 1296-98 (footnotes omitted).

Several factors lead to the conclusion that a public

controversy existed before, during, and after the NCAA

investigated the alleged rule violations by The University

in 2000 and imposed the severe penalties against The

University in 2002. In 2000, The University and the public

learned about the NCAA's investigation into Young’s

involvement in recruiting Means and the federal charges

that had developed. In light of The University’s being on

probation and in light of the efforts in 1998 by The Uni-

versity to comply with the enforcement rules and the

NCAA’s apparent disregard for that effort, a public debate

developed about the 2000 investigation, including specula-

tion on the propriety of the involvement of The Univer-

sity’s compliance staff in the investigation, the benefit, if

any, of The University’s self-reporting NCAA rule viola-

tions, and the NCAA's treatment of The University. Addi-

tionally, discussion focused on the fairness of the

investigation process itself and on the NCAA's accountabil-

ity with regard to fitting the penalty imposed to the

App. 46

Appendix A

offense. Consequently, widespread local and statewide

media coverage was generated for over three years as the

media sought to unravel precisely what had happened that

resulted in The University’s being charged and found

guilty of several rule violations.

The public concern for The University and its football

program was evidenced by the number of articles written

and the detail of the information provided from the first

allegations of a recruiting scandal in Memphis, the revela-

tion of a “secret witness” assisting the NCAA in establish-

ing the rule violations by The University, the statements

made by Yeager that “The University of Alabama football

program was staring down the barrel of a gun,” the harsh-

ness of the penalties imposed, and the apparent inequity

of the penalty in light of The University’s efforts in com-

pliance with the enforcement process.

Moreover, the citizens of Alabama had a legitimate

interest in the controversy because The University is a

public institution that receives State funds. The football

program provides revenue for The University and, in light

of the football program’s tradition and history, is a source

of pride for many of its graduates and the citizens of this

State. Therefore, when “The University of Alabama foot-

ball program was staring down the barrel of a gun” —

facing potential termination of its football program -—

public discussion of ali the circumstances creating the risk

that the program could be terminated was rampant; a

public controversy existed.

We reject Culpepper’s argument that the public

controversy included debate concerning the character,

integrity, and fitness of Cottrell and Williams to coach and

App. 47

Appendix A

work for The University. Culpepper relies on the reasoning

of the United States District Court for the Northern

District of California in Barry v. Time, Inc., 584 F. Supp.

1110 (N.D. Cal. 1984), in defining the public controversy in

that defamation case. In Barry, Barry, a former head coach

for the basketball team at the University of San Francisco

(“USF”) sued one of his former basketball players, alleging

that the player had defamed him when the player accused

him of assisting an athletic representative of the basketball

team in making improper cash payments to the player in

violation of NCAA rules. In determining whether Barry

was a limited-purpose public figure, the district court held

that a public controversy existed involving “the alleged

recruiting violations at USF before Barry’s acceptance of

the position of head basketball coach.” 584 F.Supp. at 1116.

The district court noted that USF had twice been the

subject of NCAA investigations involving USF’s basketball

program, that one of those investigations had led to the

resignation of one head basketball coach and the other had

led to the firing of the head coach who had preceded Barry,

and that USF had been trying to solve the problems of its

basketball program for many years. Additionally, the court

noted that the president of USF, when he appointed Barry

as head coach, “insisted upon a ‘clean’ program.” 584

F.Supp. at 1116. The court concluded that a public contro-

versy existed because the reputation of USF was at stake

and there was “a dispute as to what the University should

do about allegations of recruiting violations.” Jd.

Culpepper argues that the public controversy sur-

rounding the investigation into alleged NCAA rule viola-

tions by The University is analogous. He reasons that

because The University, like USF, was a repeat offender,

intense scrutiny and substantial discourse regarding the

App. 48

Appendix A

rule violations developed. He further argues that because

Cottrell and Williams were named in various articles as

the coaches who were involved in the controversy, because

they were closely associated with Young, and because they

had been interviewed by the NCAA, a public debate

developed about their character, integrity, and fitness.

Culpepper, however, fails to recognize that although The

University, like USF, was a repeat offender of NCAA rules,

the public controversy did not focus on the actions of the

coaching staff. Allegations of violations of NCAA rules by

The University and by Cottrell and Williams did not lead

to the resignation or firing of any of the football coaches.

Indeed, none of the articles submitted impugned the

character of Cottrell or Williams. Additionally, the articles

did not suggest that the major violation of the NCAA rules

was an ongoing problem involving football coaches or that

The University had an “ongoing” problem that it had been

trying to solve for years. Indeed, the evidence established

that The University was making every effort to run a

clean program and that, if the NCAA or the SEC had

informed The University of the situation in Memphis, of

which they were aware, actions would have been taken to

prevent the egregious violation by the athletic representa-

tive who was the focus of the investigation. Unlike the

public debate at USF, the public debate in this case did not

question the reputation of The University or the integrity

of its coaches; rather, the public debate concerned how the

NCAA would view the efforts of The University to run a

clean program and to engage in self-enforcement of NCAA

rules. Tiuerefore, evidence establisheu -hat the focus of the

public controversy surrounding The University was

different from the public controversy involving USF. Based

bn ine content. context, and forum of the controversy

App. 49

Appendix A

surrounding The University as presented in the record, we

refuse to conclude that the public controversy involved the

character, integrity, and fitness of Cottrell and Williams to

coach and to work for The University.

In conclusion, a public controversy existed; therefore,

we must now focus on the roles of Cottrell and Williams in

the controversy.

b. The plaintiff’s involvement in the con-

troversy.

Consideration of this prong involves the plaintiff's promi-

nence in the public controversy, the plaintiff's access to chan-

nels of effective communication to counteract false statements,

and whether the plaintiff voluntarily thrust himself or was

drawn into the forefront of the public controversy. Gertz, 418

U.S. at 344-45. The court in Waldbaum stated:

“Once the court has defined the controversy,

it must analyze the plaintiff's role in it. Trivial or

tangential participation is not enough. The lan-

guage of Gertz is clear that plaintiffs must have

‘thrust themselves to the forefront’ of the contro-

versies so as to become factors in their ultimate

resolution. ... They must have achieved a ‘special

prominence’ in the debate. ... The plaintiff either

must have been purposely trying to influence the

outcome or could realistically have been expected,

because of his position in the controversy, to have

an impact on its resolution. In undertaking this

analysis, a court can look to the plaintiffs past

conduct, the extent of the press coverage, and the

public reaction to his conduct and statements.”

627 F.2d at 1297 (footnotes omitted; emphasis added).

App. 50

Appendix A

The evidence does not support a conclusion that

Cottrell and Williams tried to purposely influence the

outcome of the public controversy; therefore, we must

determine whether Cottrell and Williams realistically

could have been expected, because of their positions in the

controversy, to have an impact on its resolution. Thus, this

factor rests upon their prominence in the public contro-

versy, their access to channels of communication, and the

“voluntary” injection of themselves into the public contro-

versy.

i. The prominence of the plaintiff in

the public controversy.

This inquiry involves evaluating whether the plain-

tiff’s actions have resulted in his being “embroiled” in the

public controversy. See Gertz, 418 U.S. at 345 (holding that

the limited-purpose public figures have “thrust themselves

to the forefront of particular public controversies”). Per-

haps the main question presented is would a reasonable

person have expected Cottrell and Williams to play a

significant role in determining the “outcome of the contro-

versy.” In this case, the “outcome of the controversy”

relates to whether the NCAA would find that The Univer-

sity and its football program fully cooperated with the

NCAA's investigation into the alleged rule violations and

engaged in adequate self-policing and self-enforcement so

as to avoid the “death penalty.”

Cottrell and Williams argue that they did not play a

prominent role in the controversy because, they say, the

major focus of the investigation involved Young and his

improper conduct in recruiting Means and did not focus on

their alleged violations of NCAA rules. They assert that

App. 51

Appendix A

because they were minor participants in the investigation,

they should not be considered as having any influence on

the outcome of the controversy.

The evidence, however, established that Cottrell and

Williams did play a prominent role in the public contro-

versy. Newspaper articles focused on their conduct, their

interviews with Johanningmeier, the violations alleged

against them, and how their conduct would impact the

COIs view of The University. Both Cottrell and Williams

were charged with not providing full disclosure of informa-

tion during an interview. Although the enforcement staff

dropped the charge against Williams, it pursued the

charge against Cottrell. The COI found that Cottrell had

not complied with the rules in this regard. Therefore, the

conduct of Cottrell and Williams did influence the way the

.NCAA viewed The University’s compliance with the rules.

Additionally, the record established that Cottrell and

Williams both associated with Young, who was the major

focus of the NCAA investigation and the main reason for

the severity of the penalties imposed. Both Cottrell and

Williams admitted violating certain NCAA rules, and,

although no penalty was imposed against either Cottrell or

Williams, The University was penalized for Cottrell’s and

Williams’s violations of various NCAA rules.

Although the evidence indicated that Cottrell and

Williams were “caught up in the controversy against

[their] will,” the evidence adequately established that they

had assumed by their actions and their association with

Young a “prominent position in its outcome.” Breland, 93

F.3d at 758.

App. 52

Appendix A

ii. The plaintiff’s “access to channels of

effective communication.”

In determining a plaintiff’s involvement in the

controversy, consideration must also be given to the extent

to which the plaintiff had access to channels of effective

communication to counteract any false statements. Gertz,

418 U.S. at 344-45.

The NCAA and Culpepper argue that Cottrell and

Williams had adequate access to the media to effectively

rebut the alleged defamatory statements. The NCAA and

Culpepper submitted over 200 newspaper and Internet

articles published over several years containing comments

by Cottrell and Williams throughout their careers at The

University. Additionally, the NCAA points out that at the

time it published the false statements in the penalty-

summary report neither Cottrell nor Williams were

prohibited from talking with the press.

Cottrell and Williams argue that although they did

enjoy limited access to the press as assistant coaches who

were questioned about various prospective student-

athletes and enrolled student-athletes, the NCAA rules

prohibited them from discussing the NCAA investigation

with the press and prevented them from being able to

defend their reputations in the press. They maintain that

this “gag order” prevented them from having access to the

media and precluded a finding as a matter of law that they

were limited-purpose public figures.

In Price v. Chaffinch, (No. 04-956, May 12, 2006) (D.

Del. 2006) (not reported in F.Supp.2d), the United States

District Court addressed whether a “gag order” imposed by

the defendant, which prevented the plaintiff from responding

App. 53

Appendix A

in the media to the defamatory statements made by the

defendant, precluded a finding that the plaintiff was a

limited-purpose public figure. In Price, the plaintiff’s

media access

This text is long and has been trimmed here. Open the source document for the complete record.