# Petition for Writ of Certiorari — Cottrell v. National Collegiate Athletic Association (No. 07-288) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1406%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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- ¥ 4Vaumevev san: App. 151 Appendix E e that Cottrell used a person in Tallahassee, Florida who administered college admis- sion tests and for a fee ensured that a pro- spective student-athlete received a passing score; e that Alabama booster Young had given Cottrell cash to purchase a residence in Tuscaloosa, Alabama; ° that Young had given Cottrell additional money for gambling; e that Cottrell had divorced his first wife in order to marry a wealthy woman and had abandoned his ex-wife and children; e that Cottrell had improperly received pay- ment for the use of his name on a charity golf tournament; and e that Cottrell had leaked the story to the media that Alabama’s head football coach Mike Dubose was involved in a sexual har- assment lawsuit with a former employer of the athletic department. (37] [R.1163,1168-74; Pl. Trial Exh. 3-5,88,88A)"° Culpepper further told Johanningmeier that the NCAA should not allow Cottrell to ever coach again. [R.3101] Culpepper also met with Johanningmeier in January and April 2001, and they had additional telephone conversations. [R.1274-77; PTE 91,91A,91B,92,92A] (37) ‘ Culpepper also met with NCAA representative Defendant Johanningmeier in January and April 2001, and had additional telephone conversations. [R.1274-77, Pl. Trial Exh. 91,91A,91B,92,92A) App. 152 Appendix E In November 2000, the NCAA finally gave notification to the University of Alabama that it had begun an investi- gation of potential rules violations. [R.2975-76] Culpepper then met with Gene Marsh, the faculty athletic represen- tative to the Alabama athletic department, in January 2001, in a meeting set up by Johhaningmeier. (R.2776,2874] Even though Culpepper had assisted the NCAA's investigation of Alabama, he subsequently denied that he had spoken to NCAA representatives. (R.3063] However, his statements were used by the NCAA to support the NCAA's Report on Infractions against Ala- bama [R.3062-63], which ultimately resulted in Cottrell and Williams suffering injury. 3. Additional Evidence of Malice by Culpepper. Plaintiffs Cottrell and Williams, as well as Head Coach Dubose and all the coaches of the Alabama football team were fired in November 2000, following the three- win and eight-loss season. About December [38] 12, 2000, Culpepper made a lengthy telephone call to Rodney Orr (who is noted above), a large portion of which was recorded by Orr. [R.1224,1292,1298-1300; Pl. Trial Exh. 93B) Culpepper and Orr were acquainted based upon their work in their media work. [R.1294] In the call to Orr, Culpepper made many threatening and defamatory statements regarding Cottrell and admitted that he had “bashed” Cottrell in speaking to a lot of other media people. [R.1247-48,1300, 1361; PTE 93B)]. It is unques- tioned that during the call, Culpepper referred to Cottrell as “liar,” “a fucking cheater,” “a person with no character and no integrity,” and a “bad [person].” Culpepper further App. 153 Appendix E stated that Cottrell “slapped me, and now he’s getting slapped back.” Culpepper admitted that he hated Cottrell and that he “wanted him out.” [Pl]. Trial Exh. 93B] D. Actionable (Post-December 20, 2000) De- famatory Statements by Culpepper. There was evidence presented at trial that Culpepper made defamatory statements about Cottrell after Decem- ber 20, 2000, which were, thus, within the statute of limitations period. Terrance Harrington is the creator of a private Ala- bama sports internet message board site called Tidal Surge. [R.1366-67,1374-75] The membership of Tidal Surge included important alumni of Alabama involved in the media, including Warren St. John, a writer for the New York Times newspaper, and Reece Davis, a commen- tator for ESPN, the [39] leading television sports network. [R.1375] Information posted on Tidal Surge was some- times picked up by the news media. [R.1509] Culpepper became a good friend to Harrington and occasionally shared information with Harrington and posted messages on Tidal Surge [R.1493] Harrington testified that after December 20, 2000 Culpepper told him derogatory and horrible things about both Ronnie Cottrell and Ivy Williams and that he, Harrington, believed and would often republish those statements to others. [R.1494,1496-97,1510,1512] He testified that Culpepper had told him in 2001 that Williams was responsible for funneling money from Logan Young to the Memphis, Tennessee high school football player Albert Means. [R.1512] Harrington further testified that Culpepper had continuously used the word “cheater” when referring to App. 154 Appendix E Cottrell, and had stated that Cottrell “didn’t deserve to breathe the same air as good Alabama people.” [R.1512) He also testified that Culpepper had told him that Cottrell and Williams needed to be branded as cheaters and that they should never again coach in Division | college foot- ball. [R.1513] Additionally, Harrington demonstrated that during 2001 and later Culpepper posted mes- sages on Tidal Surge that both Cottrell and Williams were “cheaters” and that the “NCAA let [Alabama] slide on two of the allegations involving Ivy Wil- liams and Ronnie Cottrell in order to honor their confidentiality agreements” with witnesses, and made other defamatory statements about Cottrell and Williams, [R.1503,1510) (40) Harrington testified that Culpepper had made the following defamatory statements about Cottrell: ¢ that Cottrell had abandoned his family in Florida when moving to Tuscaloosa to coach at Alabama; e that Cottrell had stolen money from a char- ity golf tournament; e that Cottrell and his graduate student as- sistant had been caught by campus police stealing videotapes of potential football re- cruits from the Alabama football program offices; and ¢ that Cottrell had helped provide money to football players. [R.1495,1497) Harrington also testified that Culpepper had made the following defamatory statement about Williams: App. 155 Appendix E ¢ that Williams was one of the persons who Logan Young used to provide money to Al- bert Means. [R.1512] Harrington testified that he had believed what Culpepper had told him and that he had repeated the statements to others. [R.1494,1496,1513] Bruce Parris testified at trial that at the SEC Media Days in July 2001, that Culpepper had made the following defamatory statements about Cottrell: e that Cottrell had “embezzled money from the Shaun Alexander Foundation in order to pay off gambling debts;” [41] e that Cottrell “had abandoned his chil- dren in Tallahassee to come to Tusca- loosa;” and e that Cottrell “had been caught stealing [video]tapes from the [University of Ala- bama] athletic department in the middle of the night.” (R.1604-05] Charles Branch further testified at trial that some- time in 2001 he spoke with Culpepper and that Culpepper had been very boastful that he was “still standing” and that Cottrell was not, and that Cottrell was a liar and a cheater. [R. 1473-74, 1487] App. 156 Appendix E E. Actionable Defamatory Statements by the NCAA, In February 2001, the University of Alabama received a preliminary Letter of Inquiry (“LOI”) from the NCAA relating to the recruitment of Albert Means, who had enrolled at Alabama in August 2000, and other alleged recruiting violations. [R.1801] The only Alabama football coaches who were named in the LOI were Cottrell and Williams.” [R.1778] The Letter brought two allegations against Williams regarding the recruitment of Albert Means to attend college at Alabama. [R.1802-04] A third allegation against Williams involved a greater number of visits to a high school in 1999 and 2000 than allowed by NCAA regula- tions, [42] which was merely a “secondary violation.” {R.1804-05] Williams contested the first two allegations, but admitted the third. [R.1805] On February 1, 2002, the NCAA released its Public Infractions Report against Alabama. [R.2594] The defamation claims of Ronnie Cottrell and Ivy Williams against the NCAA are based upon statements present in the NCAA's Penalty Summary of its report found on its internet web site, which was openly available to the public, other college football coaches, and potential employers of the Plaintiffs. [R.2592-94] [41] '’ Because the court granted summary judgment to the NCAA on Cottrell’s claims against it, there was little evidence presented at trial in relation to the defamatory statements made by the NCAA relating to Cottrell. [42] “ Secondary violations of NCAA regulations are common among college footbal! coaches, and generally do not adversely affect the coach's career. [R. 1808] App. 157 Appendix E The “Penalty Summary” included a materially false statement that there was a “show cause provision for a period of eight years for the former recruiting coordinator” of Alabama. [R.2594,2608-09; Pl. Trial Exh. 16] As noted previously, Ronnie Cottrell was the recruiting coordinator for Alabama. In addition, in a related section containing the designation of either “YES” or “NO” to indicate whether employees of Alabama has been issued “show cause provisions,” the NCAA checked “YES,” indicating to the reader that the NCAA had placed “show cause provisions” on “employees” of Alabama. [Pl. Trial Exh. 16; R.1776- 77,1779-80, 1871-72,1874-75,2596] Cottrell and Williams were the only employees of Alabama who had been named in the NCAA Letter of Inquiry against the University of Alabama, and they believed that the [43] reference to “employees” was plainly a reference to them. [R.1178,1875,1877,2055,2057,2102] A “show cause provi- sion” placed on a college football coach by the NCAA indicates that for a period of eight years the coach could not be hired by NCAA member institution unless the institution could show cause for why they should be hired. [R.1877] However, these public assertions were admit- tedly false, because the NCAA had, in fact, not placed show cause provisions on either Cottrell or Williams. [R.1775,1777,1781,2594,2596] The NCAA attempted to excuse the two false entries as having been made by an NCAA employee entering the information of the NCAA web site, who claimed she used the Penalty Summary for an Infractions report against the University of Kentucky issued the day prior, where show cause provisions had been issued, App. 158 Appendix E as a basis to prepare the Summary for Alabama. [R.2596,2619-21,2625-31,2636-37,2669-70] However, contrary to the self-serving impression the NCAA attempted to convey, that this was a one-time slip-up that was cor- rected, the actual facts established in the DeWees and Cooper depositions show a long-term failure to correct the false statements. The NCAA did not correct the first of the two false statements, that the recruiting coordinator at Alabama had a show cause provision placed on him, until October 2003, more than a-year-and-a-half later. [R.2602-03] The misstatement was not corrected in September 2003, when [44] an NCAA employee went back into the internet web page to enter the information that the penalties against Alabama had been upheld on appeal. [R.2598-99] In fact, the NCAA employee, who went into that particular web site numerous times manually to make changes, did not remove the false statements on at least the following occasions: shortly after September 17, 2003; October 9, 2003, October 12, 2003; and October 13, 2003. [C.12611-12,12621] That first false statement entered in the publicly-available Penalty Summary was permitted to continue without review for cor- rections needing to be made, even though over three-hundred persons work at the NCAA offices in Indianapolis. [R.2599,2673-74] The NCAA admits that it has no way to know how many times that false information was viewed on the web site (i.e., how many “hits” the web page had) over the twenty months the false statement was in existence before it was deleted. [R.2603] Moreover, even after the October 2008 correction of the first false statement was made, the second false statement regarding show cause provisions on “employees,” App. 159 Appendix E indicating Cottrell and Williams, remained uwncor- rected for another whole year. [R.2604] In the case of the second false statement, the NCAA employee, who went into that particular web site many times to make changes, beyond not making any corrections on any date from February 1, 2002 through August 2003, did not reraove the second false statement on at least the [45] following occasions: any date from February 1, 2002 through August 2003; shortly efter September 17, 2003; October 9, 2003; October 12, 2003; October 13, 2003; October 14, 2003; nor any occasion after October 14, 2003 for the next year. [C.12611-12;12621] It was not until another year after the foregoing, or by now more than two-and-a-half years from the initial publica- tion, that in October 2004 the NCAA finally cor- rected its false statement, that “employees” of Alabama had had show cause provisions placed on them. [R.2604-05] The NCAA also admits that it does not know how times this publicly available false information was viewed. [R.2603] The NCAA did not take any affirmative action to inform its member institutions, potential employers of Cottrell and Williams, that it had published false information about them even though it routinely communicates with the institutions by mail [R.2679- 80], but merely posted a brief notice about the false statements on the web page at issue for a tiny amount of time, one or two days following the correction made in October 2003. [R.2677] App. 160 Appendix E F. Evidence that the Defamatory Statements Made by Culpepper and the NCAA are False. As noted above, one of the statements made by Culpepper regarding Cottrell was that he had stolen money from a charity golf tournament that he had been associated with. This statement was shown to be false by the trial testimony of Eugene Ezell of Choctaw County, Alabama, who [46] is president of the local chapter of the University. of Alabama Alumni Association. [R.1545-46] Ezell testified that the Choctaw County chapter’s main fundraiser is a charity golf tournament, and that Cottrell had been associated with the tournament, but had actu- ally contributed money to the chapter rather than stolen or been given any. [R.1546-47] One of the other defamatory statements made by Culpepper is that Cottrell abandoned his children when he moved from Tallahassee to Tuscaloosa in 1997 and that they had to be taken care of by others. That is not true. [R.2118,2159] Culpepper admitted that he had no first- hand knowledge on the subject and was simply repeating something he had been told by someone else. [R.3066] When Cottrell took the coaching position with Alabama in December 1997 he moved his wife remained in Tallahassee because his son was a high school senior who would be graduating in the spring. [R.2125] His wife and children then moved to Tuscaloosa to live with him. [R.2125,2159] Another defamatory statement by Culpepper regard- ing Cottrell is that Cottrell embezzled money from the Shaun Alexander Foundation. Culpepper did not substan- tiate this allegation, and Cottrell did not take such action. {R.2159] He also did not take money from the charity golf App. i61 Appendix E tournament of the Choctaw County University of Alabama alumni group. [R.2160] [47] Yet another defamatory statement by Culpepper regarding Cottrell is that Cottrell stole recruiting video- tapes tapes from the Alabama football offices. This is not true, as the videotapes in question had merely been relocated within the athletic department. [R.1679] Culpepper admitted that he was repeating something he had been told by someone else. [R.3067] The NCAA made two allegations against Coach Wil- liams relating to the recruitment of Albert Means, which Williams contested. [R.1810-11] Williams denied having any knowledge of monetary payments made to secure the com- mitment of Albert Means to attend Alabama. [R.1810-11] On November 6, 2001, Williams’ attorney received a letter from the NCAA indicating that it had dropped the two allegations relating to Means which Williams had contested. [R.1813-16; Pl. Trial Exh. 485] While the Penalty Summary placed on the NCAA's internet web site following its release of its Public Infraction Report relating to the University of Alabama in February 2002 contained a refer- ence indicating the “employees” of Alabama had show cause provisions placed on them, that information was false and was eventually removed. [R.1871-83] G. Evidence of Cottrell and Williams’ Inabil- ity to Respond to Defamatory Statements Due to the “Gag Order” Imposed by the NCAA During its Investigation. During the period of the NCAA investigation, both Cottrell and Williams were prevented by NCAA Bylaw App. 162 Appendix £ 32.1.4 from responding fully in [48] the media to the negative publicity that was occurring in regard to them, which is the “gag order” of the NCAA. [C.3267- 68,4358,4360] They had both been specifically instructed by Johanningmeier in their investigation interviews not to speak to members of the media regarding the investiga- tion. [(C.3250-51,4358-59,5938] This prevented them from attempting to clear their name at a highly critical time — before their reputations were inexorably damaged. [R.2290,2294] H. Evidence as to the Public/Private Figure Status of Cottrell and Williams. The Defendants bore the burden of proof at trial to demonstrate that Cottrell and Williams were public figures or, as the Defendants contended, “limited purpose” public figures. One of the Defendants’ contentions was that Cottrell had such notoriety that a charity golf tour- nament had been named after him. However, at trial, that assertion proved to be false." The Defendants relied upon the status of the Plaintiffs as former assistant football coaches at Alabama, and other evidence in the form of newspaper and other media publications in which they were mentioned or discussed, including some articles which specifically related to the controversy that was at issue at trial, as well as the lawsuit itself. [Culpepper Trial [48] “ Eugene Ezell, of the Choctaw County chapter of the Ala- bama alumni association testified that their golf tournament was never called the “Ronnie Cottrell Charity Golf Tournament,” and was never named after him. [R. 1548-49,1551] App. 163 Appendix E Exh. 64A,64B,64C,64D,66B, [49] 66C,66D,66E; NCAA Tria] Exh. 245A,246,251,252,253,258] I. Evidence of Injury Suffered by Cottrell and Williams. 1. Emotional Distress Suffered by Cottrell and Williams. a. Ronnie Cottrell. Cottrell suffered great emotional distress as a result of his reputation as a top recruiting coordinator and assistant coach being irreparably damaged at least in part due to the actions of Culpepper and the NCAA. [R.2181] He suffered great stress over losing his career as a college football coach and his dream of one day being a head football coach, [R.2181] Cottrell’s inability to continue his coaching career at the Division I college level is the worst thing that has ever happened to he aid his family, and it has created a great financial hardship and stress in his marriage. [R.2181-82,2479] Cottrell has had to accept money from family members, and he had found it to be the “worst feeling” to be dependent on others. [R.2182] The stress has caused him to be unable to sleep and it has caused him to have to undergo medical treatment and to take several prescription medications which he did not take previousl;. [R.2182,2185-87 2478-79] b. Ivy Williams. Williams has suffered great emotional distress as a result of his reputation as one of the top assistant coaches in college football being “severely damaged,” causing him to be unable to find employment [50] as a Division I football coach. [R.1910-11] Williams inability to find any ——— App. 164 Appendix E employment for a period of time, and then only employ- ment at a much lower salary caused him to suffer stress over financial issues. [R.1911] He has worried about possibly having his home foreclosed upon, about being unable to pay for his children’s college education, and about his wife having to find employment. [R.1911,2486] He and his wife had to sell their home and move into an apartment. [R.2489] It has left him disheartened, de- pressed, and lifeless. [R.2485-86] 2. Evidence of the Inability of Cottrell and Williams to Find Employment as Division I-A College Football Coaches. The entire coaching staff of the Alabama football team was fired from their jobs following the final game of the 2000 season. [R.1819] At that time, Cottrell’s salary was $120,000 annually [R.2122], and Williams salary was $109,009 annually [R.1830] a. Coach Cottrell’s Search for a Coach- ing Job. After being let go from the Alabama coaching staff, Cottrell began seeking other college football coaching positions. [R.2172] He believed in January 2001 that he was going to be offered a position as an assistant coach at the University of Georgia, but he was not offered that position. [R.2173-74] Cottrell had obtained a sports agent while coaching at Alabama and his agent, Jimmy Sexton, also sought employment for him. [R.2174-75) [51] Cottrell began working in August 2001 as a salesman of long distance calling and other telephone App. 165 Appendix E services where his gross salary from commissions, from which travel and other expenses were deducted, was about half of his prior salary. [R.2166] He was also hired to be a radio commentator for a syndicated program on college football, but was let go before he ever did a show. [R.2169- 70; C.3781] Cottrell also took a substitute teaching job at a high school. [R.2171] Although he sought after many college football coaching jobs [R.2176-79], he did not work as a coach until in 2005 when he was hired as the head football coach at Carroll High Schcol in Ozark, Alabama, at a salary of $53,000. b. Coach Williams’ Search for a Coach- ing Job. After being let go from Alabama coaching staff, Williams began a search for employment and hoped to find a head coach or assistant coaching position. [R.1819-20] The NCAA allegations against Alabama and Williams cast a cloud over his employment search, even though no allegation had been proven. [R.1820] Prior to the defama- tory statements made by the NCAA and Culpepper against Coach Williams, he had never been denied any coaching position that he had sought. [R.1801] In January 2001, Williams was hired to be the head football coach at Miles College for an annual salary of $70,000; however, the contract was rescinded shortly thereafter. [R.1822,1950- 51) [52] Thereafter, Williams applied for assistant football coaching jobs at numerous universities, but was not hired. (R.1823,1830,1833] Williams continued to seek employ- ment as a college football coach after the NCAA’s Public Infractions Report against Alabama was released in App. 166 Appendix E February 2002. [R.1834-35] After the allegations against him were withdrawn by the NCAA in November 2001, Williams was advised by an NCAA representative, that since the case was still open he was required to send with his resume a letter indicating the same to his prospective employers. [R.1839-40,2095,2100] He then sought em- ployment with many colleges but was not hired. [R.1835- 39,1846,1850,2014-30,2034-35] Williams was eventually hired as an assistant coach by the Savannah State Uni- versity, a Division I-AA football program, in August 2002, at a salary of $46,000 annually.” [R.1851,1855] Il. POST-TRIAL EVIDENCE OF THE INDEMNIFTI- CATION AND HOLD HARMLESS AGREEMENT BETWEEN CULPEPPER AND THE NCAA. A. The Written Settlement Agreement. As a part of the discovery in this case, Plaintiffs’ counsel traveled to Indianapolis, Indiana in February 2005 to depose the NCAA [53] personnel, including President Myles Brand. During the deposition, Plaintiffs’ counsel asked Brand, “Has the NCAA paid any legal fees on behalf of Tom Culpepper?” Brand answered, “Not to my knowl- edge.” |(C.7706-07] [52] ® Williams was still employed by Savannah State at the time of trial in 2005, at the salary of $46,700. [R.1861] He has continued to seek employment as a football! coach in Division I-A college football, but has not been hired. [R.1862,1866,1870,1888,2030-31] Williams also looked for employment as a coach in the NFL, but was also unsuccess- ful. [R.1891-2] He is currently employed as an assistant coach at Carroll High School in Ozark, Alabama, where Cottrell is the head coach. App. 167 Appendix E However, on March 17, 2005, a month after Brand’s deposition, Plaintiffs’ counsel received a letter from the NCAA, stating that it had entered into a settlement agreement with Culpepper on November 15, 2004. [C.7979-80] The letter also stated that Brand would correct his deposition testimony in the near future. [C.7979-80] On April 22, 2005, Plaintiffs received Brand’s deposition correction [C.7988-90], which contained an explanation that read a follows: “At the time I gave my answer to this question, | was not aware of a settlement agreement be- tween the NCAA and Tom Culpepper in which Mr. Culpepper agreed to release any possible claims he had against the NCAA in exchange for the NCAA’s agreement to pay for his counsel fees in connection with this case. After the deposi- tion, I learned about the settlement agree- ment with Mr. Culpepper. Although I had no role in or knowledge of the decision to enter into that settlement agreement, the existence of the agreement renders my previous answer on pages 31-32 of this deposition incorrect. Therefore, in order to set the record straight, I need to change the answer on page 32 line 2 from ‘[N]ot to my knowledge’ to ‘[Y]es.’” [C.7990] However Brand’s sworn statement that he learned of the settlement agreement after his deposition was com- pleted, is contradicted by the sworn testimony of Elsa Cole, the NCAA General Counsel in a post-judgment deposition. Cole testified that Brand had actually learned of the agreement during a break in his deposition. App. 168 Appendix E [54] Q@: When did you first tell Dr. Brand about the settlement agreement that was en- tered into in this case? A: At the time of hiz deposition, during a break in the deposition. @: Had he already answered the question that he was asked about the agreement before you told him about it? A: That, I cant recall. [(C.13695-96] (emphasis added). Thus, Cole’s testimony demonstrates that Brand had the opportunity to correct his testimony at the time of the deposition, but did not, and waited two months to do so. The written settlement agreement that Culpepper and the NCAA entered into in November 2004 was styled “Agreement and Waiver and Release of Claims” which provided certain rights of indemnification for attorney fees and against any judgment against Culpepper rendered in this or other litigation. [C.13758-62; R.3506-09,3512] With regard to attorney fees, the Agreement states, in pertinent part: 1. NCAA agrees to pay Culpepper a sum of money ... which will equal the total amount of his attorneys’ fees and expenses which he has agreed to pay and is paying ... and which have been and in the future incurred in his defense in any litigation ... which arises out of and is based to any extent on Culpepper’s involvement as a confidential source in the above-referenced foot- ball infractions case, until the conclusion of or his dismissal from such litigation... . App. 169 Appendix E [C.13759] The NCAA has paid the attorney fees and expenses incurred by Culpepper in this litigation. [R.3512- 13] Additionally, the Agreement contains the following indemnity provision: (55) 2. NCAA further agrees to indemnify and hold harmless Culpepper for any and all judgments which may be rendered against him in any litigation to the extent that such judgment is based in whole or in part on Culpepper’s providing information to and involvement as a confidential witness for the NCAA in the investigation of the above- referenced football infractions case. |C.13760] (emphasis added). In his post-judgment deposition, Culpepper testified that at the time that he entered into the settlement agreement with the NCAA, he believed that the indemnity provision of that agreement would cover any judgment entered against him in this litigation. [C.14006] Addition- ally, NCAA General Counsel Elsa Cole testified in her deposition that she could not state whether or not the indemnity provision covered the judgment against Culpepper because the interpretation of the provision was determined by the facts, and that she was not familiar with the facts of the case. [C.13701-08] B. The Earlier Oral Settlement Agreement. The written settlement agreement between Culpepper and the NCAA does not stand alone, because additional facts came to light regarding an earlier oral agreement between them. However, the existence of this oral agreement App. 170 Appendix E between Culpepper and the NCAA was actually denied by Culpepper’s counsel when asked about such a possibility by the court during trial. [R.870-76] Court: Well your question in the deposi- tion, was there any agreement — [56] Mr. Gallion: But you could have an oral agreement. I didn’t say a written agreement. Court: Well, Mr. Scott, was there any oral agreement? Mr. Scott: “Well, no, Your Honor. Again Mr. Culpepper testified to the issue of who was paying his fees at that time and whether he was responsible at that time to pay his fees, and he was responsible for paying his fees in October. ~ “ * Court: “Okay. Well, J am going to have to go with counsel as an officer of the Court’s representations to the Court and I am going to stand with my ruling.” [R. 875- 76] [R.873-74,876] (emphasis added). Thus, the existence of the oral settlement agreement would not have ever been brought to the attention of the Plaintiffs or the circuit court without the later production of above-quoted corre- spondence between Culpepper’s counsel and the NCAA. In post-trial proceedings the Defendants were ordered to produce correspondence leading up to the execution of the written November 2004 settlement agreement, which indicated that an oral settlement agreement had preceded the written one. The court reviewed correspondence between Culpepper and the NCAA in order for it to ascertain App. 171 Appendix E whether they affected the meaning of the agreement. [(C.13740-41]. The correspondence indicates that an oral settlement agreement was actually reached several months earlier on July 12, 2004. A letter of that date from counsel for Culpepper to the NCAA’s counsel stated: I will redraft the agreement and forward it to you to confirm this agreement. However, as previ- ously discussed, we [57] will await formal execu- tion by the parties of the agreement until following Culpepper’s deposition in this case. However, the formal execution of such set- tlement agreement should, in no way, affect the validity of our agreement regarding the terms of this settlement, as attorneys for the parties. [C.13742] (Emphasis added). Then, in a letter dated July 26, 2004 to the NCAA, Culpepper’s counsel stated: Please find enclosed the redrafted Confiden- tial Agreement and Waiver and Release of Claims to be entered into by the NCAA and Tom Culpepper. We believe that this agreement has been drafted to reflect the understanding that has now been reached regarding the terms and conditions for this agreement and release. Please let me know if you have any problems with the redraft. Otherwise, pursuant to our agree- ment, this document will not be executed until after the deposition of Mr. Culpepper has been concluded. [C.13748] (emphasis added). Thus, the Defendants specifi- cally delayed execution of the written agreement until after Culpepper’s deposition so that he could deny its existence. App. 172 Appendix E STATEMENT OF THE STANDARD OF REVIEW Because there are several issues in this appeal relat- ing to the resolution of claims at various stages of the proceedings below, differing standards of review are applicable. However, each standard is de novo. The circuit court granted summary judgment on several of the Plaintiffs’ claims. The standard of appellate review applicable to a trial granting of a summary judgment motion is de novo. The appellate court must determine if there was a genuine issue of material fact and, (58] if not, whether the movant was due a judgment as a matter of law. The appellate court must view the evidence in a light most favorable to the non-movant, resolve all reasonable doubts against the movant, and determine whether the non-movant presented substantial evidence in support of his claim. Latham v. Department of Corrections, 927 So.2d 815, 819 (Ala. 2005); Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1886). The circuit court granted a directed verdict on the certain claims of Plaintiff Williams. The standard of appellate review applicable to a trial granting of a directed verdict is also de novo. The appellate court must determine whether there was sufficient evidence presented to produce a conflict warranting jury considera- tion. The court must review the evidence most favorably to the non-movant and resolve all reasonable doubts against the movant. Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 895 (Ala. 2005); City of Birmingham v. Suther- land, 834 So.2d 755, 758 (Ala. 2002). The circuit court also granted a new trial to Defen- dant Culpepper following a jury verdict in favor of Plaintiff App. 173 Appendix E Cottrell, where the court held it had made errors of law. The standard of appellate review applicable to a trial granting of a motion for new trial is generally abuse of discretion; however, where the ruling is based on questions of law or the application of the law to the facts the standard of review is de novo. Holly v. Huntsville Hosp., 925 So.2d 160, 162 (Ala. 2005). [59] SUMMARY OF THE ARGUMENT I. INTRODUCTION. This is a defamation case by Ronnie Cottrell and Ivy Williams, former assistant coaches for the University of Alabama football team, against the NCAA and others who were members of a conspiracy to bring punitive sanctions upon the football program. Although the goal of all the members of the conspiracy may not have been to destroy the coaching careers of Cottrell and Williams, it was the goal of at least one member of the conspiracy, college football recruiting analyst Tom Culpepper, and the others exhibited reckless disregard for how the Plaintiffs’ careers and lives would be affected. The Plaintiffs’ once successful college coaching careers were destroyed by a combination of false and defamatory statements. The defamation occurred through “leaks” to the media to which the Plaintiffs could not respond because they were under an NCAA “gag order” during its investigation, through direct personal attacks upon their reputa- tion, and, finally, through publication of false in- formation on the NCAA’s own official internet web site indicating that the Plaintiffs had been placed under an 8-year “show cause order,” the death knell to a coach’s career. App. 174 Appendix E il. THE CIRCUIT COURT’S ERRORS. The circuit court’s rulings in this case have been fraught with inconsistency and error. For example, the court first ruled that [60] Williams was a “private figure” under defamation law and denied summary judgment to the Defendants as to him [C.12567-74], but then at trial ruled at the close of Williams’ case-in-chief that he was a “public figure” and granted a directed verdict to the Defendants. [R.2585,2728-29,2690] With regard to Cottrell, the court incorrectly ruled that he was a public figure and granted summary judgment to the NCAA Defendants [C.12567-74], then ruled at the close of evi- dence at trial against Culpepper that he was a private figure in relation to Culpepper’s statements. [R.3167,3174- 77] This resulted in Cottrell’s claims against Culpepper being submitted to the jury, who returned a verdict award- ing $6 million in compensatory damages and $24 million in punitive damages. [R.3251; C.13934] Thereafter, how- ever, the court overturned the verdict and ordered a new trial based upon the court’s decision that it had erred in two legal rulings and thereby caused prejudice to Culpepper. [C.13895-96] Thus, at this point, upon appeal, the Plaintiffs are no closer to obtaining the justice they sought than they were when the suit was filed. Cottrell and Williams’ most important claims against the NCAA Defendants are based upon two differing types of defamatory statements at two differing periods of time. First, during the period of the NCAA investigation itself, beginning in November 2000, the Plaintiffs were repeatedly defamed by what can be called “conspir- acy media leaks.” [61] These “leaks” consisted of false and defamatory statements regarding the Plaintiffs that were App. 175 Appendix E provided for purposes of publication to members of the media by either the NCAA Defendants, primarily Johhan- ingmeier, or by Culpepper, another member of the conspir- acy, for which the NCAA is also liable. During this key period following the Letter of Inquiry to Alabama, when the Plaintiffs’ reputations as coaches was critically important in seeking employment (after the entire staff was let go in the wake of a 3 win, 8 loss season), the Plaintiffs were caused by the NCAA’s own Bylaws to be unable to defend their reputation because they were not allowed to pub- licly comment on the ongoing investigation. See Bylaw 32.1.4 (quoted below). The Plaintiffs argued to the circuit court that at this crucial time, the NCAA “gag order” prevented any potential access to the media that these men may have possibly had. [R.436] Thus, any potential ability to have access to the media on the part of Cottrell and Williams which the circuit court held made them at least a “limited purpose” public figure was to no avail, and their inability to counter these false reports leaked by members of this NCAA-driven conspiracy plainly renders them “private figures” as to these state- ments. The circuit court erred in granting summary judgment for the Defendants on these claims [sic] Next, in the period of time following the release of the NCAA’s Report on Infractions [C.5709-32,7864- 71|, in February 2002, the NCAA [62] published false and defamatory statements regarding the Plaintiffs on its internet web site in a “Penalty Summary” of the Alabama infractions case. [C.7873-77] From Feb- ruary 2002 until October 2003, this internet web page contained a statement that Alabama’s “recruiting coordi- nator,” clearly a reference to Cottrell, had a “show cause App. 176 Appendix E provision,” placed upon him by the NCAA. [C.7873] This statement is claimed by the NCAA to merely be accidental occurrence. [R.2594] However, the web page statement is consistent with the plainly intentional statement in the NCAA News Release that “Alabama’s recruiting coordina- tor,” Cottrell, had a “de facto show cause order statement placed upon him.” [C.7870] Moreover, the same “Penalty Summary” web page also contained a false statement that “employees” (plural) of Alabama had show cause provi- sions placed upon them. [C.7873] This statement is plainly a reference to Cottrell and Williams, who were the only employees of Alabama that had been named in the Letter of Inquiry. [(C.5593-5600,5603-5609] No one at the NCAA double-checked the Penalty Summary for error before publication, nor was it ever checked after the fact. The first statement noted above found on the NCAA Penalty Summary was not removed until October 2003, some eighteen months after publication, when the error was pointed out to the NCAA. The second statement was not removed until October 2004, another year later, again only when the error was pointed out to them. The NCAA exhibited reckless [63] indifference to its making such errors, and once corrected, merely issued an apology on the page for two days, and never sought to contact NCAA member institutions to correct its public assertion that show cause order existed against the defendants. This is so even though the stigma of a show cause order is enough to destroy a college coaching career. The circuit court erred in granting the NCAA a summary judgment against Cottrell on this claim, and a directed verdict against Williams. The Plaintiffs claims against Culpepper are based upon the false and defamatory statements he App. 177 Appendix E made about them to many other persons associated with college football-related media in Alabama during and after 2001. These statements by Culpepper were associated with evidence of great malice existing on his part in relation to the Plaintiffs, especially Cottrell, who he wanted to make sure would never coach in college again. [C.8533;R.1419,1423,1472,1497,1512-13; Pl Trial Exh. 93B] The circuit court erred in granting Culpepper a directed verdict on Williams’ claims [R.2728-29], and a new trial to Culpepper following a jury verdict for Cottrell. Ill. RELIEF REQUESTED. Many of the circuit court’s errors can be corrected by this Honorable Court holding, as is required under the facts and relevant law, that Cottrell and Williams, who were only assistant football [64] coaches at Alabama, are private figures under defamation law, rather than any type of public figure. This is particularly true with regard to the defamatory statements made by the Defendants during the period of time they were under the NCAA's “gag order” and could not publicly comment to defend their reputation. Given a finding that the Plaintiffs were private figures, the circuit court’s grant of summary judgment and a directed verdict to the Defendants on certain claims would have to be reversed. This Court should further hold that that there was no error and no prejudice to Culpepper when the circuit court finally ruled correctly, at the close of evidence, that Cottrell was a private figure as to the claims at issue, since the lower court’s ruling was based on a narrowing of the evidence and claims that were actually tried and that Culpepper himself had sought. [R.3167,3274-77] —————S__aE App. 178 Appendix E ARGUMENT “Now where do I go to get my reputation back?” Ray Donovan, U.S. Secretary of Labor, 1987 Plaintiffs Ronnie Cottrell and Ivy Williams, seemed to have everything going for them in December 1999. They were assistant football coaches for the University of Alabama (“Alabama”) football team that had just won the championship game of the Southeastern [65] Conference. They were successful in both their professional and family lives. But little did they know that within a few months a conspiracy would form among powerful persons desiring to bring ruin to the Alabama football program, and that their reputations, careers, and lives would suffer irreparable injury as “collateral damage” to the aim of the conspiracy. Because of the actions of the Defendants, both Cottrell and Williams have gone from being upwardly mobile in their Division I-A college football coaching careers to having their professional reputations ruined, leaving them practi- cally unemployable as college football coaches, such that even now, years later, they toil in far lesser jobs at less than half their former salaries. So where do these men go to get their reputations back? To the extent that such is possible, Cottrell and Williams have turned to the Alabama judicial system for fairness and justice, seeking the remedies provided by law for the wrongs they have been forced to suffer. They brought defamation, false light invasion of privacy, and [64] ” This poignant question was asked by Ray Donovan, Secre- tary of Labor in the Reagan administration, when he was acquitted of federal larceny and fraud charges, after having already been judged guilty in media reports. App. 179 Appendix E other claims against Defendants the NCAA; Richard Johhaningmeier, an NCAA investigator; Thomas Yeager, the head of the NCAA Committee of Infractions; and Tom Culpepper, a recruiting analyst and college football media person; who were active members of the conspiracy. Alas, after several years of litigation in the Tuscaloosa Circuit Court, Cottrell and Williams did not find justice, but rather the [66] bitter taste of repeated court rulings which threw out their claims and thereby protected the NCAA and other Defendants from any legal liability. A SUMMARY OF THE CONSPIRACY’S ORIGIN, ACTIONS, AND EFFECT ON THE PLAINTIFFS. During the late 1990’s a number of highly recruited high school football players from Mississippi, Alabama, and Memphis spurned the Tennessee Volunteers and signed scholarship papers with the Alabama Crimson Tide. On April 13, 1998, Phillip Fulmer, head coach of the Tennessee football team, complained in correspondence to SEC Commissioner Roy Kramer that he believed these players had signed with Alabama because Logan Young was paying money either to the player, his parents, or his coach. [(C.6401-02} Fulmer sent additional correspondence to Kramer regarding football players Alabama had re- cruited. Even though he had no evidence of wrongdoing, there is no doubt from these letters that Fulmer wished Alabama to be investigated and sanctioned by the NCAA and that he expected Kramer to oblige. Not long after Kramer received his first letter from Fulmer, the conspiracy began to form. Kramer hired SEC contract investigator Bill Sievers to beyin investigating Young. [C.6202-03,6258-68,6435,6437, 6494] Sievers also App. 180 Appendix E made contact with NCAA investigator Richard Johanning- meier in 1998 and reported it to Kramer. [C.6202-10] Thus, within just a few months the initial steps had been taken to have the [67] NCAA open an investigation of Alabama — the only thing missing was proof that Alabama had actually been involved in any wrongdoing. In July 1999, Sievers learned from an assistant coach at Tennessee that Lynn Lang, the head football coach at Trezevant High School in Memphis, where Logan Young lived, had requested a large cash payment for prized football player Albert Means to sign with Tennessee. (C.6941-42] Seivers reported the information to Kramer and suggested that Lang could be charged by law enforce- ment with solicitation of a bribe and extortion.[C.6941-42! However, Kramer did not contact law enforcement regard- ing Lang, and also did not provide the information to Alabama, who was recruiting Means. These omissions occurred as a part of the conspiracy, so that Alabama would remain ignorant of the situation and would continue to recruit Means as Tennessee and other schools backed off his recruitment. It was even more fortuitous that Lynn Lang and Means were in Memphis, so that Logan Young could be swept up into the investigation as Fulmer had wanted. The trap was now set for the unsuspecting Ala- bama football program. The 1999 football season was excellent for Alabama, and they won yet another SEC championship. In February 2000, they signed a recruiting class of all-star high school players, including Albert Means. Thus, the conspiracy had all it needed, and the trap began to close. Just a month later, in March 2000, NCAA investigator [68] Johanningmeier began his investigation of Means’ recruitment by Alabama, App. 181 Appendix E focusing on two scapegoats, recruiting coordinator Ronnie Cottrell and assistant coach Ivy Williams, who had re- cruited Means. The next person to join the conspiracy was college football recruiting analyst Tom Culpepper, who was friendly with Fulmer and who hated Cottrell for cutting off the access to the Alabama football offices that he had enjoyed under the prior recruiting coordinator. [C.5967] Fulmer was not satisfied with having pushed Kramer to begin an investigation into Alabama football. He wanted to ensure it was successful in finding violations, and in August 2000, he again got personally involved. Fulmer and his attorney met with Culpepper for about eight hours, requested that Culpepper speak to the NCAA, and secretly recorded a portion of the interview. [C.7099- 7100,7175-77] Culpepper was interviewed by Johanning- meier a few days later, and agreed to be a confidential witness against Alabama, though it was clear that he was motivated by his hatred of Cottrell, who he desperately wanted to force out of college coaching. (C.7190,8533) Even though as of August 2000, the NCAA had infor- mation from 10 sources of potential problems involving Means’ recruitment, it failed to inform Alabama, and thus allowed Means to enroll in school and play during the 2000 season. See fn. 12. But if the NCAA had given notice to Alabama at that time, Alabama’s NCAA compliance personnel would have [69] blocked his admission, see fn. 12, and Alabama could have escaped the trap. Instead, Alabama was not notified of any problems until November 2000, after Means had played, when Johanningmeier came to Alabama to interview coaches and staff, including Cottrell and Williams. [C.5969,6950,7070,7489-90] By that App. 182 Appendix E time, the trap first envisioned by Fulmer two years earlier had finally snapped closed. The 2000 season was disastrous for Alabama, and the team finished with a three-win, eight-loss season. Cottrell and Williams were let go from their coaching positions when Coach Dubose was fired, and they needed to find other coaching positions. Accordingly, their reputations among the coaching peers and college athletic administra- tors were never more important. However, Culpepper had been spreading negative rumors about Cottrell to his acquaintances in the media for some time and in 2000 his attack intensified, as he included Williams as well. He made defamatory statements regarding Cottrell and Williams to such noted persons as Rodney Orr (founder of the Tider Insider internet web site) [(C.1292-96], recruiting analyst Forrest Davis [R.1730-31], and, in a lengthy private telephone call, Birmingham sports talk radio host Paul Finebaum. [R.1649-74] As Culpepper wanted, Fine- baum repeated many of these statements on his highly popular radio show. [R.1652] Culpepper continued making defamatory statements regarding Cottrell and Williams in 2000 as well, quite satisfied that Cottrell was now [70] unemployed. [PTE 93; R.1473-74,1487] Some of the state- ments Culpepper made during this time regarding Cottrell were that Cottrell had abandoned his children and had committed embezzlement and theft, all defamatory per se. [R.1495-97, 1604-05} During 2001, the Plaintiffs continued to seek employ- ment, but without success, as newspaper reports began to be published regarding the NCAA investigation of Alabama which revealed confidential information obtained trom the NCAA, and which portrayed Cottrell and Williams in a false App. 183 Appendix E light as being guilty of major NCAA rules violations, including payment of money in the recruitment of Albert Means to Alabama. [C.7830-32,7335-38,7840-42] Cottrell and Williams wished to respond publicly to defend their reputations, they could not, as such comment was prohib- ited by the NCAA bylaws, leaving them helpless in the face of media reports. The NCAA investigation and news coverage dragged on and the NCAA issued its Report on Infractions in February 2002. [C.5709-32,7864-71] The NCAA did not find Cottrell or Williams involved in any wrongdoing in the recruitment of Albert Means, yet their reputations were forever tarnished. The NCAA’s own News Release relating to its infractions report on Alabama recognized the stigma now attached to Cottrell from the investigation as it noted that it had not imposed a “show cause Order” on him, but it was not necessary because he was “out of college coaching, under what the [71] committee considered to be a de facto show cause order.” [C.7870] Accordingly, Fulmer, Kramer, and the NCAA got what they wanted, severe sanctions on Ala- bama, and key secret witness Culpepper had gotten what he had wanted, Cottrell out of college coaching, which is where he still is today. The conspiracy’s work was done. But not quite. On the same day the NCAA issued its Report on Infractions in February 2002, the NCAA also published a Penalty Summary on the Alabama case on its web site, www.ncaa.org. That Summary falsely stated that the sanctions on Alabama included a show cause order on its recruiting coordinator, and that there were show cause orders on “employees” of Alabama. [C.7873-77] Of course, Cottrell was the recruiting coordinator at issue in the case, and he and Williams were the only coaches who had been specifically investigated by the NCAA. While the NCAA App. 184 Appendix E claims the highly defamatory statements were not pub- lished intentionally, the NCAA exhibited reckless disre- gard for the rights of Cottrell and Williams, as the information in the Summary was never double-checked for error, even when the information was updated in Septem- ber 2003 to note that the sanctions against Alabama had been upheld on appeal. Finally, Plaintiffs’ counsel notified the NCAA of the first error in October 2003, and it was corrected [C.7879-81], but even them the NCAA did not check for other errors, and the second defamatory state- ment remained on the Penalty Summary until October [72] 2004. [C.7877] This combination of defamatory statements damaged the Plaintiffs’ reputations to such an extent that they remained unemployed in the coaching profession for several years and have only found employment at the ievel where they had started decades before, at less than half their former salaries. Il. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE NCAA DE- FENDANTS ON THE PLAINTIFFS’ CLAIMS BASED UPON “CONSPIRACY MEDIA LEAKS.” The circuit court’s order on the Defendants’ summary judgment motions did not specifically address the Plain- tiffs’ claims relating to the conspiracy’s media leaks made during the course of the NCAA investigation of the Ala- bama football program beginning in November 2000, a time in which the Plaintiffs were under the NCAA's “gag order” and were unable to publicly respond to falsehoods and other information portraying them in a false light. The court failed to address the “conspiracy media leaks” App. 185 Appendix E claims even though the claims and the NCAA gag order were discussed by the counsel for the NCAA Defendants [R.378] and by Plaintiffs’ counsel [R.436,447,463-64] at the hearing on the summary judgment motions just days before the court’s ruling, as well as having been exten- sively briefed by the Plaintiffs. [C.8185-93] Instead, the court first vaguely ruled that there was not substantial evidence that Yeager or Johanningmeier were guilty of any actionable conduct toward [73] the Plaintiffs, so those Defendants were due summary judgment on all claims. (C.12572} The court held that even though Williams was a private figure, summary judgment was due to be granted on all his claims against the NCAA except those relating to the internet web site publication. [C.12569-70,12573] Finally, the court held that Cottrell, as the recruiting coordinator for Alabama, was a public figure, and granted summary judgment to the NCAA on all of his claims because, according to the court, there was not clear and convincing evidence of “actual malice” by the NCAA or a conspiracy to defame Cottrell. [C.12570,12573-74] The circuit court erred in these rulings, as demonstrated hereafter. A. The Key Difference Between “Public Fig- ures” and “Private Figures. The United States Supreme Court determined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), that the First and Fourteenth Amendments to the United States Constitution contro] the legal standards by which a defendant may be found liable in a defamation App. 186 Appendix E case. Thus, the opinions of the United States Supreme Court itself are the very best source for determining the contours of defamation law. Perhaps the most important inquiry required by defamation law is whether the plain- tiff is a “private figure” or a [74] “public figure,” as the Supreme Court has determined that the appropriate level of constitutional protection to defamatory speech is con- trolled by the plaintiff’s status. Sullivan, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975 (1967). One may become a “public figure” by achieving “such pervasive fame or notoriety that he becomes a public figure for all purposes and all contexts.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013 (1974). Public figures are those persons who “have as- sumed roles of special prominence in the affairs of society.” 418 U.S. at 345, 94 S.Ct. at 3009. Such persons are often referred to as “general purpose” public figures. The Su- preme Court explained in Gertz that: We would not lightly assume that a citizen’s par- ticipation in community and professional affairs rendered him a public figure for all purposes. Ab- sent clear evidence of general fame and notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. 418 US. at 352, 94S.Ct. at 3013. [73] * The Supreme Court has also held that these same standards apply to a claim for false light invasion of privacy, which Plaintiffs have also brought. Cox Broadcasing Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029 (1975). App. 187 Appendix E In Gertz, the Supreme Court further determined that a person may be a public figure for purposes of defamation law, even if one does not have a broad public prominence and influence in society, but does have such a level of prominence as to an issue of public concern or controversy into which the individual “injects himself or is or is drawn into.” 418 U.S. at 351, 94 S.Ct. at 3013. Such persons are (75] generally referred to as “limited purpose” public figures. The Gertz court explained that limited purpose public figures “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” 418 U.S. at 345, 94 S.Ct. at 3009. Thus, with regard to limited purpose public figures, a public controversy must precede the individuals’ actions intending to influence the controversy’s outcome. 1. Importance of Media Access. The reason the law differentiates between private figures and public figures is that, as the Supreme Court recognized in Gertz is that “[t)he first remedy of any victim of defamation is self-help using available opportunities to contradict the lie or correct the error and thereby mini- mize its adverse impact on reputation.” 418 U.S. at 344, 94 S.Ct. at 3009.% The Supreme Court further explained in Gertz that: Public officials and public figures usually enjoy significantly greater access to the channels of ef- fective communication and hence have a more (75) * The NCAA Defendants are in agreement that media access is the key factor to public figure status. [C.5066] App. 188 Appendix E 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, 94 S.Ct. at 1009. See Butts, supra, 388 U.S. at 154, 87 S.Ct. at 1991; Hutchison v. Proxmire, 443 U.S. 111, 136, 99 S.Ct. [76] 2675, 2688 (1979). This public policy consideration was noted again by the Supreme Court in Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 164, 99 S.Ct. 2701, 2705 (1979), where the Court stated: [Wle recognized that public figures are less vul- nerable to injury from defamatory statements because of their ability to resort to effective “self- help.” They usually enjoy significantly greater access than private individuals to channels of ef- fective communication, which enable them through discussion to counter criticism and ex- pose the falsehood and fallacies of defamatory statements. In other words, public figures do not engender the same level of protection in the law from defamatory statements because they have, through their prominence in society, the unique and powerful ability to defend their reputation in the public media that private figure persons simply do not have. App. 189 Appendix E B. Cottrell and Williams Were Not Public Figures as to the Conspiracy Media Leaks Because the “Gag Order” imposed by the NCAA’s Bylaws Prevented them From De- fending Their Reputations During the In- vestigation. The NCAA Defendants argued in the circuit court that the Plaintiffs’ access to the media while they were Ala- bama coaches, and since then, make them public figures.” The court recognized that [77] Williams was a private figure because he did not have “a position of public promi- nence that he was in a position to influence others.” [C.12569-12570] The court held that Cottrell was a “lim- ited purpose” public figure because the position of recruit- ing coordinator had “high profile” and “public prominence,” that “it invited public attention,” and he had “regular and continuing access to the media.”” [C.12570] [76] * The NCAA Defendants argued that Cottrell and Williams were “public figures” by reason of their status as “coaches at one of college football’s most famous schocls” and because they “had substan- tial access to the media prior to the time any alleged defamatory statements were made about them and they have had even more access to the media after the alleged defamatory statements were made about them.” [R.382-83] The NCAA Defendants further argued that by their relationship to Logan Young “It}hey interjected themselves into the controversy surrounding him and by virtue of their status as public figures who have interjected themselves into the — into the association vith the central figure of the investigation, they are by that — by that as well public figures.” [R.384] However, these three contentions are either inaccurate or irrelevant to the question of the Plaintiff’s status in relation to the conspiracy media leak claims. {77] ® The circuit court also stated in its summary judgment order that a factor which weighed in favor of Cottrell being a public figure is that he had achieved such prominence that “he was asked to have a charity golf tournament named after him.” [C.12570] This assertion (Continued on following page) App. 190 Appendix E As assistant football coaches at Alabama, Cottrell and Williams may have had some limited media access before the NCAA investigation. However, the NCAA’s argument relating to the Plaintiffs’ media access before the investigation is irrelevant as to this particular case because they lost any media access and the concur- rent opportunity to influence public perception of them once the investigation began.” [78] Bylaw 32.1.4 of the NCAA Division I Manual, titled “Cooperative Principle,” states as follows: The cooperative principle imposes an affirmative obligation on each member institution to assist the NCAA enforcement staff in developing full in- formation to determire whether a possible viola- tion 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 pro- tect the integrity of an investigation. A failure to do so may be a violation of the principles of ethical conduct. The NCAA en- forcement staff will usually share information with the institution during an investigation; was later proven false at trial when Eugene Ezell, president of the Choctaw County chapter of the Alabama alumni association testified that the chapter did have a golf tournament to raise funds for a scholarship program and that Cottrell had participated, but that the tournament Aad not been named after him. [R.1548-49] (77) ™ The NCAA's additional arguments that Cottrell and Williams are public figures because of their involvement with Logan Young and because they interjected themselves into a public contro- versy, are based upon inaccurate assertions and are also irrelevant given their inability to make public comment during the NCAA investigation. App. 191 Appendix E however, it is understood that the staff, to protect the integrity of the investigation, may not in all instances be able to share information with the institution. [C.5579] (Emphasis added) This bylaw was, in effect, a “gag order” which prevented Cottrell and Williams from speaking to the news media during late 2000 and 2001 in re- sponse to the conspiracy’s media leaks, The NCAA's gag order was thus in effect during a key period of time in which they were both first seeking employment, and it prevented them from protecting their reputations when the new perception of them by the public and by their coaching peers was being formed. The gag order left them completely powerless to influence public debate when they most needed to do so, causing them to be mere private figures regardless of any other facts. Surely, the NCAA should not be allowed the benefit of the legal classification of the Plaintiffs as public figures as to these claims, [79] when the NCAA itself prevented their access to the media, under a threat of an “unethical conduct” charge. The circuit court’s rulings were incorrect and plainly unjust. Cottrell’s and Williams’ inability to respond to media requests is evidenced by some of the newspaper articles that none other than the NCAA Defendants filed with the circuit court in support of their contention that Cottrell and Williams were public figures. The articles show that the Plaintiffs followed the NCAA's instruction to not make App. 192 Appendix E public comment.” These articles provide such statements as: ” e “Cottrell was not available for comment ... Tuscaloosa News, December 31, 2000. ° “I can’t comment on anything because of the situation with the other stuff (NCAA investiga- tion), but I never had that conversation,’ Wil- liams said.” Tuscaloosa News, January 11, 2001. e “Williams declined to comment about the call re- cords, citing the NCAA investigation.” Tuscaloosa News, February 22, 2002. e “NCAA bylaws require that all UA officials in- volved in the investigation refrain from discus- sion or comment that might impede the continuing investigation.” Tuscaloosa News, Feb- ruary 23, 2001. e “Cottrell, reached at his Tuscaloosa home, de- clined to comment, citing the ongoing NCAA in- vestigation.” Tuscaloosa News, June 1, 2001. e “Williams, contacted by The Tuscaloosa News, declined comment.” Tuscaloosa News, August 12, 2001. [80] [(C.5782-5909] In his deposition, Ronnie Cottrell noted the occurrence of conspiracy media leaks and voiced his frustration at [79] ” Other articles submitted to the court by the NCAA Defen- dants, which are from prior to the NCAA investigation or and after this | lawsuit was filed, are irrelevant to the Plaintiffs’ status as to the conspiracy media leak claims that occurred during the investigation in 2000-2001. App. 193 Appendix E being unable to respond to them because of the NCAA “gag order:” Q. What — were there ever any mispercep- tions ~— A. There were just so many things that were released to the media, and I don’t know how it got to the media. When I met with the NCAA both times, I was told not to discuss what happened in the meetings, but every time it was out there. The Michael Gaines is- sue which I was ultimately cleared of, was dis- cussed in detail in the media, just great frustration. [C.3250] (Emphasis added). A. But, in fact, after I had met with them the first time, I knew media was going to call me because they were calling me before I got there. I don’t know how they knew I was going to be in- terviewed. So I asked Rich Johanningmeier in the hallway, so I will be clear, and he told me that Ronnie, the worst penalty that you can have is an unethical conduct charge, and it is an unethical conduct charge for you to discuss anything that happened in this meeting. He said you just need to keep it confidential until this investigation is over. And those were his exact words, Rich Jo- hanningmeier, the enforcement person who in- terviewed me, (C.3251] (Emphasis added). Q. So there is this whole bunch of rumors and what you believe to be false statements that App. 194 Appendix E 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? [81] A. Yes, sir, and probr bly the most damaging thing was not really teing able to respond during that time. nobert, 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. (C.3267-68] (Emphasis added). Likewise, Williams experienced the frustration of not being able to caused to respond to the NCAA media leaks in his deposition: “[B)ut that’s just like stuff being leaked in the meetings we had, you know, NCAA was running that, you know, they tell me I can’t talk to the press, but they leak stuff.” (C.4357] Williams further noted that one newspaper account contained alleged quotes from him, which he denied making, and that Johanningmeier be- came upset and specifically warned him in a subsequent interview that he could not speak to the press: A. No, that was the second day when Jo- hanningmeier was ticked because he thought | had aid something out of school. .... And so he was going to tell me that I got to be quiet, I can’t talk to the press. And I am saying I haven't talked to the press. Q. At the beginning of your second inter- view? App. 195 Appendix E A. That’s when it was. {(C.4358] (Emphasis added). Accordingly, given this evidence of record, it was error for the circuit court to classify both Cottrell and Williams as public figures, either general purpose or limited pur- pose, for the period of the NCAA [82] investigation when the harm was done to their reputation by leaks of informa- tion by members of the conspiracy to the news media where it then appeared in print. It makes no difference that the Plaintiffs were assistant coaches at Alabama, that they occasionally gave interviews to sport reporters, or that they spoke to groups of Alabama alumni and fans. It also makes no difference that they had some type of rela- tionship with Logan Young, who was at the center of the NCAA investigation (though these issues are addressed below as to other the other claims against the NCAA). Given the powerful effect of the NCAA's “gag order,” they simply did not have the opportunity to influence public opinion as a public figure can do, and the “gag order” mandates that this Honorable Court hold that they were private figures as to the conspiracy media leak claims, such that only common law actual malice, rather than “constitu- tional actual malice,” need be shown to prove their defama- tion and false light invasion of privacy claims. This Court must not allow the NCAA to use the gag order against the Plaintiffs as both a sword and a shield. C. Plaintiffs Presented Substantial Evidence of Conspiracy Media Leaks. While holding that Williams was a private figure, and Cottrell a public figure, the circuit court’s summary App. 196 Appendix E judgment order did not specifically address the Plaintiff’s conspiracy media leak claims. The court held that there was “no legally admissible substantial evidence” [83] that NCAA employees Johanningmeier and Yeager “were guilty of any actionable tortuous conduct as to the plaintiffs.” [C.12572) It further held that there “was no clear and convincing evidence of a conspiracy,” to defame Plaintiff Cottrell. [(C.12574] These holdings by the circuit court demonstrate that it never grasped the nature of Plaintiffs’ conspiracy media leak claims. First, Plaintiffs have never alleged that the intended purpose of the conspiracy was to defame them or destroy their coaching careers. Rather, Plaintiffs have alleged that the purpose of the conspiracy was to bring NCAA sanctions upon Alabama, and that the destruction of their reputations was merely an effect of the conspir- acy’s larger purpose.” {C.1635,1637] Moreover, Plaintiffs did present substantial evidence of leaks of NCAA investi- gation-related information to newspapers occurring during the NCAA investigation, which defamed or otherwise portrayed the Plaintiffs in a false light.” {83] ™ Under Alabama law, each member of a conspiracy is liable for the misconduct of other members of the conspiracy taken in furtherance of the conspiracy, including defamation, see Hoover v. Tuttle, 611 So2d 290, 293 (Ala. 1992); SeaChange Intern., Inc. v. Putterman, 79 Ark.App. 223, 229-30, 86 SW.2d 25, 29 (2002), so the NCAA Defendants are liable for each others actions, as wel) as those of Culpepper in Jeaking information to the press. * (83) These leaks occurred in violation of NCAA Bylaw 32.1.1, titled, “Confidentiality,” which states: The Committee on Infractions, the appropriate appeals com- mittee per Bylaw 19.3, hearing officers and the enforcement staff shall treat al) cases before them as confidential until the (Continued on following page) App. 197 Appendix E {84] Here, substantial evidence was presented that Johanningmeier spoke with media persons during the investigation (C.7179-7200,7787-88], that Johanningmeier passed confidential information to Culpepper who then passed it to the media [C.7160,7544,7821-26], and that confidential information regarding the investigation ap- peared in news articles which defamed and or portrayed the Plaintiffs in a false light, as having violated NCAA rules, even though the NCAA Letter of Inquiry was not sent to Alabama until September 5, 2001 and its contents were not made public until September 8, 2001.” [C.7847-89] Under NCAA Bylaw 19.3, fn. 26, supra, all the information and allegations contained in the LOI was required to have remained confidential, but there had been leaks over the prior year (while the Plaintiffs were seeking new employ- ment). While it is true that the Plaintiffs could not present direct [85] evidence that the NCAA Defendants leaked information gained about them during the supposedly same have heen announced in accordance with prescribed procedures. [C.5579] (84) ” These were not statements of “opinion,” but, instead, allegations of fact about alleged NCAA infractions, rule violations, improper conduct, or similar activity, supposed to have been engaged in by one or the other of the plaintiffs. See, e.g., Liberty Nat. Life Ins. Co. v. Daugherty, 840 So.2d 152 (Ala. 2002), where this Court, through Justice Lyons, stated that even if words do not impute a crime (:.€., “actionable per se”), an action for defamation may be maintained for language “subjecting the plaintiff to disgrace, ridicule, odium or contempt” (i.e., “actionable per quod”). Here, the Plaintiffs have alleged such language subjecting them to disgrace, ridicule, odium or contempt, and have alleged special damages as a result thereof, including actual harm to reputation and actual loss of job, position and income. App. 198 Appendix E confidential investigation of Alabama to Culpepper and other media persons, neither the existence of a conspiracy claim nor a tort need be proven by direct evidence. For example, the new Alabama Practice Jury Instruction 43.01 on the evidentiary proof required to show a civil conspir- acy states that it may be proven “by inference and circum- stantial evidence.” This Honorable Court also stated in Luck v. Primus Automotive Financial Services, Inc., 763 So.2d 243, 247 (Ala. 2000), that: “In order to prove a conspiracy, a plaintiff may present circumstantial evi- dence.” Moreover, it is well-established in this Court’s case law that a plaintiff may also prove the commission of a tort by substantial evidence with circumstantial evi- dence.” It was stated as clear as possible by this Court in Carruth v. Pittway Corp., 643 So.2d 1340, 1346 (Ala. 1994), when this Court wrote: “Circumstantial evidence can constitute ‘substantial evidence.“ Thus, substantial evidence of the Plaintiffs’ conspiracy media leak claims can be shown by circumstantial evidence and, in this instance, the circumstantial evidence proffered [86] by the Plaintiffs meets that burden of proof.” (85) * See Palm Harbor Homes v. Crawford, 689 So.2d 3, 9 (Ala 1997) (noting that circumstantial evidence may provide “substantial evidence”); Bell v. Colony Apts. Co., 568 So.2d 805, 810-11 (Ala. 1990) (“A fact is established by circumstantial evidence if it can be reasonably inferred from the facts and circumstances adduced.”); Woodley v. City of Jemison, 770 So.2d 1093, 1096 (Ala.CivApp. 1999) (noting that circumstantial evidence may provide “substantial evidence”). (86] ™ Given that members of the media have an evidentiary privilege which protects them from being compelled in a legal proceed- ing to divulge their confidential sources, Ala. Code 1975, § 12-21-142, the only possible means by which Plaintiffs could prove this claim, absent an admission by the NCAA Defendants, is by way of arcumstan- tial evidence App. 199 Appendix E Here, under the NCAA Bylaw 32.1.1 [C.5579], NCAA personnel were required to keep all the information related to the investigation confidential. However, there were clearly leaks of information to the media, as indi- cated by language in these examples of news articles: e “However, sources close to the NCAA probe said Thursday that. ...” (C.7835-7838] * “..., although sources close to the investigation say....” [C.7851-53] The leaks had to come from persons involved with the investigation, either the NCAA Defendants or persons on the Alabama side such as Gene Marsh and Marie Robbins. There is direct evidence Johanningmeier did speak to persons in the media during the investigation [C.7787- 88,8544-45], and there is certainly no motivation for anyone representing Alabama in the NCAA investigation to bring public attention to it by providing details of compliance issues that arisen on their watch. There is also evidence of record that the NCAA Defendants bore ill will and malice toward the Alabama football program and the Plaintiffs, which provides the motivation for such media leaks. This begins with the evidence previously noted of the NCAA’s failure to notify Alabama [87] of the issues relating to the recruitment of Albert Means that had been reported to the SEC as early as May 1999, so that Ala- bama compliance personnel could have prevented him from being signed by Alabama in February 2000 or at least prevented him from enrolling in school and participating on the football team in August 2000. Further evidence of the NCAA Defendants’ motivation and the reckless disre- gard they have exhibited toward the Plaintiffs is the News Release stating there was a “de facto show cause order” on App. 200 Appendix E Cottrell, and the false and defamatory statements regard- ing them contained on the Penalty Summary posted on the NCAA internet web site, which was never double-checked and stayed in the Summary for as long as nearly three years. Certainly, secret witness Culpepper, who was closely involved with Johanningmeier [C.8543-48,7774- 44], admitted to speaking to media persons regarding Cottrell and Williams. When viewed in a light most favorable to the Plaintiffs, and resolving all reasonable doubts against the NCAA Defendants, as this Court must on review of an order granting summary judgment, Latham, supra; Wilson, supra, all this evidence, though mainly circumstantial, amounts to substantial evidence in support of the conspiracy media leak claims. Accordingly, the circuit court erred in granting summary judgment to the NCAA Defendants relating to Plaintiffs’ conspiracy media leak claims, which are due to be decided by a jury. [88] II. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE NCAA ON THE INTERNET WEB SITE CLAIMS. Both Cottrell and Williams brought several claims, including defamation and false-light invasion of privacy, against the NCAA relating to the February 1, 2002, publication on its internet web site, in a “Penalty Sum- mary” relating to the sanctions against Alabama, certain statements indicating that a “show cause order” had been placed on the Plaintiffs. The facts of this false and defama- tory publication are detailed in the Statement of Facts, supra. Thus, key issues as to these claims is whether the circuit court erred in holding that the Plaintiffs were App. 201 Appendix E limited purpose public figures and, if there was no error as to that issue, whether the court erred in holding that there was not clear evidence of actual malice on the part of the NCAA. A. Cottrell and Williams Were Not Limited Purpose Public Figures Before the NCAA’s Internet Publication Relating to the In- vestigation of Alabama, but Private Fig- ures. Unlike a “general purpose” public figure, a “limited purpose” public figure is not a public figure by virtue of some prominence or notoriety with the public at large for all purposes, but instead has only such prominence with respect to an issue of public concern which he himself has voluntarily engaged the public's attention in order to influence its outcome. Gertz, 418 U.S. at 351-52. Moreover, it is the defendant that bears the burden of proof as to demonstrating that the [89] plaintiff is a limited purpose public figure. See Bruno & Stillman, Inc. v. Globe News- paper Co., 633 F.2d 583, 592 (1st Cir. 1980); Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1641, 1553 (4th Cir. 1994). The NCAA simply never met is burden of proof. To determine whether a plaintiff is a “limited purpose” public figure, a court must first determine whether there was a particular and identifiable public controversy prior to the defamation that the plaintiff voluntarily involved himself in to such an extent that he assumed a role of public prominence or attained a position from which to influence others or the outcome of the public controversy. A court must also determine whether the plaintiff had the requisite level of regular and continuing access to the App. 202 Appendix E media before the defamation. Gertz, 418 U.S. at 3465; Hutchinson, 443 U.S. at 1384-35; Clark v. American Broad- casting Co., Inc., 684 F.2d 1205 (6th Cir. 1982), cert. denied, 460 U.S. 1040 (1982); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980). 1. The Plaintiffs Did Not Involve or Oth- erwise “Thrust” Themselves Into Any Public Controversy Prior to the Defa- mation. There is no evidence that the Plaintiffs “thrust them- selves to the forefront” of any public controversy before the defamation alleged in this case. In arguing otherwise, the NCAA Defendants were trying to make the Plaintiffs public figures based on the very topic of the [90] defama- tion at issue in this case. As the Supreme Court has stated, “those charged with defamation cannot, by their own conduct, create their own defense by making a claim- ant a public figure.” Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979). A review of the Plaintiffs’ status before the defamation at issue clearly shows that they had not involved them- selves in any public controversy in an attempt to influence its outcome.” The Supreme Court made it clear in Gertz in {90} * Before the defamation that occurred here when the NCAA published false information in the Penalty Summary for Alabama's infractions case on its website, neither Cottrell nor Williams had taken any action to place themselves at the forefront of the public controversy involving the NCAA investigation. Indeed, just the opposite is true. They were under the NCAA “gag order” until the NCAA’s Report on Infractions was released and the false and defamatory (Continued on following page) App. 203 Appendix E order to be held a limited purpose public figure a person must have “thrust themselves to the forefront” of a public controversy so as to become factors in its ultimate resolu- tion. Gertz, 418 U.S. at 345; Waldbaum, 627 F.2d at 1297. Under these principles, the Plaintiffs must have achieved some “special prominence” in the public debate about alleged NCAA recruiting violations by Alabama for the purpose of trying to influence the outcome of it in order to be limited purpose public figures. Gertz, 418 U.S. at 351. [91] If the Plaintiffs can be said to have ever become involved in the public controversy of the NCAA investiga- tion, it was only well after the occurrence of defamatory statements on which this these claims are based, when they filed this lawsuit and brought public scrutiny to the false and defamatory statements of the NCAA. While the NCAA brought the media statements of the Plain- tiffs and their counsel to the circuit court’s atten- tion, this media access was the direct result of the NCAA’s defamation and this lawsuit. The Supreme Court made clear in Hutchinson v. Proxmire, 443 U.S. 111 (1979), that a Defendant cannot argue that a plaintiff had the continuing and regular access to the media of a public figure if that level of media access was the result of the alleged defamation. 443 U.S at 134-35. In Hutchinson, a professor sued a United States senator for defamation statements were published on the NCAA internet web site on February 1, 2002. Prior to the publication of the false statements by the NCAA on the internet, the Plaintiffs involvement in that contro- versy was limited to merely having certain alleged actions of theirs a topic of public discussion, but without the opportunity to publicly defend their reputation, so they did not thrust themselves to the forefront of the controversy. App. 204 Appendix E after the senator referred to his studies as an example of wasteful spending. The senator argued that the professor was a limited public figure because local newspapers often reported his success in obtaining grants of federal funds and because the professor had access to the media. The court held, however, that none of these factors demon- strated “that [the professor] was a public figure prior to the controversy engendered by the [senator’s comments]” and that any access to the media enjoyed by the professor was a direct result of the alleged defamation. Jd. (92) Thus, under Hutchison, supra, Gertz, supra, and other case law,” the NCAA could not properly use the after-the-fact media coverage of this lawsuit as evidence on whether the Plaintiffs were limited purpose public figures before the defamatory statements at issue were made, yet the NCAA tried to do so in this case. [C.5894-5909] The circuit court plainly erred to the extent it relied on such documents in concluding that both Cottrell and Williams were limited purpose public figures. 2. The Plaintiffs Did Not Have Regular and Continuing Access to the Media Before the Defamation. The Plaintiffs did not have the regular and continuing media access required of a public figure or even a limited (92] “ Other courts have similarly held that any access to the media resulting from a controversy originally generated by the alleged defamation does not make the plaintiff a public figure. Kassel v. Gannett Co., Inc., 875 F2d 935, 941 (Ist Cir. 1989); Fitzgerald v. Penthouse International, Ltd., 691 F 2d 666, 668 (4th Cir. 1982); Waford v. Lexington Herald-Leader Co., 789 S.W. 2d 758 (Ky. 1990). App. 205 Appendix E purpose public figure before the defamation engaged in by the NCAA in February 2002, which continued for nearly two years. As discussed above, during the period of the NCAA investigation from November 2000 until the NCAA's Report on Infractions was released in February 2002, the NCAA’s gag order prevented the Plaintiffs from having the media access necessary to influence the out- come of the public controversy regarding alleged NCAA rules violations. While the Plaintiffs did have some access to the media before the NCAA investigation because of their positions as [93] assistant football coaches at Ala- bama, even then they did not have the regular and con- tinuing access of a limited purpose public figure. In order to try and meet its burden of proof on this issue, the NCAA filed in support of its summary judgment motion and as evidence at trial] many news articles in which the Plaintiffs were mentioned. [(C.5783-5847] However, the topic of vast majority of these articles was the Alabama football program itself, rather then Cottrell or Williams, who are generally mentioned only inciden- tally. The NCAA especially noted several articles pub- lished before the NCAA investigation which reported on Alabama’s football recruiting wherein Cottrell was quoted and or discussed, particularly one article published in The Sporting News in January 2000, which noted his success as a recruiting coordinator. [C.5794-5800] The NCAA argued that the article was evidence that Cottrell had widespread public notoriety. This assumption, however, is contradicted by the testimony of the NCAA’s own key employee and witness, Shep Cooper, which the circuit court never considered in review of the NCAA's summary judgment motion. ———————————e— App. 206 Appendix E a. The Circuit Court Erred in Ruling on the NCAA’s Summary Judgment Motion Without Considering Shep Cooper’s Deposition. As noted in the Statement of the Case, the circuit court ruled prematurely on the Defendants’ motions for summary judgment, before the deposition of NCAA official Shep Cooper could be filed with the court. [94] It was a violation of the Plaintiff’s constitutional due process rights for it to do so,” and it adversely affected Cottrell in particular because in his deposition Cooper made an admission relevant to the issue of Cottrell’s public notori- ety, a factor considered on whether he was a limited purpose public figure. The court’s conclusion that Cottrell had notoriety as Alabama’s recruiting coordinator is belied by the assertion made in deposition by Cooper, who is on the NCAA’s Committee on Infractions, that Cottrell had such little notoriety that even other college coaches would not know he was formerly the recruiting coordinator at Alabama. Cooper stated: “Certainly within the state — within the state of Alabama, he was [known to coaches], but I don’t know that within the coaching community they would know that [Cottrell’s] the recruiting coordinator.” Exhibit 1 (Cooper Depo, at 86). This statement serves as an admission by the (94) * The Plaintiffs have filed a motion with this Court to supplement the record on appeal with the Cooper deposition, which must be reviewed in order to demonstrate the circuit court's error. The motion was originally filed with the circuit court, but the motion was not ruled on within 14 days and is thus deemed denied pursuant to Rule 10(f), Ala.R.App.P. A copy of the motion to this Court is attached hereto as Exhibit 1 App. 207 Appendix E NCAA that Cottrell did not have sufficient public notoriety to be deemed a limited purpose public figure. At trial, the NCAA had introduced into evidence many news articles mentioning Williams. [NCAA Trial Exh. 239- 245,246,261] However, review of these finds that they are primarily composed of a few short articles [95] noting Williams hiring by a particular college football program, and many that simply mention or quote Williams in passing regarding the true focus of the article, such as the play of the Alabama running backs he coached. The few articles spaced out over several years that focus on Wil- liams himself do not demonstrate the degree of media access associated with a public figure, or even limited purpose public figure. The Supreme Court and other courts have repeatedly held that occasional access to the media prior to the defamation does not render a person a public figure, or even a limited purpose public figure. For example, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), an attorney with extensive professional and community activities, who had voluntarily associated himself with a case that attracted significant media attention, was not held to have enjoyed the level of regular and continuing access to the media required of a “limited purpose” public figure. 418 U.S. at 323. Similarly, in Hutchinson v. Proxmire, 443 U.S. 111 (1979), the Supreme Court likewise held that a professor who had access to the media, which often reported on his success in obtaining grants of federal funds did not have a level of access to the media that would render him a “limited purpose” public figure. App. 208 Appendix E In Time-Inc. v. Firestone, 424 U.S. 448 (1976), the Supreme Court held that a wealthy figure involved in a highly publicized divorce proceeding was not a “limited purpose” public figure before the alleged [96] defamation simply because she had held press conferences during the divorce proceedings. Jd. at 445 n. 3. Lastly, in Waford v. Lexington Herald-Leader Co., 789 S.W. 2d 758 (Ky. 1990), the Supreme Court of Kentucky held that a college assis- tant basketball coach did not have the sufficient level of media access to render him a “limited purpose” public figure simply because he had received occasional press attention. 789 S.W.2d at 771. The Court in Waford said that the plaintiff would still lack the sufficient media access even if it were reasonable to speculate that local media would publish the plaintiff’s views on some nation- wide recruiting controversy. /d. at 771. 8. Summary of the Limited Plaintiffs’ Media Access. The NCAA filed with the circuit court and had admit- ted into evidence at trial, numerous news articles relating to Cottrell and Williams in support of their argument that they were public figures or limited purpose public figures. As noted above, these articles must be separated into chronological categories to distinguish those which are not even relevant to the issue and those that may be relevant. ¢ Post-NCAA Investigation articles: These are not relevant because they post-date the controversy and the internet web site defamation at issue as to these claims, and mainly involve this lawsuit. App. 209 Appendix E ¢ NCAA Investigation articles: These are not rele- vant because the Plaintiffs were under the NCAA gag order. [97] © Pre-NCAA Investigation articles: These may be relevant to the issue of media access, but most only mention Cottrell or Williams in passing. Thus, there is little relevant evidence demonstrating media access by the Plaintiffs, and the court erred in holding that Cottrell and Williams were limited purpose public figures. The order granting summary judgment to the NCAA on Cottrell’s internet web site-related claims must be reversed, as must the directed verdict granted to the NCAA on William’s claims. B. Even if Cottrell and Williams Were Limited Purpose Public Figures, They Demon- strated Clear Evidence of Constitutional Actual Malice by the NCAA. Even if this Court determines that the circuit court did not err in holding that Cottrell and Williams were limited purpose public figures, the summary judgment on Cottrell’s internet web site claims and the directed verdict on such claims by Williams must be reversed because the Plaintiffs did present clear evidence of “constitutional” actual malice on the part of the NCAA relating to these admittedly false and defamatory statements. This stan- dard, which was established for public officials in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), and extended to public figures in Butts, supra, requires that in order for a defendant to be liable to a public figure plaintiff on a defamation claim, the plaintiff App. 210 Appendix E must demonstrate that [98] the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was true or not. The NCAA defended the Plaintiffs’ claims that are based on its internet web site publication of a Penalty Summary for the Alabama infractions case stating that Cottrell and Williams had been placed under eight-year “show cause orders” by asserting the testimony of NCAA employee Cheryl DeWees, who testified that the state- ments were published as a clerical error resulting from copying information relating to sanctions against the University of Kentucky. [R.2596] That alleged mistake, however, is not the entire story. It is uncontested that at the time the NCAA made the false and defamatory statements that indicated Cottrell and Williams were under show cause orders, the NCAA had knowledge of the falsity of the statements because the Report on Infractions issued the same day did not contain any penalties against the Plaintiffs. [C.5709-32;7864-71] Thus, the publication was made by the NCAA with knowl- edge that the statement was false, the New York Times actual malice test is met by documentary evidence of record, and the NCAA's only possible argument to the contrary is that it was not aware that the false and de- famatory publication had ever been made. The problem with that assertion is that there is evidence demonstrating wantonness or recklessness on the part of the NCAA in [99] both making the publication and in its response when it was put on notice of the statements. First, no one at the NCAA headquarters, where there are over 300 employees, double-checked the February 1, 2002 App. 211 Appendix E publication on the internet web site Penalty Summary for errors, despite the material nature of such information. [R.2599] Second, the false statements on the Penalty Summary were not caught and corrected by the NCAA in September 2003 when the Summary was updated by the NCAA to add that the penalties against Alabama had been upheld on appeal, or many other times when the web page was entered by that NCAA employee, as outlined in the Statement of Facts, supra. [R.2598] Third, when finally notified by the Plaintiffs in October 2003 of the false statement error regarding the assertion of a show cause order against the Alabama recruiting coordinator, that statement was removed, but the Summary was not re- viewed for other false statement and the additional de- famatory statement therein that “employees” of Alabama had been placed under a show cause order was not cor- rected. [R.2602) This latter false statement was not removed from the Summary until October 2004, over two years from when it was first published, when the NCAA was again notified by Plaintiffs. [R.2604-05] The repeated failure of the NCAA to correct all these false statements regarding Cottrell and Williams, over period of February 2002 to October 2004, despite having been put on notice that it contained a falsehood, shows utter disregard [100] for the rights of the Plaintiffs. These actions are clear evidence of a reckless or wanton conduct regarding whether its publications regarding the Plaintiffs were truthful or not, such that even if the court did not err in holding the Plaintiffs were limited purpose public figures, the constitutional actual malice test was met and these claims should have been submitted to the jury. App. 212 Appendix E IV. THE COURT ERRED IN’ GRANTING CULPEPPER’S MOTION FOR A NEW TRIAL - THE CASE SHOULD BE REMANDED FOR A JURY TRIAL ON THE EFFECT OF THE INDEM- NITY AGREEMENT AND THEN A HAMMOND HEARING. The jury in the case below brought back a verdict in favor of Plaintiff Cottrell and against Defendant Culpepper which awarded Cottrell $6 million in compen- satory damages and $24 million in punitive damages. [R.3250;C.13934] Culpepper moved the court for a new trial and the motion was granted. [C.13895-96] The court’s order stated that it had three reasons for granting the motion: that the $30 million verdict was “severely flawed” and “obviously the result of passion, bias, prejudice, and emotions,” which would ordinarily be solved by a remitti- tur, but that (2) Culpepper was prejudiced by the court modifying its ruling on Cottrell’s status after the close of the evidence to hold he was a private figure; and (3) that in the opinion of Forrester v. WVTM TV, 709 So.2d 23 (Ala.Civ.App. 1997), the Alabama Court of Civil Appeals “in effect changed the law” of slander by requiring proof of constitutional actual malice in any slander per se [101] case, as opposed to common law actual malice and that Cottrell’s claim against Culpepper was allowed to go to the jury under the wrong standard. [C.13895-96] The circuit court, however, erred in granting a new trial; instead, this case must be remanded for further proceedings on the jury’s verdict, including a jury trial on the effect of the Culpepper-NCAA indemnity agreement, and a subsequent Hammond hearing. App. 213 Appendix E A. Culpepper Was Not Prejudiced by the Court’s Ruling that Cottrell was a Private Figure. The court erred in holding that it unduly prejudiced Culpepper when at the close of the evidence it changed its ruling on Cottrell’s status from that of limited purpose public figure to a private figure. The ruling was plainly correct, and if there was any error in the court making the ruling when it did, it was merely harmless error. The claim of prejudice from Culpepper is based on a contention that he had defended the case by seeking to show that there was no proof of constitutional actual malice, rather than the lesser standard of common law malice. [C.13171- 72] The problem with this argument is that Culpepper could not defend the claims against him by demonstrating that Cottrell could not show constitutional actual malice — that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was true or not. This is because Culpepper’s own testi- mony works against him. The statements he made regarding Cottrell that formed the basis of the claims submitted to the [102] jury involved indictable offenses relating to the abandonment of children and theft and, thus, were slanderous per se.” Then Culpepper admitted (102) “ The evidence at trial demonstrated that Culpepper had made three different actionable false and defamatory statements: (1) that Cottrell] had abandoned his family when he moved from Tallahas- see to Tuscaloosa, (2) that Cottrell had stolen football player recruiting videotapes from the Alabama football offices, and (3) that that he had embezzled money from the Shaun Alexander Fund. Each is a crime under Alabama law. See Ala. Code 1975, §§ 13A-13-5 and 13A-8-1. Thus, the statements were defamatory per se because they imputed to Cottrell an indictable offense involving infamy or moral turpitude. (Continued on following page) App. 214 Appendix E at trial that in making the statements he had no knowl- edge of whether they were true or not, but was merely repeating what others had told him. [R.1165-66,1170] Moreover, Culpepper admitted that he had made the statements to media persons. [R.1191-92] The combina- tion of such facts - making slanderous per se state- ments about Cottrell to many people, including media persons, without knowing whether they were true of false - is surely evidence of reckless disre- gard for whether the statements Culpepper made were true of false. Culpepper’s own admissions were evidence of constitutional actual malice. Thus, even if the circuit court had not modified its ruling to hold Cottrell a private figure, but kept him categorized as a limited purpose public figure, the constitutional actual malice standard did not provide Culpepper a good defense. Any error by the circuit court was merely harmless error and a new trial was improperly granted to Culpepper. (103) B. The Court of Civil Appeals Opinion in Forrester v. WVTM TV, Inc., 709 So.2d 23 (Ala.Civ.App. 1997) Did Not Change Any Legal Standards. The circuit court’s order on Culpepper’s motion for new trial stated that the court had erred by not following a new legal standard for claims of slander per se, as the court believed was established by the Alabama Court of Civil Appeals in Forrester, supra. This ruling is erroneous as a matter of law. First, the Court of Civil Appeals is Sunshine Investments, Inc. v. Brooks, 642 So.2d 408, 410 (Ala. 1994), Anderton vu. Gentry, 577 So.2d 1261, 1262 (Ala. 1991 App. 215 Appendix E bound to follow the rulings of the Alabama Supreme Court and United States Supreme Court and simply does not have the authority to change the law. This particularly true with regard to defamation law where the opinions of the United States Supreme Court applying the First Amendment to the United States Constitution are control- ling. New York Times Co., 376 U.S. at 283, 84 S.Ct. at 727. Thus, the Forrester opinion could not have set a new standard of proof in a slander per se case, as the circuit court mistakenly believed.” Second, the court clearly erred in its reading of the Forrester opinion, which did not create, either explicitly or implicitly, a new legal standard applicable to claims based on slander per se. What Forrester involved was not a case of defamation per se, but the public disciplining of a child at a children’s sporting event, which the Court [104] of Appeals held was a matter of public concern. 709 So.2d at 26. The circuit court’s first error was in making the leap of logic that “[iJf disciplining a child is a matter of public concern, then a felony offense must be a matter of public concern.” [C.13895] The circuit court then went even further with its erroneous analysis to state: [103] ” Moreover, the Forrester opinion has not been cited by this Court or the Court of Civil Appeals in the nearly 10 years since it was decided, which is highly unusual! for an opinion that is said to “change the law." [104] “ Whether speech is a matter of public concern is determined as a matter of law by the court based upon its content, form, and context. Connick v. Myers, 461 U.S. 138, 147-48 n.7, 103 S.Ct. 1684, __ (1983) App. 216 Appendix E The law has always been, that slander per se can be proven by proof of common law malice. How- ever, if the defamatory statement relates to a matter of public concern, then actual constitu- tional malice must be proven. The Court of Civil Appeals, in effect changed the law, to require proof of actual constitutional mal- ice in any slander per se case. [C.13895] (emphasis added). Thus, the circuit court appar- ently reasoned that since an allegation of a felony is also slander per se, that all slander per se must be a matter of public concern and require proof of constitutional actual malice. That holding, based on a tortuous interpretation of a Court of Civil Appeals opinion, is not supported by citation to any other legal authority. Moreover, it is plainly in contradiction of this Court’s ruling in Nelson v. Lapey- rouse Garin Corp., 534 So.2d 1085, 1096 (Ala. 1988) that the defamatory statement that the plaintiff had stolen from his employer was a matter of private concern. What the circuit court did by its erroneous reasoning is take slander per se, a defamation claim with a lower burden of proof designed to protect a private figure plaintiff’s reputation by [105] providing presumed damages, and transformed it into a claim with a higher burden of proof designed to protect the defendant speaker. Accordingly, it should be clear that the circuit court erred as a matter of law in its interpretation of Forrester, an issue on which this Court has de novo review. The circuit court’s order granting Culpepper a new trial must be reversed. App. 217 Appendix E C. This Court Should Order that Following Remand, a Jury Trial Should be Held on the Effect of the Culpepper —- NCAA Indemnity Agreement Before a Hammond Hearing. Once this Honorable Court holds that the circuit court erred in granting Culpepper’s motion for new trial, this cause will be remanded for further proceedings regarding the judicial review of the compensatory and punitive damages awards against Culpepper. Because the issue of whether Culpepper is indemnified by the NCAA as to the verdict against him will be important in the Hammond hearing review of the punitive damages award,” that determination will need to be made prior to the hearing. However, because the indemnity agreement is at least ambiguous, if not wholly clear that it applies to the verdict in [106] this case, its meaning [sic] affect will need to be determined by a jury.” This much was admitted by NCAA General Counsel Elsa Cole when in her deposition she stated that whether the indemnity agreement covered the [105] ™ This Court has held that the existence and amount of insurance coverage of a defendant is a relevant factor for consideration by a court on review of a motion for remittitur of punitive damages. Cooper & Co., 832 So.2d 628, 644 (Ala. 2001) (quoting with approval the relevant text of the lower court’s order.). Similarly, the Florida Court of Appeals held in Humana Health Ins. Co. of Fla. v. Chipps, 802 So.2d 492, 497-98 (Fla.Ct.App. 2001), that where, such as here, a defendant argues that a large punitive damage award will cause great financial injury or bankruptcy, the existence of an indemnity agreement becomes relevant for proving otherwise. [106] “ It is hornbook law that whenever a contract is ambiguous in any respect the true meaning is a question of fact for the jury. Woodruff v. Leighton Ave. Office Plaza, Ltd., 622 So.2d 304, 307 (Ala. 1993) (holding that a question of fact precluded summary judgment on the meaning of an indemnity agreement.”). App. 218 Appendix E verdict in this case was dependent on the facts. [(C.13701- 08) Thus, Cottrell asks this Court to order the circuit court to hold a jury trial regarding the effect of the Culpepper-NCAA indemnity agreement prior to judicial review of the punitive damages award.” Cottrell moved the circuit court for a jury trial on this issue [C.13884 13894], but the motion was found by the circuit court to be moot when the court granted Culpepper’s new trial mo- tion. To prevent any further errors, this Court should instruct the circuit court that such a limited jury trial is required. V. THIS COURT MUST ORDER JUDGE WILSON TO PERMANENTLY RECUSE. In December 2005, subsequent to Judge Wilson’s filing of a complaint against one of Plaintiff’s counsel with the Alabama Bar Association (this document is contained with Exhibit 2 to this brief), [107] the Plaintiffs moved Judge Wilson to recuse or disqualify himself from the further proceedings of this case. [C.13966-14036] That motion was not ruled upon until August 7, 2006, when Judge Wilson wrote a letter to the presiding judge of the Tuscaloosa Circuit Court stating that he was “temporarily recus[ing] [106] “’ Alabama law recognizes that there may be a jury trial on the meaning of a provision in a contract separate and apart from the trial on the merits of the claims at issue in a complaint. See, eg., Shearson Bros. v. Crisp, 646 So.2d 613, 617 (Ala. 1994) (recognizing right to jury trial on issue of whether written agreement to arbitrate included agreement to have an arbitrator decide issues of arbitrability when there are questions of fact on that issue.). App. 219 Appendix E himself.” Exhibit 3. Plaintiffs ask, as a part of the relief requested in this appeal, that Judge Wilson be ordered to permanently recuse or be disqualified from this case.” Plaintiffs’ recusal motion outlined numerous grounds for his recusal/disqualification that need not be repeated here, but are incorporated as if fully set out herein. [C.13966- 14036] Canon 3.C.(1)(a) of the Alabama Canons of Judicial Ethics requires recusal of a judge when his or her imparti- ality may be questioned, including when he or she may have a personal bias or prejudice. Here, it is simply sufficient to point out that Alabama law has established that once a judge has filed a bar complaint against an attorney, the judge must recuse himself or herself in that case because the bar complaint is evidence of bias against the attorney.” This situation is [108] additionally compli- cated by the Judicial Inquiry Commission complaint filed by one of Plaintiffs’ counsel, adding weight to the question of a possible lack of impartiality. Judge Wilson’s letter to the presiding judge stated his temporary recusal would last until the resolution of his Bar complaint and the Judicial Inquiry Commission 1107] “ If this appeal brief is not the proper manner in which to raise the issue before Your Honors, Plaintiffs ask that their argument be treated as presented as a mandamus petition or whatever the proper procedural vehicle would be. [107] * See Ex parte Rollins, 495 So.2d 636 (Ala. 1986) (it was an abuse of discretion for the circuit court judge not to recuse himself once he filed a bar complaint against an attorney in the case); Ex parte Robert B. Eubank, 871 So.2d 862 (Ala.Crim.App. 2003) (circuit judge was ordered to recuse after filing bar complaint against an attorney defending himself pro se in a DUI case) App. 220 Appendix E complaint against him, and then he would decide whether his recusal would be permanent. Exhibit 3. Judge Wilson’s reasoning, however, is faulty, because the resolution of those matters, no matter how decided, cannot undo the appearance of bias nor erase the question of whether he can be impartial that was created by his Bar Complaint against Pleintiffs’ counsel Gallion and the other matters found in Exhibit 3. Accordingly, Your Honors should order Judge Wilson to permanently recuse himself in this mat- ter. VI. CONCLUSION. Plaintiffs Cottrell and Williams have come to this Court in order to find justice and perhaps recover their good reputations. Before the briefing to Your Honors is completed, this litigation will have taken almost five [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1406%3A1. Public record. Not legal advice.