(19) RAY KELLER vs. NATIONAL COLLEGIATE ATHLETIC ASSOC.; MYLES BRAND; CEDRIC DEMPSEY; THOMAS E. YEAGER; RICHARD A. JOHANNINGMEIER; JAN JANKOWSKI; LARONICA L. CONWAY; TOM CULPEPPER; WALLY RENFRO; and MARK JONES

COUNTY/DOCKET #/JUDGE: Jackson / CV-04-28 / John H. Graham

PLAINTIFF(S) ATTORNEY(S): Robert D. Word, III, Scottsboro; Archie C. Lamb, Jr. and Francis I. Johnstone of The Lamb Firm, L.L.C., Birmingham; Edward K. Wood, Jr. of Wood Law Firm, L.L.C.; Birmingham; Gregory L. Davis, Montgomery

DEFENDANT(S) ATTORNEY(S): Robert H. Rutherford, Jr. of Burr & Forman L.L.P., Birmingham for NCAA; E. Allen Dodd, Jr. of Scruggs, Dodd & Dodd, P.A., Fort Payne for NCAA; James E. Brisendine of Scruggs, Dodd & Dodd, P.A., Fort Payne for NCAA and Dempsey; John C. Morrow and Richard C. Keller of Burr & Forman, L.L.P., Birmingham, for Johanningmeier; John P. Scott, Jr. and Joshua H. Threadcraft of Starnes & Atchison, LLP, Birmingham for Culpepper

AGE/SEX/OCCUPATION OF PLAINTIFF: n/a / M / Lumber Mill Owner

CAUSE OF INJURY: Slander/Allegations of Unethical Football Recruiting Practices over Web-cast. Defendant National Collegiate Athletic Association (NCAA) is an association that governs college and university athletic programs. Defendant Brand is currently the chief executive officer of the NCAA; Defendant Dempsey was the chief executive officer of the NCAA; Defendant Jankowskiwas an employee of the NCAA responsible for organizing and conducting media events, web-casts, and press releases; Defendant Renfro was an employee of NCAA and Senior Advisor to the President for Communications; Defendant Jones was Director of Enforcement for the NCAA; and Defendant Culpepper was a freelance reporter and writer. Plaintiff alleged that NCAA performed an investigation concerning allegations of various college football recruiting violations associated with the football program at the University of Alabama in Tuscaloosa. These investigations began as early as summer 2000 and continued until February 1, 2002. On February 1, NCAA conducted a live audio web-cast on their commercial Internet web site that included a press conference and the University of Alabama, Tuscaloosa Public Infractions Report. On September 17, Defendant NCAA published on the commercial Internet web site a written Infractions Appeals Committee Report concerning the investigation. These web-casts and other materials were first published in Jackson County and were seen and heard by other people throughout Alabama, the United States, and the world.

  Plaintiff claimed that during this investigation, Defendants “made false and misleading statements to others and sought private information concerning Plaintiff’s personal life and affairs.” These statements described Plaintiff “as an individual that ‘brought unprecedented disgrace’; is a ‘pariah’, a participant in a ‘completely sordid affair’; had a ‘complete disdain for NCAA rules’; provided a large cash payment to a football recruit; and as a person that ‘operates under the radar’; as a person with a ‘lack of any redeeming value’ worthy of ‘scorn’ by the public; and intimated that Plaintiff was under investigation by the FBI; and a participant in some of the ‘worse, most serious violations’; someone that caused ‘a very embarrassing situation’; worthy of ‘public scorn’; that caused ‘pain and embarrassment to the University’; and other slanderous utterances.”

  In spite of repeated written demands for removal of the false and misleading materials, it was not removed from NCAA’s web site. Defendants continued “to conduct interviews and other media communications regarding the events,” and continued “to assert that the false and defamatory statements made about Plaintiff are true,” and refused “to retract and acknowledge the falsity” of the defamatory statements.

NATURE OF INJURY: Loss of real estate business venture in Jackson County valued at more than $1,000,000; other damages such as injury to Plaintiff’s property, business, trade, profession, and occupation throughout the country; loss of reputation; shame; mortification; hurt feelings; emotional distress; mental anguish; economic loss.

EXPERT WITNESSES:
PLAINTIFF’S:
David Swank, Law Professor, Univ. of Oklahoma, Norman, OK

DEFENDANT’S:      
John MacKovic, Former Football Coach/Athletic Director, La Quinta, CA
Barry Kennedy, Accounting

VERDICT: $5,000,000 for Plaintiff on November 29, 2007($1,000,000 - mental anguish damages; $500,000 - economic loss damages; $500,000 - presumed damages to reputation; $3,000,000 - punitive damages).

EDITOR'S NOTE: This was a four week trial. The jury was composed of nine females and three males. The jury deliberated for six to seven hours over a two-day period. On May 10, 2006, the court granted the Motion for Partial Summary Judgment and dismissed Defendants Yeager and Johanningmeier. On April 28, 2008, the verdict was thrown out by the judge and Defendant was granted JNOV. The judge conditionally granted a new trial if the case was reversed on appeal. Plaintiffs filed a Notice of Appeal on June 6, 2008.