Alabama Jury Gets Revenge Against NCAA

Yesterday, a jury in Alabama awarded $5 million to a former University of Alabama football booster, Ray Keller, who claimed the NCAA defamed him when it imposed penalties on the Crimson Tide in 2002. Keller maintained that the NCAA wrongly lumped him in with other boosters who were accused of making improper contacts and payments to recruits in the 1990s. A timber dealer and Crimson Tide fan, Keller argued that the NCAA slandered and libeled him during the announcement of penalties by referring to him and others as "rogue boosters," "parasites" and "pariahs." According to the press report, the NCAA didn't use the name of Keller or other boosters in announcing penalties against Alabama, but their names appeared in news accounts and the university sent Keller a letter barring him from its athletics program. The jury awarded him $3 million in punitive damages, $1 million for mental anguish, $500,000 for economic loss and $500,000 for damage to reputation.

This trial wasn't about defamation. It essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by 12 Crimson Tide fans! As a torts professor, I've read plenty of defamation cases and I will be really surprised if this judgment ends up sticking on appeal (but I've been surprised before so I guess that's not saying much).

First, a statement must be defamatory by definition, which means that the statement must tend to adversely affect the plaintiff's reputation, for example, by impeaching the plaintiff's honesty or integrity. Referring to the former boosters collectively as "parasites" and "pariahs" is not any more defamatory than it is to simply say that the boosters made improper contacts and payments to recruits in violation of NCAA rules. In other words, what is potentially damaging to the former boosters' reputations in the community is the fact that the NCAA implicated them in wrongdoing which led to sanctions imposed on Alabama's football program, not that the NCAA called them parasites and pariahs.

Second, even if the NCAA's statement is deemed defamatory, the damages award seems excessive. Keller would most likely be classified as a private person, not a public figure. However, when the defamatory statement relates to a private person involving a matter of public concern or controversy -- such as penalties imposed on Alabama's football program as a result of improper activity by boosters -- the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) held that the plaintiff has the burden to prove that the defendant was negligent in ascertaining the truth of what it published. The NCAA performed a full investigation and determined that the boosters made improper payments and contacts. To my knowledge, there is no evidence of bad faith or even a negligent investigation on the part of the NCAA.

Finally, even if the NCAA was negligent in ascertaining the truth of what it published, Gertz held that damages are limited to the "actual injury" sustained by the plaintiff, which includes out-of-pocket loss, impairment of reputation, humiliation and mental anguish. However, there must be competent evidence of actual injury. Damages are not presumed, which is typically the case in libel actions relating to private persons involving matters of purely private concern. Thus, any award of punitive damages in this case can hardly be justified absent a showing that the NCAA made the statement knowing it was false or with reckless disregard for the truth. Also, $1 million for mental anguish on these facts seems fairly excessive.

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