The NCAA argues in a recently filed motion to dismiss that former NFL running back Reggie Bush’s defamation and false light lawsuit is fundamentally flawed, including because receiving payments while he played University of Southern California two decades ago would still be banned today.
Bush for follow-up the NCAA in an Indiana trial court in August. He objects to an NCAA spokesperson’s statement on July 1, 2021, the day the association permit athletes profit from their name, image and likeness. Responding to a reporter’s question about reconsidering past sanctions, the spokesperson said: “NCAA rules still do not allow pay-for-play type agreements.” Bush, 38, says the statement was about him, while the NCAA emphasizes that the statement does not refer to him.
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Regardless, Bush objects to characterizing his alleged receipt of payments as a “pay-for-play type deal.” Bush considers it damaging to his reputation to be placed in a category of athletes considered to be illegally taking money to attend a school.
About a dozen years ago, the NCAA concluded that Bush and his parents received “items of value” from potential marketers who were “seeking to establish a business relationship with Bush.” These individuals paid Bush in hopes of representing him when he entered the NFL. USC was punished and stripped of its 2004 national title. Bush was playing in the NFL at the time, but his image took a hit and he surrendered his 2005 Heisman Trophy.
Now a TV analyst for Fox Sports, Bush has long denied these accusations. Yet, as the NCAA points out, USC “conceded” some of the accusations targeting Bush, including that Bush and his parents were given “free use of a home” and $10,000 to purchase appliances.
The NCAA, through an attorney Ryan Miller of Faegre Drinker Biddle & Reath, asserts that Bush secretly accepting gifts was not a VOID transaction because it was not an exchange of sponsorship or endorsement by Bush. NIL concerns the commercial use of college athletes’ identities, not their work or the ability to represent them as an agent.
But did Bush benefit from a “pay-for-play type deal,” the term used by the NCAA spokesperson in 2021?
Bush argues that pay-to-play refers to payment in exchange for playing a sport at a particular university. This definition would not include payments made by a potential marketer whose interest in Bush was for a future period – when he had turned professional. The payments that caused Bush to break NCAA rules were to not play at USC or any other school.
The NCAA disagrees with Bush’s definition and argues that Bush strategically marginalizes “type” in “a pay-for-play type arrangement” since that word broadens the range of payments included.
“Any situation” in which a college athlete uses his or her athletic skills “to obtain compensation” while engaged in a “prohibited practice” could fall under the moniker of a “pay-for-play type arrangement,” the NCAA argues. This very broad definition covers the payments at issue with Bush.
To support its argument, the NCAA cites CaliforniaThe Fair Pay to Play Act, the state’s first NIL legislation in the two-year period before the NCAA acquiesced in 2021 and allowed college athletes to use their right of publicity without breaking the rules NCAA eligibility criteria. The law relied on the phrase “pay to play” although it only allowed zero payments, not school payments or recruitment and retention aid. The NCAA considers the law’s title to be significant because it “reflects a logical understanding of the language” in that “pay to play” is intended to be interpreted inclusively.
Even if Bush’s definition proves more convincing to presiding judge Heather Welch, the NCAA argues that he still cannot win his case because he cannot establish actual malice or that he was injured in a way that the law should remedy.
Actual malice is the threshold that public figures like Bush must meet to move forward in a defamation action. Bush must demonstrate that the NCAA not only made false and hurtful statements about him, but did so knowing those statements were false or with reckless disregard as to whether they were true or false. According to Bush, the NCAA knew he was not paid to play at USC, but its spokesperson nonetheless used the term to damage his reputation.
The NCAA maintains that the spokesperson’s statement was not defamatory because it was true, and that truth is an absolute defense to defamation. The statement also concerned a matter of public concern: a high-profile violation of the rules involving a famous player. The NCAA points out that many journalists have covered this subject and that the association enjoys the same First Amendment right.
In the coming weeks, Bush, represented by civil rights attorney Ben Crump, will file a brief opposing the NCAA’s motion.
