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 his receipt of payments while starring at the University of Southern California two decades ago would still be prohibited today.
Bush sued the NCAA in an Indiana trial court in August. He objects to an NCAA spokesperson’s statement on July 1, 2021, the day when the association permitted athletes to profit from name, image and likeness. Responding to a journalist’s question about reconsidering past sanctions, the spokesperson said, “NCAA rules still do not permit pay-for-play type arrangements.” Bush, 38, says the statement was about him, whereas the NCAA stresses the statement doesn’t refer to him.
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Regardless, Bush objects to labeling his alleged receipt of payments as a “pay-for-play type arrangement.” Bush sees it as reputationally damaging to be placed in a category of athletes cast as illicitly taking money to attend a school.
About a dozen years ago, the NCAA concluded Bush and his parents received “things of value” from would-be marketing agents who “sought to form a business relationship with Bush.” Those individuals paid Bush in hopes of representing him when entered the NFL. USC was punished and stripped of its 2004 national title. Bush was playing in the NFL by then, but his image took a hit, and he returned his 2005 Heisman Trophy.
Now a TV analyst for Fox Sports, Bush has long denied the accusations. Yet as the NCAA points out, USC “conceded” some of the Bush-focused accusations, including that Bush and his parents obtained the “cost-free use of a home” and $10,000 to buy appliances.
The NCAA, through attorney Ryan Miller of Faegre Drinker Biddle & Reath, asserts that Bush secretly taking gifts was not an NIL transaction because it was not in exchange for Bush to sponsor or endorse. NIL is about the commercial use of college athletes’ identity, not their labor or the chance to represent them as an agent.
But was Bush a beneficiary of a “pay-for-play type arrangement,” the term used by the NCAA’s spokesperson in 2021?
Bush contends pay-for-play refers to payment in exchange for playing a sport at a particular college. That definition wouldn’t include payments by a would-be marketing agent whose interest in Bush was for a future period—when he turned pro. The payments that caused Bush to run afoul of NCAA rules were not to play at USC, or any other school.
The NCAA disagrees with Bush’s definition and contends Bush is strategically marginalizing “type” in “pay-for-play type arrangement” since that word expands the range of included payments.
“Any situation” where a college athlete is using their athletic skills “to obtain remuneration” while engaged in a “forbidden practice” could fall under the moniker “pay-for-play type arrangement,” the NCAA argues. That far-flung definition covers the payments at issue with Bush.
To enhance its argument, the NCAA cites California’s Fair Pay to Play Act, the first state NIL legislation in the two-year period before the NCAA acquiesced in 2021 and allowed college athletes to use their right of publicity without running afoul NCAA eligibility rules. The Act relied on the phrase “pay-for-play” despite only authorizing NIL payments, not payments by the school or boosters for recruitment and retention. The NCAA sees the Act’s title as meaningful since it “reflects a commonsense understanding of language” in that “pay to play” is intended to be interpreted inclusively.
Even if Bush’s definition proves more persuasive to the presiding judge, Heather Welch, the NCAA contends he still can’t win his lawsuit because he can’t establish actual malice or that he was harmed in a way the law ought to remedy.
Actual malice is the threshold that public figures like Bush must meet to advance in a defamation suit. Bush must demonstrate the NCAA not only made false and hurtful statements about him, but did so with knowledge the statements were false or with reckless disregard as to whether they were true or false. As Bush sees it, the NCAA knew he wasn’t paid to play at USC but its spokesperson nonetheless used that term to harm his reputation.
The NCAA maintains the spokesperson’s statement was not defamatory since it was true, and truth is an absolute defense to defamation. The statement also concerned a matter of public interest: a high-profile rules violation involving a celebrity player. The NCAA stresses that numerous journalists have discussed this topic, and that the association enjoys the same First Amendment right.
In the coming weeks, Bush, who is represented by civil rights attorney Ben Crump, will file a brief opposing the NCAA’s motion.