Reggie Bush NCAA Defamation Suit Pits NIL Versus Pay-for-Play
Former NFL running back Reggie Bush, who starred at USC and won the 2005 Heisman Trophy, sued the NCAA in an Indiana trial court on Wednesday for defamation and false light, which caused him to return the award.
Bush contends that the NCAA, through spokesperson Megan Durham, defamed him on July 1, 2021, in response to a question posed by ESPN reporter Kyle Bonagura. This was the day when the NCAA began to allow NIL deals. Bonagura asked if the NCAA would reconsider the sanctions it imposed years ago.
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Durham’s response raised a distinction between allowable NIL and Bush’s activities. It also provoked a lawsuit.
She said what Bush is accused of doing in the mid-2000s would still violate NCAA rules in 2021 (and today). This is because, Durham said, “NCAA rules still do not permit pay-for-play type arrangements,” and the organization would not consider returning Bush’s Heisman.
The sanctions were handed down in 2010, when the NCAA retroactively determined that Bush—by that point in his fifth NFL season—had in 2004 forfeited his eligibility by violating NCAA amateurism rules. USC’s 14 victories and accompanying records while Bush played for the team in 2004 and 2005 were vacated.
The NCAA found Bush and family members had, in violation of amateurism rules at the time, accepted gifts from agents and would-be agents (Bush disputes those findings and argues the investigatory process was flawed.) USC was cited for “lack of institutional control” over the benefits received by Bush as well as former USC basketball player O.J. Mayo. Bush relinquished his Heisman- the first recipient ever to do so- in the wake of those findings.
Represented by civil rights attorney Ben Crump, Bush argues that the NCAA “did not allege or find” that he was induced to attend USC by impermissible benefits. Bush was accused of accepting benefits from a sports marketing agent who eyed doing business with him as a future NFL player, not those who sought to induce him to attend or stay at USC. The running back was drafted second overall by the New Orleans Saints in the 2006 NFL draft and played 11 seasons in the league before retiring as a member of the Buffalo Bills.
Bush, now a Fox Sports analyst, asserts it “would be eminently unfair” to deny his achievements if he took money from a marketing agent when college football players of his caliber “now regularly command multi–million dollar contracts” through marketing agents.
As a public figure, the 38-year-old Super Bowl XLIV champion can only succeed in a defamation claim if he proves the NCAA (through Durham) made a false statement that damaged his reputation and acted with actual malice.
That means he must show the NCAA not only made false and hurtful statements about Bush, but did so with knowledge that the statements were false or with reckless disregard as to whether they were true or false.
Bush argues actual malice is present since the NCAA has publicly described pay-for-play as inducements to attend and remain at a college, not inducements related to representation—and earning associated commissions—of a player with pro prospects.
Bush says the NCAA has “substantially and irreparably damaged” his reputation and caused him “mental anguish, humiliation and embarrassment.” The complaint cites numerous news stories about him as evidence of damage to reputation.
In addition to a defamation claim, Bush also accuses the NCAA of false light. This type of claim refers to a statement that technically might not be false but is offered by the defendant in a deceiving fashion that it is callous and reputation-harming. Bush stresses the NCAA did not allege he “ever considered, let alone entered,” into a pay-for-play arrangement in which he was paid to attend USC.
In the coming weeks, the NCAA will answer Bush’s complaint and motion for its dismissal.
Expect the NCAA to argue that Bush accepting money from would-be representatives would still be disallowed by NCAA rules if the money was in exchange for a promise to hire them for future NFL representation. Such a deal would not constitute a transaction in which Bush was compensated for his name, image or likeness; it would have been a transaction for future performance. The NCAA could therefore insist Durham was correct in saying Bush would still have engaged in impermissible conduct and that even if she misspoke about “pay-for-play” it did not rise to actual malice.
Bush, however, could counter that because NIL wasn’t allowed in the 2000s, a marketing representative could only discuss representation when he turned pro; if NIL were allowed back then, the representative could have discussed NIL-related deals.
In addition, the NCAA might argue that Bush’s frustration over the lost Heisman Trophy is not an NCAA matter. Bush’s complaint references a statement from the Heisman Trophy Trust, a separate organization from the NCAA, stating that if the NCAA “reinstates Bush’s 2005 statutes” it would “welcome him back to the Heisman family.” The NCAA could assert that if Bush believes the trust should return the trophy, he should consider legal action against the trust.
