A major broadcasting move we still haven’t really gotten an answer for was why Fox replaced Reggie Bush with Mark Ingram II on Big Noon Kickoff in July 2023, with Ingram retiring from the NFL to take that role. At the time, the reporting was generally just a vague “contract dispute.”
But, following that replacement becoming official, Bush filed a defamation lawsuit against the NCAA that August. One of his claims there was that NCAA spokesperson Meghan Durham Wright’s 2021 remark to journalists of “NCAA rules still do not permit pay-for-play type arrangements” (when answering a question specifically about him in a media session focused on updates to name, image, and likeness rules) damaged his broadcasting and endorsement deals. And an Indiana judge has now rejected the NCAA’s bid to dismiss that lawsuit, as Michael McCann writes at Sportico:
Bush sued the NCAA last August over a remark NCAA spokesperson Meghan Durham Wright made to journalists in 2021, when the NCAA changed its rules to allow NIL. Although Wright didn’t name Bush, Wright was answering a question about Bush when she said, “NCAA rules still do not permit pay-for-play type arrangements.”
A judge in Indiana has denied the NCAA’s motion to dismiss Bush’s defamation and false light lawsuit against the association. Judge Heather Welch of the Marion Superior Court ruled Thursday that “the vacated status of Bush’s records at USC and his subsequent relinquishment of the Heisman Trophy—upon which his reputation as a college football analyst largely relies—can be said to have a real effect on Bush’s current profession as a college football analyst.”
The fact that she didn’t name Bush, Welch stressed, doesn’t defeat a defamation claim since Wright’s answer “was interpreted as such by media outlets and by individual readers” as referring to Bush.
…Welch underscored that Bush disputes the NCAA’s accusations and that the NCAA has not alleged or found Bush “engaged in a pay-for-play relationship or received impermissible inducement benefits to attend USC.” In fact, the judge reasoned that “Bush’s alleged conduct” would be “permissible under NCAA’s current NIL rules.”
…Welch concluded Bush properly pleaded a defamation case, including because he “specifically asserts” that the NCAA’s statement in 2021 “caused damages to his personal and professional reputation.” She noted that Bush offers concrete examples of alleged harm by referencing the loss of “long-term broadcasting contracts and endorsement deals.”
It’s notable that this year already saw the Heisman Trust (which is separate from the NCAA) decide to return Bush’s trophy (to significant media applause), citing changes in NCAA NIL rules. (Bush voluntarily returned his trophy in 2010 after NCAA sanctions were announced against USC, but lobbied the Trust for reinstatement beginning in July 2021, with that campaign coming shortly after the NCAA rule change in question here.) And while that wasn’t an official NCAA move, it did seem to spell the end of an era of controversies over college athlete pay.
Yes, specific pay-for-play still isn’t allowed under NCAA NIL rules (although a federal court froze those rules in February due to another case involving Tennessee). But even that’s set to change somewhat following this week’s House v. NCAA settlement, with some current and back compensation specifically for play coming.
However, Bush insists that what happened in his case wasn’t a specific pay-for-play setup that would violate the current NCAA rules. Instead, he says it was a deal with an agent that would currently be permissible (but wasn’t then). And Judge Heather Welch also cited former USC assistant Todd McNair’s past defamation lawsuit against the NCAA over the Bush case, quoting that the trial court’s findings that the NCAA report in the Bush/USC case “produced a ‘fictional account’ with ‘ludicrous’ paraphrasing of what witnesses actually said.
It’s perhaps fascinating that Welch found Bush’s “concrete examples” of alleged harm from Wright’s comment significant. And it’s notable that she also wrote that the NCAA’s actions to vacate Bush’s records (which remain vacated) and the past return of his trophy (which might have been taken from him if he hadn’t forfeited it) “can be said to have a real effect on Bush’s current profession as a college football analyst.”
From the outside, based on what’s come out so far, that’s not seemingly an easy link to make. Bush joined Fox for their Big Noon Kickoff launch in 2019, well before the NIL changes at issue here. And everyone from executives to viewers certainly knew at the time that he had returned his Heisman trophy and that his NCAA records had been vacated. But, it is notable that the linking of Bush to still-impermissible “pay-for-play” in 2021 is not how Bush or USC described what happened, and is not necessarily proven by the NCAA investigation at the time either. There’s a significant distinction there, and it is possible that a NCAA spokesperson describing Bush’s actions as something that would still be impermissible did affect his career.
This is just an advancement of the lawsuit. If it heads to court, it would still have to go through pretrial discovery. And both sides might have some incentive to avoid that with a settlement.
If we do get discovery and maybe even a court case here, there could be some interesting media revelations. If Bush can produce some evidence that these comments impacted the end of his Fox contract and perhaps his other broadcasting and endorsement opportunities, that would certainly be notable not just for what it says about him, but what it says about how media companies viewed him in 2023.
While these spokesperson remarks have already proven costly for the NCAA, they may prove even more so if this goes to trial. And they could potentially impact some broadcasting entities as well.
[Sportico]
