Sports Law

Reggie Bush Sues NCAA for Defamation

Reggie Bush may be attempting to Trojan Horse his way back into the prestigious Heisman family. Bush filed a complaint with the Indiana Commercial Court in Marion County on August 23rd, bringing a defamation suit against the NCAA. Although the complaint is seeking compensatory and punitive damages from the NCAA, Bush is believably attempting to use this lawsuit to help his cause of reinstatement of his Heisman-winning 2005 college football season and his rescinded illustrious Heisman Trophy.

Bush’s college career needs little commentary as his prolific 2005 Heisman season solidified what is one of the most remarkable careers in college football history. During his three years at USC, Bush amassed over 3,000 rushing yards, 1300 receiving yards, and 48 total touchdowns. He finished 4th in Heisman voting in 2004, and 1st in 2005. Following the Heisman-winning season, The New Orleans Saints selected Bush 2nd overall in the 2006 NFL Draft. 

Bush was subsequently stripped of his Heisman Trophy in 2010, at the conclusion of the NCAA’s five-year investigation into USC’s athletics program, and his collegiate records were wiped clean. The investigation examined allegations that students received impermissible benefits while attending USC. Specifically to Bush, the investigation probed the allegation that he had improperly received benefits from a potential sports marketing agent in violation of NCAA rules. 

The NCAA Division I Committee on Infractions ultimately issued a report that concluded Bush violated NCAA amateurism rules. According to the complaint filed this week, the report attested that, 

“Mr. Bush and his parents engaged in early discussions with Mr. Bush’s stepfather’s long-time friend (and convicted felon) Lloyd Lake aimed at forming a sports marketing agency intended to support post-graduation marketing efforts related to Mr. Bush’s future professional career. The Report also determined that Mr. Bush and his parents received tangential benefits from this individual, that were impermissible under NCAA’s (now-inapplicable) guidelines for student athlete compensation.” 

USC denied the allegations and highlighted the fact Lloyd Lake was not credible because of his criminal record. Further, USC contended that Mr. Lake’s extensive criminal background and history of gang-related and violent activity made it highly unlikely that Bush would have chosen him as an agent. Despite these denials, the NCAA determined Bush violated NCAA Bylaws 12.3 Use of Agents and Benefits From Prospective Agents. The complaint importantly notes that the report did not determine Bush received any funds, awards, or benefits for participation in athletics. Following the NCAA’s determination, Bush was compelled to relinquish his 2005 Heisman Trophy. 

The importance of the absence of any determination by the NCAA of any “pay-for-play” arrangement stems from today’s allowance NIL rules afford college athletes. The allegations the NCAA determined Bush was guilty of while a USC athlete would be permissible under today’s NIL policies. In acknowledgment of today’s drastically altered college athletics landscape created from NIL, the Heisman Trophy Trust issued a statement on July 2, 2021 (a day after the NCAA issued its interim NIL policy) committing that, “[s]hould the NCAA reinstate Bush’s 2005 status, the Heisman Trust looks forward to welcoming him back to the Heisman family.”

Bush’s complaint continues by stating that the “NCAA refused to reopen the case for technical reasons. Incredibly, the NCAA argued that Mr. Bush ‘lacked standing’ to challenge the Report at all because ‘[he] was not an involved individual’ and was ‘never officially charged by the NCAA enforcement staff’.”

Now for the crux of the Defamation suit. The event that led to the dispute arose from a statement by NCAA spokesperson Megan Durham on July 21st, 2021, when asked by an ESPN reporter if the NCAA would reconsider the sanctions imposed on Reggie Bush. Durham responded, saying, 

“Although college athletes can now receive benefits from their names, images, and likenesses through activities like endorsements and appearances, NCAA rules still do not permit pay-for-play type arrangements. The NCAA infractions process exists to promote fairness in college sports. The rules that govern fair play are voted on, agreed to and expected to be upheld by all NCAA member schools.”

Originally published by ESPN, Durham’s statement that Bush participated in a pay-for-play arrangement was disseminated by dozens of major media outlets, including ABC, CBS, CNN, and Sports Illustrated. 

Bush alleges in the complaint that this statement made on behalf of the NCAA was false, defamatory, and made with malice. He claims the NCAA and Durham knew that there was no basis to claim that he was involved in a pay-for-play scheme. The complaint stresses the only interpretation of the statement is that Bush accepted payment in exchange for playing football at USC. The accusations inherent to this statement are what Bush alleges defamed him. 

Bush has long been supported by public outcry against his Heisman Trophy being revoked due to the NCAA’s sanctions on Bush and his USC accolades. This public outcry has roared louder following the introduction of NIL rules, which would permit the alleged conduct of Bush that led to the NCAA infraction determination. However, despite the long-awaited change to college athletics allowing athletes to monetize their name, image, and likeness, the new NIL policies are not retroactive. Even if the alleged conduct would be permissible under today’s NCAA rules and state legislation, that won’t change the fact Bush’s conduct at the time of the determined infractions was in violation of the rule, and the NCAA instituted the appropriate punishments in line with its then-established guidelines. While this notion may not be congruent with equity and fairness in the eyes of vehement college football fans, it is the reality that the changes NIL has brought to today’s game do not in themselves alter the past investigation and determinations of the NCAA following the rules at the time.

Additional recent events in the college football world have likewise inflamed the passions of college football fans. Johnny Manziel has openly admitted that he was receiving thousands of dollars for discretely signing thousands of autographs during his historic run at Texas A&M. The details of these events were outlined in the recent Netflix documentary, “Untold: Johnny Football”. The NCAA investigated the suspicions that Manziel was receiving under-the-table payments, but never determined any sanctions while he was an athlete, or after the illicit arrangements came out into the open. Most importantly, Johnny Football still possesses the Heisman Trophy he won from his electric 2012 season. Why Manziel keeps his Trophy while Bush remains empty-handed and ousted from the Heisman family is a question practically every fan or follower of the storyline has wondered. 

As for this current defamation suit, it’s a long shot for Bush to succeed in court. In addition to the standard elements needed to prove for a successful defamation suit, Bush will have to prove Durham and the NCAA defamed him with “actual malice,” which is a particularly high threshold to surpass. Actual malice exists when the party making the defamatory statement either knew the statement was false or made the statement with “reckless disregard” for whether it was false. 

On its face, the defamation per se argument seems far-fetched. It is hard to believe that Durham’s 2021 statement on behalf of the NCAA had any impact on the public’s impression of Bush. The NCAA’s sanctions of Bush have been long-established and public; an NCAA spokesperson reiterating the results of the investigation and rejecting the idea of reconsidering the sanctions would likely not be accurately described as “defaming” Bush’s reputation in the eyes of the court.

However, as mentioned above, it’s likely Bush’s motives behind this suit are more geared toward bringing attention and support to his cause: the return of his 2005 Heisman award and restoration of his collegiate accolades. Especially considering the open commitment from the Heisman Trophy Trust to reinstating Bush if the NCAA reinstated his 2005 season. Even if Bush won his defamation suit, he remains without his Trophy. That is unless the suit can bring about enough support to pressure the NCAA to reconsider reinstating Bush’s historic 2005 season. Bush’s lawyers have simultaneously launched an online petition aimed at the NCAA “to restore Reggie Bush’s collegiate records so he can reclaim his Heisman Trophy.” The hope is the petition will reach 10,000 signatures.