Crimson Hide?: Alabama Judge Finds Ray Keller's Character Is Not An Essential Element Of His Defamation Lawsuit Against The NCAA

The defamation trial between Ray Keller and the NCAA began this week in a courtroom in Jackson County, Alabama, but pursuant to the judge's odd order, jurors will not be able to hear evidence about Keller's background or reputation.  Keller is an Alabama businessman and a former booster for the University of Alabama.  In 2002, after an investigation into Alabama's football program, the NCAA Committee on Infractions issued a public report about a football recruiting scandal involving Alabama and Keller.

Alabama's football program was placed on probation, and Keller filed a lawsuit against the NCAA, claiming that the report constituted defamation of his character.  Before trial, the NCAA sought to introduce evidence about Keller's background or reputation prior to when the NCAA report was issued.  The judge decided that such evidence would not be admissible.

Without knowing the exact evidence that the NCAA sought to introduce, it is difficult to argue with the judge's ruling that Keller's prior "bad acts" were inadmissible because they were "too remote to be probative."  What troubles me, though, is the judge's finding that the evidence was inadmissible because Keller's case was not a case "where the Plaintiff's character is an essential element of a claim or defense."

This language comes from Alabama Rule of Evidence 405(b), which is similar to Federal Rule of Evidence 405(b) in that it states that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."  The judge thus apparently found that Keller's character was not an essential element of his defamation claim or the NCAA's defense of that claim.

This ruling is bizarre because it is well established in courts across the country "that the character of a plaintiff in a defamation case is at issue," fulfilling the essential element portion of Rule 405(b). World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1138 (10th Cir. 2006).  The Supreme Court of Alabama is one of these courts following this general trend. See Ex parteHealthSouth Corp., 712 So.2d 1086, 1088-89 (Ala. 1997) (allowing discovery of the defendant's alleged prior bad acts pursuant to Alabama Rule of Evidence 405(b)).  Furthermore, these holdings make perfect sense because truth is a complete defense in a suit for defamation. 

Thus, unless there are factors at play of which I am unaware, the evidence proffered by the NCAA clearly met the "essential element" requirement of Rule 405(b), and the judge's decision conflicted with well-established precedent.

-CM