[fpic]http://www.sectalk.com/teams/Tennessee.gif[/fpic]Judge deliberating on suits filed by, against Fulmer.

By: SI.com
www.si.com


KNOXVILLE, Tenn. (AP) -- The attorney for a former Tennessee football player and his family faced tough questions on Friday from a judge trying to understand the arguments in a defamation lawsuit filed against coach Phillip Fulmer.

Kenny Smith and his family sued Fulmer and the NCAA in Knox County Chancery Court in January because of what the Tennessee coach said in 2000 to NCAA officials investigating possible recruiting violations at Alabama.

Threatened by the possibility of a lawsuit, the NCAA and American Football Coaches Association asked a judge last year to rule that statements made to NCAA investigators are protected from litigation. Fulmer later joined that lawsuit as a plaintiff.

The cases have been consolidated, and both sides argued their motions Friday before Chancellor John Weaver, who said he would rule on them after Thursday.

David Buuck, the Smiths' attorney, told the judge the "case would have never been here" if Fulmer had apologized to the Smiths. He said after the hearing he would have to talk to his client about whether an apology would end the case now.

"That might go a long way," he said.

Fulmer told the NCAA there were rumors Smith's mother, Vicki Smith Dagnan, was involved with an Alabama assistant coach and that Smith had dealings with a former Alabama booster. Smith originally signed with the Crimson Tide but later enrolled at Tennessee.

Interviews conducted by the NCAA usually remain confidential, but summaries of Fulmer's interviews were publicized in January 2004 when NCAA documents were released through a criminal court case in Memphis against Logan Young, a former Alabama booster who has been convicted and sentenced to prison on charges he paid a high school coach $150,000 to steer recruit Albert Means to the Crimson Tide.

A federal grand jury that eventually indicted Young subpoenaed the documents in 2001.

Buuck argued the NCAA documents are not privileged even though they were part of a secret grand jury investigation. He said there are questions about whether the subpoena's scope included these documents and whether the NCAA itself was a "prime mover" in spearheading the grand jury investigation.

But Buuck said he didn't know the answers to those questions because he didn't have the subpoena.

"The bottom line is you don't know if any of these things are true," Weaver asked Buuck. "How could you bring a lawsuit? ... You could sue anyone who submits documents to a subpoena."

"All I know is they submitted those documents and slandered my clients," Buuck responded.

The judge said he needed to see the subpoena before making a decision, and the NCAA attorneys agreed to provide one.

In 2002, the NCAA placed Alabama on probation for five years after finding several violations. Two former Alabama assistant coaches later sued the NCAA, and attorneys for the coaches have claimed Fulmer and the NCAA conspired to bring down the Alabama football program.

The same attorneys filed a similar defamation lawsuit against Fulmer in Alabama, but it was dismissed for lack of jurisdiction.

The statute of limitation also is a factor in this case. For libel, which is written, it is one year while slander, which is oral, is six months.

Weaver asked Buuck the date the Smiths discovered the statements. The Smiths' lawsuit was filed in Knoxville on Jan. 6, 2005. Reports about the documents surfaced in newspapers on Jan. 15, 2004, according to Associated Press archives.

"It was well within [the limit] ... some two weeks before," Buuck said.

The NCAA strongly believes what Fulmer said was privileged and not open to lawsuits, attorney Linda Salfrank said.

"This is an important case for the NCAA, maybe the most important case we are dealing with," she said.


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