Cottrell vs. NCAA 2009 lawsuit document

This is a text reproduction of a pdf version of the complaint. If anyone spots garbled text, or has other issues with the text, let me know and I’ll attempt to correct it.
IN THE CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
RONALD W. COTTRELL,
Plaintiff,
v.
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION; MYLES
BRAND, as President of the National
Collegiate Athletic Association; ELSA
KIRCHER COLE, as general counsel for
the National Collegiate Athletic
Association; KEITH MARTIN, as
Director of Finance and Operations for the
National Collegiate Athletic Association;
TOM CULPEPPER, individually; ABC
Company, a corporation; D AND E,
individually whose true and correct names
are otherwise unknown to Plaintiff, but will
be substituted by amendment when
ascertained, in accordance with Rule 9(h)
of the Alabama Rules of Civil Procedure.
Defendants.
)

CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK
2
PARTIES
1. Plaintiff Ronald W. Cottrell (hereinafter referred to as “Cottrell” or “Plaintiff”) is over the age of twenty-one and is a resident of Brewton, Alabama. Cottrell
is married with three children. Cottrell was a coach at various high schools in Alabama before accepting a position in 1989 as Recruiting Coordinator and Tight Ends Coach at Florida State University. In 1997, Cottrell was hired as Assistant Head Coach, Tight Ends Coach, and Recruiting Coordinator at the University of Alabama until he was dismissed in November 2000. From 2000 until the present time, Cottrell has been unable to regain a position as a college football coach. Cottrell is currently the high school football coach at Alma Bryant High School in Irvington, Alabama.

2. Defendant National Collegiate Athletic Association (hereinafter referred to as “NCAA”) is a self governing entity organized for the purpose of governing intercollegiate athletic programs in the United States. The NCAA is located in Indianapolis, IN. The NCAA regulates intercollegiate athletic programs in the State of Alabama.

3. Defendant Myles N. Brand (hereinafter referred to as “Brand”) is over the age of twenty-one and resides in Indianapolis, IN. Brand serves as President of the NCAA. Brand was involved in the negotiation and later fraudulent conveyance of the NCAA-Culpepper Settlement Agreement and has conspired with other Defendants in this matter to harm Cottrell.

4. Defendant Elsa Kircher Cole (hereinafter referred to as “Cole”) is over the age of twenty-one and resides in Indianapolis, IN. Cole serves as legal counsel to the NCAA and to Brand. Cole was involved in the negotiation and later fraudulent 3conveyance of the NCAA-Culpepper Settlement Agreement and has conspired with other Defendants in this matter to harm Cottrell.

5. Defendant Keith Martin (hereinafter referred to as “Martin”) is over the age of twenty-one and resides in Indianapolis, IN. Martin serves as the managing director of finance and operations for the NCAA. Martin was involved in the negotiation and later fraudulent conveyance of the NCAA-Culpepper Settlement Agreement and has conspired with other Defendants in this matter to harm Cottrell.

6. Defendant Tom Culpepper (hereinafter referred to as “Culpepper”) is over the age of twenty-one and resides in Alabama. Culpepper is a freelance sports writer and college football recruiting analyst. Culpepper provided information to the NCAA during its investigation of the University of Alabama as a confidential secret witness. Culpepper was involved in the negotiation and later fraudulent conveyance of the NCAA-Culpepper Settlement Agreement and has conspired with other Defendants in this matter to harm Cottrell.

7. Defendant ABC Company is a corporation, whose true and correct name is otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h) of the Alabama Rules of Civil Procedure, that participated in the tortious and fraudulent acts alleged herein.

8. Defendants D and E are individuals whose true and correct names are otherwise unknown to the Plaintiff, but will be substituted by amendment when ascertained, in accordance with Rule 9(h) of the Alabama Rules of Civil Procedure, that participated in the tortious and fraudulent acts alleged herein.

VENUE
9. This Court has jurisdiction of this matter pursuant to Alabama Code §6-6- 222 (1975) and Alabama Code §§ 12-11-30, 12-11-31, and 12-11-33 (1975).

10. Venue of this action in Jefferson County, Alabama is proper pursuant to Alabama Code §§ 6-3-2 and 6-3-7 (1975).

FACTS
A. The Tuscaloosa County Action
11. On December 20, 2002, Cottrell filed a lawsuit against the NCAA, Tom Culpepper, and other named defendants in the Circuit Court of Montgomery County, Alabama styled Ronald W. Cottrell, et al. v. National Collegiate Athletic Association et al., CV-2002-3565, which was later transferred to the Circuit Court of Tuscaloosa, Alabama and assigned case number CV-2003-810, alleging intentional interference with business relations; libel, slander, and defamation; false light invasion of privacy; negligence; wantonness; and conspiracy (hereinafter “the Tuscaloosa County action”).
These claims arose out of a complex, malicious scheme and conspiracy set in motion by certain individuals and institutions with the overall design to cause harm to the University of Alabama (the “UA”) football program. To accomplish this conspiracy, the parties used Cottrell as a “whipping boy” in order to bring charges against wealthy UA booster Logan Young, under a theory that if they could get Young, and they could get the “big man” at UA, the falling of the dominos would result in inflicting the most severe sanctions (the death penalty) against the UA football program. Through their tortuous and malicious conduct, the parties destroyed Cottrell’s reputation and promising career in college athletics, and severely damaged the UA football program for a number of years.

12. Culpepper, a secret witness for the NCAA’s 2000 investigation of UA, loathed and harbored a great disdain for Cottrell based on his misplaced belief that Cottrell had unfairly cut him off from insider access to the UA football program, which was vital for his career as a recruiting analyst. In his role as a secret witness, Culpepper told the NCAA rumors of alleged NCAA rules violations by Cottrell along with other defamatory information about Cottrell. Culpepper also disseminated this false information to media types. Culpepper wanted the NCAA to take aim at Cottrell, as near the end of his interview with the NCAA, Culpepper asked for something that came true about a year-and-a-half later. Culpepper said: “[I]f there were any justice in the world, you’d simply not allow Ronnie Cottrell to coach in the NCAA.”

13. Several months prior to the trial of the Tuscaloosa County action, Cottrell discovered that co-defendants the NCAA and Culpepper had entered into a settlement and/or indemnity agreement. Despite Cottrell’s repeated discovery requests and the Court’s order to produce same, Culpepper did not produce a copy of the written settlement agreement styled “Agreement and Waiver and Release of Claims” (hereinafter “NCAA-Culpepper Settlement Agreement”) until after the trial. Said agreement provided certain rights of indemnification for attorney fees and any judgment rendered against Culpepper in the Tuscaloosa County action. With regard to attorney fees, the NCAACulpepper Settlement Agreement states, in pertinent part:
1. NCAA agrees to pay Culpepper a sum of money, yet to be finally determined in total amount, which will
equal the total amount of his attorneys’ fees and
expenses which he has agreed to pay and is paying to the law firm of Starnes & Atchison LLP and which
have been and are in the future incurred in his defense in any litigation, including but not limited to the
following listed litigation, which arises out of and is 6
based to any extent on Culpepper’s involvement as a confidential source in the above referenced football
infractions case, until the conclusion of or his final
dismissal from such litigation:
(a) Ronald W. Cottrell: Ivy Williams v. NCAA; Tom Culpepper, et al.
Circuit Court of Tuscaloosa, Alabama- CV 2003-810… (See Exhibit A attached hereto.)

14. The NCAA paid the attorney fees and expenses incurred by Culpepper in the Tuscaloosa County action. Additionally, the Agreement contains the following indemnity provision:
2. NCAA further agrees to indemnify and hold harmless Culpepper for any and all judgments which may be
rendered against him in any litigation to the extent that such judgment is based in whole or in part on Culpepper’s providing information to and involvement as a confidential witness for the NCAA in the investigation of the abovereferenced football infractions case.
(See Exhibit A attached hereto.)

15. On July 22, 2005, after a lengthy and hard fought litigation, a Tuscaloosa jury awarded Cottrell a verdict of $30 million ($30,000,000) against Defendant Tom Culpepper.

16. Thereafter, Culpepper filed a Renewed Motion for a Judgment as a Matter of Law and for a New Trial or in the Alternative to Set Aside Damage Award or for Remittitur. Cottrell filed his pleading in opposition to Culpepper’s post-judgment motion and moved for a jury trial on the effect of the NCAA-Culpepper Settlement Agreement between Culpepper and the NCAA.

17. On November 15, 2005, the Court granted Culpepper’s motion for a new trial in the Tuscaloosa County action and held that the meaning of indemnity provision in 7
the NCAA-Culpepper Settlement Agreement was moot. Said ruling was thereafter affirmed by the Alabama Supreme Court. See Cottrell v. National Collegiate Athletic Ass’n, 975 So. 2D 306 (Ala. 2007).

18. On remand, the case was reassigned to different a circuit court judge in Tuscaloosa, County and the Court ordered the parties to mediation.

19. Cottrell and Culpepper agreed on a mediator, date, and time for the mediation. Mediation was scheduled for September 23, 2008 in Linden, Alabama before the Honorable Judge Claude Neilson. However, shortly after the mediation was scheduled, Cottrell learned that Culpepper and the NCAA had rescinded the NCAACulpepper Settlement Agreement to make Culpepper judgment proof and frustrate any potential recovery by Cottrell!

20. Cottrell immediately requested to continue the mediation to review the legal effect of the rescinding of the NCAA-Culpepper Settlement. Cottrell’s motion to continue was granted on August 27, 2008. The events surrounding the fraudulent manner in which the NCAA-Culpepper Settlement Agreement was created, concealed, and later rescinded to the detriment of Cottrell form the basis for this action.
B. Facts specific to the NCAA-Culpepper Settlement Agreement

21. In the summer of 2003, after the Tuscaloosa County action had been filed, Cottrell and Culpepper engaged in settlement discussions at the Montgomery office of Cottrell’s law firm, Haskell Slaughter Young & Gallion, LLC. Culpepper relayed to Cottrell and his attorneys that Culpepper was considering a lawsuit against the NCAA for disclosing his cooperation with the NCAA’s investigation of the University of Alabama as a confidential secret witness without his permission. Culpepper disclosed that his legal 8
fees were approximately fifty-thousand dollars. In those discussions, a provisional verbal agreement was reached between Culpepper and Cottrell in which Culpepper would help Cottrell prove his case against the NCAA in return for Culpepper’s release from the litigation. The proposed settlement between Cottrell and Culpepper fell apart in the fall of 2003 and the parties proceeded in the Tuscaloosa County action.

22. Unbeknownst to Cottrell, Culpepper was also involved with settlement negotiations with the NCAA during this time. Based on information and belief, Culpepper and the NCAA began settlement negotiations at the latest on or about June 2004. From June until July 2004, Culpepper and the NCAA communicated about potential settlement terms and circulated drafts of a potential agreement between the law offices of Starnes & Atchison and Burr & Foreman in Birmingham, Alabama, and the NCAA headquarters in Indianapolis, IN. In early June 2004, Culpepper proposed settlement terms to the NCAA which included the payment of Culpepper’s legal fees, indemnification of Culpepper by the NCAA for any judgments rendered against him, and the payment of Culpepper’s moving and relocation expenses. On June 29, 2004, the NCAA communicated to Culpepper that the NCAA was willing to enter into the agreement proposed by Culpepper with the exception of providing for Culpepper’s moving expenses. The NCAA’s outside counsel Burr & Foreman, NCAA general counsel Elsa Kircher Cole, and NCAA managing director of finance and operations Keith Martin were all involved in the negotiation and approval of the settlement entered into with Culpepper.

23. On July 12, 2004, Culpepper accepted the NCAA’s counter agreement and entered into a settlement and release of claims which included the “NCAA, reimbursing 9
him for his attorneys’ fees in the various NCAA cases in which he is a party, and an indemnification of Culpepper for any future liability in connection with those cases.” Culpepper’s attorney wrote:
“It is my understanding from your letter that the NCAA is agreeable to the draft agreement, with the exception of the payment of any moving expenses relating to any possible relocation. Mr. Culpepper accepts such an agreement and will enter an agreement based on those terms.” “I will redraft the agreement and forward it to you to confirm this agreement. However, as previously discussed, we will await formal execution by the parties of the agreement until following Culpepper’s deposition in [the Tuscaloosa County action]. However, the formal execution of such settlement should, in no way, affect the validity of our agreement regarding the terms of this settlement, as attorneys for the parties.”
(Emphasis added.)

24. Due to the July 12, 2004 settlement agreement between Culpepper and the NCAA, Culpepper, based on information and belief, paid his last legal bill to Starnes & Atchison on June 22, 2004. The attorneys for Culpepper and the NCAA clearly contemplated to fraudulently conceal the settlement agreement reached between the NCAA and Culpepper as evidenced by the communication above. The parties maliciously decided to wait almost four months to formally execute the NCAACulpepper Settlement Agreement in order to frustrate any potential discovery of the agreement by Cottrell at Culpepper’s October 2004 deposition.

25. Cottrell proceeded to take Culpepper’s deposition in Birmingham, Alabama on October 19-20, 2004. Cottrell asked Culpepper in good faith about any insurance agreements that may cover any judgments rendered against him in the Tuscaloosa County action and about how he was paying his legal fees.

26. Culpepper testified that his legal fees as of October 2004 were in the neighborhood of eighty thousand dollars and that he was paying his attorneys two hundred dollars a month towards his bill.1 In truth, Culpepper last paid his attorneys on June 22, 2004 shortly before the settlement agreement was reached between the NCAA and Culpepper. Culpepper evaded and mislead the Cottrell’s good faith inquiries into who was paying Culpepper’s legal fees.

27. At the end of the deposition, Cottrell thought it was odd that Starnes and Atchison would continue to represent Culpepper2 who was unable to pay his legal fees considering Starnes & Atchison is a for profit law firm. Cottrell suspected someone may be paying Culpepper’s legal fees.

28. On November 2, 2004, Culpepper and the NCAA formally executed the NCAA-Culpepper Settlement Agreement that was reached between the parties four months earlier on July 12, 2004. Culpepper and the NCAA agreed that the NCAA would pay Culpepper’s legal fees and indemnify Culpepper for any judgments rendered against him as a result of his involvement in the NCAA’s investigation of the University of Alabama. Said Agreement was signed and entered into by Culpepper in Jefferson County, Alabama. (See NCAA-Culpepper Settlement Agreement attached hereto as Exhibit A)

29. In February 2005, Cottrell’s attorneys traveled to Indianapolis, IN to depose NCAA Investigator Rich Johanningmeier, NCAA Spokesperson Wally Renfro, and NCAA President Myles Brand. During the deposition of Myles Brand on February 17, 2005, Cottrell’s attorneys asked Brand, “Has the NCAA paid any legal fees on behalf 1 Plaintiff knew that at this rate, it would take Culpepper approximately 35 years to pay off his current legal bill, much less his future legal fees. Post judgment discovery of Culpepper’s bank records revealed that Culpepper in fact last paid a two hundred dollar check to Starnes & Atchison in July of 2004, which coincided with the date that Culpepper and the NCAA reached a settlement agreement.
2 Culpepper testified that he made thirty to thirty-five thousand dollars per year.

of Tom Culpepper?” Brand answered, “Not to my knowledge.” Thereafter during a break in Brand’s deposition, Brand was informed that his answer was incorrect and that the NCAA was paying Culpepper’s legal fees. However, after the break, Brand, nor Elsa Cole, nor the NCAA’s local counsel made an effort to correct Brand’s false testimony!

30. On March 17, 2005, one month after Brand’s deposition, Cottrell received a letter from the NCAA’s counsel, stating that they had entered into a settlement agreement with Culpepper in November 2004. This revelation confirmed Cottrell’s suspicions that someone was responsible for Culpepper’s legal fees. The letter also stated that Brand would correct his deposition testimony in the near future. On April 22, 2005, Plaintiffs received Brand’s deposition correction, which contained an explanation that read a follows:
“At the time I gave my answer to this question, I was not aware of a settlement agreement between the NCAA and Tom Culpepper in which Mr. Culpepper agreed to release any possible claims he had against the NCAA in exchange for the NCAA’s agreement to pay for his counsel fees in connection with this case. After the deposition, I learned about the settlement agreement with Mr. Culpepper. Although I had no role in or knowledge of the decision to enter into that settlement agreement, the existence of the agreement renders my previous answer on pages 31-32 of this deposition incorrect. Therefore, in order to set the record straight, I need to change the answer on page 32 line 2 from ‘[N]ot to my knowledge’ to ‘[Y]es.’”

31. However in the post-judgment deposition of the General Counsel of the NCAA, Elsa Cole on November 1, 2005, Cole’s testimony revealed that Brand had in fact perjured himself again in his deposition correction: Q: When did you first tell Dr. Brand about the settlement agreement that was entered into in this case?
A: At the time of his deposition, during a break in the deposition.
Q: Had he already answered the question that he was asked about the agreement before you told him about it?
A: That, I can’t recall.
Q: All right. Were you there during his deposition?
A: I was.
Q: All right. Was there a reason you did not tell him about the confidential settlement agreement before his deposition?
A: It wasn’t in the normal course of things I would discuss with him.
Q: Did you participate in the preparation of his deposition?
A: I sat in during his preparation. I did not prepare him myself.

32. On review, there were only two breaks during Brand’s deposition. The first break was requested by NCAA’s counsel John Morrow and is reflected in the transcript. Immediately after the first break, Brand was questioned about whether the NCAA was paying Culpepper’s legal fees. Giving Brand and the NCAA the benefit of the doubt, it was most likely after the second break which was requested by Cottrell’s counsel Delaine Mountain that Brand was informed about the existence of a settlement agreement according to the testimony of Elsa Cole, who was present during the deposition. The deposition continued for approximately one more hour until its conclusion. The NCAA attorneys made no effort to correct Brand’s testimony until two months later, thus not giving Cottrell an opportunity to examine Brand further on this issue, which was vital to Cottrell’s conspiracy claim.3

33. Cottrell tried in vain to obtain the NCAA-Culpepper Settlement Agreement prior to trial. On July 12, 2005, Cottrell urged the trial judge to allow them to examine Culpepper during trial about his knowledge about when he and the NCAA entered into their confidential settlement agreement: Mr. Gallion: “Now we, would like to get in to show that they all knew at that time that there was a settlement agreement reached prior to Tom Culpepper even taking his deposition in this matter, much less- – Now, it was not in writing obviously, and we like to examine Mr. Culpepper when he first had knowledge about this.”
Court: “Do you want that now?”
Mr. Gallion: “No. I would like to do it in front of the jury.”
Court: “But, I mean, if, in fact, what you’re saying is true, if there was an agreement at the time you took that, then, you know, you’re right. But if the agreement was reached at a later time, then – -”
Mr. Gallion: “Well, I–”
Court: “– then—At least what was represented to me was that the agreement was reached at a much later time.”
3 The NCAA, who waives the banner of integrity and moral discipline on college campuses across the country, continues to engage in a pattern and practice of lying under oath, secreting documents, and rescinding contracts; the same behavior it would find deplorable in college athletic programs and for which it would levy sanctions.

Mr. Scott: And the agreement is, Your honor, dated subsequent, almost a month subsequent to the deposition testimony.”

34. Culpepper’s attorney materially misrepresented to the Court when the NCAA-Culpepper Settlement Agreement was formed: Court: Okay. Well, now let me get Mr. Scott, when he gets a free moment here—Mr. Scott, let me get you to address this issue of when the agreement was entered into. I think that if Mr. Gallion is correct, that the agreement was entered into at the time Mr. Culpepper’s deposition was taken, then—
Mr. Scott: Yes, Your honor.
Court: So address that for the record.
Mr. Scott: “Your Honor, the only evidence before the court is the settlement agreement and the date that it was executed, which I believe was November the 14th of 2004. Mr. Culpepper’s deposition was taken in October of 2004 and, therefore, that is the evidence. So there is no evidence that Mr. Culpepper testified falsely in his deposition. Plus, the fact that discovery was had with regard to who was paying Mr. Culpeper’s attorneys fees either in October or subsequent to October, the fact that discovery has—does not relate to the issue of whether or not it would be admissible in this case and that’s what, Your Honor, obviously, we have already gone through it in terms of the settlement agreement and its terms and what would be admissible in the case. And whether someone is paying his attorney fees as part of the settlement agreement is—and we have already gone through that, is not relevant.
So the only issue as I understand Your Honor is asking the date of that agreement which Your Honor has seen in camera.”
Court: “All right. The date in the agreement—You’re saying as an officer of the court that that was the date of the agreement?”
Mr. Scott: “That was the date that the agreement was entered into and the deposition was – that the testimony that he—that he’s been referring to was prior to that sometime, and I don’t have the date, but sometime in October.”
Court: Well your question in the deposition, was there any agreement– Mr. Gallion: But you could have an oral agreement. I didn’t say a written agreement.
Court: “Well, Mr. Scott, was there any oral agreement?”
Mr. Scott: “Well, no, Your Honor. Again Mr. Culpepper testified to the issue of who was paying his fees at that time and whether he was responsible at that time to pay his fees, and he was responsible for paying his fees in October. ………”
Mr. Gallion: “Well Your Honor, if Mr. Culpepper will state under oath that he has paid his own attorney fees up and through the time that this settlement agreement was reached, I’ll withdraw it.
If he paid—If he wrote out and can present to this Court canceled checks that he paid that eightyfour or eighty-seven thousand dollars up until the written settlement agreement was taken care of, then I will concede.”
Mr. Scott: “Well, I –”
Mr. Gallion: “And I don’t think you’re going to find that he did pay them. He did not pay them; they paid them.”
Court: “Okay. Well, I am going to have to go with counsel as an officer of the Court’s representations to the Court and I am going to stand with my ruling.”

35. The Court looked to Culpepper’s attorney to shed light on the issue and depended on his word as an officer of the Court. The Court was mislead and made its 14
decision on the word of Culpepper’s attorney, who had written the following to the NCAA’s counsel on July 12, 2004, a year earlier:
“It is my understanding from your letter that the NCAA is agreeable to the draft agreement, with the exception of the payment of any moving expenses relating to any possible relocation. Mr. Culpepper accepts such an agreement and will enter an agreement based on those terms.” “I will redraft the agreement and forward it to you to confirm this agreement.
However, as previously discussed, we will await formal execution by the parties of the agreement until following Culpepper’s deposition in [the Tuscaloosa action]. However, the formal execution of such settlement should, in no way, affect the validity of our agreement regarding the terms of this settlement, as attorneys for the parties.”
(Emphasis added.)

36. Culpepper’s attorney blatantly showed disrespect for and mislead the Court. It was only after the record on appeal was certified as complete that Cottrell was able to review all of the documents and was capable of realizing the fraud that was perpetrated on him and the Court by the Defendants. The Defendants have gone through extreme lengths to first hide the existence of the NCAA-Culpepper Settlement Agreement, the contents of the agreement particularly the indemnity provisions, the date that the agreement was actually formed, and have now rescinded the agreement. This is the type of shell game that Cottrell has faced on nearly every issue in the Tuscaloosa County action.

37. On October 26, 2005, Cottrell deposed Culpepper during post trial discovery. Culpepper and his attorneys continued to evade and conceal when Culpepper and the NCAA entered into the NCAA-Culpepper Settlement Agreement.
Q: Okay, do you know of any discussions that took place, not what was in the discussions, or any discussions that took place with the NCAA, you or your attorney? A: Just the agreement that we had.
Q: At what point in time did you start talking about this agreement or did you have knowledge about this agreement?

A: Right about the time I signed it.
Q: Now you’re telling me that you never had any knowledge of an agreement, oral agreement, I am not talking about this agreement, any oral agreement or discussed any type of agreement before November the 15th of 2004?
A: No.
Mr. Scott: I think he said around that time, Tommy.
Q: Well around that time?
A: No, I don’t recall any discussions prior to that.
__
Q: You have already stated it was a pretty short period of time before you actually executed a written document. Tell me what you consider to be a very short period of time before November 15th, 2004?
A: I would just guess a matter of days.

38. On July 14, 2008, Culpepper gave sworn deposition testimony in a custody and alimony dispute currently pending in Shelby County, Alabama. In sworn testimony, Culpepper disclosed that former Defendant NCAA provided Culpepper One Hundred Fifty Thousand Dollars ($150,000) in May 2008 for “…severance of a – what is called—an indemnity agreement”. The dissolution of the indemnity provision contained in the NCAA-Culpepper Settlement Agreement was done to frustrate any potential judgment by Cottrell against Culpepper and was not planned until Cottrell signaled his intention to proceed with the trial of the remaining claims by filing a motion to transfer venue in the Tuscaloosa County action in April of 2008. Culpepper specifically testified as follows:
Q: But then they paid you. I don’t understand why they would pay you. Do you see what I am saying?
A: No. A judgment against me. And for any—they agreed to pay for my legal fees. They agreed to pay any judgment against me based on this background interview. And at some point, I felt like that, just me by myself, to sue me is not very attractive, but to sue me because I’m indemnified by the NCAA makes me very attractive.
Q: Would this be a side settlement rather than a payment of attorney fees for you not to sue the NCAA?
A: No, it is an agreement to tear up the indemnity agreement and to let them out of the case. So, they are gone. They are out of it.
Q: So if you get sued again, then it would not be covered.
A: I’m on my own.

39. Culpepper’s intention to frustrate any potential recovery by Cottrell is further evidenced by his former attorney’s comment in the media thereafter. “Tom needs 16
to be able to get on with his life, said John Scott, Culpepper’s attorney. He doesn’t need to be burdened with a lawsuit that won’t get them anything. Whatever Tom did or said is Tom’s responsibility. Based on Tom’s financial condition, it’s a waste of time and effort for them to pursue this.” September 17, 2008, Birmingham News.

40. On September 18, 2008, Culpepper’s law firm filed a motion to withdraw because Culpepper “…is unable to afford and pay for the legal services of this firm in connection with the defense of this action.” This is further perpetration of the ongoing fraud on Cottrell and on the Court.

COUNT I
FRAUDULENT CONVEYANCE
41. Cottrell re-alleges and incorporates by reference all the allegations contained in paragraphs 1 through 43 of this Complaint, as if fully set forth herein.

42. The Alabama Fraudulent Transfer Act (hereinafter “AFTA”) provides that “[a] transfer made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.”4

43. Culpepper violated AFTA based on the following: (1) Culpepper made a fraudulent transfer of assets; (2) Cottrell was a creditor of Culpepper at the time of the fraudulent transfer; and (3) Culpepper made the transfer with actual intent to hinder, delay, or defraud Cottrell.

44. Cottrell filed a Complaint asserting various claims against Culpepper and others on December 20, 2002. On or about July 12, 2004, the NCAA and Culpepper, entered into the NCAA-Culpepper Settlement Agreement. Thereafter, a Tuscaloosa jury 4 See Ala.Code 1975 § 8-9A-4(a)

awarding Cottrell a verdict of $30 million ($30,000,000) against Tom Culpepper. On November 15, 2005, the Court in the Tuscaloosa County action set aside the verdict and ruled that there should be a new trial. In May 2008, Culpepper conveyed his rights under the NCAA-Culpepper Settlement Agreement in exchange for One Hundred Fifty Thousand Dollars ($150,000).

45. Alabama Code § 8-9A-1(11) defines “Transfer” as “[e]very mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payments of money, release, lease, and creation of a lien or other encumbrance.” Culpepper conveying his rights under the NCAA-Culpepper Settlement Agreement in exchange for One Hundred Fifty Thousand Dollars ($150,000) is a transfer for the purposes of AFTA.

46. Alabama Code § 8-9A-1(11) defines “Property” broadly as “[b]oth real and personal property, whether tangible, and any interest in property whether legal or equitable includes anything that may be the subject of ownership.” Alabama Code § 8- 9A-1(2) defines an “Asset” as “[p]roperty of a debtor.” The NCAA-Culpepper Settlement Agreement is an asset of Culpepper’s for the purposes of AFTA.

47. Alabama Code § 8-9A-1(3) defines a “Claim” as “[a] right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, and specifically shall include the nonpayment of child support pursuant to a court order.” Cottrell has had a pending Complaint against Culpepper since December 20, 2002 until the present. Claim under the Alabama Fraudulent Transfer Act includes legal claims. Cottrell therefore has a claim against Culpepper for the purposes of AFTA.

48. Alabama Code § 8-9A-1(4) defines a “Creditor” as “[a] person who has a claim.” From December 20, 2002 until the present, Cottrell has had a claim against Culpepper for the purposes of AFTA. Cottrell has been a creditor of Culpepper’s from December 20, 2002 until the present.

49. Alabama Code § 8-9A-1(6) defines a “Debtor” as “[a] person who is liable on a claim.” From December 20, 2002 until the present Culpepper has been liable on a claim for the purposes of the AFTA. Culpepper has been a debtor of Cottrell’s from December 20, 2002 until the present.

50. On July 14, 2008, Culpepper gave sworn deposition testimony in a custody and alimony dispute currently pending in Shelby County, Alabama. In sworn testimony, Culpepper disclosed that the NCAA provided Culpepper One Hundred Fifty Thousand ($150,000) in May 2008 for “…severance of a – what is called—an indemnity agreement”. The severance of the NCAA-Culpepper Settlement Agreement was done to frustrate any potential judgment by Cottrell against Culpepper and was not pursued until Cottrell signaled his intention to proceed with the trial of the remaining claims by filing a Motion to Transfer Venue in April of 2008.

51. Culpepper’s intention to frustrate any potential recovery by Cottrell is further evidenced by his former attorney’s comments in the media on September 17, 2008.

52. The purpose of AFTA is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach. Specifically, AFTA is designed to prevent Culpepper from conveying his interest in the NCAACulpepper Settlement Agreement in order to frustrate any potential recovery of Cottrell in 19
a claim that has been pending since December 20, 2002. Culpepper’s transfer of his assets was solely designed to hinder, delay, and defraud Culpepper’s creditor Cottrell in pursuit of his claims against Culpepper and make Culpepper judgment proof. This type of conduct is specifically what the act is designed to prohibit.

53. Furthermore, Culpepper conveying his rights under the NCAA-Culpepper Settlement Agreement in exchange for One Hundred Fifty Thousand Dollars ($150,000) is grossly undervalued consideration. The NCAA-Culpepper Settlement Agreement has provided for the cost of defending the underlying action since December 20, 2002. As of October 2004, Culpepper’s legal bill with the law firm of Starnes & Atchison was approximately Eighty Thousand Dollars ($80,000). Based on information and belief, the NCAA has paid Starnes & Atchison several million dollars for the defense of Culpepper to date. In June 2005, a Tuscaloosa jury awarded Cottrell a verdict of $30 million ($30,000,000) against Tom Culpepper. A retrial of this matter will result in a similar award against Culpepper, given that Culpepper purposefully destroyed Cottrell’s college coaching career. Based on the previous value given to the NCAA-Culpepper Settlement Agreement, $150,000 is grossly inadequate compensation and further proof of the fraudulent nature of the May 2008 transfer of Culpepper’s assets.
WHEREFORE, Cottrell demands the following relief: (1) that this Court find and declare that Culpepper’s fraudulent conveyance of the NCAA-Culpepper Settlement Agreement was a transfer in fraud of Culpepper’s creditors, including the Plaintiff; (2) that this Court order that Culpepper’s transfer or disposition of the NCAA-Culpepper Settlement Agreement should be set aside under the AFTA; (3) that this Court issue a permanent injunction against any further disposition of the NCAA-Culpepper Settlement 20
Agreement; (4) that this Court appoint a receiver to take charge of the NCAA-Culpepper Settlement Agreement and take such actions in relation thereto as are necessary to maximize its potential and its protection of the interests of Culpepper’s estate and his creditors; and (5) award Plaintiff the payment of damages, costs, reasonable attorney’s fees and any other relief to which Cottrell may be entitled, premises considered.

COUNT II
WANTONNESS
54. Cottrell re-alleges and incorporates by reference all the allegations contained in paragraphs 1 through 71 of this Complaint, as if fully set forth herein.

55. Defendant Culpepper wantonly acted to defraud his creditors when he dissolved the NCAA-Culpepper Settlement Agreement.

56. As a proximate consequence and result of Defendant Culpepper’s reckless indifference to the consequences of such failure or omission, Cottrell was damaged as previously set forth in this Complaint.
WHEREFORE, the Plaintiff demands this Court to enter a judgment against Culpepper for compensatory damages and punitive damages plus interest, costs, and attorney’s fees and for any other relief to which he may be entitled.

COUNT III
CONSPIRACY TO CONCEAL AND DEPRIVE CREDITORS OF SETTLEMENT AGREEMENT
57. Cottrell re-alleges and incorporates by reference all the allegations contained in paragraphs 1 through 75 of this Complaint, as if fully set forth herein.

58. As outlined in great detail above, all named Defendants acted in concert and/or conspiracy, on multiple occasions up through a recent time in 2008, in order to accomplish related illegal schemes, including, but not limited to, originally fraudulently 21
concealing and later misrepresenting the existence, date, terms and scope of the NCAACulpepper Settlement Agreement, and subsequently, in 2008, carrying out suppression of material facts and concealing the fraudulent and inequitable dissolution of the NCAACulpepper Settlement Agreement in an effort to place this asset and its proceeds beyond the reach of Culpepper’s creditors including Plaintiff, and negligently and wantonly defrauding the creditors of the debtor (Culpepper) in 2008 by such conduct. The culminating act of such conspiracy to defraud Plaintiff was the above-pleaded transfer or disposition of the NCAA-Culpepper Settlement Agreement secretly and for grossly inadequate consideration, during 2008. Plaintiff only accidentally became aware of such fraud on creditors and such fraud by concealment later in 2008.

59. To recap, Brand, Cole and Martin on behalf of the NCAA, and Culpepper drafted, executed, and concealed the NCAA-Culpepper Settlement Agreement. These same Defendants after a $30 million dollar judgment was rendered against Culpepper, later dissolved the NCAA-Culpepper Settlement Agreement in an effort to thwart the underlying suit brought by Cottrell and prevent him from receiving the full payment of any judgment obtained against Culpepper, which the NCAA-Culpepper Settlement Agreement was originally designed to pay.

WHEREFORE, the Plaintiff demands this Court to enter a judgment against Culpepper for compensatory damages and punitive damages plus interest, costs, and attorney’s fees and for any other relief to which he may be entitled.
Respectfully submitted this the 28th day of August, 2009.
/s/ Thomas T. Gallion, III
Thomas T. Gallion, III
One of the Attorneys for Plaintiff