By Jeff Birren
The NCAA is a private association that conducts large-scale business in the United States. It seeks the protection of American law, yet when challenged, the NCAA reverts to a posture that suggests it is either above the law, or apart from it. This posture just lost in court again.
Todd McNair was an assistant football coach at the University of Southern California. He was implicated in the NCAA’s investigation of USC and star running back Reggie Bush that led to unprecedented sanctions. The NCAA also decided that Mr. McNair knew that Mr. Bush had received improper benefits, and as a result hit him with a “one year show cause” order. This meant that McNair could have no involvement in recruiting for a year, which effectively removed him from coaching. McNair subsequently sued the NCAA for breach of contract, defamation and other torts.
The NCAA responded by filing a motion to strike the complaint on the grounds that it was a “SLAPP” suit, a “strategic lawsuit against public participation” (Ca. Civ. Proc. §425.16). McNair then successfully sought to remove the SLAPP motion’s automatic discovery stay, subject to a protective order. The NCAA’s subsequent petition for writ of mandate was denied. McNair was able to take various depositions and obtain much of the investigatory file. The NCAA then sought to seal 400 pages of uncensored versions of plaintiff’s opposition to its SLAPP motion.
Among other things, the NCAA told the Superior Court that it needed to maintain confidentiality, consistent with promises it made to witnesses, and that if the records were not sealed, it would hamper NCAA investigations going forward.
California court records are presumed to be public. To overcome the presumption, the Superior Court must hold a hearing and make certain express findings. Those findings are “that (1) there is an overriding interest supporting sealing records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the proposed sealing is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of achieving the overriding interest” (Todd McNair v. NCAA, California Court of Appeal Case No. B245475, Second Appellate District, (February 6, 2015)), at 2, citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, at 1217-1218) (1999)). These findings are required by the First Amendment, and are now contained in California Rules of Court §§ 2.550-2.551.
The Superior Court denied both the motion to strike and the motion to seal, finding that the NCAA had failed to make a sufficient showing to justify sealing the records. The records were not filed in the Superior Court (McNair at 6).
The NCAA appealed both rulings to the California Court of Appeal, and requested permission to file the documents in that court under seal. To date, the court has only ruled on the NCAA’s motion to seal. As the motion dealt with whether the appellate records should be sealed, the Court of Appeal was required to make its own findings pursuant to Cal. Rules of Court § 2.550(d)-(e). The Court noted that the NCAA “has the burden to justify sealing the records” (Id.), and that they were “required to broadly construe the court rule” if it furthers public access (Id. at 7). Both the New York Times and the Los Angeles Times intervened, opposing the motion (Id. at 5).
In its reply, the NCAA argued that McNair had forfeited the right to oppose the motion because he signed a protective order and did not actively oppose the motion in the Superior Court. That was irrelevant in light of the appellate court’s independent duty to review the motion and make its own findings (Id. at 8).
The NCAA argued that its interest in confidentiality “override(s) the public right of access to documents used as a basis of adjudication” (Id. at 8). It was their position that, as they lacked subpoena power, confidentiality was necessary to obtain witness cooperation. Thus, the NCAA argued that its rules and contracts were overriding interests.
The Court of Appeal found that NCAA rules stated that their case files shall be confidential only “until they have been announced” publically, and thus, the rule “makes confidentiality ephemeral: it only lasts ‘until the case has been announced.’” (Id.). That had happened years before in this instance, and therefore could not be used to support the NCAA’s position.
The NCAA pointed to a second bylaw, which stated that copies of recorded interviews and unrecorded interview summaries were confidential. Yet that bylaw did not apply to many of the documents that were the subject of the motion, and much of the information was already disclosed (Id. at 9). Many of the records at issue were internal NCAA e-mails, and had nothing to do with promises of confidentiality to witnesses. The “NCAA cannot make the showing of an overriding interest to justify sealing merely because its internal bylaws say so by designating certain documents as confidential” (Id. at 10).
The NCAA also claimed that there was an overriding interest based on contractual agreements for confidentiality, citing Universal City Studios, Inc. v. Superior Court (110 Cal. App. 4th 1273 (2003)). However, the Court quoted another part of the case: “more than a mere agreement of the parties to seal documents filed in a public courtroom’ is needed (Universal at 1281.). There must be ‘a specific showing of serious injury…[S]pecificity is essential” (Id.). Furthermore, Rules of Court 8.46(d)(1) “expressly states that a record ‘must not be filed under seal solely by stipulation or agreement of the parties.’ Thus, the mere agreement of the parties is alone insufficient to constitute an overriding interest to justify sealing the documents” (Id. at 11).
The NCAA also claimed that because it insisted on confidentiality during the investigation, that that “endow[ed] it with a privilege which would be akin to an overriding interest” (Id.). However, the state legislature “abolished common law privileges and precluded court from creating new non-statutory privileges as a matter of judicial policy” (Id.).
The NCAA cited a media-privacy case, which fell on deaf ears. The “NCAA, a private voluntary organization, is not the media and so no such concomitant privilege exists for the organization” (Id.).
The NCAA also argued that they would be prejudiced if the records were not secret. The Court was “not convinced” “that public disclosure of its documents will make future investigations more difficult for the NCAA to conduct” (Id. at 12). After all, institutions, employees, students and alumni agreed to submit to NCAA investigations and thus had no choice.
The Court also noted that courts in other states had rejected the NCAA’s arguments in prior cases (University of Kentucky v. Courier-Journal, 830 S.W. 2d 373 (1992); NCAA v. Associated Press, 18 So.3d 1201 (2009)). The NCAA “has not demonstrated that such disclosure chilled future investigations” (Id. at 14).
The NCAA then compared “its role to that of judges and juries” and that unsealing the records would make attorneys and law professors reluctant to serve” (Id.). Although such privileges exist for the judiciary, the Court reminded the NCAA that it “is neither a part of our judicial system nor of our law enforcement apparatus. It is a private, voluntary organization.” It is “more akin to a private employer who investigates misconduct of its employees. When the adequacy of an employer’s investigation into an employee is at issue in a lawsuit, the employer must produce its files and disclose the substance of its non-privileged internal investigation” (Id.).
As a final defense, the NCAA claimed that “it is forced to traverse Scylla and Charybdis: if the records here are not sealed, it must decide whether to publicly reveal the contents of the conditionally lodged documents to pursue its appeal or whether to have those records returned to it (Rule 8.46(d)(7) & (f)(3)(D).” This is true for every litigant that cannot meet the tests for sealing records. After all, “a party to a civil case is entitled to a fair trial, not a private one” (NBC Subsidiary, 20 Call 4th at 1211).
The NCAA has many ways to yet win the case, but for now, it will do so with the courthouse lights on. Whatever the NCAA thinks of itself, the Court held that it was not a judicial body but a private organization that is not exempt from the laws that regulate all litigation.
Todd McNair, Plaintiff and Respondent v. NCAA, Defendant and Appellant, California Court of Appeal, Second Appellate District, Case N. B245475, February 6, 2015.
Attorneys of Record: (for plaintiff) Greene, Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr; Esner, Chang & Boyer, Stuart B. Esner, (for defendant) Loeb & Loeb, Michael L. Mallow, Luara A. Wystma, Meredith J. Stiller.
Birren worked for the LA/Oakland Raiders for 34 seasons and was general counsel for much of that time. During that time he worked closely with owner Al Davis and Amy Trask, the NFL’s first female Club Chief Executive. He has an MA in History from USC and a JD from Southwestern, where he taught sports law for three years. He can be reached at jebirren@comcast.net.
