A federal judge from the Southern District of California has ordered the NCAA to provide complete information about applicants for coaching certification, which could potentially bolster a plaintiff’s claim that the NCAA “implemented a coaching certification policy that unlawfully discriminates against African Americans.”
The discover ruling was made in the long-running litigation initiated by Dominic Hardie, co-founder of the Houston-based Triple D Hoops basketball programs. Hardie, who coaches several teams that compete in national tournaments, was formally an NCAA Division I basketball student-athlete at the University of Houston and University of North Texas.
In 2000, at age 23, Hardie was arrested and charged with possession with intent to distribute less than one gram of cocaine. In 2001, Hardie pled guilty to the charge and received a five year probated sentence. He has not been arrested or convicted since and recently graduated from the University of North Texas. In addition to his duties as a basketball coach, he is a full-time social worker in the child foster care system.
Hardie had been coaching at NCAA-certified basketball contests for several years. From 2006-2010, the NCAA’s policies on felons coaching at NCAA-certified basketball events allowed for coaches to coach their teams as long as it was a non-violent felony conviction and the conviction was older than seven years. The policy at that time distinguished between violent and non-violent felonies. In January 2011, the NCAA removed the distinction between violent and non-violent felonies.
On February 22, 2012, Hardie re-applied for certification to coach at NCAA certified basketball events for 2012 and 2013. On March 13, 2012, the NCAA informed Hardie that he was denied certification because of his past felony conviction. As a result, Hardie is currently unable to coach his teams at any basketball event certified by the NCAA.
In February 2013, Hardie sued the NCAA and a host of other organizations, claiming the new rule constitutes “unlawful racial discrimination in places of public accommodation.” Hardie further claimed that the defendants have devised a policy that denied him “the full and equal enjoyment of places of public accommodation in violation of Title II by permanently denying coaching certification to him and all other persons with felony convictions without regard to the time passed since conviction, type of conviction, extent of rehabilitation, or the relatedness of the conviction to any legitimate business or organizational purpose.” Hardie argued in his compliant that the NCAA policy has a disparate impact on African Americans because African Americans are “overrepresented in nearly every stage of the criminal justice system.” Hardie pointed to statistics that show African Americans are 4.5 times more likely than American Caucasians to have a felony conviction.
Last spring, the plaintiff sought, and was granted, expedited discovery. However, a dispute surfaced, which led both parties to seek a determination from the court.
The dispute centered on the following requests for production of documents made by the plaintiff:
All Documents concerning or relating to the number of coaches of high school age basketball teams who were denied certification under the 2011 Certification Rules, by year, race, and ethnicity.
All Documents that you relied upon to determine certification of coaches of high school age basketball teams between January 1, 2005 and the present.
In response to this, the NCAA produced spreadsheets that list the coaching certification applicants. However, the personally identifiable information of the applicants, including last names and addresses were redacted.
Dissatisfied with this, the plaintiff moved to compel unredacted versions of the documents that were produced, which he claimed was “relevant to the issues at the core of this litigation; and that the privacy interests of the third party applicants should not bar production.”
The NCAA countered that the requested information falls outside the scope of the document requests; that the information is not relevant to the plaintiff’s claim under Title II; and that the plaintiff has not shown a compelling need for the information that is strong enough to outweigh the third parties’ privacy interests.
Relying on Federal Rule of Civil Procedure 26(b), the court focused on scope and relevancy.
As to the scope of the requests, “the NCAA makes a valid point that neither of the plaintiff’s document requests specifically ask for the personally identifiable information of the coaching certification applicants. However, the time for discovery is still open. (discovery cutoff is May 2, 2014).) Thus, even assuming the information is outside the scope of the request, the plaintiff could propound another document request curing the deficiency. Therefore, in the interest of judicial efficiency, the court finds it is appropriate to address the merits of the parties’ discovery dispute.”
Agreeing with the plaintiff on relevance, the court concluded that the request was relevant “to show that the coaching certification policy has a disparate impact on African-Americans.”
The court then harkened back to an earlier ruling, where it denied the NCAA’s argument that Title II does not apply.
“So … the court has allowed the plaintiff’s Title II claims to go forward. Accordingly, the plaintiff will be permitted to pursue discovery of his claims,” wrote the court. “Second, the NCAA’s argument regarding the applicability of disparate impact analysis goes to the merits of the plaintiff’s case, and is therefore, not appropriately resolved in the context of a discovery dispute. Finally, the court finds the NCAA’s objection that any statistical model will be unreliable is based on speculation, and is premature at this time.”
Dominic Hardie v. National Collegiate Athletic Association, et al; S.D. Cal.; Case No. 13cv346-GPC (DHB), 2013 U.S. Dist. LEXIS 165312; 11/20/13
Attorneys of Record: (for plaintiff) Jane Lynn Dolkart, Noel Roycroft, LEAD ATTORNEYS, PRO HAC VICE, Lawyers’ Committee for Civil Rights Under Law, Washington, DC; Mark Andrew Woodmansee, LEAD ATTORNEY, Morrison and Foerster, San Diego, CA; Thomas H Prouty, LEAD ATTORNEY, Troutman Sanders LLP, Irvine, CA; Jeffrey M. David, Morrison & Foerster LLP, San Diego, CA. (for defendant National Collegiate Athletic Association) Tanja L Darrow, Littler Mendelson, Los Angeles, CA. (for defendant International Girls Basketball Organization, a Washington nonprofit corporation) Charles Frederick Goria, LEAD ATTORNEY, Goria Weber & Jarvis, San Diego, CA.
