The 7th U.S. Circuit Court of Appeals has affirmed a federal judge’s ruling that limits the ability of the NCAA to protect the identity of confidential informants that it typically relies upon when conducting investigations of member schools.
Specifically, it found that when a federal agency is conducting a parallel or subsequent investigation, the NCAA must turn over the documents to the agency upon request, without conditions.
In the instant case, the United States Department of Education Office of Inspector General had moved to compel the NCAA to turn over the documents collected so that the OIG, which is charged with ensuring that public tax dollars for education are spent lawfully and for their intended purpose, could determine if federal student financial aid funds were misused.
The origins of that legal battle stemmed from a decision by the University of the District of Columbia to abruptly cancel its basketball season two years ago. The NCAA began looking into possible NCAA rule violations, while the OIG began exploring whether federal student financial aid funds were misused.
On May 1, 2006, the OIG issued an administrative subpoena for all of NCAA’s records pertaining to its investigation. The NCAA, seeking to preserve the confidentiality of certain documents, filed a motion to quash. As an alternative, the NCAA sought a protective order “requiring OIG to notify the NCAA before showing these records to anyone else, including other law enforcement agencies,” according to the court.
The district court denied both arguments. The NCAA appealed the denial of the protective order.
In reviewing that argument, the appeals court restated what would happen if it granted the protective order. It would “forbid the Department to show them to anyone without five days’ advanced notice to the Association. During that cooling-off period the Association would go to the intended recipient of the documents (whom the Department would have to identify to the Association) and ask him to keep any sensitive information in the documents confidential. If he refused or was unable to give adequate assurance of confidentiality, the NCAA would have a right to ask the court for a further protective order, of indefinite length, against the Department’s turning over the documents.
“That further order would be enforcing a privilege under a different name; the government would have physical possession of the documents but its ability to use them would be severely limited. Even the five-day cooling-off period would hamper the government’s investigation because of the NCAA’s implied threat to sue any intended recipient of documents if he refused to play ball with the Association. Imagine if the Department of Education intended to give documents that it had obtained from the NCAA to a Justice Department prosecutor for presentation to a grand jury. If the prosecutor decided to submit them to a grand jury over the Association’s protests, the Association would bring suit to enjoin the submission. The suit, whatever its outcome, would impede the grand jury’s investigation.”
Clearly, the appeals court had no intention of ruling for the NCAA.
“The burden of compliance with the subpoena, even without a protective order to cushion the effect of compliance, is speculative and is outweighed by the investigatory needs of the Department of Education,” wrote the panel.
The United States Department of Education v. NCAA; 7th Cir..;
No. 06-3495; 3/21/07
