A federal judge in the Southern District of Indiana has placed limits in certain instances on the ability of the NCAA to protect the identity of confidential informants it typically relies upon when conducting investigations of member schools.
Specifically, the court granted the United States Department of Education Office of Inspector General’s motion 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, can determine if federal student financial aid funds were misused.
The court found specifically that the “NCAA’s fears about the harmful effects that will result from the unprotected production of its records to the OIG are exaggerated and speculative.” It also rebuffed the NCAA’s alternative suggestion that if the NCAA was compelled to give the documents to the OIG that the agency give the NCAA five days notice before it shared the documents with anyone else.
The origins of the 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 NCAA contends that unrestricted disclosure will harm its ability to regulate college sports. The OIG responds that either of the NCAA’s proposed solutions will impair its ability to carry out its mission. The OIG filed a motion to compel on August 18, 2006, leading to the instant opinion.
The court began its analysis by noting that the NCAA is seeking the court’s aid because the OIG’s subpoena is “unduly burdensome.” The gist of its argument runs like this: The NCAA’s rules in support of amateurism are well-known, and ferreting out cheaters is difficult work. Its enforcement division depends on tipsters and other outsiders to provide unconfirmed or private information about athletes, officials, and supporters. However, this source of information, which includes unsubstantiated rumors of the most personal nature about peoples’ lives, will dry up if the NCAA cannot assure its informants of secrecy. In this respect, compliance with the OIG’s subpoena – or the lack of a protective order – could undermine the confidence that future informants have in the NCAA’s pledges of confidentiality. This threatens, the NCAA says, the normal operations of its business.” If proven to the court’s satisfaction, the latter would trigger an exception to a motion to compel an administrative subpoena.
While the NCAA maintained that it was not claiming a privilege, the federal judge disagreed, a conclusion that undermined the NCAA’s argument.
“The Supreme Court’s admonition against new privileges has prevailed in other cases where the argument for confidentiality was compelling,” wrote the court. “For example, the Court refused to establish a privilege for news reporters, despite their claims that their ability to pledge confidentiality was critically important to carrying out their First Amendment mission. See Branzburg v. Hayes, 408 U.S. 665, 667, 693, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) (declining to grant a testimonial privilege to newsmen subpoenaed by a grand jury). The Seventh Circuit also declined to create a privilege for an Illinois state agency, despite a state statute making unemployment compensation proceedings confidential. Ill. Dep’t of Employment Sec., 995 F.2d at 108-09.
“In light of such decisions, the NCAA may well have realized that a privilege argument to protect amateurism in college sports might seem less compelling than the already rejected bids to protect academic freedom or freedom of the press. So instead, the organization asserts its claim that the OIG’s subpoena should be quashed or limited because it is unduly burdensome. (NCAA Br. 4.) The immediate question before this court is whether such a claim has any legal merit or is merely a disguised request for a privilege.”
The court concluded that “the NCAA cannot prevail on its argument that the subpoena must be quashed because it is unduly burdensome. The OIG’s subpoena is relevant to its statutory authority, and compliance will not require the NCAA to expend extraordinary time or resources. The NCAA’s request does not differ in substance from the past attempts of educators and reporters to obtain a privilege for nearly identical reasons, and the Supreme Court has rejected those bids. The NCAA cannot avoid the control of precedent merely by repackaging its claim under a different label.”
The judge then turned to the alternative motion for a protective order
It summarized that existing safeguards should reassure the NCAA of any negative fallout.
“A protective order is simply uncalled for,” the court wrote. “… The NCAA’s fears about the impact that compliance will have on its operations are speculative, and in all likelihood, exaggerated as well. Moreover, federal privacy and disclosure statutes, the agency’s procedures toward handling evidence, and the sworn statements of OIG employees that the agency will seek to protect the confidentiality of the documents negate any justification for this court to interfere in the authority that Congress has delegated to this agency.”
The United States Department of Education v. NCAA; S.D.Ind.; 1:06-cv-1333-JDT-TAB, 2006 U.S. Dist. LEXIS 64454; 9/8/06
Attorneys of Record: (for plaintiff) Shelese M. Woods, U.S. Attorney’s Office, Indianapolis, IN. (for defendant) Linda J. Salfrank, Spencer Fane Britt & Browne, LLP, Kansas City, MO; Marc T. Quigley, Krieg Devault, Indianapolis, IN.