By Loren Galloway
A federal district court has ordered the NCAA to produce more robust and detailed information related to its Division I Academic Performance Program in a class action suit which alleges that the APP rules, which penalize teams that fail to meet certain academic performance standards, are discriminatory toward historically Black colleges and universities.
The suit was initially brought by two former Savannah State men’s basketball players, Troyce Manassa and Austin Dasent, and then-current Howard women’s lacrosse player J’Ta Freeman. Freeman was later dismissed from the case for lack of standing, and Dasent requested to be dismissed due to having limited time to meaningfully participate in the litigation, leaving Manassa as the sole remaining plaintiff representing the putative class.
For the uninitiated, the APP attempts to ensure that student-athletes maintain their grades and graduate by tying rewards and penalties to two primary metrics: the Graduation Success Rate and the Academic Progress Rate. The GSR was created to supplement the federal student-athlete graduation rate calculated according to the Department of Education’s methodology. Unlike this federal rate, the GSR includes incoming transfer student-athletes and does not penalize schools for outgoing transfer student-athletes who leave in good academic standing. The APR measures eligibility, retention, and graduation at a team level. Each student-athlete receiving an athletics scholarship receives one point for meeting academic eligibility requirements and one point for either graduating or continuing enrollment in the next term. A team’s total points are then divided by its possible points and multiplied by 1000. The resulting number is the APR for that team for the specified period. Teams that fall below a four-year average APR of 930 are subject to penalties, including bans from postseason competition.
Alleging that the NCAA had failed to adequately respond to twelve document requests and one interrogatory related to the APP, Manassa moved to compel discovery of four categories of documents: APP penalty data, APP database coding information, the data and methodology used in a study used to determine the 930 APR threshold, and information on how the NCAA applies APP rules to Limited Resources Institutions.
The law related to discovery disputes is well-settled and places the burden on the objecting party to show why the discovery request in question is improper. Because federal rules provide for broad discovery, boilerplate language and general objections that the moving party’s request is vague, overbroad, unduly burdensome, or not relevant to the case will not overcome a motion to compel without additional explanation.
In its response opposing the motion to compel, the NCAA first presented what it called its procedural arguments. They argued that the plaintiff’s motion should fail because 1) the motion did not identify the information sought with enough specificity; 2) the requests for discovery themselves were overbroad because they asked for “any and all” documents and data related to the request, 3) the factual assertions made in the motion were not adequately supported, and 4) the amount of information requested was disproportionate to the issues in the complaint. The court, however, was not persuaded by any of these so-called procedural arguments, calling them undeveloped and perfunctory.
The court was also unmoved by the NCAA’s arguments with regard to the first category of documents sought by the plaintiff, data related to APP penalties for each DI team, including any exceptions or waivers related to those penalties. Additionally, the discovery requests had specified that this data should be provided in a format that would give the plaintiff the ability to search and organize the data comparable to that enjoyed by the NCAA, which uses an electronic database to access the data.
The first point of dispute here was that the NCAA did not provide APP penalty data for all DI teams but only for those that represented an HBCU, represented an LRI, or had received a postseason ban. The NCAA argued that this should be more than enough information for the plaintiff to draw comparisons between teams representing HBCUs and those representing predominately white institutions. The NCAA also argued that providing data for more than 67,000 teams would create an undue burden and would be disproportionate to the needs of the case, given that the putative class would include only around 150 teams. The NCAA asserted that under established caselaw,[1] the burden of demonstrating such proportionality lies with the moving party and that Manassa had failed to meet that burden.
The court, however, disagreed with this understanding of the application of established law, holding instead that in cases in which the objecting party argues that the burden or expense of production outweighs the likely benefit of the discovery, the objecting party must provide information to support its argument since only the objecting party knows what the burden or expense would be. Further, the court rejected the idea that the sheer volume of data requested was enough to create undue burden, since the very purpose of the database maintained by the NCAA is to manage and make accessible large amounts of data. Since the NCAA did not provide any information to support its assertion that the producing the information requested would be unduly burdensome, the court held that Manassa was entitled to all the information requested.
The second issue related to the production of the penalty data was the format in which it was provided. Instead of formatting the partial data it had provided as a spreadsheet or database, the NCAA had given Manassa over 200,000 pages of PDF files.[2] The NCAA argued that the PDF reports represented the way in which the data was kept during the normal course of business, an argument which the court rejected due to the fact that the NCAA, while it may run PDF reports for specific uses, ultimately manages its APP data using an electronic database.
The NCAA also asserted that providing the raw data from the APP database would not be possible because the data would be meaningless without the database’s internal coding to process the data. Providing the coding or access to the database, they further maintained, could expose unrelated, sensitive data, like health information, and create other security risks. However, as the court pointed out, the NCAA did not address why it could not provide a version of the raw data and coding that excluded unrelated information or provide the requested data in another computer-readable format, such as an Excel spreadsheet or CSV file. Because the NCAA failed to show why these alternatives would create an undue burden, the court held that the NCAA must provide the data in the format requested by Manassa.
However, the court denied as premature the motion to compel the second category of information sought by Manassa, the database coding needed to process the raw data. The court noted that the NCAA could still choose to produce the requested APP penalty data in an acceptable format that did not require the additional coding information, in which case the database coding information would be irrelevant.
The third category of documents requested in the motion related to a study conducted by Thomas Paskus, an NCAA research analyst. In 2012, Paskus published research on the APP which found that APR and GSR are correlated and that an APR of 930 predicts a graduation rate of 50% using the GSR calculation. Manassa claimed that this study was used to justify the 930 APR threshold below which teams are subject to penalties.
In response to discovery requests, the NCAA provided hundreds of thousands of pages of documents related to Paskus and the study, including draft and final versions of studies and papers written by Paskus, files from Paskus’s OneDrive, and the files on which the NCAA determined the 2012 article primarily relied. The plaintiff continued to assert that an underlying model or methodology remained undisclosed but without any additional specificity to support the assertion. The court noted that if such information did exist, the NCAA would be required to produce it. However, the court concluded that there was nothing to suggest that was the case and denied Manassa’s motion to compel as related to this category of documents.
The final category of information sought by Manassa related to Limited Resource Institutions, or LRIs, which have access to certain exceptions to APP rules and penalties that are not available to other institutions. In an interrogatory, Manassa asked the NCAA to explain how they determine which institutions are considered LRIs and identify which schools were considered LRIs during applicable years.
The NCAA asserted in its response that it could not provide an answer for how LRIs were identified because the interrogatory was vague because it did not provide a definition for an LRI. But in the same response, the NCAA also directed the plaintiff to a document outlining the criteria that are used to determine whether an institution is categorized as an LRI. The document referenced in the NCAA’s response to the interrogatory states more than once that there is a formula used to determine which institutions are LRIs, but it does not say what that formula is. The court held that, because the document states that such a formula exists, the NCAA’s response was incomplete and it must provide the formula itself to Manassa.
The NCAA additionally directed the plaintiff to a spreadsheet identifying LRIs from 2009 onward. Manassa asserted that this was insufficient and that documents identifying LRIs dating back to 1998 would be necessary to provide historical context and compare how those institutions were treated before the penalty exceptions for LRIs were adopted in 2009. The court agreed that pre-2009 LRI information is relevant, but that Manassa did not need information from as far back as 1998 to make comparisons. Instead, the court found that Manassa was entitled to LRI information dating to 2005, four years before the penalty exceptions were adopted.
Subsequent docket items seem to show that the parties have made progress on the discovery requests at issue in this particular order, and the battle over class certification is in full swing. It’s been nearly two and half years since the complaint was filed, and with a planned trial date in March 2024, there’s still a ways to go. Legally, there’s nothing too novel in this order on the plaintiff’s motion to compel, but it does provide additional peeks of what the parties are focused on and what we can expect in what is sure to be an interesting trial.
[1] Specifically, the NCAA cited Sanchez v. City of Fort Wayne, No. 1:18-cv-00397-HAB-SLC, 2019 WL 6696295 (N.D. Ind. Dec 9, 2019).
[2] Strategic or not, it is the opinion of this author that providing this sort of data in such a format is a Bond villain move.
