NCAA Gets Protective Order in Cohane Case

Sep 26, 2008

A federal judge from the Western District of New York has granted the NCAA’s motion for a protective order of confidentiality in a case involving a coach, who sued the University at Buffalo (SUNY), Mid-America Conference (MAC), and several officials, claiming they violated his constitutional right to due process in the course of investigating possible violations of NCAA rules.
Plaintiff Timothy Cohane was hired as head coach at SUNY in 1993. He continued to coach the team for five more years at which point defendant Robert Arkeilpane was hired as SUNY’s athletic director.
Cohane accused Arkeilpane of leveraging “a pre-existing friendship and business relationship with Rob Fournier, the then-director of compliance for the MAC” to have Cohane accused of violating NCAA rules. Fournier reported the alleged violations to the NCAA.
According to Cohane, “the SUNY Defendants authorized, assisted, and conspired with Fournier to violate his due process rights as well as the protocols and rules promulgated by the NCAA and MAC. Specifically, with the consent of the SUNY Defendants, Fournier conducted interviews without tape recording them, as required; prepared affidavits for adverse witnesses; intimidated witnesses into giving damaging testimony against Cohane; misrepresented himself to potential witnesses by claiming that he was an attorney or an employee of SUNY; and refused Cohane’s request for information regarding the nature of charges against him or documentation of his alleged infractions.
“In September of 1999, Arkeilpane interviewed the student athletes on the SUNY basketball team, many of whom made statements that exonerated Cohane of violating NCAA rules and regulations. From September 1999 through January 2000, Arkeilpane and Fournier threatened student athletes with loss of their scholarships and NCAA eligibility, as well as forfeiture of their degrees, to compel them to change their testimony and sign false affidavits implicating Cohane. At all times, the sum and substance of the students’ taped statements and the existence of the conflicting affidavits were intentionally withheld from Cohane.” The court continued that Cohane was forced to resign his position at SUNY in December 1999.
“On January 18, 2000, the MAC Infractions Committee voted to adopt the findings in Fournier’s report and forwarded the matter to the NCAA for further action against Cohane. Between the MAC hearing in January 2000 and the NCAA hearing in February 2001, the SUNY Defendants denied Cohane access to records that would have exonerated him.
“In the spring of 2000, some student athletes who had exhausted their NCAA eligibility refused to interview with NCAA enforcement staff. In response, Arkeilpane and Maher threatened the students that their degrees would not be issued if they did not cooperate in the investigation.
“In January 2001, in response to the official NCAA inquiry, SUNY failed to disclose the existence of exculpatory information or the identity of potential witnesses with such information, or to advise the conference about the conflicting affidavits. At the NCAA hearing on February 9, 2001, the defendants permitted false affidavits to be presented as evidence, knowingly gave false and misleading testimony and withheld exculpating evidence and witnesses. As a consequence, the NCAA banned Cohane from coaching for four years, thereby destroying his coaching career and professional reputation. Moreover, the stigmatizing charges are part of Cohane’s personnel file maintained by SUNY, which has been disclosed and is likely to be disclosed to any prospective employers.”
Cohane sued on January 17, 2003.
During the course of discovery, the MAC served a subpoena upon the NCAA seeking production and inspection of: “all papers, transcripts, records, and reports of any kind and in any form, including audio and video recordings, (except electronic mail) that relate in any manner to infractions or violations of NCAA rules or protocols, or allegations thereof, related to the men’s basketball program at SUNY and/or Timothy Cohane.”
The NCAA countered with a motion seeking a confidentiality order “after its good faith efforts to negotiate such an order with Plaintiff failed.” The court noted that David Price, vice president for enforcement services of the NCAA, affirms that information obtained during the course of an investigation is “frequently given by witnesses or other sources under a pledge of secrecy.
“Mr. Price further affirms that the ability to credibly promise confidentiality to a potential source of information is critical to the NCAA’s enforcement mechanism. Many of these sources (a) have requested and have been promised anonymity, and (b) could be adversely affected if their participation was [sic] disclosed. Without an expectation of confidentiality, individuals are afraid to come forward with relevant information because they fear retaliation, accusations of disloyalty, media scrutiny, litigation, and so on.
“Mr. Price also notes that even if a witness’ identity is not secret, NCAA files frequently contain confidential or otherwise sensitive information about witnesses, other individuals, or institutions. This may include unlisted contact information, medical or education records, financial data, recruiting strategies, Social Security numbers, or other personal information. Mr. Price affirms that the information sought by the subpoena at issue in this case includes information about individuals’ finances and education, as well as personal contact information and Social Security numbers.”
The plaintiff’s counsel opposed the order, arguing that “it is unnecessary, attempts to attach confidentiality to documents in the public domain and which have previously been exchanged by the parties during the course of discovery, and is overreaching and prejudicial with respect to its notification provision and terms concerning individuals who may view documents produced by the NCAA.”
In response to the plaintiff’s response to the motion for a confidentiality order, the NCAA revised its proposed order to “limit its scope to documents which had not already been disclosed publicly; to permit parties to receive copies of confidential documents; and to remove the provision requiring Plaintiff to provide the NCAA with the name and address of any individual who may be given confidential documents to assist in the preparation of the case.”
Considering the arguments, the court ruled as follows:
“1. All papers, transcripts, records, reports, and other recorded data which have not previously been disclosed or exchanged between the parties and which are subject to disclosure by the NCAA shall be marked confidential and shall be produced with any personal identifiers such as Social Security numbers, home addresses, telephone numbers, bank account numbers, etc., redacted.
“2. All documents marked confidential pursuant to paragraph 1 shall not be disclosed to or discussed with anyone other than the parties, counsel for the parties, professionals retained by the parties to assist in the preparation of these actions, and employees hired to assist the aforementioned parties, counsel, and professionals, unless the party seeking to further disclose the documents obtains prior written consent for such disclosure, in writing, from the NCAA or, if such consent is unreasonably withheld, the party seeking to further disclose the documents obtains prior written consent for such disclosure from the court.
“3. It is the responsibility of counsel for the parties to inform the individuals identified in paragraph 2 of the terms of this confidentiality order and to obtain their consent to comply with this order before confidential documents are disclosed.
“4. The confidential documents identified in paragraph 1 may be utilized by the parties in court proceedings and filed with the court so long as the name of any non-party interviewed during the course of the investigation pursuant to a promise of confidentiality and any sensitive personal information relating to non-parties, e.g., educational, financial, medical, or psychological information, is redacted. If the identity of any such individual or any sensitive personal information is relevant to an issue before the court, the party seeking to utilize this information shall file the document under seal.”
On a parallel course, there is pending litigation against the NCAA, which is currently in discovery.
Timothy M. Cohane v. National Collegiate Athletic Association, et al.; W.D.N.Y.; 04-CV-181S(Sr), 04-CV-09435(Sr), 2008 U.S. Dist. LEXIS 60321; 8/7/08
Attorneys of Record: (for plaintiff) Sean O’Leary, O’Leary & O’Leary, Garden City, NY; (for defendants)


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