General Liability Alert: No ‘Hiding the Ball’ – Court Prohibits NCAA from Sealing Trial Record

In McNair v. National Collegiate Athletic Association (filed 2/6/2015, No. B245475), the California Court of Appeal for the Second Appellate District, held that the NCAA may not limit public access to certain documents related to the investigation of plaintiff and the former running back coach for the University of Southern California (“USC”), Todd McNair (“Plaintiff”).

In connection with its investigation into whether former USC running back and Heisman trophy winner Reggie Bush had received improper benefits while a student, the NCAA interviewed Plaintiff and others individuals at USC. After the NCAA issued its Committee Infractions’ final report, Plaintiff became the linchpin for the NCAA sanctioning USC with a two-year bowl ban and a loss of 30 scholarships over three years. In response, Plaintiff filed his Complaint against the NCAA for breach of contract, defamation and other torts. At the trial court level, the NCAA vigorously, but unsuccessfully, opposed the production of internal documents and e-mails concerning the Reggie Bush investigation. In a ‘Hail Mary’ attempt to preclude production of the documents, the NCAA appealed.

On appeal, the NCAA argued that its bylaws required it to keep its investigations strictly confidential. It further argued that if the investigative documents were made public, the NCAA’s enforcement abilities would be prejudiced and it would be embarrassing to witnesses who relied upon confidentiality. The Court of Appeal disagreed. Recognizing the public’s First Amendment right of access to documents used at court, the Court of Appeal held that in order to expressly seal a record, there must be a finding that (1) there is an overriding interest that supports sealing the records; (2) there is substantial probability that interest will be prejudiced absent sealing; (3) the proposed sealing is narrowly tailored; and, (4) there is no less restrictive means of achieving the overriding interest. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.App.4th 1178, 1217-1218.)

The Court held that the NCAA did not meet the two elements of NBC Subsidiary. Specifically, the NCAA failed to meet the first element of NBC Subsidiary because the NCAA bylaws did not encompass many of the documents the NCAA attempted to preclude from disclosure. In addition, the NCAA failed to articulate specific examples of harm based upon NCAA’s witnesses’ confidentiality agreements. The Court further held that the NCAA failed the second element, observing that the NCAA’s past investigative and adjudicative documents have been subject to public scrutiny elsewhere in the United States which did not chill future investigations. The Court declined to address the remaining elements of NBC Subsidiary because NCAA failed to┬ásatisfy the initial elements. Touchdown McNair.

This case has significance beyond college sports. It reaffirms the fundamental principle that the freedom of speech is the most regarded right afforded by the United States Constitution. The right extends into a courtroom and can be utilized as a strategic litigation tool. Now more than ever you should be careful of what you put in writing, electronic or otherwise.

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February 11, 2015