The California Court of Appeal (Second Appellate District) filed a breakthrough opinion February 6, 2015, in the McNair v. NCAA defamation case. Todd McNair, a former assistant football coach at the University of Southern California, sued the National Collegiate Athletic Association (“NCAA”) after being sanctioned by the Committee on Infractions during the infractions case involving former USC student-athlete Reggie Bush. The NCAA sought to have the state court seal hundreds emails and other documents from the USC case. However, the California Second District Court of Appeal disagreed. A summary of the court’s decision is included below (the full opinion can be read here):
“The NCAA specially moved to strike plaintiff’s complaint on the ground the action was a strategic lawsuit against public participation (Code Civ. Proc., 425.16) and moved the court to seal certain records. Although the court denied the motion to seal, it conditionally sealed the documents pending appellate review. In connection with appeal from the denial of its special motion to strike, NCAA moved the court of appeal to seal the same documents lodged as part of the appellate record. The court denied the motion, noting the public’s First Amendment right of access to documents used at trial or as a basis of adjudication and a presumption of openness of substantive court proceedings in ordinary cases. To seal records, courts must find that there is an overriding interest supporting sealing records; there is a substantial probability that the interest will be prejudiced absent sealing; the proposed sealing is narrowly tailored to serve the overriding interest; and there is no less restrictive means of achieving that interest. NCAA failed to carry its burden to demonstrate that its interest in the confidentiality of its enforcement proceedings overrides the constitutional right of access and the presumption of openness, or how that interest would be prejudiced if the documents were disclosed.”
The NCAA argued “its interest in the confidentiality of its enforcement proceedings overrides the public right of access to documents used as a basis for adjudication.” Further, the NCAA noted “confidentiality is an essential tool” since it “lacks the power to subpoena”. The court disagreed and ruled the NCAA’s rationale did not satisfy California law.
The court’s decision may harm the NCAA’s already-battered reputation (after the public embarrassment resulting from the University of Miami and Penn State cases) when the USC enforcement documents are released to the media. For example, after reviewing the NCAA documents, a state trial judge (Los Angeles Superior Court Judge Frederick Shaller) opined in November 2012 the documents “tend to show ill will or hatred”. Most importantly, Judge Shaller described the NCAA’s investigation in the USC case as “over the top” and “malicious”.
Higher-education lawyers who practice before the NCAA Committee on Infractions (such as the attorneys in Buckner) are eager to review the NCAA’s behind-the-scenes communications. It will enlighten us and the public as to how the NCAA dispenses justice in the world of college sports.