Wednesday, March 4, 2015

The NCAA Can't Don the Man's Mantle in Sealing Fight

McNair v. NCAA, No. B245475 (D2d3 Feb. 6, 2015)

The underlying lawsuit involves allegations that the NCAA defamed plaintiff in its report regarding allegations that former USC running back Reggie Bush received improper benefits while a student athlete.  In connection with an appeal of an order denying an anti-SLAPP motion, the NCAA seeks to seal a number of documents that were lodged in connection with the motion. In a short published opinion, the court of appeal addresses a key issue regarding sealing.

NCAA argued that its investigations are subject to an overriding interest against public disclosure under the NBC Subsidiary standard because confidentiality is essential to its ability to get witnesses to come forward. It grounds this argument on its bylaws and the confidentiality agreements it enters with these witnesses. But since these are private agreements, as the court explains, the “mere agreement of the parties alone is insufficient to constitute an overriding interest to justify sealing the documents.”

Nor was the court swayed by the NCAA’s various policy arguments analogizing the NCAA to a public agency conducting an investigation and claiming that disclosure would destroy its ability to investigate. The NCAA isn’t part of the judicial system and it is not a law enforcement agency. It is a private organization that investigates violations of its rules akin to how an employer might investigate the misconduct of its employees. So, although the NCAA might perform an important service, its interests in doing so don’t outweigh the public’s right of access to the courts.

Motion to seal denied.

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