The NCAA contends its enforcement process “will be substantially prejudiced by public disclosure” of currently sealed documents in former USC assistant Todd McNair's lawsuit against the association.
The NCAA's argument appears in its 71-page reply to opposition of their motion to seal filed last week in McNair's increasingly contentious defamation lawsuit. McNair and his attorneys are seeking to unseal those documents that appear to show improper involvement by the NCAA staff in the USC case that concluded three years ago.
Since then, McNair has sued the NCAA, seeking to clear his name after receiving a one-year show-cause penalty in that USC case. Since the June 2010 announcement of the USC penalties, McNair -- a former NFL running back and Temple star -- has not been able to find work in football. His lawyers are trying to show the association violated its own rules and procedures in investigating their client.
In its latest filing on Wednesday in California appellate court, the NCAA makes a wide-ranging case why the documents should remain sealed. Central to its argument is that disclosure of the information would compromise the investigative process. It is a time-worn tactic used by the NCAA, one that doesn't hold much weight considering the challenge to the system in the Florida State case.
Less than a month before the USC penalties were announced in June 2010, the Florida Supreme Court ruled the NCAA had to release documents relating to the FSU academic fraud scandal. The documents were apparently covered by Florida's “Sunshine Law” because FSU is a public institution.
NCAA vice president David Berst had earlier testified that such an action would “rip the heart” out of the enforcement process. Since those FSU documents were released in May 2010, 27 major infractions cases have been completed in FBS -- or one every 1.37 months.
Although the bulk of the USC case was decided before current NCAA president Mark Emmert took office, he inserted himself into it in December 2010, telling USA Today: "Everyone looks at the Reggie Bush case and says, 'It took them a long time.' But they got it right, I think.”
That comment came while McNair's appeal was pending and was viewed by some as prejudicial.
Last week, the Los Angeles Times and New York Times filed an action to intervene with that California appellate court, asking that the documents be unsealed. The action includes multiple media reports detailing USC's and McNair's battle against the NCAA.
A judge in the McNair lawsuit concluded in November that at least three persons might have improperly tried to influence the NCAA infractions committee regarding McNair's complicity in the USC case.
Judge Frederick Shaller's November decision revealed a fraction of the sealed information currently in dispute. It shows the apparent lengths the NCAA went to disparage McNair as “a lying, morally bankrupt criminal, in my view, and a hypocrite of the highest order,” according to one piece of NCAA communication.
Shaller is a USC grad who had already concluded McNair had proven actual malice on the NCAA's part. McNair contends that false information produced and gathered by the NCAA was ignored by the appeals committee in 2011. He sued the NCAA later that year.
In its latest filing, the NCAA says it is “nonsensical” that the coach would dispute its claims about compromising the enforcement process. “...[I]t requires no more than common sense to appreciate that witnesses who have no expectation of confidentiality will temper their statements,” the NCAA filing states.
Confidentiality concerns didn't discourage sources from coming forward in cases against Ohio State and Miami. In fact, at Ohio State, it was head coach Jim Tressel who suppressed information by a local attorney who was trying to alert him of wrongdoing within the program.
The NCAA allowed limited immunity to athletes in exchange for their testimony in the Miami case. Former booster Nevin Shapiro has provided a wealth of information in a case that almost certainly will land Miami on probation.
The NCAA also argues re: McNair that producing the entire investigative file in the USC case would be unwieldy. With approximately 50 NCAA member schools located in California, the state's anti-SLAAP statute would no longer protect the NCAA's “free speech rights” and “confidential enforcement process.”
Free speech? That's exactly why McNair is suing. “Railroading” is not in the NCAA dictionary, but that's exactly what the coach believes happened to him. Confidential enforcement process? There has never been an investigation more public than Miami's.
The NCAA concluded McNair provided false information when he denied speaking to Lloyd Lake, a would-be agent who had provided benefits to Reggie Bush. The decision was affirmed by the appeals committee after McNair appealed. His suit followed in 2011.
The NCAA now says McNair's request to provide the entire investigative file should have been denied because he didn't prove “good cause.” In its 185-word conclusion, the NCAA says “it has a … right not to be dragged through expensive and intrusive discovery simply because McNair does not like credibility determination made and then affirmed by fourteen independent lawyers, law professors and institutional and conference representatives.”
That would be a reference to the infractions and appeals committees that pronounced sentence on McNair. The same committees that, it can be argued, put Miami and others through “expensive and intrusive discovery” in long and lingering cases.
Like your average major infractions case involving a BCS school, resolution isn't expected anytime soon.