Not a good day for the NCAA. Nor should it have been.
But the good news here is that the four judge panel of the California Court of Appeals hearing the NCAA"s motion Monday to seal 700 pages of the record in its appeal to dismiss the Todd McNair lawsuit had done its homework.
Which is never a good outcome for the NCAA as it argued against its own rules, apparently, while saying it's for transparency but unfortunately its own byaws won't let it do so in this case. Its witnesses have been promised confidentiality, NCAA attorney Laura Wytsma, argued to open.
Although things had already gone sideways a bit when when she first asked the court for extra rebuttal time and Justice Richard Aldrich said he'd already built that in. "I misunderstood," Wytsma said.
But Aldrich didn't misunderstand the NCAA's own Bylaw 32 that Wytsma was citing. The NCAA is to keep witness testimony and deliberations confidential, he said, reading the exact words of the bylaw: "until the case has been announced."
Doesn't that end the confidentiality, Wytsma was asked. It seems clear.
Wytsma didn't agree, going on about how reluctant the NCAA's main witness in the USC case, Lloyd Lake, would have been to testify if there was no confidentiality. But one witness isn't the point. What about the language of that NCAA confidentiality bylaw that says it ends with the date the Committee on Infractions' finding is announced -- June 10, 2010. More than four long years ago.
"Why should confidentiality be sustained more than four years later," Aldrich asked. Why was that language in there, the Justice asked Wytsma, if confidentiality lasted forever. Wytsma was forced to respond that's "not a question I'm able to answer." Oops.
But the bigger point here, enunciated by Aldrich, the primary questioner, was this: How do these NCAA promises of confidentiality override California law for court proceedings to be public? What is the overriding interest for California to keep these 700 pages sealed?
Justice Patti Kitching commented that she could understand the NCAA wanting to protect the confidentiality of witnesses but what about the NCAA staffers and nonvoting members of the committee emailing voting members with whom they weren't supposed to have substantive conversations about the case? That embarrassing material, material that the original court of LA Judge Frederick Shaller called "hateful and malicious" would also be sealed.
"What bylaw says that," Kitching asked, "where does it say that?"
It doesn't. My notebook says "LW struggling here to answer." As you might guess she would be.
Wytsma went back to the "protecting the witnesses" argument noting how even in the final decision, the NCAA redacts the names and talks about "Student-Athlete No. 1's girlfriend," which was too much for Kitching. "Everybody knew the names you were referring to."
But then Wytsma presented the NCAA's novel theory going forward. "If the Court unseals the record," she said, there won't be sufficient record for the NCAA to pursue its motion to throw out McNair lawsuit. That's because the NCAA would have just 10 days to decide it might have to withdraw the material to protect its witnesses' confidentiality.
Although how that would impact the McNair attorneys, who have that material in discovery already and have used it and would surely continue to do so, is unclear?
Justice Aldrich would soon come back with the comment that it looked like the NCAA, through its bylaws, wanted to be allowed to act "as a judge, jury and executioner" in this matter. Although he later said with a laugh that he "didn't mean that as a pejorative." It's just the way the NCAA works was the obvious conclusion here.
One line of questioning related to how the NCAA had used this same reasoning in court cases in Florida, Kentucky and Kansas and lost in all of them.
But those are the rules, Wytsma said of the confidentiality provisions, and they apply to all employees at NCAA institutions. "Mr. McNair understood that when he went to work for an NCAA institution" and that "we didn't initiate this, we were dragged into it."
An innocent bystander, Wytsma seemed to be saying of the NCAA here..
Justice Kitching would later comment tellingly that she didn't think "the NCAA has the right to bargain away the public's right to know."
Wytsma responded that the NCAA has a constitutional right to answer and defend itself without a witness coming back and asking "why is my statement on the front page of the LA Times?"
Arguing for the intervening LA Times and New York Times and asking that the McNair/NCAA material be unsealed, Thomas Burke of the international media law firm Davis, Wright Tremaine, said that the NCAA's arguments are "not even close to that obligation being met" of an overriding public interest that requires sealing the NCAA discovery material.
"It's a private adjudicating process that doesn't have and shouldn't have that protection," Burke said. "That argument was rejected by courts in Kentucky, Kansas and Florida."
There's also this. In a further addition to Bylaw 32, the NCAA says it has the right to release witness statements "to confirm or correct the record," Burke said should a witness discuss testimony. "It's not an ironclad rule . . . it's not tantamount to lawyer-client privilege."
Finally, speaking as an appellate specialist for the McNair attorneys, Stuart Esner said he wanted to correct one assertion by the NCAA that on two occasions, McNair had waived his right to ask that the record be unsealed. "We just took no part," Esner said. Now they were and they want the record unsealed.
Esner said he didn't want to argue the merits of the case which will happen only after the decision to seal or not is made, but he felt he had to respond to whether the NCAA would choose not to defend itself completely going forward.
"It's their call," Esner said, but it's also a case of saying "We're going to take our ball and go home -- that's not the basis for a sealing order."
According to Burke, the Court will issue its decision "quickly," although that means "within 90 days," he said. The NCAA will then be able to appeal it to the California Supreme Court if the decision is to unseal, something most observers here believe will be the case.
Then what Justice Aldrich called "this bifurcated process" to insure fairness and get the sealing decision out of the way first, will take up next when to schedule a hearing on the merits of the NCAA's motion to dismiss the McNair defamation lawsuit.
So don't expect this to go quickly. And then there's this: the NCAA now may have set up grounds for settling if it withdraws those 700 pages from the case going forward. Although how exactly that material helps the NCAA defend its case, as Wytsma assured that they would, is open to question.
How anything at this point helps the NCAA's case to seal is really an open question. Why should California put on hold its laws that the public should know why a decision in court was made in order to uphold private deals made by the NCAA?
Why indeed?You can follow me on Twitter at @dweber3440 or email me at email@example.com.