In a significant victory for open court filings, the California Court of Appeal rejected an effort by the National Collegiate Athletic Association ("NCAA") to seal 400 pages of documents in a dispute between the NCAA and a former assistant football coach at the University of Southern California ("USC") related to the NCAA's investigation of star running back Reggie Bush.

The court concluded that the NCAA failed to carry the heavy burden of showing that its interest in the confidentiality of its enforcement proceedings overrides the constitutional right of access and the presumption of openness, or how this interest in confidentiality would be prejudiced if the documents submitted to the court were disclosed.

The court-secrecy dispute arises out of a lawsuit filed against the NCAA by assistant USC coach Todd McNair for defamation and breach of contract, among other claims. The lawsuit arose in connection with a report the NCAA Committee on Infractions ("COI") issued related to its investigation into whether Reggie Bush received improper benefits while a student at USC. (The investigation resulted in a two-year suspension from post-season play, and an order to vacate victories for every game in which Bush played.)

The NCAA sought to dismiss McNair's lawsuit under the California anti-SLAPP statute (CCP § 425.16). The NCAA sought to seal the opposition brief that McNair filed to oppose the anti-SLAPP motion and 400 pages of documents, including: (1) the COI Report; (2) the NCAA case summary provided to the Col; (3) memoranda drafted by members of the COI concerning the allegations; (4) excerpts of witness interviews; (5) telephone records; (6) the notice of allegations; (7) excerpts of the deposition testimony of NCAA officials describing the NCAA's investigative and adjudicative process; (8) e-mails between COI members while adjudicating the allegations; (9) excerpts of the COI hearing transcripts; (10) plaintiff's response to the notice of allegations; and (11) his appeal to the NCAA's Appeals Committee.

To support its sealing motion, which the trial court denied, the NCAA argued that its bylaws require it to keep its investigations strictly confidential. The NCAA argued that its investigators rely on confidential sources for much of the information they gather, and promise confidentiality to witnesses to obtain needed facts. If the requested documents were not sealed, the NCAA insisted that its enforcement proceedings would be made public, thereby prejudicing its enforcement abilities and embarrassing witnesses who had relied on confidentiality.

Reviewing the trial court's decision to deny sealing, the Court of Appeal acknowledged that "[t]he public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. . . . As [NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999)] explained, 'the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases. If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism.'"

The Court of Appeal applied the test laid out by the California Supreme Court in NBC Subsidiary, which requires a court to find that (1) there is an overriding interest supporting sealing records; (2) there is a substantial probability that the interest will be prejudiced absent sealing; (3) the proposed sealing is narrowly tailored to serve the overriding interest; and (4) there is no less restrictive means of achieving the overriding interest. As the party seeking an order sealing appellate court records, the NCAA has the burden to justify the sealing, the Court held.

The NCAA argued that its interest in the confidentiality of its enforcement proceedings overrides the public right of access to documents used as a basis for adjudication. It argued that enforcement is key to assuring some of its basic principles of promoting amateurism and protecting student athletes from exploitation. Additionally, because the NCAA does not have subpoena power, it is forced to rely on "voluntary" participation in its investigations. If confidentiality were not guaranteed, the NCAA argued, witnesses would be hesitant to offer fulsome cooperation. Finally, the NCAA argued its bylaws and contractual agreements apparently guaranteed confidentiality, and were overriding interests.

The Court of Appeal rejected all of these arguments. It found that the confidentiality offered by one of the NCAA's bylaws was ephemeral – it only lasted until the COI report was issued. Some of the information to be kept confidential by another bylaw was previously disclosed by the NCAA itself in the COI report. The Court of Appeal held that "[i]n short, one bylaw the NCAA cites as its overriding interest in confidentiality is temporally limited, and the other bylaws are restricted to witnesses, institutional representatives, and reports of witness interviews. None of the bylaws relied on by the NCAA provides the one-size-fits-all cloak of confidentiality it seeks here."

The Court of Appeal similarly found that any contractual confidentiality agreements the NCAA entered into did not authorize the court to seal any documents without "a specific showing of serious injury." The Court of Appeal explained further that "[b]road allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." The NCAA did not put forth any specific showing of injury.

The Court of Appeal also considered, and rejected, the NCAA's argument that the NCAA's "insistence on a confidential investigative process endows it with a privilege which would be akin to an overriding interest." It noted that "the California Legislature has abolished common law privileges and precluded courts from creating new nonstatutory privileges as a matter of judicial policy." The Court of Appeal found that the NCAA could not point to a statutory privilege that was applicable to it. The NCAA had sought to seek the shelter of the Reporter's Privilege, but the Court of Appeal rejected its attempt, holding that the "NCAA, a private, voluntary organization, is not the media and so no such concomitant privilege exists for the organization."

Summarizing its holding on the first prong of the NBC Subsidiary test, the Court held that "[o]n balance, the NCAA's interest in ensuring the confidentiality of its investigations is insufficient to overcome presumption of, and the courts' obligation to protect the constitutional interest in, the openness of court records in ordinary court proceedings."

On the second prong, prejudice, the Court of Appeal further considered, and rejected, the NCAA's claims that the unsealing of the documents would cause it prejudice by sabotaging future investigations and cause embarrassment to past participants. It was "not convinced" and noted that "[w]hile it is possible that some may shy away as the result of disclosure, it is just as likely that knowing their statements might become public, members of the COI and investigators would ground their evaluations in specific examples and illustrations in order to deflect potential claims of bias or unfairness." The Court of Appeal noted that NCAA investigative files involving the University of Kentucky and Florida State University were made public through litigation. The NCAA failed to show that these disclosures "chilled future investigations."

After finding that the NCAA failed to make its showing in the first two prongs, the Court of Appeal held that it did not need to make further inquiry, and decided to unseal. While acknowledging that the NCAA provides an important public service, it held that "our analysis here is based on the First Amendment. The constitutional right of public access to, and the presumption of openness of, documents submitted at trial or as a basis for adjudication in ordinary civil cases are designed to protect the integrity of our judicial system." The NCAA filed a Motion for Reconsideration that the Court of Appeal summarily denied the following day.

Davis Wright Tremaine LLP partners Thomas R. Burke and Kelli L. Sager, and former associate Jeff Glasser (now Vice President, Legal, for the Los Angeles Times) represented the Non-Party Press Representatives, The New York Times Company and Los Angeles Times Communications LLC which intervened to oppose the proposed sealing.