In the underlying matter, Todd McNair, former USC assistant football coach, sought to depose the lead investigator in the USC investigation, Committee on Infractions (COI) chairman, and COI director, and obtain copies of transcripts from COI and the Appeals Committee hearings, the entire investigative file, and drafts of the COI report, including all notes, and other writings discussing or referring to the drafts, and emails within the custody and control of the NCAA, by or to members of COI or the Appeals Committee staff that mentioned or related to McNair. The NCAA moved to seal 400 pages of records responsive to this request. The trial court ruled against the NCAA and, thus, the NCAA appealed the interim ruling.
The public has a First Amendment right to access to civil litigation documents filed in court and used at trial or submitted as a basis for adjunction. Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open. In order for a court, in California, to seal records, the Court must find 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. The Court concluded “the 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 this interest is confidentiality would be prejudiced if the documents at issue were disclosed.”
In seeking to seal various requested records, the NCAA argued that NCAA Bylaw 32.1.1 justifies the sealing of court records. NCAA Bylaw 32.1.1 states “The Committee on Infractions, the Infractions Appeals Committee and the enforcement staff shall treat all cases before them as confidential until they have been announced in accordance with the proscribed procedures. In addition, an institution and any individual subject to NCAA rules involved in a case shall treat that case under inquiry by the enforcement staff as confidential until the case has been announced in accordance with prescribed procedures.” The Court noted NCAA Bylaw 32.1.1 only maintains confidentiality of such records “until [the case has] been announced.”
Next, the NCAA argued that it promised confidentiality to witnesses. The California Legislature abolished common law privileges and precludes courts from creating new nonstatutory privileges as a matter of judicial policy. The Court pointed out the NCAA did not reference a statutory privilege as a basis for sealing the records. Additionally, the Court stated the NCAA’s promise of confidentiality is limited to its bylaws and does not justify sealing of records.
The Court concluded by stating “[t]he NCAA has failed to make the necessary showing of a substantial probability of prejudice if the documents are not sealed.” Accordingly, the appeal of the NCAA’s motion to seal was denied.