Recent Posner Case...

Judge Posner wrote an interesting opinion (aren't they all?) recently in U.S. Dept. of Ed. v. National Collegiate Athletic Ass'n, 481 F.3d 936 (7th Cir. 2007).  This case should be interesting for those interested in sports law and in the issue of administrative agencies protecting confidential information obtained by subpoena.  It also discusses (and dismisses) the distinction between judicial and administrative subpoenas.

The NCAA has a type of amnesty program for members who violate the NCAA rules - voluntary disclosure by the violator school can mitigate the otherwise hefty sanctions the NCAA might impose.  The Dept. of Ed., however, took an interest in this case for prosecutorial purposes, and subpoenaed (what a funny word) the records of this recent self-disclosure.  The NCAA, arguing that nobody will be forthcoming about their own violations if the DOE gets (and exposes) the information, asked for injunctive relief - either to be excused from the subpoena, or to have the DOE required to give advance notice to the NCAA before it yields the scandalous info to anyone else. 

Posner & Co. reject the NCAA's claims (after an insightful discussion of the incentives for the parties involved in such cases).  I thought both sides had colorable arguments here, and the case would be useful in the classroom for getting students to discuss/think about what agencies should be able to do with private, embarrassing information. 

Someone recently asked me about this issue - how to get an agency to "seal" a record the way courts sometimes do.  I am not aware of any relevant statutory provision about this - PLEASE write to me or post a comment if there is some applicable statute (sort of an anti-FOIA) that I've missed.  So I speculated that the best shot was going to court to ask for injunctive relief, hoping the court would enjoin the agency from disclosing the documents in the administrative record, as in this case.  It still seems like this is the main remedy (unless the agency has its own procedure for requesting that records be sealed).  DOE v. NCAA does cite some authority indicating that this is possible in some cases, but it also makes it clear that this will be an uphill battle.  In the end, the court says it treats these requests on a case-by-case basis, weighing factors such as the potential burden/harm to the party subpoenaed, the public benefits related to the agency's investigation, etc. 

Posner acknowledges that the NCAA and another voluntary reporter are already defendants in a pending defamation suit, seeking $60 million in damages, where the NCAA turned over the information to a grand jury pursuant to another subpoena.  Ouch!  No wonder the NCAA is skittish about doing the same thing again, and is in court asking for some protection from this seemingly unlimited liability.  I thought Posner made too little of this.  If I were legal counsel for the NCAA, I would have done the same thing, given the circumstances.  In fact, it seems to serve as a cautionary tale to other trade associations an private-sector certification boards about the costs of soliciting confessions from members about violations, or promising amnesty for such self-disclosure.

-Dru Stevenson

For those interested in Posner, or the darker side of education law (often a subset of Administrative Law), the following recent case is simply hilarious/outrageous (actually, worth forwarding for the laugh value): Brandt v. Board of Educ. of City of Chicago, 480 F.3d 460 (2007).  Pity the child whose mommy is a litigator.

Anyway, I thought the case had good pedagogical potential because of its crystal-clear discussion of subjects ranging from administrative subpoenas to FOIA exceptions to equitable remedies against administrative agencies.