How Louisville BKB, a Stripper, a Doctor and an AG May Change Compliance Practice at NCAA Schools

Look for my new book, ‘Shamateurism,’ coming out soon, which shows why the big-time college player is an employee, economically castrated by the school.

A retired University of Louisville med school physician-blogger named Hasselbacher sent the school a FOIA request for the production of numerous documents associated with the University’s handling of now notorious claims that coach Rick Pitino’s basketball players had engaged strippers to perform in their dorm, and the school’s ‘self-imposed’ sanctions. (The NCAA investigation is still ongoing.)

Pitino

Because the doctor was not pleased when Louisville responded by telling him that school President Ramsay had no such documents in his possession, Hasselbacher took the first appeal step, under the Kentucky law, to state Attorney General Hill, who just issued a September 2 decision which should cause every on-campus NCAA compliance honcho to sit up and take notice.

As is common in the world of such on-campus investigations conducted by schools under NCAA investigation, Louisville hired one of the pool of ‘revolving door’ former NCAA staffers, who now offer their for-hire consulting or legal services to aid in such in-house reviews. Louisville chose Chuck Smrt, a non-lawsyer who had worked for the NCAA investigation arm until 1999, and has since run his own consulting business called “The Compliance Group’ — and Smrt ‘ran’ the investigation for Louisville..

But AG Hill was not impressed that it appeared some documents potentially responsive to the FOIA were actually in the possession of Smrt, and concluded that Louisville had an obligation to produce those documents in Smrt’s possession.

Though the AG’s opinion will presumably be appealed, it should have some significant impact on the manner in which such in-house school investigations about NCAA charges are conducted, by causing school’s to gravitate toward the hiring of lawyers — not non-lawyers — to conduct the investigations.

This is because lawyers bring with them an attorney-client privilege ‘shield’ which — though not impenetrable — is nonetheless a very effective tool for combatting the release of information to the public, either through FOIA requests, or leaks. (A companion doctrine, the attorney ‘work product’ doctrine, also protects from disclosure those materials which tend to reflect the thoughts, opinions, and theories of the attorney.) Because he is not an attorney, Chuck Smrt has no such privilege or doctrine available to him in responding to the AG’s order, or any later appellate court’s order.

The recent Baylor sexual harassment in-house investigation conducted by the law firm Pepper & Hamilton, in contrast, is a bit of a paradigm, from a school point of view, for the conduct of in-house investigations (even though Baylor is a private school and not, therefore, subject to public records requests under state or federal FOIA-type laws.) No written report, other than a 13-page summary for the Board, was ever prepared, and the entire investigatory effort was conducted under the broad, protective umbrella of PepperHamilton’s attorney-client privilege. These factors make it highly unlikely that information will later ‘spill’ to the public, either voluntarily or involuntarily.  

In effect, AG Hill’s ruling pronounces that documents generated or accumulated by an outside non-lawyer consultant like Smrt will be subject to public exposure by FOIA request.The big tool which Louisville and Smrt are now missing is the attorney-client privilege — making it more likely that documents which Louisville probably has no interest in making public, will actually see the light of day.

And AG Hill’s ruling may also embolden others to make similar FOIA requests for investigatory documents, in other cases — the most obvious one being the 2010-2011 OSU-Jim Tressel-Terrelle Pryor ‘Tat-Gate’ scandal, the investigation of which was also run by Chuck Smrt.

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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