Commonwealth Court Judge Anne Covey delivered another blow to the NCAA on Friday, overruling its opposition to having some documents involved in post-Sandusky sanctions reviewed.
Covey’s order supported state Sen. Jake Corman and Treasurer Rob McCord’s request to have 477 NCAA documents, including emails, produced for the court to determine whether they should be released as discovery materials.
Corman and McCord are suing the NCAA to enforce the Endowment Act, the state legislation that would require the $60 million penalty assessed by the organization against Penn State in the aftermath of the Jerry Sandusky child sex abuse scandal and the subsequent investigation by former FBI director Louis Freeh.
The plaintiffs contended that documents were improperly being put forth as protected by attorney-client privilege, such as emails between NCAA president Mark Emmert and his wife, and email exchanges on which a lawyer was one of a number of people copied.
The NCAA disputed this, calling the lack of an attorney’s identification at the top of the communication “an insufficient reason to justify the intrusion” of a court review.
“Based upon our own review of the NCAA’s privilege log and the sample disputed documents, and after consideration of the parties’ arguments ..., this court finds that an in camera inspection of the remaining disputed documents is ‘necessary and appropriate’ to establish privilege,” she wrote.
The documents were ordered sealed and delivered to the court by noon Nov. 14, along with a cover letter, a flash drive outlining the documents and a listing of the name and job title of every individual sending, receiving or being copied on them.
On Oct. 31, Covey slapped down the NCAA for “forum shopping” in appealing her earlier ruling, denying its motion to dismiss the lawsuit, and pushing it toward a Jan. 6 trial.
Corman subsequently filed a document Nov. 2 that listed some of the documents that have been released in their redacted forms, including one between the vice president of enforcement and the vice president of academic and membership affairs that discussed “bluffing” Penn State into accepting the consent decree by which the university accepted the penalties, including a four-year ban on post-season play, a lockdown on some scholarships, and the erasing of 111 Nittany Lion football wins.