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NCAA documents on Fla. State cheating are public records

By The Associated Press
08.21.09

Editor’s note: The Associated Press reported Sept. 3 that release of the NCAA documents had been blocked pending appeal of a trial judge's ruling that they are public records. The 1st District Court of Appeal previously had ordered a temporary stay but extended it until the NCAA's appeal is decided. The court gave lawyers until Sept. 21 to file arguments and rebuttals.

TALLAHASSEE, Fla. — A top NCAA official testified yesterday that a ruling made earlier in the day would “rip the heart out of the NCAA” and its efforts to ensure competition is fair and equal.

David Berst, the NCAA's vice president for Division I, criticized the decision by Leon County Circuit Judge John Cooper that documents dealing with academic cheating at Florida State University are public records.

Berst said few witnesses other than school officials and employees would be willing to tell what they knew about cheating, whether in recruiting, academics or other areas, without the promise of confidentiality.

"We could see copycat efforts in other states," Berst said. "Yes, I believe that would rip the heart out of the NCAA."

His comments from the witness stand yesterday came soon after Cooper rejected the NCAA's claim that the documents in the Florida State case are not public.

Today, Cooper ordered the NCAA to release the documents — with students' names blacked out — within 48 hours of when he signs a written order. He's expected to sign it early next week.

Attorneys for the NCAA said they would then ask the 1st District Court of Appeal to block the release until it could hear the case.

The Associated Press and other news-media outlets had sued to get the records on the college athletics governing body's plan to strip coaches and athletes of wins in 10 sports.

That includes football coach Bobby Bowden, who could lose 14 victories. Bowden's chances of overtaking Penn State's Joe Paterno as major college football's winningest coach would dim if the NCAA rejects an appeal of that penalty. Paterno has 383 victories — one more than Bowden.

Florida law says records are public if they are "received" by a state agency. The NCAA claimed the Florida State documents were not because the school never physically possessed the documents in paper or electronic form.

Instead, the NCAA posted them on a secure read-only Web site that could be accessed by the law firm Florida State had hired for its appeal. School officials also could have gone to NCAA headquarters in Indianapolis to take a look at the documents.

Cooper rejected the argument.

After Berst's testimony, he rejected the NCAA's claim that even if the documents are public records they should not be released because that would violate freedom-of -association, contract and interstate-commerce rights under the U.S. Constitution.

The judge also found that making the documents public would violate neither state nor federal laws guarding the confidentially of student academic records. He made that ruling after privately reading copies of two documents being sought that had student names blacked out.

Media lawyer Carol Jean LoCicero in arguing to obtain the Florida State records cited a 1990 appellate court ruling that St. Petersburg and the Chicago White Sox violated the public-records law through a scheme to hide documents on the team's possible move to Florida. The papers were sent to a local law firm where they could be viewed by city officials and attorneys.

That was little different from what the NCAA and Florida State did, LoCicero said.

"Everything was done except touch a piece of paper," she said. "You don't have to touch a piece of paper to receive a document."

Cooper agreed, ruling that viewing the NCAA documents on a computer screen was the same as receiving them.


Update
NCAA must disclose Fla. State cheating-case documents
State appeals court rejects sports organization's arguments that records weren't subject to Sunshine Law. 10.02.09

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