Berst v. Chipman, 653 P.2d 107

Berst v. Chipman

653 P.2d 107

Kan.

1982

Check Treatment

*1 54,498 No. Collegiate Ath Berst, Dale Smith and The National

David Chip Marion W. Association, Honorable letic Petitioners, 7, 10th District man, Judge, Court Number District Judicial Birmingham Company, Kansas, and Court of Respon dents. 107)

(653 P.2d Opinion 1982. filed November Kitchin, McLareny, Swanson, Gangwere, Midgley, & H. Clarke James cause, Sailler, firm, City, Missouri, L. argued the and Daniel same Kansas Boyle, Payne Jones, Olathe, & were and Robert P. Anderson and Edward M. petitioners. with him for the D.C., Hostetler, cause, Levine, Washington, argued the Lee of Baker & firm, Martin, Moore, Alan P. Blinzler and Peter A. Elizabeth same Lombardi, Olathe, Blackwell, Sanders, Matheny, Weary were & with him for respondents. The of the court was delivered original May This mandamus action filed *2 Schroeder, C.J.: 21,1982, was on in by May heard court resulted May by our

announcement of decision filing opinion our v. Chipman, abbreviated in Berst 231 Kan. is supplemental P.2d 106 This formal by petitioners brought

thereto. The mandamus action was David Berst, Collegiate Dale Smith and the National Athletic Associa- (NCAA), tion in headquarters County, with office Kan- Johnson sas, seeking to set aside the order of the District Court of Johnson County denying petitioners’ protective pursu- motion for order 60-226(c). ant to precise presented K.S.A. The issue is whether the petitioners legal protecting have a interest in information ob- tained in the course of confidential investigations

in a libel action in the they State Alabama to which are not parties.

As by prior related the facts recited in the opinion, documents were sought to the petitioners by be discovered from the Bir- mingham Company Post in connection with its defense of a libel action in filed the Circuit Court County, of Madison Alabama. plaintiff action,

The E. Seal, Edward principal Butler Huntsville, High Alabama, School alleged that Bir- mingham Company published Post defamatory others state- ments in an article the Birmingham newspaper Post-Herald regarding investigations by newspaper and the NCAA into the high player, Bobby Hurt, recruitment of a school basketball Lee by the University Subsequently of Alabama. Hurt filed libel action against the connection with Birmingham alleged defamatory appearing newspaper. statements same The petitioners parties are not to either of the actions. foregoing in question documents were obtained the NCAA in the possible course its investigation violations of NCAA rules which during University occurred Hurt’s recruitment University Alabama. As a result of an article alleging Hurt, Alabama had recruited improperly appearing in the Bir- mingham prior Post-Herald to the article rise giving libel here, Smith, action involved the NCAA directed Dale a member staff, University of Alabama’s investigate conduct. Smith people interviewed several who had information relevant to the investigation, assuring NCAA’s them that the source and confidential. These he received was information

substance Seal, Seal, Hurt’s basketball Hurt, co-workers included sources Uni- other than the coach, from institutions collegiate coaches Hurt, and individuals also recruited other versity of Alabama who to the recruit- had relevant community who information later reduced writ- interviews was ment. The content of these NCAA’s placed which were ten Smith memoranda publication of to the investigation. confidential file on the Prior newspaper’s request the libel the article rise to giving investigation was the NCAA’s denied regarding for information obtained in policy that based on the NCAA’s of an is confidential. course petitioners of the file the nature protect To the confidential in the District Court protective order filed motion for discovery request. The newspaper’s County quash Johnson *3 overbroad, and indefi- request vague was petitioners the alleged totally irrelevant to nite; sought were many of the documents action; and disclosure of such confidential issue the libel persons who are rights on of infringe information would the NCAA had either from whom parties to the libel information, in the file related. or to whom information received petitioners’ An in a court denied the motion. hearing After full file was not conducted. The inspection camera the NCAA’s of court reasoned: by privileges of the created do not come within “4. The movants in this case that trial are claim and the Court holds courts statutes of this state. Plaintiffs Ip supervising scope discovery. course and

vested with broad discretion discretion, private weigh the proper the Court must interests exercise of this may public litigants obtaining against whatever exist in the information relationships. . . . maintaining confidential files is made Plaintiff’s that if the information contained its “6. contention powerless gain regarding public, information that then the NCAA will be rules, by importance outweighed alleged the defendants violations of may needing lead to evidence to relevant that admissible access to allegation that continue to of libel so defendants defend itself from exercise, fear, rights under the First Amendment the Constitution without their (Citations omitted.) of the United States.” decision, subpoenas were order- issued Following the court’s 21, depositions May on 1982. On appear for petitioners ing petitioners in 20,1982, by was filed for mandamus May petition Due protective order be issued. seeking this court an order involved, public arguments of the matter and urgency 21, After an in May conducting were heard this court on 1982. protec- NCAA’s file this issued a inspection

camera of the court 27, May Birmingham tive order on 1982. This order allowed only specified statements made Dale Company to discover employees Smith their fellow and other individ- litigants, uals, which were relevant to the libel action. This specifically decision was based on the considerations. following

At the that the trial outset we note court vested with broad scope supervising discovery. discretion course v. City City, Syl. Vickers Kansas 216 Kan. 531 P.2d 113 ¶ (1975). Though the trial court’s discretion cannot be controlled mandamus, where an of the trial court denies a litigant order law, which exists as a matter right privilege and there is no remedy by appeal, may be mandamus invoked. Hulme Wole- (1972). addition, 208 Kan. P.2d 541 slagel, where a petition presents for mandamus an issue great public impor- concern, jurisdiction tance and the court exercise its original question. Corporation mandamus and settle the See Mobil Oil 239-43, (1968); v. McHenry, 200 Kan. 436 P.2d 982 A.T. & Taxation, Hospital S.F. Assn v. State Commission Revenue & 173 Kan. 246 P.2d 299 Whether petitioners protectable have interest in main- private their taining pos- undoubtedly presents sible infractions of NCAA rules a legal question significant Substantially interest. affected are privacy persons interests of those to whom information in the passed file relates or who information to the NCAA under *4 a pledge confidentiality, ability of as well as the NCAA’s functions, perform primary one policing that of its own prevent corruption collegiate petitioners ranks to athletics. The remedy by appeal would not have a as the information sought irretrievably prior would the time in been disclosed Thus, which an appeal may could be taken. a mandamus action Muck, properly be entertained. Administratrix v. Claflin, Kan. 419 P.2d 1017 fully appreciate

To the NCAA’s of interest in high degree confidentiality their files and the preserving investigation sources, helpful identities of their it is understand the self- operates. NCAA policing system function of the and how this ap- voluntary composed Briefly, organization the NCAA is the United and universities proximately colleges throughout is to enforce primary One duties of NCAA States. admissions, aid, financial recruiting, regulations governing member aspects collegiate athletics at and academic standards institutions.

Investigations by possible the NCAA of rules infractions are pursuant to internal rules conducted in the strictest confidence investigators rely must on undisputed of the NCAA. It is Generally, of their confidential sources much information. inquiries investigator an comes across his during information investigation. NCAA’s confidential file on that placed in the files allega- one of the NCAA’s there be investigation and an speculation preferences, tions about individual’s sexual use, condition; capacity, drug mental and alcohol financial students, anonymous academic and memoranda records of letters telephone calls, which and internal memoranda of interviews impressions, speculations contain the mental investigator’s conclusions. possi-

Once NCAA verifies that a through occurred, is sent to ble infraction has a notice of allegations thought the institution to be in violation. The institution then attempts all principals ascertain relevant information involved, coaches, employees, including student-athletes being with much of this information obtained the institution secrecy. college university prepares under then pledge under response inquiry, to the NCAA which is also submitted promises confidentiality. All placed this information is NCAA’s file Further taken investigation. action NCAA’s on Infractions also reflected in the Committee file. Once a is made on the an infractions determination merits of case, completed, press and the case has been release is issued only any sanc- disclosing the NCAA the institution involved and imposed. tions All other remains confidential. been policy

The NCAA maintains that its has self-policing system central to of this in effect for the the success past years. strongly argues The NCAA loss of this confiden- tiality destroy system, will athletics to causing intercollegiate suffer. of the extent of interest and involvement Because national athletics, strong* NCAA asserts is a intercollegiate there *5 means which the NCAA can preserving area investigate supervise sports, and level which college outweighs petitioners’ obtaining the information Furthermore, defense in the sought for their libel action. potential

NCAA is concerned about harm persons to innocent not lawsuit, parties to the Alabama who either disclosed information contained in the file or about whom the information relates.

The subpoena duces NCAA, tecum served on the Smith and required Berst them depositions: to make available at their correspondence initiation, relating prosecution “[A]ll documents and to the any investigation by Collegiate results the National Athletic con- Association Hurt, Seal, Huntsville, cerning Bobby School, High Lee Edward Butler Alabama Bobby recruiting University or Lee Hurt of Alabama.” isIt file uncontroverted maintained the NCAA on its the University of Alabama’s conduct contains persons information possibly University about involved in the Hurt, Alabama’s recruitment of per- including about way Hurt, sons no connected with litigants Seal or or the newspaper’s the libel action. defense of A key limitation on litigant’s right to discover material held in

the hands of another is that the information must be sought 60-226(b) relevant to the issues of the lawsuit. provides K.S.A.

pertinent part: matter, discovery regarding “Parties privileged, obtain not which is subject pending relevantto the matter involved whether it relates to party seeking discovery the claim or defense to the claim or defense of party ground objection other .... It is not that the information sought sought appears reasonably will be inadmissible at trial if the information discovery added.) (Emphasis calculated to lead to the of admissible evidence.” Carlyle, (1979), Gleichenhaus Kan. 597 P.2d 611 quoted Lando, this court Herbert 441 U.S. (1979),

L.Ed.2d 99 S.Ct. 1635 Supreme where the Court stated: “The deposition-discovery Court has more than once declared that the rules are purpose adequately be accorded a broad liberal treatment to effect their informing litigants discovery [Citations omitted.] civil trials. But the provisions, Procedure, subject like all of the Federal Rules of Civil are to the injunction they just, speedy, 1 that Rule ‘be construed to secure inexpensive every added.) end, (Emphasis determination of action.’ To this requirement 26(b)(1) of Rule that the material ‘relevant’ firmly applied, power neglect should be and the district courts should their *6 person ‘justice [protection party discovery requires a or for] restrict where expense. embarrassment, oppression, . . .’

annoyance, or undue burden 26(c). hand, authority judges hesitate With this should not Fed. Rule Civ. Proc. discovery process.” appropriate over the to exercise control Gleichenhaus, 226 Kan. at 170: went on to state in We scope scope relevancy discovery proceeding is broader than the in a “The relevancy Relevancy which at trial. includes information be useful request discovery if preparation would be considered relevant there for trial. A possibility sought may subject be relevant matter that the information to of the lawsuit.” 772, Cahill, Comm’n v. 225 See also Ethics Kan. Governmental 573, In re 224 Kan. (1979); Pennington, 594 P.2d 1103 576-77, (1979); (1978), 581 P.2d 812 cert. denied U.S. 929 Publications, Inc., App. 2 Kan. 2d Fields v. Stauffer rev. denied 225 Kan. 843 P.2d respondent

In the libel action the raised the affirmative defense story complained and statements of are true.” that “the news Thus, in the article appearing giving the truth of statements Information given to the action is central issue. rise libel by specifically written memoranda him Smith and reduced to subject matter of the article concerning litigants and primary and clearly newspaper’s were relevant to defense could have led to other evidence. out,

However, petitioners point many as con- documents totally irrelevant to tained in the NCAA’s file are issue only into the the NCAA’s pertaining libel conduct, any way University relating of Alabama’s These latter litigants or the issues involved action. not fall within the ambit of discoverable documents therefore do 60-226(b) have been excluded evidence under and should limiting discovery in an order trial court. failing erred in to conduct

For this reason the trial court to determine which docu- inspection camera NCAA’s file An in camera ments were not relevant and thus not discoverable. proceeding and useful to ensure inspection appropriate is an petitioner’s claim of properly struck between balance plaintiff’s for the docu- need privilege, irrelevance and Court, 426 District U.S. ments. See Kerr United States (1976), 405-06, 725, 96 and cases cited S.Ct. L.Ed.2d (5th therein; 1107, 1112 Cir. 654 F.2d Application Eisenberg, production of confidential rec- 1981). aWhen trial court orders availability and use of documents ords, duty limit the it has Jepsen See Florida carefully protective provisions. drawn (5th Cir. We believe 610 F.2d Regents, Bd. of confidentiality or irrelevance is raised a claim privilege, when inspection an in camera duty has a to conduct the court documents, only the relevant permit separate unnecessary and disclosure thereby damaging protecting against material. of irrelevant confidential file which are relevant to in the NCAA’s

As to documents whether, action, a must be made as the libel determination petitioners maintaining the interest argue, the interest and need of the Bir outweighs

of the NCAA’s file *7 Company Although to discover these documents. mingham by the protective for a order was denied petitioners’ motion within part court in because the movants “do come district of this state” we any by of the created the statutes privileges necessary a in order to privilege the existence of is not recognize supervisory discovery. limit This is done under court’s 60-226. powers discovery pursuant over to K.S.A. Richards of 388, (N.D. Elec., 71 F.R.D. 389 Inc. v. Gas & Rockford, Pacific Graham, 1976); Federal Practice and Procedure: Wright Cal. 23 & (1980). 5431, p. Evidence 823 § 60-226(c) pertinent part: provides

K.S.A. party person Upon “Protective orders. motion a or from whom shown, discovery sought, good in which the action is is cause the court for deposition, relating pending alternatively, a the court or on matters to may justice make order which deposition is to be taken district where the embarrassment, oppression, protect person annoyance, requires party to a or following: expense, including burden or one or more or undue into, scope inquired “(4) that the of the be or that certain matters not (Emphasis added.) limited to certain matters.” be in material sought interests parties conflicting Where the have discovered, power of the court be protective be and the court must balance party provision, under this information with the obtaining requested litigant’s in main- interest, public interest party’s as well as the resisting Smith, See Zerilli v. the material. taining 1981); Keyes Rhyne v. Lenoir (D.C. Cir. F.2d 712 656 1977); Gray v. (4th Cir. Board 552 F.2d 581 College, York, (S.D.N.Y. 90-91 Ed., F.R.D. New City Higher Elec., v. Gas & Inc. Rockford, Richards 1981); Pacific Laboratories, Inc., 66 F.R.D. v. McNeil 389; Apicella F.R.D. at Miller, 547, 555, In Alseike v. 196 Kan. (E.D.N.Y. 78, 82 provisions (1966), of K.S.A. discussing while 412 P.2d 60-226(c), we 60-230(h) (Corrick) which since become stated: as, appear, [60-230(6)] significant countervailing if considerations such “Under qualified example, privilege as therein something in the of a mentioned

for nature power (to protective distinguished privilege), from testimonial be interests, competing play a fair of the brought to strike balance court prevent annoyance, expense, power may undue embar- such also be used oppression.” rassment herein it must be rec- the interests involved balancing parties great involved in the lawsuit have a ognized an pertinent oft-quoted all facts. It is doctrine the revelation of evidence; is a every man’s there right that the has capable of and duty what information one general give derogation positive exemptions exceptional, being are 2192, p. Evidence general (McNaughton rule. 8 Wigmore § Bryan, 1961); U.S. 94 L.Ed. United States rev. Alseike this court noted in Accordingly, 70 S.Ct. 724 Miller, 196 Kan. 554: part production integral provision “The documents Discovery procedure discovery process. its a vital role in code of civil with has our type philosophy knowledge pleading of all notice basic mutual prior disposal litigation proper and that trial facts is to the relevant essential *8 party every is to of all such information to civil action entitled the disclosure (see privileged possession any person, Barron of unless the information 2A Holtzoff, 641). procedure liberally Depositions, is to Our code of civil be § every just, speedy inexpensive determination of action construed to secure the (K.S.A.60-102).” guidelines determine how Several courts identified to par- competing balance struck between interests in should be Inc., Rockford, In Richards of case. the court drew from ticular qualified privilege First Amendment involving cases testify, identify following factors in strik- newsmen not to a balance between and nondisclosure: ing deponent party, proceeding, nature of the whether the is a whether “[T]he sources, sought is from other and whether the information available sought goes 71 at heart of the claim.” F.R.D. 390. balancing privilege claims of guidelines Additional considered

189 with the need for include degree disclosure of harm that be type controversy would caused disclosure and the before Smith, 713-14; Gray court. See Zerilli v. 656 F.2d at v. Board Ed., City York, Also, New 92 F.R.D. at 91. Higher inquiry particular be a reason for not permitting 26.60(3) 4 discovery. matters Moore’s Federal Practice ¶ Hospital, therein; v. Bredice Doctors cited (1970), and cases (D.C. 1970), 479 F.2d (D.D.C. Inc., 50 F.R.D. aff'd Cir.

Wigmore identified four fundamental necessary conditions qualified establish a privilege against disclosure of confidential communications: “(1) originate they The in a communications must that will not be confidence disclosed. “(2) satisfactory This element of must be essential to the full and parties. maintenance of the relation between the “(3) community The must ought relation be one which in the sedulously fostered. “(4) injury inure would to the relation the disclosure of the greater thereby gained communications must be than the for the correct benefit disposal litigation.” Wigmore p. (McNaughton on Evidence § rev. 1961). (Emphasis original.)

Applying principles, these number of recent decisions have communications, refused to order the disclosure of confidential based either on the of a finding qualified privilege pursuant supervisory powers 26(c). court’s under Fed. R. Civ. P. A brief purpose overview of these cases for the illustration war- ranted.

The failure to exhaust available alternative sources of informa- tion was the compel determinative factor in the refusal to dis- covery confidential material in several cases. Zerilli See v.

Smith, 656 (nonparty reporter’s F.2d 714-15 source sought in an action under the brought Privacy Act Fourth Amend- ment); Apicella Inc., Laboratories, McNeil 66 F.R.D. at 85 (source for appearing article in medical newsletter action); malpractice McKillop medical University Regents (N.D. (confiden- F. California, Supp. 1975) Cal. plaintiff’s tial performance evaluations of by defendant univer- sity’s faculty members, administrators and sought by committees plaintiff challenging by defendant). denial of tenure *9 factor,

A public second interest in maintaining confi- 190 has been held reports inquiries,

dentiality types of of certain example, For discovery in several decisions. deny sufficient improve in the continued public interest” “overwhelming outweigh the has been deemed sufficient to hospital of care ment reports. See hospital evaluation discovery of need for confidential (minutes Inc., F.R.D. at 250-51 Hospital, 50 v. Doctors Bredice discoverable); committee not medical staff review reports hospital 316, States, 53 F.R.D. 318-19 v. United man Gill patient suicide (S.D.N.Y. 1971) (report hospital inquiry testimony personnel taken however, hospital discoverable; discoverable). was See also inquiry regarding suicide board Graham, Evidence Practice and Procedure: Federal Wright & 5431, 835-40 pp. § prepared businesses

Similarly, reports self-evaluation under Title VII have development programs action of affirmative reports foster an discovery because such protected been in frank evaluations conducive to interest important government v. Com- Lockheed-Georgia law. See Banks compliance with the 1971); Chrysler v. 283, (N.D. Ga. O’Connor 53 F.R.D. pany, 211, (D. Mack 1980); McClain v. 86 F.R.D. 218 Mass. Corp., (E.D. 1979). See also 23 Trucks, Inc., 85 Pa. F.R.D. 58-59 Graham, and Procedure: Evidence Federal Practice Wright & 5431, p. (1981 Supp.). § files personnel nondisclosure of public welfare served

The outweigh also held to the interest has been public employees Court, App. 204 Cal. 2d discovery. Superior Council v. City See (1962); Rptr. Publishing 21 Cal. Wisher News-Press (Fla. App. Dist. Ct. See also Evans Co., 310 So. 2d States, 446 F.2d Transportation United Department pilot’s airline (5th 1971) (identity person questioning Cir. public safety as would be held not discoverable mental health not call attention to certain seriously jeopardized people if could Administration, which is to Federal Aviation facts confidence pilots). health of investigating entrusted with relationships confidential maintaining outweighed and their sources between academic researchers request in Richards plaintiff’s satisfying Inc., court held a 71 F.R.D. where the Rockford, not be in a action could nonparty deponent breach contract inter- concerning confidential compelled produce documents *10 Wright & employees views with of the defendant. See also Graham, Evidence Federal Practice and Procedure: § in freedom has also been The societal value academic faculty of confidential outweigh found sufficient to disclosure Ed., City v. reports. Gray Higher tenure evaluation See Board of York, 92-94; at v. Univer- McKillop Regents New 92 F.R.D. v. Keyes See also sity Supp. 386 F. at 1275-78. California, Rhyne Lenoir 552 F.2d at 581. College, hand, where the agreed On the other several courts have that the liti plaintiff’s to the “heart of the claim” goes outweighs interest in the of all relevant facts gant’s Hume, confidentiality Carey interests. See v. 492 F.2d (D.C. 1974); Torre, 545, 550 (2nd 636-37 Cir. Garland v. 259 F.2d Cir.), (1958); Smith, F.2d cert. denied 358 U.S. 910 Zerilli v. 713; 1979); (W.D.

at v. 83 F.R.D. Pa. Magovern, Robinson Ass’n., 161, 164 (S.D.N.Y. Benev. 72 F.R.D. Wright Patrolmen’s particularly This is true in a libel where informa a claim raised. tion held another be crucial to or defense Hume, 636-37; Torre, at Carey v. 492 F.2d at Garland v. 259 F.2d Garland, 551. In Garland an action Judy brought against actress defamatory ap statements Broadcasting System Columbia for had by respondent allegedly in an article Torre which pearing by a executive. Torre refused to disclose been made CBS network source, and that it her the information was confidential claiming The protected by privilege. was a First Amendment newsmen’s information was held to be discoverable because the information claim,” and therefore plaintiff’s “went to the heart of the First Amendment involved. 259 F.2d outweighed the concerns 550. interest to confidentiality cases holdings finding two involved particularly are relevant to situation outweighed Ass’n, 72 F.R.D.

here. In v. Patrolmen’s Benev. Wright nonparty City New York Bar Asso- information gathered went the central issue ciation was discoverable because it lawsuit, protests preserving despite the Association’s its function of the information was essential to judicial reporting concerning on matters investigating “powerful system. Similarly, there was although because of confidentiality” hospital proceedings for review care, the court important improving state interest in health plaintiff’s need 83 F.R.D. at held Robinson Magovern, disclosure of the information required relevant evidence very it essence of the issue case. sought where went a conflict presents highly We this case between recognize valued On the hand there is confi- interests. one prevent persons embarrassment to who have dentiality, both to pledges secrecy disclosing relied information to the relate, in the file and to NCAA about whom information promote supervision interest in the of intercollegiate *11 in area and retain a clear line prevent corruption athletics to professional sports. college of demarcation between athletics and relevant of all facts the is the interest in disclosure On other hand which will con- in libel action respondent’s the defense the in that case. of the issues a full fair determination tribute to and must compromise solution presents a situation where a This case sufficiently the interests both will serve be reached which parties. necessary respon- the protect liability it was for

To itself acquire sup- information to Company Birmingham dent published newspaper the port its claim that the statements investigation Because of its Seal and Hurt were true. concerning the NCAA had obtained information the recruitment of Hurt into in activities. Hurt and Seal various the involvement both about respondent gather the on possible it have been While which was litigants its own the same information about newspaper investigation, through obtained NCAA who, if expedition” to discover “fishing have had to go reported which were in the anyone, knowledge had of the events also had a limited respondent article. The alleged libelous depose an and amount time in which to conduct information, as a trial was scheduled persons with relevant those 16, 1982, approximately three August in the action for libel motion was made the trial court. months after this per- contained in the NCAA’s file which Of the information action, we subject and the matter of the libel litigants tained to the comments statements and required the disclosure oral from Butler employees High and fellow litigants, employers their School, by telephone to Dale Smith person made in or typed signature bearing memoranda reduced to written directly relating These memoranda contain information Smith. falsity lawsuit, or that of truth a central issue in the Alabama reported subject publications. of the cases emphasize strong cited above that even interest in confiden- tiality sought goes is when the information outweighed very essence, “heart,” of the issues the case. This presented Therefore, situation here. while we the in- recognize in preserving terest the confidential nature of these memoranda substantial, it way must to assure all facts will be give available for a fair determination the issues the libel action.

We think the result fair reached here is to the interests of both parties, degree protective each relief. A affording some order specifically documents we enumerating those found to be dis- Supreme coverable was filed with the Clerk Court of May Kansas on our original when abbre- viated form was filed our announcing limiting discovery decision entering judgment petitioners. for the

Herd, J., When I dissenting: weigh conflicting interests discovered, the material to be I come down on the side public protecting interest. The has overwhelming interest in fostering supporting the self-regulation engaged colleges and under auspices universities of the NCAA. injected large money Television has college such amount of *12 programs temptation athletic cheat recuitment of athletes overwhelming. the absence of NCAA and sanc- regulations tions, the so-called “athlete consisting factories” twenty thirty major talent, all universities would outbid others for then pay for it with exposure. television Such would ring death presently knell of as I college athletics constituted. consider the present system maintaining. accomplished worth This can be only sanctions, through regulation, either NCAA government. or the power,

Since the NCAA subpoena investiga- does complaints upon confidentiality. tion of dependent pledge majority successfully technique removes will NCAA ultimately regulation eliminate or force it to obtain subpoena power. I prefer self-regulation options, to other there- fore I dissent.

Fromme, J., dissenting.