IN THE SUPREME COURT OF FLORIDA !}!O~~/!-DE:D • I 'i.) • IfI~ Ll.

l009 OCT III NATIONAL COLLEGIATE (">Lr.-~ A fO: 56 ATHLETIC ASSOCIATION, ':,'{K. SUr:>nl..

• llf;a..r- C ... n ..... oUrn-

Petitioner, Case No.: SC09~:<"'~~___ "

vs.

THE ASSOCIATED PRESS, ET AL.,

Respondents.

------------------------~/

PETITIONER NATIONAL COLLEGIATE ATHLETIC ASSOCIATION'S EMERGENCY MOTION FOR STAY PENDING APPEAL

Petitioner, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

("NCAA"), pursuant to Fla. R. App. P. 9.310(1)(b) and section 119.011(2), Florida

Statutes, hereby moves for a stay of the trial court's order mandating the NCAA's

release of its private and confidential records pending a final ruling by this Court

of Petitioner's appeal from the October 1, 2009 decision by the First District Court

of Appeal. An emergency stay is necessary to preserve the status quo pending this

proceeding as to the NCAA, the integrity of the its records, the Constitutional

rights of the NCAA and its members, and the privacy rights of the thousands of

student-athletes who attend institutions that are members ofPetitioner.

INTRODUCTION

As noted by the trial court below, this is an extraordinary case that presents

substantial questions of first impression under Florida law regarding the outer

boundaries of Florida's Public Records Act. ("This is an unusual set of

circumstances which I have not yet seen addressed in cases specifically in this way

* * * Perhaps the lack of case law authority on this in part contributed to the

situation .... ") Transcript of Final Hearing, pp. 279, 281. The trial court held that

Petitioner's confidential, proprietary information becomes a "public record"

merely because representatives of Florida State University ("FSU") - a public

agency - "viewed" and "used" the information. The trial court ordered Petitioner,

RespondentlDefendant FSU, and RespondentlDefendant GrayRobinson to produce

copies of the documents at issue to RespondentslPlaintiffs. Petitioner contends the

trial court's ruling misapplies the Act. Petitioner also contends that the First

District Court of Appeal's opinion affirming the trial court's ruling expressly and

directly conflicts with established Florida case law. Petitioner invoked the

discretionary jurisdiction of this Court on October 14, 2009. See Exhibit "A."

Petitioner will file its supporting jurisdictional briefs on or before October 26,

2009.

Although proceedings under Chapter 119 are, and should be, expedited, it is

also axiomatic that meaningful appellate review requires that compelled disclosure

2

of the records at issue be stayed to allow such review. See § 119.011(2) Fla. Stat.

To permit full and fair review, the Defendants below should not be required to

disclose the documents at issue prior to a final ruling from this Court. Absent a

stay, this Court will be denied the opportunity to review that portion of the First

District Court of Appeal's opinion and, in particular, as that ruling applies to

Petitioner. l Moreover, the release of the documents, while not informing upon the

larger legal issues wrought by the broad holdings below, should not occur if the

underlying rationale for applying the Act is erroneous. The harm to Petitioner that

would follow the release of these documents was uncontroverted at the trial court,

although it was unduly minimized by the First District Court ofAppeal.

Additionally, a stay will maintain the status quo. On August 31, 2009 ­

contemporaneously with its Notice of Appeal - Petitioner filed an Emergency

Motion for Stay of Final Judgment pending Appeal with the First District Court of

Appeal. On September 1, 2009, the First District Court of Appeal, on its own

1 After the filing of this action, discovery, and motion practice, FSU and GrayRobinson discovered they had the ability to "print-screen" NCAA documents otherwise only viewable on its secured website. To the extent that FSU has or may release such documents before the Court can rule this Motion, this fact would not resolve the issues herein for two reasons. First, the NCAA seeks a stay of an order compelling it, as an undisputed private entity, to disclose its confidential information in its possession. To the extent FSU has been held to be a custodian of public records, the First District Court of Appeals did not find the NCAA to have that status. Second, the documents at issue may be different. Upon information and belief, the documents may be different due to the incosistencies and the complexities of redacting personally-identifiable student information under state and federal confidentiality laws.

3

Motion, temporarily stayed the order under appeal pending disposition of

Petitioner's Emergency Motion. On September 3, 2009, the First District Court of

Appeal granted Petitioner's Emergency Motion for Stay. See Exhibit "B."

On October 1, 2009, the First District Court of Appeal issued its opinion

affirming the trial court's decision. On October 7, 2009, Petitioner filed with the

First District Court of Appeal its Motion for Rehearing and Alternate Motion for

Certification. Petitioner also filed a Motion to Stay Issuance of Mandate Pending

Appeal to the Florida Supreme Court, anticipating the possible denial of its Motion

for Rehearing and Alternate Motion for Certification. On October 13, 2009, the

First District Court of Appeal denied both Motions. Petitioner invoked the

discretionary jurisdiction of this Court on October 14, 2009, triggering an

automatic 48 hour stay under Fla. R. App. P. 9.310(2).

Petitioner is entitled to pursue its appellate rights, and this Court is entitled

to review important decisions over which it has jurisdiction, such as this one that

has statewide implications. These rights will be diminished if the NCAA is

required to release its documents the before this Court reviews the matter. A stay

pending this Court's final resolution of the matter on appeal is the proper

mechanism for protecting Petitioner's appellate rights and the appellate process.

4

STANDARD FOR STAY

The standard for extending a stay pending Supreme Court reVIew IS

"essentiality." State ex reI. Price v. McCord, 380 So.2d 1037, 1038 (Fla. 1980).

The relevant factors to be considered are the likelihood that this Court will accept

jurisdiction, the likelihood of success on the merits, the likelihood of harm if no

stay is granted, and the remediable quality of any such harm. See Price, 380, So.

2d at 1038 n.3 (citing the committee notes to rule 9.120, Florida Rules of Appellate

Procedure). These factors support the issuance of a stay in this case. A stay of the

mandate is particularly warranted where, as here, the appellant has presented

claims of serious constitutional injury. North Florida Women's Health and

Counseling Services, Inc., v.Florida, 866 So. 2d 612,616 (Fla. 2003).

ARGUMENT

The October 1, 2009 decision of the First District Court of Appeal expressly

declares valid Florida's Public Records Act. The decision also expressly construes

provisions of the federal constitution. Finally, the decision expressly and directly

conflicts with a decision of another district court of appeal or of the supreme court

on the same question of law. In so doing, the decision both misapplied these cases

and created an entirely new, unsupported, and untenable basis for applying the

Public Records Act to private entities such as the NCAA.

5

Petitioner will more fully explain why and how this Court has jurisdiction in

Petitioner's Brief on Jurisdiction; however, for purposes of this Motion, absent the

issuance of a stay, Petitioner's ability to obtain meaningful review of one important

aspect of the opinion below will be needlessly thwarted. RespondentslPlaintiffs

have repeatedly expressed their intention to obtain the documents at issue from

Petitioner, RespondentlDefendant FSU, and/or RespondentlDefendant

GrayRobinson. Within hours of the trial court's decision, a representative of

RespondentslPlaintiffs demanded the documents at issue - before Petitioner could

even review the trial court's final judgment and evaluate an appeal. Within hours

of the First District Court of Appeal issuing its opinion in this matter, a

representative of RespondentslPlaintiffs again demanded the documents at issue.

RespondentslPlaintiffs have opposed the issuance of any and all stays at all stages

of this case. It is anticipated that RespondentslPlaintiffs will oppose this Motion

for Stay Pending Appeal, as well.

While disclosure of the specific documents still sought by

RespondentslPlaintiffs' may satisfy their present demands, it will not moot this

controversy or resolve the problems inherent in the broad rule of law announced

below. They would simply be receiving confidential, private information to which

they have no legal right. Such a result is unjustified while this appeal is still

pending. The stays that have been provided thus far have maintained the status

6

\.

quo and protected Petitioner's operational and appellate rights. A corresponding

stay from this Court pending appeal is equally necessary to maintain these rights

and permit full and careful review by this Court.

Finally, RespondentslPlaintiffs will suffer no irreparable harm if this Court

extends its stay for the brief period required for this Court's review. Given the

foregoing factors, this Court should enter an emergency order staying the judgment

and decision below, including the order to produce and/or disclose any documents,

pending the final disposition of this appeal and issuance of this Court's mandate.

WHEREFORE, the NCAA respectfully requests that this Court issue a stay

of the trial court's order mandating the release of the Petitioner's private and

confidential records pending a final ruling by this Court.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished

by U.S. Mail and Electronic Mail to Gregg D. Thomas, Esquire, Carol Jean

LoCicero, Esquire, Rachel E. Fugate, Esquire, Thomas, LoCicero & Bralow PL,

P.O. Box 2602, Tampa, FL 33602, George Freeman, Esquire, The New York

Times Company, 620 Eighth Avenue, New York, NY 10018, Michael J. Glazer,

Esquire, Ausley & McMullen, P.O. Box 391, Tallahassee, FL 32302, George

Gabel, Esquire, Holland & Knight LLP, 50 North Laura Street, Suite 3900,

Jacksonville, FL 32202, David S. Bralow, Esquire, 220 E. 42nd Street, Suite 400,

7

New York, NY 10012, representing Appellees The Associated Press; Cape

Publications, Inc., Collier County Publishing LLC, First Amendment Foundation;

Florida Press Association; Lakeland Ledger Publishing Corporation, Media

General Operations, Inc., Miami Herald Media Company, Morris Publishing

Group LLC, News-Journal Corporation, NYT Management Services Inc., Orlando

Sentinel Communications Company, Multimedia Holdings Corporation; Scripps

Howard Broadcasting Company, Scripps Treasure Coast Publishing LLC, Sun-

Sentinel, Inc., Tampa Bay Television, Inc., Federated Publications, Inc. WJXX,

Gannett River States Publishing Corporation; and WTSP, William E. Williams,

Esquire, GrayRobinson, PA, P.O. Box 11189, Tallahassee, FL 32302-3189, Betty

Steffens, Florida State University, 211 Westcott Building, Tallahassee, FL 32306­

1470, Representing Appellee Florida State University Board of Trustees and T.K.

Wetherell and Peter Antonacci, Esquire, GrayRobinson, PA, P.O. Box 11189,

Tallahassee, FL 32302-3189, Representing Appellee GrayRobinson, P.A. this II t~ ~ day ofOctober, 2009.

8

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief has been typed using the

Times New Roman 14-point font, and therefore complies with the font

requirements of Florida Rule of Appellate Pruvv ....•.u

LEO ARD . I TZEN Florida Bar '. 0840912 MATTHEW J. CARSON Florida Bar No. 0827711 RUMBERGER, KIRK & CALDWELL A Professional Association 215 South Monroe Street, Suite 130 Post Office Box 10507 Tallahassee, Florida 32302-2507 Telephone: (850) 222-6550 Telecopier: (850) 222-8783

9 166932

IN THE DISTRICT COURT OF APPEAL Ii~C~/11FIRST DISTRICT OF FLORIDA ~J r/~D

Ocr 7 •

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

... ·200g Cle JOtvs

'I'Ir DiStn~t Wl-(s~ 1st D~~lJ,!o~~

AppellantJPetitioner, Case No.: IIJ69-~S

vs.

THE ASSOCIATED PRESS; CAPE PUBLICATIONS, INC., ET AL.,

AppelleesJRespondents. ____________________________~I

NOTICE TO INVOKE DISCRETIONARY JURISDICTION

NOTICE IS GIVEN that National Collegiate Athletic Association,

Appellant/Petitioner, invokes the discretionary jurisdiction of the Supreme Court to

review the decision of this court issued on October 1, 2009 and rendered on

October 13, 2009 with this Court's denial of a timely filed Motion for Rehearing

and Alternate Motion for Certification. The nature of the decision is a decision of

a district court of appeal that expressly declares valid a state statute, expressly

construes a provision of the state or federal constitution, and expressly and directly

conflicts with a decision of another district court of appeal or of the Supreme Court

on the same question of law.

EXHIBIT

A

I

CERTIFICATE OF SERVICE

r'

I HEREBY CERTIFY that a true copy of the foregoing has been furnished

by U.S. Mail and Electronic Mail to Gregg D. Thomas, Esquire, Carol Jean

LoCicero, Esquire, Rachel E. Fugate, Esquire, Thomas, LoCicero & Bralow PL,

P.O. Box 2602, Tampa, FL 33602, George Freeman, Esquire, The New York

Times Company, 620 Eighth Avenue, New York, NY 10018, Michael J. Glazer,

Esquire, Ausley & McMullen, P.O. Box 391, Tallahassee, FL 32302, George

Gabel, Esquire, Holland & Knight LLP, 50 North Laura Street, Suite 3900,

Jacksonville, FL 32202, David S. Bralow, Esquire, 220 E. 420d Street, Suite 400,

New York, NY 10012, representing Appellees The Associated Press; Cape

Publications, Inc., Collier County Publishing LLC, First Amendment Foundation;

Florida Press Association; Lakeland Ledger Publishing Corporation, Media

General Operations, Inc., Miami Herald Media Company, Morris Publishing

Group LLC, News-Journal Corporation, NYT Management Services Inc., Orlando

Sentinel Communications Company, Multimedia Holdings Corporation; Scripps

Howard Broadcasting Company, Scripps Treasure Coast Publishing LLC, Sun­

Sentinel, Inc., Tampa Bay Television, Inc., Federated Publications, Inc. WJXX,

Gannett River States Publishing Corporation; and WTSP, William E. Williams,

Esquire, GrayRobinson, PA, P.O. Box 11189, Tallahassee, FL 32302-3189, Betty

Steffens, Florida State University, 211 Westcott Building, Tallahassee, FL 32306­

2

1470, Representing Appellee Florida State University Board of Trustees and T.K.

Wetherell and Peter Antonacci, Esquire, GrayRobinson, PA, P.O. Box 11189,

Tallahassee, FL 32302-3189, Representing Appellee GrayRobinson, P.A. this

\ U:t'" -l-L- day ofOctober, 2009.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief has been typed using the

Times New Roman 14-point font, and therefore complies with the font

requirements of Florida Rule of Appellate Pro ed e

LEON Florida Bar No. 0840912 MATTHEW J. CARSON Florida Bar No. 0827711 RUMBERGER, KIRK & CALDWELL A Professional Association 215 South Monroe Street, Suite 130 Post Office Box 10507 Tallahassee, Florida 32302-2507 Telephone: (850) 222-6550 Telecopier: (850) 222-8783

3 165189

( ("

DISTRICT COURT OF APPEAL, FIRST DISTRICT 301 S. Martin Luther King, Jr. Blvd.

Tallahassee, Florida 32399-1850 Telephone No. (850) 488-6151

September 3, 2009

PECr=~VEDIr'l tJ "-=0. TALLAHf\SSEE

SEP 0 4 2009

I ,l" \ :.) :,,- : ::: 1\ ': C.S 0 F L.r"\·~ 'I \,' l . .--

Rumberger. I(irk & Caldwe Professional Associati()l'l

National Collegiate Athletic Association

CASE NO.: 1009-4385 L.T. No. : 2009-CA-002298

v. The Associated Press; Cape Etc., Et AI.

Appellant / Petitioner(s), Appellee / Respondent(s).

BY ORDER OF THE COURT: Appellant's motion for stay is granted, and the lower tribunal's order being

appealed herein is stayed pending final disposition of this proceeding or further order of

the court.

Appellant's motion for expedited review is granted and this appeal shall be

afforded expedited consideration by the court. Appellant shall ensure preparation and

transmittal of the record on appeal on or before September 10, 2009, the initial brief

shall be filed on or before September 14, 2009, the answer brief(s) on or before

September 18,2009, and the reply brief, if any, on or before September 21,2009.

Electronic or facsimile filing of briefs is authorized and may be coordinated through the

Clerk of the Court. Copies of briefs and a" other filings of the parties shall be furnished

to other counsel by facsimile transmission or hand delivery by no later than the time of

filing with the court. Extensions of time for performance of the acts required by this

order wi" not be granted except upon a showing of emergency circumstances.

The Attorney General's motion seeking leave to file a brief of amicus curiae in

support of appellees is granted.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Leonard J. Dietzen, Iii Matthew J. Carson Michael J. Glazer

EXHIBIT ~ Iif B

RachelE.Fugate (' Peter Antonacci I~ K. Wetherell, I I George D. Gabel, Jr. . Betty J. Steffens, G.C. 'V•••Iiam E. Williams Gregg D. Thomas Carol Jean Locicero George Freeman " David S. Bralow Hon. Bob Inzer, Clerk Craig D. Feiser Alexis Lambert Hon. John C. Cooper, Judge

am

~/.~JO S, WHEELER, CLERK