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New order says NCAA must pay for deposition expense

That court ruled September 17 that a federal district judge had erred by involving Division I state institutions as "real parties in interest" in the damages phase of the trial and "acted without jurisdiction in ordering them to respond to interrogatories" from the plaintiffs.

The ruling overturned a decision by U. S. District Judge Kathryn H. Vratil, the trial judge. She had ruled in May that since the Association is a collection of member institutions, all members affected by the suit were required to produce the requested information directly to the plaintiffs. Vratil established a deadline for the Division I membership to comply with the requests and set up a fine schedule if the deadline was not met.

Vratil also established a final deadline for provision of all information requested by the plaintiffs. That order stated that if all of the requested information was not made available by August 5, the court could order a partial default judgment against the Association, which could strip the NCAA of its ability to contest the amount of damages awarded to the plaintiffs.

An NCAA writ of mandamus as to Vratil's actions was denied, but the Texas attorney general's office -- acting independently of the NCAA -- filed a motion on behalf of the state's 14 Division I institutions, saying that the district court did not have the authority to compel state institutions to provide information because of their membership in an association. The appeals court agreed and ruled that the district court erred in characterizing the unserved, nonparty petitioners as "real parties in interest" for discovery purposes and acted without jurisdiction. It also ruled that state institutions are protected under the terms of the 11th amendment to the U.S. Constitution, which involves the state's right of sovereign immunity.

How the case proceeds now depends on Vratil and the appeals court.

First, the same appeals court has before it an appeal from the NCAA on the merits of the case. It is not known when the court's ruling on that appeal will be decided.

As for the damages phase, the matter is back in Vratil's hands.

One day after the appeals court ruling, the trial court issued an order vacating in its entirety its memorandum and order filed May 29, 1996. While its new order repeated much of the previous order's findings, it deleted those findings and conclusions that refer to the institutions (both public and private) as "real parties in interest."

The court also deleted the section of its prior order that required Division I members, both private and public, to respond to the third interrogatories. It now orders that the NCAA and counsel be required to pay all expenses and attorney fees for depositions of Division I members that plaintiffs may take, along with a 25 percent surcharge.