The Court of Appeals of Indiana on Tuesday upheld a trial court ruling that will allow three top NCAA executives to be deposed in a lawsuit brought by the families and estates of three deceased college football players. The appellate ruling, authored by Judge Margaret Robb, increases the chances that president Mark Emmert, chief operating officer/chief legal officer Donald Remy and chief medical officer Brian Hainline, M.D., will be compelled to answer under oath a broad array of questions, from health policies to amateurism to NIL reforms.
“NCAA Executives,” Judge Robb stressed in her order, “do not have a right to not be deposed on the basis of their positions in the organization; even if they did, it is certainly not a right of constitutional dimension; and there is no obvious injustice in the trial court’s order that they each submit to a day-long deposition in the same city as their corporate headquarters.”
Should Emmert, Remy and Hainline be deposed, they would be obligated to provide testimony, under penalty of perjury, about player health policies and arguably related matters at issue in ongoing litigations and legislative initiatives. Further, these depositions might be usable in other cases currently brought by current and former players.
The NCAA firmly objects to these depositions on the basis of the “apex deposition doctrine.” This doctrine is recognized in many American jurisdictions but—unfortunately for the Indiana-based NCAA—not in the State of Indiana. The doctrine instructs that attorneys are barred from deposing high-ranking executives unless (1) there is a showing that these executives possess personal knowledge of facts relevant to a case and (2) such knowledge can’t be obtained through less intrusive means.
The NCAA insists that its trio of leaders lack personal knowledge regarding the three deceased players, all of whom played before Emmert (hired in 2010), Remy (hired in 2011) and Hainline (hired in 2012) joined the NCAA. To that end, the NCAA charges that concussion- and health policy-related documents created while those athletes played are beyond the scope of the executives’ knowledge. The NCAA also maintains that Remy’s observations are protected by attorney-client privilege and that there are less intrusive ways to gather such evidence.
Judge Robb’s ruling arises at an important time for Remy, a retired U.S. Army captain and former Latham & Watkins partner. Last month, President Joe Biden nominated him to become Deputy Secretary of U.S. Veteran Affairs. Remy’s Senate confirmation hearings haven’t yet occurred. In 2009, President Barack Obama nominated Remy to become U.S. Army General Counsel. Remy withdrew, however, after a controversy surfaced involving how he described his previous work for collapsed mortgage lender Fannie Mae in nomination papers submitted to the Senate.
The three deceased players are Cullen Finnerty, Neal Anderson and Andrew Solonoski Jr. Finnerty played at Grand Valley State University in the mid-2000s and sustained multiple concussions on the field. He died at the age of 30, after which a study of his brain revealed he suffered from Stage II/IV chronic traumatic encephalopathy (CTE). Anderson played at Illinois in the early 1960s and endured multiple concussions. After college he developed numerous health problems, including headaches, tinnitus and mental and emotional distress. He passed away three years ago. An examination of his brain showed he suffered from CTE. Solonoski, who passed away in January, played at N.C. State in the late 1960s. Like the other two players, Solonoski suffered multiple concussions while playing college football and later developed severe health problems, including frontotemporal lobar degeneration and CTE.
The players’ cases have been consolidated for purposes of pretrial discovery. They argue three basic points: (1) the NCAA allegedly knew about the dangers brought on by concussions and other neurological traumas; (2) the NCAA failed to warn athletes and concealed crucial information; and (3) the NCAA wrongfully neglected to adopt concussion-management protocols. In court documents, the NCAA has repeatedly denied these and similar health-related claims.
Thus far, attorneys for the deceased athletes have successfully debunked NCAA arguments over permissible depositions. They contend that in order to prove the players’ claims, they need evidence that extends beyond playing days and into current NCAA decision-making. Indeed, the attorneys must prove that concussions and/or repetitive head trauma caused CTE and related long-term health problems—points the NCAA has insisted can’t be convincingly established—and that NCAA decision-making gave rise to unlawful acts.
The attorneys also stress that some of Remy’s work isn’t shielded by attorney-client privilege. Interestingly, Hainline (the NCAA’s chief medical officer) reports to Remy (the chief legal officer). According to court documents, the two regularly discuss health and safety matters. Remy, as mentioned above, is not only the NCAA’s top attorney; in 2019, the NCAA promoted him to COO. The NCAA currently lists Remy as the “second-in-command” behind Emmert.
Neither Emmert nor Hainline is a stranger to providing testimony about CTE and player health issues. Emmert has testified in the U.S. Senate about the topic while Hainline was deposed as part of a Texas-based CTE case brought by the widow of deceased football player Greg Ploetz.
It remains to be seen if the three depositions will happen. The NCAA could appeal to the Supreme Court of Indiana. It’s also possible the case settles before depositions occur—but the clock is ticking: The case involving Finnerty is set for a jury trial on Nov. 8, 2021.