I have personal experience with this, but not as an attorney. We need to sue the NCAA and make this very costly for them, I am going to assume they will make a D&O claim with their carrier to cover their cost of litigation. We also need to personally name everyone involved in the process as part of the suit....more on that latter.
The good news on this, the insurance carrier has some say of how much of an hourly rate they will approve and the legal firm or attorney's that represent them. Certainly, the insurance company wants the NCAA to win and avoid an judgment that could be costly to the carrier. Only way the NCAA has total control is to foot the bill on their own, given the revenue situation this year, you would think they would file a D&O claim.
But at a certain point, the insurance carrier may make an evaluation that the cost to settle based on current invested legal fees is far less than the cost to litigate as well as anytime you go to court you risk losing, pleadings and judges rulings early on in the case starts to reveal a probability of a quick court decision or not, as well as the depth and length of how far a judge is going to allow discovery based on plaintiff's pleadings. If a judge allowed a great deal of discovery...$$$'s and potential embarrassment exists for the insurance company and the NCAA.
Not going to get in to the details, but I have seen first hand an Association get sued over the application of their rules and bylaws, it is not easy to win against the Association since all Associations most are voluntary and you agree when you join to accept the rules and the application of those rules, but it is possible to win based on certain angles, and judges can be a huge wild card. Not certain if the NCAA has in their handbook or bylaws a requirement of the court venue in which you can sue the NCAA, but if they do not, OSU would want to file in Oklahoma, we would initiate the proceeding on our home court if possible.
OSU does have some leverage IF they can feel they can prove the NCAA did not follow its own internal judicial process to a "T", and if they feel they can prove the NCAA did not act in good faith, and those involved did not act using good judgment, etc...
Many insurance companies no longer provide D&O coverage to NPO's because the members routinely sue their governing body, they have literally left this market. This is another reason why the NCAA would need to work closely with their carrier in terms of settling a case or not, if they were to lose their coverage could they find another carrier to cover them, or what would be the cost of having coverage? And they will want coverage, the D&O helps protect the organization, but most importantly it covers the bad individual decisions that the upper echelon of the NCAA makes on a personal level, it protects them from paying a judgment out of their own personal pocket if they act improperly and are sued individually.
But here is the kicker - During the Enron scandle years, Directors were suing Directors within their own org just to get access to the limits on their D&O policies. Carriers quietly closed this loophole, many to this day are not aware of this. IF Hargis or our school is considered to be part of the governance of the NCAA, by suing the NCAA and the individuals involved, the individuals at the NCAA would no longer have protection from liability from their D&O policy. I have no idea how the carrier would look at this and do not know enough about NCAA governance if this would be the case, but it is a possibility.
NCAA administrators would be smart to take on liability coverage thru their homeowner's policy to cover their net worth, but many have no idea of this and no one wants to feel like they are on the hook personally for a decision they made on behalf of any organization. It would pucker them up. I give out advice sometimes on being part of a NPO Board or to be involved in upper management and I tell them make sure you know what is in that D&O policy, and I tell them to take out liability insurance thru their HO's policy because it is relatively cheap.
Maybe we really need to wait until the appeals process is over before we sue...but if legal counsel thought we could do it now, why not? Why not ratchet up our leverage on the NCAA appeal?
The good news on this, the insurance carrier has some say of how much of an hourly rate they will approve and the legal firm or attorney's that represent them. Certainly, the insurance company wants the NCAA to win and avoid an judgment that could be costly to the carrier. Only way the NCAA has total control is to foot the bill on their own, given the revenue situation this year, you would think they would file a D&O claim.
But at a certain point, the insurance carrier may make an evaluation that the cost to settle based on current invested legal fees is far less than the cost to litigate as well as anytime you go to court you risk losing, pleadings and judges rulings early on in the case starts to reveal a probability of a quick court decision or not, as well as the depth and length of how far a judge is going to allow discovery based on plaintiff's pleadings. If a judge allowed a great deal of discovery...$$$'s and potential embarrassment exists for the insurance company and the NCAA.
Not going to get in to the details, but I have seen first hand an Association get sued over the application of their rules and bylaws, it is not easy to win against the Association since all Associations most are voluntary and you agree when you join to accept the rules and the application of those rules, but it is possible to win based on certain angles, and judges can be a huge wild card. Not certain if the NCAA has in their handbook or bylaws a requirement of the court venue in which you can sue the NCAA, but if they do not, OSU would want to file in Oklahoma, we would initiate the proceeding on our home court if possible.
OSU does have some leverage IF they can feel they can prove the NCAA did not follow its own internal judicial process to a "T", and if they feel they can prove the NCAA did not act in good faith, and those involved did not act using good judgment, etc...
Many insurance companies no longer provide D&O coverage to NPO's because the members routinely sue their governing body, they have literally left this market. This is another reason why the NCAA would need to work closely with their carrier in terms of settling a case or not, if they were to lose their coverage could they find another carrier to cover them, or what would be the cost of having coverage? And they will want coverage, the D&O helps protect the organization, but most importantly it covers the bad individual decisions that the upper echelon of the NCAA makes on a personal level, it protects them from paying a judgment out of their own personal pocket if they act improperly and are sued individually.
But here is the kicker - During the Enron scandle years, Directors were suing Directors within their own org just to get access to the limits on their D&O policies. Carriers quietly closed this loophole, many to this day are not aware of this. IF Hargis or our school is considered to be part of the governance of the NCAA, by suing the NCAA and the individuals involved, the individuals at the NCAA would no longer have protection from liability from their D&O policy. I have no idea how the carrier would look at this and do not know enough about NCAA governance if this would be the case, but it is a possibility.
NCAA administrators would be smart to take on liability coverage thru their homeowner's policy to cover their net worth, but many have no idea of this and no one wants to feel like they are on the hook personally for a decision they made on behalf of any organization. It would pucker them up. I give out advice sometimes on being part of a NPO Board or to be involved in upper management and I tell them make sure you know what is in that D&O policy, and I tell them to take out liability insurance thru their HO's policy because it is relatively cheap.
Maybe we really need to wait until the appeals process is over before we sue...but if legal counsel thought we could do it now, why not? Why not ratchet up our leverage on the NCAA appeal?
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