Wouldn’t this be one mother of a hoisted petard?
But the Redmond letter could complicate the NCAA’s investigatory efforts. For starters, Nassar’s victims who are already suing Michigan State and USA Gymnastics might seek to add the NCAA as a co-defendant. The victims could cite article 2.2 of the NCAA’s constitution—the same article that the NCAA has warned Michigan State about. The article makes clear that “intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes.” It would seem this language ought to bind the NCAA as much as it binds the schools the NCAA oversees. It certainly wouldn’t be a stretch for lawyers representing the victims to raise this type of argument.
If the NCAA becomes a co-defendant, it would be awkward, at a minimum, for the NCAA to investigate a fellow co-defendant, whose interests are not all aligned with the NCAA. Michigan State and the NCAA could seek to blame the other, along with USA Gymnastics, for any institutional liability for Nassar’s crimes. Under these circumstances, it’s hard to imagine how the NCAA could credibly conduct an investigation into Michigan State. A court might be asked to review such a topic.
Given the NCAA’s litigation track record, it would be an act of malpractice for anyone retained as plaintiff’s counsel not to consider in a serious way bringing the organization in as a defendant. The Mark Emmert deposition alone would be worth it.