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UNC Trustees Ordered to Open ACC-Related Meetings to Public

As colleges navigate fast-moving industry change in athletics, a court ruling Thursday underscored the heightened legal obligations of public university leaders to be transparent about the business of sports.

North Carolina Superior Court Judge Alyson Adams Grine granted a temporary restraining order that bars UNC Chapel Hill trustees from holding closed sessions to discuss the Tar Heels’ “financials, budgeting, deficit, or ongoing or future conference alignment and related strategic planning.” The order will last until at least May 20, when the judge will hold a hearing.

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The TRO comes a day after David McKenzie, a North Carolina resident, intellectual property and media rights attorney and father of a UNC student, sued the trustees. He claims they’re violating North Carolina’s open meeting law and public records act. McKenzie’s 19-page complaint cites board chairman John Preyer saying a “closed session” of the board was necessary to discuss what “needs to be done to remedy” UNC athletics’ financial challenges.

McKenzie also refers to Preyer’s public comments regarding UNC’s membership in the ACC and the topic of conference alignment. Several ACC members, including two that have sued the ACC (Florida State and Clemson), contend they aren’t generating enough revenue through the conference and its media rights deals.

McKenzie further cites a statement by another trustee, Jennifer Halsey Evans, from a special meeting held on Monday during which Evans reportedly expressed budget-related concerns about athletics. She also referred to there being a discussion of that topic during a closed session meeting held last November. Adding to trustees’ alleged secrecy, McKenzie says they’ve been holding “informal”—and closed—meetings regarding UNC’s “ongoing affiliation with the ACC.”

McKenzie stresses that the financial health of a public university’s athletics budget “is undeniably a matter of public concern.” He reasons that if UNC athletics is running a deficit, there are three likely ways to fill the revenue gap: (1) get more money from UNC students, perhaps through fees or higher tuition; (2) get more money from North Carolina taxpayers; or (3) get another athletic conference to pay UNC more.

According to McKenzie, UNC has cited statutory exemptions from a general requirement under state law for open meetings. But McKenzie argues none of the exemptions applies.

For instance, he contends budget deficits and financial management matters for a public university do not qualify as confidential information given the public’s relationship to that information. McKenzie also insists that attorney-client privilege doesn’t apply unless the athletics discussion involves “specific, confidential legal advice directly related to ongoing or imminent litigation.” While FSU and Clemson are in litigation with the ACC, UNC is not—for now, at least.

Although Grine’s order was brief and didn’t specifically address McKenzie’s arguments, she found he had raised “specific facts” that reveal “immediate and irreparable damage will result if the TRO does not issue.”

Two of the other three North Carlina-based members of the ACC do not face the same transparency requirements. As private universities, Duke and Wake Forest can make decisions about athletics as they see fit within the boundaries of their universities’ rules. While their students, staff, faculty and alumni can influence through threatening to transfer, find new employers or not donate, they can’t rely on state meeting and records laws to demand transparency.

In the months ahead, expect to see other transparency-related lawsuits over how public universities make crucial decisions about conference membership, NIL and athletes as employees.

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