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by
Edward N Matisik, Esq.
edmatisik@yahoo.com
August 24th, 2004
College Basketball Reporter Forced to Testify in Ex-Coach Nolan Richardson’s
Suit Against the University of Arkansas
In March 2002, Nolan Richardson, then head coach of the University of
Arkansas’ (UA) men’s basketball program, was fired by Athletic Director
Frank Broyles for allegedly showing disrespect for the Arkansas athletic
program, his colleagues at the University, and Razorback fans. Richardson,
who is African-American, had allegedly called some white fans “red neck
SOB’s”, was generally considered difficult to work with, and had publicly
challenged the University to pay him more money.
In December 2002, Richardson sued UA under the First Amendment to the United
States Constitution and Title VII of the Civil Rights Act of 1964, seeking
almost $9 million in damages. Richardson claimed that Broyles had fired him
because of his race and for making public comments alleging that NCAA
Division I institutions are unwilling to hire head basketball coaches who
are black. UA denied all of Richardson’s allegations.
Prior to trial, Richardson asked a federal court in Arkansas to issue a
subpoena that would require Wally Hall, a basketball writer and editor for
the Arkansas Democrat-Gazette, to appear for a deposition. Richardson’s
attorneys sought to depose Hall because they believed that he had
information that would bolster their case against the University.
The Democrat-Gazette, immediately filed a motion with the same court asking
that it not grant (or, in legal terminology, “quash”) the subpoena. In its
motion, the newspaper claimed that as a journalistic enterprise its writers,
including Hall, were not subject to being deposed under the First Amendment
to the U.S. Constitution. The paper argued that if its reporters were
subject to appearing in court in civil cases, under possible legal penalty
for failing to do so, its ability to openly and honestly cover news—as
guaranteed by the Freedom of the Press Clause of the First Amendment to the
U.S. Constitution—would be severely impaired.
In response to both Richardson’s and the newspaper’s petitions, the court
scheduled a hearing for March 1, 2004. Under the Rules of Civil Procedure,
a reporter who objects to the issuance of a subpoena requiring him or her to
appear and give testimony, must appear at the hearing scheduled by the court
and personally assert the privilege not to testify as a member of the press.
Hall, however, failed to appear at the hearing.
When a reporter fails to appear for the hearing, the law requires that the
court determine whether the reporter missed the hearing voluntarily or for
reasons beyond his or her control. If the reporter failed to appear
illness, a death in the family, or some other excusable reason, the court
will re-schedule the hearing. If, however, the reporter simply refused to
attend the hearing, the court automatically issues a subpoena that requires
the reporter to testify and prohibits him or her from asserting the First
Amendment as a defense.
In his response to the court, Hall claimed that he had been too ill to
attend the hearing on March 1st because he had suffered a stroke on February
19, 2004 while covering a college basketball game in Cincinnati.
Richardson’s attorneys disagreed with Hall’s claim that he had been to ill
to attend the hearing. At a hearing on whether Hall had voluntarily decided
not to attend the March 1st hearing, they were able to produce hospital and
doctor’s records which showed that Hall’s own physician had later
characterized the stroke as a less serious “cerebral vascular accident” and
that Hall did not see a doctor while in Cincinnati, but waited until his
return to Arkansas on the day following the alleged stroke. Richardson’s
attorneys were also able to show that Hall had covered three basketball
games for the Democrat-Gazette in the days immediately preceding and
following the scheduled hearing date—the Razorbacks’ games against South
Carolina on February 21st, Florida on February 28th, and Alabama on March
3rd—and that Hall had continued to write his regular sports column for the
newspaper, without a break, during the period between February 19th and
March 1st. Further, Richardson was able to show that a physician who had
provided a statement to the court claiming that Hall had been too
incapacitated by the stroke to attend the hearing was not, in fact, Hall’s
regular physician, had never met Hall in person, and issued the statement
after having only one telephone conversation with Hall a few days after he
had failed to appear for the hearing.
After the hearing on Hall’s failure to appear at the March 1st hearing, the
court found that the evidence presented by Richardson clearly and
overwhelming indicated that Hall was not so ill that he was unable to
attend. The court denied the Democrat-Gazette’s motion to quash the
subpoena and granted Richardson’s motion to compel Hall to submit to a
deposition.
In July, the federal judge hearing the case granted a motion by UA to
dismiss the suit, finding that Richardson had failed to provide sufficient
evidence to support his allegations. Richardson is expected to appeal the
decision.
The case is Richardson v. Sugg, 220 F.R.D. 343 (E.D. Ark. 2004).
To contact Ed
Matisik, or to read his bio, please click
here.
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