In response, the NCAA contacted Poynter this week to note factual errors made by Nocera and suggest that a conflict of interest should prevent him from writing about the organization. In an email reply, Nocera said, “What the NCAA is trying to do is shut down a critic by tossing out bogus conflict of interest charges. I have no intention of being intimidated.”
It’s nothing new for the subject of a critical report to raise concerns. But does the NCAA have a valid complaint? It’s worth examining as a case study about the New York Times’ policy regarding conflicts of interest.
Two Columns, a Magazine Feature, and a ‘Cartel’
The issue began with a December 30 Nocera column that called the NCAA “a home-grown cartel.” After the organization pointed out an error in the column — Nocera originally said student athletes aren’t allowed to retain a lawyer after they’ve been accused of violating NCAA rules — Nocera followed up with another column about NCAA operations.
His January 6 offering led with an acknowledgement of his previous error and went on to explain that in the course of researching his error he “stumbled on a case so egregious — yet so perfectly illustrative of the N.C.A.A.’s judicial ‘process’ — that I concluded it needed wider exposure.”
The case involved a football player at the University of North Carolina, Devon Ramsay. Nocera lays out what he argues is the NCAA’s unjust handling of false accusations of academic fraud levelled against Ramsay. The column concludes with a promise from Nocera that he’ll keep reporting on the NCAA:
I know there are readers who believe I am wasting valuable space writing about sports. I got e-mails to that effect after last week’s column. To my mind, though, the fact that the N.C.A.A. is willing to destroy an athlete’s career without even a nod to a fundamental right like due process is simply wrong. It needs to change. That is why I will continue writing about this subject, as events warrant, in the coming months.
As one might imagine, the NCAA isn’t happy about the columns. An email sent to Poynter this week by Bob Williams, vice president of communications for the NCAA, said, “In a nutshell, we are very disappointed in how the New York Times has handled the errors of fact and conflict of interest in Joe Nocera’s recent columns.”
In terms of the errors of fact, the NCAA is for example unhappy about the error in Nocera’s Dec. 30 column, which has been corrected, and the fact that Nocera’s subsequent column used the mistake as an entry point for another critical column.
Most interesting, however, is the fact that the NCAA believes the Times shouldn’t let Nocera write about the organization. Is this, as Nocera said, a tactic to get a critical reporter to back off? Or does the NCAA have a point?
The suggestion of a conflict of interest centers around the fact that Nocera’s fiancee is the director of communications for Boies, Schiller & Flexner, a law firm. One of the firm’s lawyers has provided some guidance to the lead attorney pursuing a high profile case against the NCAA involving former UCLA basketball star Ed O’Bannon and other former college athletes. This fact was disclosed in Nocera’s New York Times Magazine feature, which included details about the O’Bannon case. Here’s the disclosure:
Full disclosure: William Isaacson, a lawyer with Boies, Schiller & Flexner, is among more than a dozen attorneys from various firms who have assisted Hausfeld in bringing the O’Bannon lawsuit. My fiancée is the firm’s director of communications. She has played no role in the case, and does not stand to profit if O’Bannon wins.
In an email, here’s how Nocera characterized the involvement of the lawyer at the Boies firm where his fiancee works:
The case is really being driven by Michael Hausfeld, who has his own firm, and would be taking place with or without the involvement of the one Boies lawyer, who did not instigate it and is not driving the litigation.
The NCAA said that connection is enough to keep Nocera off the NCAA beat. “We are very surprised the New York Times would allow such a conflict of interest to occur – especially given that this is not the first time Mr. Nocera has written about a case handled by his fiancee’s law firm,” said Williams.
He’s referring to an incident in fall of 2010 when Nocera wrote a column about Hewlett-Packard’s hiring of a new CEO — a man who led SAP when it engaged in activity that led Oracle to sue the company and win. The issue is the firm that represented Oracle in the damages phase of the case is the same one that employs Nocera’s fiancee. In fact, her direct boss was heavily involved in the case.
Nocera didn’t disclose that in the column, and the paper subsequently placed an editor’s note on the column stating, “To avoid the appearance of a conflict of interest, Mr. Nocera would not have written about the case if he had known of the law firm’s involvement.”
The Times public editor also wrote a column about the conflict.
“In that case, not finding out about the Boies involvement before I wrote was indeed a mistake,” Nocera said in an email. “… This, however, is a completely different situation.”
The core of the difference, Nocera said is that “I wrote about a case that David Boies was directly involved in, and in time, my fiancee became directly involved as well.” He said his fiancee has no involvement in the O’Bannon case, and that her firm is not playing a lead role in the action.
For its part, the NCAA views this current question of conflict of interest as being worse that the H-P example. From Williams’ email:
The conflict here is more egregious: Mr. Nocera knew about the involvement of his fiance’s law firm, he was allowed to write not only a lengthy magazine story, but two additional columns on the subject. And the columns did not make any mention of the conflict of interest.
Breaking it Down
Let’s start with the central contention from the NCAA: The involvement of a lawyer from the firm that employs Nocera’s fiancee in a suit against the NCAA should disqualify Nocera from writing about the organization.
Here’s the relevant passage from the Times policy regarding conflicts of interest related to the activities of family members:
The company and its units depend on staff members to disclose potential problems in a timely fashion, with an eye to working together to head off embarrassment to all concerned. Any staff member who sees a potential for a conflict of interest in the activities of spouse, relatives or friends must discuss the situation with newsroom management. In many or even most cases, disclosure will suffice. But if newsroom management considers the problem serious, the staff member may have to withdraw from certain coverage. Sometimes an assignment may have to be modified or a beat changed.
The above section makes it clear that it requires a “serious” problem for a Times journalist to be taken off a story or beat. That’s a fairly high standard, albeit one that’s open to interpretation. The policy also requires a journalist to speak with their manager about any possible conflicts.
Nocera said he raised the potential conflict issue with his magazine editors once he realized the connection between his fiancee’s firm and the case against the NCAA.
“Did I talk to my editors at the magazine? Of course I did,” he said. “… As I did my reporting, I became aware of the O’Bannon case (mainly through an interesting character named Sonny Vaccaro), and realized that I would be doing the readers a disservice not to put it in the article. My editors and I both agreed that involvement of the Boies lawyer required an appropriate disclosure, which I made, but no more than that.”
So Nocera spoke with his editors and they decided a disclosure was necessary. Meaning: this wasn’t deemed “serious” enough to alter his work for the magazine or completely remove him from the piece. When it comes to disclosures, the Times policy says it will suffice in “many or even most cases.”
One item that would be considered a major factor in determining the severity of the conflict is if Nocera’s fiancee stood to benefit financially or otherwise from the O’Bannon case, or any related action against the NCAA. (It’s also of course important if his fiancee is directly involved in the O’Bannon case, which Nocera said she isn’t, unlike the H-P case.) The issue of benefit is addressed directly in the disclosure, and Nocera raised it again in his email to me.
“As I said in the disclosure my fiancee has nothing whatsoever to do with the case, and will not profit from it no matter how it turns out,” he said. “To make things even more complicated, David Boies, who is my fiancee’s direct boss, is a good friend of NCAA president Mark Emmert and has argued with me against the positions I took in my magazine story.”
Even if you set aside the contention that Nocera should be forbidden from writing about the NCAA, there’s another valid question raised by Williams and the NCAA: why place a disclosure in the magazine piece and not in the columns?
“First of all, there was no need to disclose anything in the columns because they were not about, and did not mention, the O’Bannon case,” Nocera said. “I wrote about the NCAA in my third column as an oped columnist, (it was in April, I think) before I even knew there was an O’Bannon case; it is something I have been thinking about for a long time, and have strong opinions. I don’t apologize for that.”
My reading of the Times policy suggests Nocera has been in line with its prescriptions. I tend to agree he doesn’t need to include a disclosure in any piece of writing that mentions the NCAA, given his fiancee’s tenuous connection to the O’Bannon case. Any mention of the O’Bannon case will require disclosure.
What’s clear from this example is the issue of conflicts of interest come down to a judgement call within the newsroom. In order for the right call to be made, journalists need to raise potential conflicts with their managers and provide full disclosure. From there, it’s up to managers to apply the policy. Before all of that, of course, the newsroom needs a clear and widely communicated policy. (The Times is ahead of the curve in putting its ethics policy online.)
I don’t see any evidence that the Times or Nocera failed to act in accordance with the paper’s policy. Of course, the NCAA is within their rights to disagree.
One thing we know for sure is the folks at the NCAA are going to read anything Nocera writes about their organization and student athletes very carefully to look for errors of fact or other issues to raise. Uncowed, Nocera is going to continue to be the opinion columnist he’s paid to be.