Lawyer sues UNC over records related to conference realignment initiative

Triangle-based lawyer David McKenzie filed a lawsuit against UNC on Feb. 19, claiming that the University was not fully transparent with its legal activity while looking into leaving the Atlantic Coast Conference. 

The lawsuit deals with the Carolina Blue matter, the "secret project" for the potential conference realignment, in which fees were made payable to the law firm Skadden, Arps, Slate, Meagher & Flom LLP. 

UNC Media Relations said in an email statement that the University used Skadden for “advice and counsel regarding the rights and responsibilities of conference membership and the ongoing environment of conference realignment.”

The lawsuit holds that McKenzie repeatedly requested documents related to the activity, but he was given vague and misleading descriptions. This avoidance was a “calculated effort to offer superficially responsive yet substantively meaningless documents while withholding the actual records that matter,” the lawsuit states. 

UNC has paid the firm more than $620,000 since 2022 in legal fees. McKenzie is attempting to uncover details about what the University was obtaining to justify the expenditures. 

“The University generates revenue from lots of different places, but it’s a public institution,” Hugh Stevens, a nationally-known First Amendment and media lawyer, said. “The administration and trustees have a fiduciary obligation to use that money for the ultimate benefit in the best interest of the University.”

The law firm used Relativity software to manage and analyze electronic data during its investigation. The software allowed UNC to limit its exposure to the records because the University would only see a simplified version of the invoices. According to the lawsuit, this way of handling the documents effectively obscured UNC’s legal obligations to release the records.

“They still have statutory obligations to disclose public information and it appears that they were well aware of that,” Pate McMichael, director of the North Carolina Open Government Coalition at Elon University, said. “And they concocted this billing scheme to make sure these open records requests did not reveal too much about that plan.”

There is no way for the public to know what exactly is in the documents, but Stevens said that law firm billing records include information about which lawyers were working, how much they charged per hour, how many hours they worked and a general description of what they were working on. 

McMichael said that the lawyers may have been hired to look into UNC’s contractual obligations to the ACC and what the University would do if it decided to leave the conference. He said that UNC's attorney-client privilege applies to more sensitive subjects than billing records, requiring them to release the documents if requested. 

The North Carolina Public Records Act gives the public the right to access all documents from state agencies unless they are specifically exempted from disclosure. All documents UNC has related to conference membership, in or communication with the ACC, should be subject to public records law. 

Stevens said public records cases have priority in the court because of how they are handled.. In this case, the University can either release more documents, or a judge would review the current records in private and decide which are subject to public records law. 

He said UNC has already hired a lawyer, Philip Isley from Blanchard, Miller, Lewis & Isley, P.A., to assist in the case. The next steps will depend on what action the University decides to take. 

The issue of realignment, or when a college or university moves athletic conferences to likely increase revenue, has been a hot topic in recent news.

The ACC gave UNC $42 million in the 2023-24 fiscal year. The Southeastern Conference, a potential realignment landing place for UNC, paid an average of $52.5 million to its member schools, excluding two teams who joined mid-year. 

In March 2024, Clemson University joined Florida State University in suing the ACC, claiming the schools should be able to leave the conference without having to pay the $140 million fee. Days later, the ACC countersued, seeking declaration that schools pay the withdrawal fee and honor the conference's broadcast agreement with ESPN, even if they are no longer in the ACC. 

Brendan Marks, a reporter who covers UNC and Duke University basketball for The Athletic, said the money from the conference can be put toward a variety of things, notably revenue sharing for athletes. 

Marks said he believes that exploration with Skadden, which began when many teams were changing conferences, was a necessary due diligence. UNC likely concealed the dealings because it wouldn’t look good for a flagship university of the ACC to consider leaving, he said. 

But in recent years, the ACC has fallen behind the SEC and the Big Ten in prestige and competitive caliber. 

“Jockeying for third place is not where the ACC wants to be or where it has ever been at any point in athletics history previously,” Marks said. 

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