The Association shall defend and indemnify any present or former employee, committee member or agent of the Association who was or is a party or is threatened to be made a party to, or who is to be subpoenaed to be deposed or to give evidence in, any civil, criminal, administrative or investigative action or proceeding, including those brought by the Association, provided the conditions enumerated below are met. For purposes of this policy, “committee” shall include all Association committees, boards, cabinets, councils, subcommittees and panels.
Conditions for Defense and Indemnification:
1. The person requesting defense and indemnification is being named as a party or subpoenaed to be deposed or to give evidence by reason of the fact that the person was or is an employee, committee member or agent of the Association or is or was serving at the request of the Association as a director, officer, employee or agent of another association, corporation, partnership, joint venture, trust or other enterprise.
2. The person is determined to have been acting within the scope of the person’s duties to the Association.
3. The person is determined to have been acting in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Association in the performance of the person’s duties to the Association. In respect to any alleged criminal action or proceeding, the person must also be determined to have had no reasonable cause to believe the alleged conduct was unlawful.
Note: The termination of any action or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption in regard to these
determinations. However, if a
person is adjudged to be liable for negligence or misconduct in the performance
of the person’s duty to the Association, there shall be no indemnification
unless and only to the extent that the court in which such action or suit was
brought shall determine that, despite the adjudication of liability but in view
of all circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court shall deem
proper.
4. The person promptly and timely notifies the Association’s general counsel of the actual or threatened service of process, subpoena, notice of deposition or other legal process before incurring attorney fees or other expenses.
5. The person accepts counsel provided or approved by the Association and agrees to accede to the legal strategies approved by the Association’s general counsel, including any settlement determinations. In the event that the person wishes to hire other counsel or not accede to the Association’s legal strategies, the Association shall not be obligated to defend or indemnify the person, except when it is determined that a conflict of interest exists with the Association such that retaining separate counsel is warranted.
6. The person agrees to repay any expenses, including attorney fees, incurred in bringing or defending a civil or criminal action or proceeding paid by the Association in advance of the final disposition of such action or proceeding if it is ultimately determined that the person is not entitled to be indemnified by the Association as authorized in this policy.
For purposes of this policy, “indemnification” shall consist of payment against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action or proceeding.
Determinations as to whether indemnification is proper in the circumstances because the person has met the applicable standards of conduct set forth in this policy shall be made (1) by the NCAA Executive Committee by a majority vote of a quorum consisting of members who are not parties to such action or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable if a quorum of disinterested Executive Committee members so directs, by independent legal counsel in a written opinion, or (3) by the Association’s president if so delegated by the Executive Committee.
The indemnification provided by this policy is not exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of members or disinterested Executive Committee members or otherwise, both as to action in the person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be an employee, committee member or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
The Association may purchase and maintain insurance on behalf of any person who is or was an employee, committee member or agent of the Association, or is or was serving at the request of the Association as a director, officer, employee or agent of another association, corporation, partnership joint venture, trust or other enterprise against any liability asserted against the person and incurred by the person in any such capacity or arising out of the person’s status as such, whether or not the Association would have the power to indemnify the person against such liability under the provisions of this policy.
NCAA:5/14/01:EKC/pas