The plot sickens..........
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ESPN sues Ohio State
July 11th, 2011 at 5:56 PM
#602
The plot sickens..........
July 11th, 2011 at 5:57 PM
#603
After reading more carefully...
...it's even more interesting. It basically sets up a battle over FERPA. Definitely popcorn.
Also, funniest line EVER:
Jim Lynch, OSU director of media relations, said the university can’t release the Sarniak related correspondence because it would be too obvious that any student-athlete in the documentation would be Pryor.
Translation: "we can't release this e-mail because you might be able to tell who it involves. Pryor. It's Pryor."
July 11th, 2011 at 6:00 PM
#604
The stupidity of that
The stupidity of that organization continues to render me speechless.
July 11th, 2011 at 9:12 PM
#605
Oh Geez...
"We have all this incriminating shit regarding Pryor, but we don't want you to see it....". Nice.
July 11th, 2011 at 6:03 PM
#606
No way
You stole the idea for that quote from Catch-22.
July 11th, 2011 at 10:22 PM
#607
Pryor is a student at OSU?
Pryor is a student at OSU? Or are they concerned about retroactively protecting his non-student status.
July 12th, 2011 at 2:35 AM
#608
It's almost like they're
It's almost like they're daring the court with their obsurd level of stupidity. They hope it'll throw the judges off track and rule on their side.
July 12th, 2011 at 10:02 AM
#609
Pryor is no longer a student
Pryor is no longer a student athlete...not that the student part ever even applied anyway...problem solved.
July 12th, 2011 at 3:34 PM
#610
Re: Pryor no longer at OSU
I don't think that matters. Not defending OSU's response here, but I would assume any rights/protections afforded by universities to SAs don't disappear simply be use the person in question is no longer at the school.
July 12th, 2011 at 12:34 PM
#611
Let's just call him "Terrelle
Let's just call him "Terrelle P." No, that's too obvious - "T. Pryor."
July 11th, 2011 at 5:58 PM
#612
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
Fight! Fight for my amusement! [breaks pool cue in half, strides away]
July 11th, 2011 at 7:12 PM
#613
posted from iPhone
We're going to have...tryouts
July 11th, 2011 at 10:10 PM
#614
My favorite scene in a movie
My favorite scene in a movie filled with great scenes.
I can't believe we will never get to see Ledger resprise his role as the Joker. Phenomenal performance.
July 11th, 2011 at 6:01 PM
#615
Wow
What else could they be looking for?!
Calling all MGoLawyers and insiders for further speculation
July 11th, 2011 at 6:22 PM
#616
Well...
for example, if they find an e-mail from someone other than Tressel to Sarniak, and that e-mail shows that the knowledge of tatgate expanded beyond Tressel to the Athletic Department or the compliance people (or hell, even from the Office of the President), then OSU's NCAA response becomes hilariously misleading. And in that case...
July 11th, 2011 at 10:11 PM
#617
This has been my prayer since day one
An email from Archie, CCed to Gee and a few key others, to Sarniak thanking him for the information and telling him they'd be sure to act on it. OSU fans far enough not to die from the immediate coronary of destruction would feel a lot like this:
July 11th, 2011 at 7:15 PM
#618
Their crappy half-assed attempt at ruining
recruit rankings isn't helping their case, neither is them being the only entity that profits from Bowl Games. It's exactly like Congress prosecuting baseball players. We know they cheated but people seem to hate Congress even more than cheating baseball players.
July 11th, 2011 at 10:04 PM
#619
I agree
with this AAA. ESPN is for $hit. The only decent person on the entire network is Desmond.
July 11th, 2011 at 10:30 PM
#620
Adam Schefter begs to
Adam Schefter begs to differ... ok well I know he went to Michigan and he has a mini Michigan helmet on his bookshelf for every interview. So he can't be that bad.
July 11th, 2011 at 10:34 PM
#621
You dare besmirch Erin Andrews?
That's it. Out.
July 11th, 2011 at 10:45 PM
#622
....but.... but... she went
....but.... but... she went to Florida....
July 11th, 2011 at 11:40 PM
#623
Dana Jacobson, if fuller
Dana Jacobson, if fuller figured ladies float your boat. Eric Kuselius (sp?), Jalen, formerly Eisen. When you think about it, Michigan is pretty well represented when it comes to public faces on ESPN.
July 12th, 2011 at 12:49 AM
#624
I do work for espn and have
I do work for espn and have met both Dana Jacobson and Desmond Howard. Dana is aware of and has read MGoBlog (I asked) and I'm guessing Desmond has too.
July 11th, 2011 at 10:54 PM
#627
Part of the reason people
Part of the reason people have been hating on ESPN is because of the perception that they suck way too much on the teats of the celebrity teams (Yankees, Lakers, etc.) and don't do enough of this bulldog stuff. Now that Yahoo is kicking their asses to China and back in the investigative journalism department, they're getting nosy. Insofar as it helps bring Ohio State to the justice they deserve and not this BS they're trying to get away with, it can only be a good thing.
July 11th, 2011 at 6:33 PM
#628
Mods should take care of it
Mods should take care of it for you. Happens to the best of people on here.
July 11th, 2011 at 6:07 PM
#629
Love it!!!!
OSU arrogance at work again. My guess is that ESPN is gonna win this one. I doubt they would have filed suit just to get dismissed at an early hearing. Also, it would not surprise me if ESPN already has some idea what is in the emails and other documents they are trying to get OSU to turn over. The emails were delivered to the NCAA in unredacted form back in March.
July 12th, 2011 at 12:20 AM
#630
the ohio supreme court
which used to be fairly good with respect to the law over personal opinions, is a bunch of tosu slappies now. i would be supprised if they did the right thing and gave the emails etc to espn.
July 12th, 2011 at 8:41 AM
#631
Agreed
The Ohio Supreme Court has made a number of questionable decisions in recent years and they can get away with it because the court basically has a unanimity of opinion thanks to the [redacted political party]. I don't have faith in their better judgment. This situation is still damn funny though.
July 12th, 2011 at 10:00 AM
#632
no, it's the Sixth Circuit that is the problem
The Ohio Supreme Court hasn't been too bad on public records issues. The FERPA problem grows out of a federal Sixth Circuit decision (the appellate court that covers OH and MI, among others) that gives FERPA a broad reading (and that essentially undercuts a prior, favorable Ohio S Ct. decision giving access to documents sought from Miami (O) Univ.) The Sixth Circuit decision is questionable, and also is sloppy. tosu is reading it broadly to cover their situation. FERPA itself is one of the most poorly drafted statutes I have ever read.
July 11th, 2011 at 6:07 PM
#633
Docket from the Supreme Court
Docket from the Supreme Court of Ohio:
http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type...
July 11th, 2011 at 6:16 PM
#634
This week, in facepalm:
"Do
This week, in facepalm:
"Do to FERPA, we will not be releasing e-mails ..."
"Do to FERPA"
"Do to"
That's Jim Lynch, freaking Director of Media Relations, being illiterate.
July 11th, 2011 at 7:05 PM
#635
I sea nothing wrong with those language.
I sea nothing wrong with those language. Oh, weight.......
Between Gordon, Gene and Jim the Ohio AD is like a real life Hee-Haw episode. Who plays the the girl in the daisy dukes? St. Tress? A master MGO Photog editor should make this gif happen.
July 11th, 2011 at 7:12 PM
#636
given the context
that'd be more like DERPA, amirite?
July 11th, 2011 at 8:53 PM
#637
Where did you find the "Do
Where did you find the "Do to" quote?
July 11th, 2011 at 9:00 PM
#638
http://www.sconet.state.oh.us
July 11th, 2011 at 11:28 PM
#639
I'm not sure which is better:
That he actually wrote "do to" or that Mgoboard is checking the spelling and grammer of court documents. That is why I read this blog.
July 11th, 2011 at 11:41 PM
#640
mfw this should be
mfw this should be greentext
mfw I have no face
July 12th, 2011 at 12:41 AM
#641
Reading these affadavits
Reading these affadavits cracks my shit up. I was supposed to work in tsio's archive to finish my Master's and I've been in their archive. I don't believe for a second that their archive only goes back three years. Their stacks are 2 stories high and are basically housed in a warehouse.
I call bullshit.
July 11th, 2011 at 6:09 PM
#642
posted from iPhone
The largest sports news source in the country is openly pissed off at osu. Yeah, my day got better.
July 11th, 2011 at 8:28 PM
#643
If by country you mean world,
If by country you mean world, and by world you mean known universe.***
***given we don't know of any life out there. I would also guess that if we find another galaxy with sports, ESPN will somehow buy the rights, then mess it up badly by using Pam Ward, thus leading to an intergalactic war.
July 11th, 2011 at 6:14 PM
#644
This is bad for TSIO. I base
This is bad for TSIO. I base this mainly on the fact it probably can't be good for TSIO (depositions are always bad for people trying to hide things), and since SI's story was so thoroughly covered by their legal department because they didn't want to create legal issues for themselves. Now media outlets are bringing legal action against TSIO. This could get dicey.
July 11th, 2011 at 6:19 PM
#645
Quote from Article
"In the lawsuit, ESPN says that OSU is “aggressive and misguided” and “equal parts cynical and hypocritical” for claiming they are prohibited by FERPA from releasing the communications that concern Sarniak."
Couldn't agree more.
July 11th, 2011 at 6:22 PM
#646
When the NCAA wins its relief
When the NCAA wins its relief (which it will), the Buckeyes better pray that nothing new comes out from the e-mail correspondence -- especially nothing that indicts anyone other than Tressel, since they've worked to shoulder him with all the blame. If it comes to light that they knew even more and intentionally and inappropriately hid behind laws to try to keep it under wraps, you can bet the NCAA will get vindictive.
July 11th, 2011 at 6:29 PM
#647
Timing
The timing of all this could be brilliant. Wait until OSU further indicts themselves with that sham of a response to the NCAA and then bring the lawsuit and find the smoking gun - love it! Wonder if ESPN did that intentionally. If so, well played ESPN.
July 11th, 2011 at 10:21 PM
#648
hmmmmm..
I wondered about this myself; you might or might not like ESPN but they certainly have a lot of money for good lawyers and an eye for news timing.
July 11th, 2011 at 6:23 PM
#649
That's too bad.
nm
July 11th, 2011 at 6:24 PM
#650
posted from iPhone
So basically, OSU is not releasing e-mails that probably show that not only Tressel knew about all this stuff, but the athletic director did too? Cause that would be freaking awesome.
July 11th, 2011 at 6:48 PM
#651
posted from iPhone
But then why would they have released the Cicero emails in the first place?
July 11th, 2011 at 6:58 PM
#652
IIRC
They didn't release those to those were found on an unrelated investigation?
July 11th, 2011 at 7:04 PM
#653
posted from iPhone
They obviously released them, or they wouldn't be in this mess. The point being, if you're going to cover it up, why do it so half assed.
July 12th, 2011 at 3:36 AM
#654
(No subject)
July 11th, 2011 at 7:03 PM
#655
posted from iPhone
Well the quote from above implies ESPN thinks the e-mails involve not just Tressel, but the chief of compliance, the athletic director, and the presided of the damn university. If they knew anything about it and did nothing, then they are seriously fucked. Especially after every turn, they are insisting that nobody knew anything.
July 11th, 2011 at 6:29 PM
#656
I find it amusing how the
I find it amusing how the Complaint says Pryor was all-academic Big Ten for 2009 (a joke and also equally pathetic for Big Ten), but more amusing is TSIO's response to the inquiry for all documents and emails regarding people barred from games and ncaa violations (including secondary ones) that the request is too broad for them to handle. Wonder what that implies.
July 11th, 2011 at 6:30 PM
#657
The gift that keeps on
The gift that keeps on giving. Couldn't happen to a better team.
July 11th, 2011 at 6:30 PM
#658
And I'll bet TSIO....
Thought they only had to worry about the Court of Public Opinion.
July 11th, 2011 at 6:37 PM
#659
This would be incredible.
This would be incredible. However, what's to stop them from deletiing any pertinent emails prior to handing them over?
July 11th, 2011 at 6:54 PM
#660
Cant Imagine...
that ESPN is to worried about that. There is no way they file suit without knowing they already have it in the bag. I'm not a computer guy but even if they do delete it wont that kinda stuff still be on the hard drive somewhere?
Not to mention who's to think this sarniak was smart enough to even delete them himself.
July 11th, 2011 at 7:58 PM
#661
even if they do delete it, it
even if they do delete it, it can still be recovered. The only sure way to make it no recoverable is to destroy the hard drive, even then there is a slight possibility.
July 11th, 2011 at 9:25 PM
#662
They presumably have backups
Which means multiple copies of the email.
July 11th, 2011 at 11:32 PM
#663
I actually learned about some
I actually learned about some of this talking with a lady in our claims/safety department at work today. If a lawyer requests to have all of these emails and TSIO deleted them they are actually stored apparently in a server and can be recovered if needed.
For work when a claimant hires an attorney then by law if requested we as a company must turn over any requested emails/documents that may come about. That is a big reason why for any company you never post harrassment type stuff etc in emails, because even if you delete it, its still out on a server just waiting to be recovered and will stay there for years.
July 11th, 2011 at 9:25 PM
#664
They presumably have backups
Which means multiple copies of the email.
July 11th, 2011 at 10:47 PM
#665
Best double post ever.
Best double post ever.
July 12th, 2011 at 7:37 AM
#666
Hard drives?
All those hard drives probably went to the moon over six months ago.
July 11th, 2011 at 6:55 PM
#667
posted from iPhone
The one thing I've learned from big computer systems is that nothing is ever truly deleted.
July 11th, 2011 at 8:59 PM
#668
Various public record acts.
Various public record acts. Plus, now that its under pending litigation, tempting a contempt of court charge would be unwise.
July 11th, 2011 at 10:45 PM
#669
I'm pretty sure that would be
I'm pretty sure that would be illegal at this point. Deleting those e-mails would further incriminate OSU.
July 11th, 2011 at 7:20 PM
#670
At this point
This should be on the masthead.
July 11th, 2011 at 10:31 PM
#671
M-Wolverine!
We're glad to know that Scarlett is on your masthead sir.
July 11th, 2011 at 6:53 PM
#672
love the point
about how the University web site promotes bio information. Including that TP was an academic all big ten. Doesn't that conflict with FERPA?
July 11th, 2011 at 6:54 PM
#673
Also, the Attorney who filed
Also, the Attorney who filed the memo did his JD at Notre Dame. I'll say it this once, "Go Irish!"
July 11th, 2011 at 6:58 PM
#674
Notre Dame Law:
FTW.
July 11th, 2011 at 6:54 PM
#677
OSU sure is paying a lot in
OSU sure is paying a lot in legal fees lately, huh? I guess they're saving a lot of money in HC salary this year, though.
July 11th, 2011 at 7:16 PM
#678
Court Papers
http://www.sconet.state.oh.us/tempx/690621.pdf
I don't know much about these specific laws but ESPN definitely has a solid case. Also I can't remember when ESPN sued someone for records, I don't think they do this frivolously.
July 11th, 2011 at 9:08 PM
#679
They sued Texas last
They sued Texas last year.
July 11th, 2011 at 7:22 PM
#680
Meanwhile back at Columbus Dispatch...
The comments are pretty funny. I will admit, however, that there are several rational posters who just want to clean house at OSU.
http://www.topix.net/forum/source/columbus-dispatch/TM5CKH5M1HS7MKCQB
ESPN is trying it's hardest to make this into Watergate. It's way past annoying at this point. I call for all OSU alumni that work at ESPN to resign immediately. You too, Herbie. It's time to remember your roots and circle the wagons. We don't need no stinking ESPN. We got ABC and BTN to play our games.
This is unbelievable. Why? What do they have to prove? Why is it any of their business? I wonder if they would do this to Texas.
Not sure what right espn has to sue OSU if the NCAA wants to do well so be it. Herbie I used to repsect you and felt all that went down wasnt right. But this stoops to the same level
I love how they think that their desire to keep this secret somehow makes ESPN's request unfair. Yes, guys, time to circle the wagons. God forbid that OSU alums at ESPN want to do their jobs.
July 11th, 2011 at 7:38 PM
#681
and who owns ESPN
oh wait ABC does...
and Damnit i ran outta popcorn again.
July 11th, 2011 at 8:35 PM
#682
...not to mention the formal
...not to mention the formal division of "ABC sports" nominally, if at all, exists. ABC got rid of their sports when they realized they could just use ESPN's non-union shop and make it "ESPN on ABC". It's all ESPN production and it's labeled as such, down to ABC using ESPN booths.
So.....there's that.
July 12th, 2011 at 7:30 AM
#683
And ESPN did do this to
And ESPN did do this to Texas, as posted by elaydin above...so that's 0 for 2.
July 12th, 2011 at 1:39 PM
#684
Herbie Moved...
Now we get further evidence as to why Herbie moved out of Columbus.....Had Tressel or the AD or anyone at OSU done their jobs and reported what they found out this would not be going on right now. Will be interesting to see in the clear light of day in about 2 months or longer what the whole story will be......
July 11th, 2011 at 7:25 PM
#685
Which court?
According to the article, ESPN filed suit in the Ohio Supreme Court. That doesn't make sense. The Ohio Supreme Court is an appellate court; usually a case would be filed in a court of common pleas and reach the supreme court only after an appeal.
Was the article in error, or does the Ohio Supreme Court have original jurisdiction in open records cases in Ohio?
July 11th, 2011 at 7:31 PM
#686
I can't imagine that the Ohio
I can't imagine that the Ohio SC would have original jurisdicton for something like this, but that is what the article said.
July 11th, 2011 at 7:42 PM
#687
The Court has original
The Court has original jurisdiction for certain special remedies that permit a person to file an action in the Supreme Court. These extraordinary remedies include writs of habeas corpus (involving the release of persons allegedly unlawfully imprisoned or committed), writs of mandamus and procedendo (ordering a public official to do a required act), writs of prohibition (ordering a lower court to cease an unlawful act), and writs of quo warranto (against a person or corporation for usurpation, misuse or abuse of public office or corporate office or franchise).
http://www.supremecourt.ohio.gov/JudSystem/default.asp
July 11th, 2011 at 7:50 PM
#688
We have a nominee
For most useful first post EVER.
Well done, sir.
July 11th, 2011 at 7:59 PM
#689
How i wish you around for the
How i wish you around for the infamous pos-bang, search it and you will know what I mean. Thanks!
July 11th, 2011 at 8:13 PM
#690
And I thank you both.
I
And I thank you both.
I have been lurking around here for the better part of 3 years now and find myself thoroughly informed and entertained on a near daily basis. Figured it was time to get in on the action (I dated my wife for 8 years before proposing so this was pretty fast actually).
July 11th, 2011 at 11:52 PM
#691
Well Then...
I'd like to buy you a beer....in 2016...when you're ready of course, no rush.
July 11th, 2011 at 8:44 PM
#692
writ of mandamus
is the justification for the filing. this will likely move quickly and not so much to the liking of buckeyes.
July 11th, 2011 at 10:50 PM
#693
Nice work RollickingCrew
You have passed the mgobarexam
July 12th, 2011 at 1:26 AM
#694
Thank you kind sir!
In
Thank you kind sir!
In reading mgoblog I find tons of useful information by educated posters such as yourself. Then I go to bucknut and find this 50 yr old guy named italianbuck running off at the mouth about Kalis, ESPN, Hoke negative recruitng, bla bla bla and his friends replying with "duuuuurr". Bucknuts will literally lower your IQ by 30 points.
July 12th, 2011 at 1:45 PM
#695
Nice username, but in the
Nice username, but in the alma mater "The Yellow and Blue" composed by Charles M. Gayley in 1878, the term is a rollicking crew. As in "Yellow the stars as they ride thro' the night, and reel in a rollicking crew." I wouldn't quibble but adding a capitalized "The" in front of names is a tradition more appreciated by that shitty school down south.
But thanks for the info. Would this case be a writ of procedendo?
July 12th, 2011 at 3:13 PM
#696
Are you aware that our seal
Are you aware that our seal had "The" added in 1958 (per Bentley Historical Library)? We don't tend to make a big deal about emphasizing it, though.
July 11th, 2011 at 7:58 PM
#697
Note the following in the
Note the following in the papers allegations served to OSU:
May 27, 2011, Ohio State responded to the records request by stating that it
would not release e-mails from Tressel, Doug Archie, or Gene Smith relating to Sarniak. Ohio State claimed that it was prohibited from doing so by the Federal Educational Rights and Privacy Act ("FERPA"). (See Exhibit B to Gubar Affidavit)
There is no way that FERPA serves to protect Arche or Smith and Sarniak. They didn't deny that the e-mails existed, they just said they couldn't legally produce them. Good luck convincing a bunch of judges that Arche and Smith are students....
July 11th, 2011 at 7:58 PM
#698
From my experience...
From my experience as an attorney in Ohio, OSU looks to be in a bad position with this suit. I'm familiar with Ohio's public records laws and it seems to me that unless FERPA applies, they will have to release all the records requested in accordance with state law.
This could be the straw that breaks the camel's back. I've heard from multiple people i trust, that more than just Tressel knew about the violations before this all came down.
Popcorn.
July 11th, 2011 at 8:10 PM
#699
What defense are the bucknuts
What defense are the bucknuts claiming under FERPA, that students were involved so this is all confidential information?
July 11th, 2011 at 8:28 PM
#700
So...
Correct me if I'm wrong, but OSU's argument is that the contents of the e-mails are educational records for purposes of FERPA. But if so, they couldn't have shared the information in them with Ted Sarniak, because he is not an authorized party under FERPA.
So, if they shared it with Sarniak, either (a) it isn't "educational records," and is therefore not covered by FERPA, or (b) they violated FERPA by sending the e-mail to Sarniak.
Am I reading this right?
July 11th, 2011 at 8:45 PM
#701
Maybe.. The OSU argument is
Maybe.. The OSU argument is that the emails are, for FERPA purposes, what are considered "student records.". There's varying jurisprudence and precedent on this, some saying that any paper with a student's name on it originating at or received by a school, with almost no exceptions (minus statutory carve outs) are "records" while other cases have ruled that the term "educational record" is much more narrowly construed, ie not every napkin or scrap/email.
The way I see it, Tressel could email with Sarniak and not have it violate FERPA because it's just a third party talking to Tressel about a player. The discussion in the email makes it a protected record, because it's about TP. As he was TP's contact person for recruiting, there might be a level of privilege so long as Tressel isn't sitting there blabbing TP's grades or protected info. I could be reading this too broadly, and maybe any talking about a student at all is a FERPA violation, but I somehow doubt it.
Also, I just don't know if Sarniak was a privileged person on TP's FERPA rights, but I'd also doubt that. What could make the conversations bad is a continued back and forth-by talking at length about TP, maybe Tressel is going beyond regular convo and divulging protected info. I don't know.
July 11th, 2011 at 8:58 PM
#702
Possibly
But by my understanding of FERPA, ESPN and Ted Sarniak have the same level of privilege to student records: none. So if they could legally send the information in those e-mails to Sarniak, they can legally send that exact same information to ESPN. And if they couldn't legally send the information to Sarniak, but they did ANYWAY, then they're up an entirely different creek.
I'd encourage you (or anyone) to read FERPA and tell me if my reading is reasonable: http://www.law.cornell.edu/uscode/20/1232g.html (starting at major subsection (b))
(P.S. How nerdy is it that during my break from bar studying I am analyzing statutes?)
July 11th, 2011 at 9:18 PM
#703
I agree that Sarniak was
I agree that Sarniak was probably not formally listed on TP's educational record as being able to view his records (an option in FERPA). He most likely was not able to solicit info re: TP from the university. However, I guess what I was saying was that if Sarniak initiated an email exchange with Tressel about TP, I'm kinda confident they could discuss him (Tressel probably couldn't reference other emails safely). I guess my problem here is I don't know who initiated the emails and what the initial content was. Also, since TP was 18, he could authorize Tressel to talk to Sarniak about him (seeing as Sarniak was TP's contact during recruiting, it's possible this happened)...
But, if Sarniak wasn't authorized to receive TP's info, and Tressel gave out this info, then it is absolutely w FERPA-fail. If it's not protected by FERPA, then their argument for withholding it is basically irrelevant. I was just filling in some hypotheticals above.
July 11th, 2011 at 11:33 PM
#704
Education records
I am no expert on FERPA, but I just scanned the statute and noticed that the statute uses the phrase "education records," but does not contain a definition for "education records." I therefore turned to the implementing regulation, which is at 34 CFR Part 99, and found definitions for various FERPA terms there (at 34 CFR 99.3).
The definition of "education records" is pretty broad: "The term means those records
that are: (1) Directly related to a student; and (2) Maintained by an
educational agency or institution or by a party acting for the agency or institution." The definition also explicitly excludes certain types of recods, but none of the exceptions appear to cover the Sarniak e-mails.
I am not acquainted with the Ohio case law, and exceptions to public disclosure acts are usually interpreted narrowly, but it looks like OSU actually has a pretty decent argument under FERPA.
July 11th, 2011 at 11:59 PM
#705
If you read through the
If you read through the affidavit, ESPN's lawyer cites several cases where courts have held that emails on a server don't fit the criteria for "maintained education records" (among at least a dozen or two cases that they cite.) In fact, some of the cases involve the media trying to get ahold of emails sitting on a university server that deal with NCAA violations.
July 12th, 2011 at 12:09 AM
#706
The thing to remember is that
The thing to remember is that ESPN likely has top lawyers versed in this law saying that the suit has a >50% chance of winning. Who knows what the suit will net or what will be revealed if it's successful, but I'm sure ESPN is confident of victory on legal advice.
July 11th, 2011 at 8:01 PM
#707
Until this year
I was unaware that offseasons could be fun
July 11th, 2011 at 8:06 PM
#708
Can anyone see how they get
Can anyone see how they get out of this particular allegation? IMHO there is no legal defense for stupidly breaking the law out of ignorence or laziness:
13. On April 15, 2011, Tom Farrey, a correspondent for ESPN, made a public records request to Ohio State seeking "[a]ll documents and emails, Ietters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since 1/1/2010 related to an investigation of Jim Tressel." (See Exhibit A to Affidavit of Tom Farrey). Ohio State refused to provide the requested records. The University responded, "[w]e will not release anything on the pending investigation." (See Exhibit B to Farrey Affidavit). The University cited no legal authority to support this denial.
14. R.C. §149.43(B)(3) requires that "[i]f a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall providethe requester with an explanation, including legal authority, setting forth why the request was denied."
15. Ohio State violated R.C. §149.43(B)(3) when it failed to provide an explanation or legal authority for its refusal to provide the public records requested.
July 11th, 2011 at 8:13 PM
#709
posted from iPhone
Well if they were only asking for the records given to the NCAA why is this really a big deal? Even if they are forced to release them, the NCAA already has these so will this really be the ground breaking piece that shows others were aware? I'm excited but skeptical
July 11th, 2011 at 8:26 PM
#710
it would atleast show to the
it would atleast show to the public what the NCAA knows. would hold the NCAA's feet to the fire a bit so they have to come down on OSU properly and not brush it aside.
July 11th, 2011 at 9:55 PM
#711
yes, also ESPN and others
Yes, also ESPN and others could use that information to to do independent investigations. They would probably uncover some info that the NCAA didn't.
July 11th, 2011 at 8:28 PM
#712
What I am hoping for is a
What I am hoping for is a real conspiracy to sweep this under the rug. The NCAA only gets volunteered info. If FOIA gets dragged in I think there is a greater chance the real documents see the light of day. Either way Ohio loses because more people hear about how poorly they handle legal problems. Seriously, everyone knows that you have to give a reason to deny public records requests. They didn't even make an attempt in the above example.
July 11th, 2011 at 8:30 PM
#713
I think federal prison is
I think federal prison is worse than looking for a new job/bowl game purgatory. Thats just my view but i would turn in to a whistleblower if things were this bad at Michigan. I hope they realize that integrity > wins.
July 12th, 2011 at 11:32 AM
#714
Integrity > Wins
At TSIO? Obviously not.
Integrity > Jail might win the day and provide a bit of clarity down there, however.
July 11th, 2011 at 8:32 PM
#715
Simple
"Why wouldn't osu just omit any potentially damaging emails?"
Contempt is a hell of a motivator. No one at OSU is going to risk going to jail over this, especially the lower-level employees who would probably produce the stuff.
That's why I think it's possible that OSU withheld some of this stuff from the NCAA. The NCAA has no subpoena power, and has no contempt power. There's much less danger in omitting stuff sent to them. No one is gonna f*ck with the Ohio Supreme Court.
July 11th, 2011 at 8:58 PM
#716
I asked before, but why
I asked before, but why wouldn't they have withheld the Cicero emails?
If you're going to withold stuff from the NCAA, wouldn't the emails that kicked off the whole fiasco be a good start?
And what's with people negging just to keep from having a conversation?
July 11th, 2011 at 9:07 PM
#717
I think
It was because the Cicero e-mails leaked from Cicero's end as a result of the federal investigation. Once people had a copy of the e-mails from the sender's end, it was impossible for Tressel to say, "what? He never sent me an e-mail." It would have looked ridiculous and disengenuous (because it would have been both).
As for the negging, there is an old saying about nature of haters and their propensity to act in conformity therewith.
July 11th, 2011 at 9:20 PM
#718
The Cicero emails weren't
The Cicero emails weren't discovered due to a Federal investigation. They were discovered "while looking into an unreleated matter" (or something like that... likely another FOIA request).
Also, OSU has released other Tressel to Sarniak emails. I think the issue here is how broad an FOIA request can be and how much feedback OSU is supposed to give a person when making an overly broad FOIA request.
From the Ohio public records act:
Moreover, R.C. §149.43(B)(2) requires that "[i]f a requester makes an ambiguous or
overly broad request or has difficulty in making a request for copies or inspection of publicrecords under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties."
If you look through most of the FOIA request, when they're denied, OSU gives feedback as to why. In the case of ESPN, this wasn't done (whether on error or a deliberate FU to ESPN).
July 11th, 2011 at 8:58 PM
#719
I think OSU may have a good FERPA defense.
Somebody can correct me if I am wrong, but essentially this was a situation in which OSU, Pryor and the other involved parties voluntarily provided information to, and otherwise cooperated with, the NCAA in an investigation of the existing NoA.
In doing so, they did not hide behind legalisms; the NCAA does not have subpoena power. The NCAA relies on the cooperation of member institutions and their staffs and student athletes.
It would make an awful lot of common sense to me, if the NCAA willingly conceded that materials disclosed under those conditions would be subject to FERPA, and that none of the privileges owed to a student-athlete under FERPA would be waived.
The NCAA cannot function without cooperation. They are not prosecutors, nor civil plaintiffs. They can't force depositions. They can't subpoena records. They can't compel production of documents or other things. All they can do is ask. And hope that the parties respond. (Granted, the imputation of a lack of cooperation would be bad for any responding party, but that's a separate matter.)
At the same time, the NCAA is not a state licensing bureau. It isn't the Judicial Tenure Commission, or the Board of Medicine. Its decisions are public, but they involve parties who are expected to cooperate if the system is to function effectively. But if the NCAA were the Jucidial Tenure Commission or the Board of Medicine, there would be many layers of privilege attaching to persons who appear for purposes of supplying documents or testimony. ESPN (or the New York Times or NPR) can't get those records. People would never cooperate in important civil investigations if they knew they'd be outed in public.
There are of course limits. Courtroom testimony is public; we all have an interest in the conduct of trials. Lots of other matters of official public interest are, too. That's why we have Public Meetings Acts.
Now I am not going to brief this issue for either side. And I'm not going to predict how it will be resolved. But on the basic philosophical issue, I find the OSU side to be the really compelling one.
And it is funny how ESPN would so jealously guard a confidential source of its own, in order to do an expose' of some claimed scandal. But the network apparently won't allow OSU or the NCAA to maintain even the kind of confidentiality that is specificially set forth under the United States Code.
July 11th, 2011 at 9:03 PM
#720
My response
This isn't about the NCAA investigation. This is about communications between tOSU and Pryor's "mentor," who is wholly unrelated to the school or the NCAA. The NCAA's investigations stuff will no doubt remain confidential, both for legal and prudential reasons.
As for whether there is a valid FERPA defense to the e-mails to Sarniak, I'd encourage you to read my posts above. Ohio State doesn't have a principled reason (or a legal one) to share information with one random private citizen and not with another random private entity.
July 11th, 2011 at 9:58 PM
#721
I did read your posts above.
They were very good; as they usually are.
I'm not going to fight this issue with you. I'm not in a good position to know it as well as I'd like to, since this is a peculiarly Ohio problem under their law, in the first instance, and a FERPA problem in the second instance.
I thought it was a very good explanation for the Board in the Comments above, as to why the Ohio Supreme Court would have original jurisdiction; I didn't see any mention of FERPA making it a federal question and the possibility of removal jurisdiction, but I suppose there is that too. News organizations usually attach a lot of urgency to these kinds of cases, and courts frequently honor those requests. I see this fight getting serious very quickly.
I think that this could be a wonderful case to learn from. I'm looking forward to others fighting this one out. Should be interesting.
July 11th, 2011 at 10:25 PM
#722
OOH... OOH... I know that one!!!
I didn't see any mention of FERPA making it a federal question and the possibility of removal jurisdiction
The Well-Pleaded Complaint Rule (L&N Railroad v. Mottley): a federal defense is not sufficient to confer federal question jurisdiction. The federal issue must appear on the face of a well-pleaded complaint to allow removal. Bring on the bar.
As for why the Supreme Court would have original jurisdiction in a simple document request case... I have no flippin clue. It's Ohio.
July 12th, 2011 at 12:20 AM
#724
Yes, but
in many other states you can't bring a FOIA case directly to the state's Supreme Court. That's because usually the statute stipulates where the case must be brought (in a lower court), and the usual rule allowing you to bring a writ of mandamus to the highest court can be ignored.
This basically seems like a peculiarity of Ohio's Open Records Act.
July 12th, 2011 at 9:58 AM
#725
Ok, how many of us are
Ok, how many of us are lawyers? Show of hands, here. My God...it's worse than I thought...
July 11th, 2011 at 11:33 PM
#726
The NCAA doesn't factor in at all here
It would make an awful lot of common sense to me, if the NCAA willingly conceded that materials disclosed under those conditions would be subject to FERPA, and that none of the privileges owed to a student-athlete under FERPA would be waived.
The NCAA did not get a report with blacked out names. They got the full report. After that, it's up to the university to make their response public or not. Public institutions subject to open records laws do not get the option to withhold such responses from the public and thus release their responses with names blacked out in accordance with FERPA.
With regard to ESPN, there is nothing unethical about what they are doing so long as they attempt to report the truth without engaging in unethical behavior to learn it. If a source for a story is credible and is reasonably concerned about facing backlash or retribution from others if their name becomes known, it is reasonable to protect their anonymity. Nor is it unethical to file suit against a public institution if they have reason to believe that the institution is illegally withholding information.
July 11th, 2011 at 10:17 PM
#727
And to think,
I keep thinking this off-season can't get any better
how naive of me
July 11th, 2011 at 10:17 PM
#728
Finally
This is what I have tried to say OSU fears most.
July 11th, 2011 at 10:46 PM
#729
Happy Easter!!
jt
2 times tonight!
July 11th, 2011 at 10:56 PM
#730
truly
being in ohio and seeing all this come down on their heads, WOW.
the fan base is shrinking, buckeye gear is on sale and ppl aren't buying. It's down to 10% of the fans sporting gear.
i'm out of words.
July 12th, 2011 at 12:23 AM
#731
I'm delighted
that, despite OSU's attempts at secrecy, this particular legal battle will be fought in public.
July 12th, 2011 at 12:25 AM
#732
I should have posted this at a more relevant time...
but here it is anyway
And it will be used again. Im sure of it.
July 12th, 2011 at 1:42 AM
#733
public records requests
will vary depending on the state they are issued in. I'm only familiar with CA, where you have to go superior - appellate - then supreme, but OHIO is obviously different. Some interesting things:
1) In CA, if you can find a single document which wasn't produced per your request, you are eligible for attorney fees. That means big dollars if you go to the highest court.
2) Bodies subject to public records laws (such as Ohio), tend to restrict access instead of encourage disclosure. This is contrary to the entire premise behind Public Records laws, but you can only enforce it by going to court.
3) My personal bet, as a CA attorney, is they are fucked. ESPN will get the information they want with minimal retractions and Ohio will pay a settlement. They'll be all kinds of useless arguments about preemption and other stuff, but in the end the public right, especially when the student isn't being protected, outweighs the non-disclosure.
4) I'm kind of buzzed, sorry for any typos.
Go Blue!
July 12th, 2011 at 6:29 AM
#734
I would think so. Unless it
I would think so. Unless it happens before OSU goes before the COI, and the NCAA pushes back the August 12th date. If it happens before, the NCAA could just send them a new updated notice of allegations and force them to responded to that new updated notice.
It'd be quite funny to see an ESPN report come out on August 13th claiming more wrongdoing at Ohio right after they were put on probation. That would pretty much screw them for the next 5-10 years, if not longer.
July 12th, 2011 at 7:09 AM
#735
Could be a good thing if they
Could be a good thing if they win the lawsuit. It might force the NCAA compliance department to do its job.
July 12th, 2011 at 10:43 AM
#736
This is brilliant stuff
This is why Mgoblog is so great! I was really interested in this story, and I didn't have to go anywhere else to get the ins and outs of the legality of such a law suit. Brilliant stuff, proud to br a part of this community.
July 12th, 2011 at 4:42 PM
#737
It's really true, isn't it?
I can't recall any better recent thread. There's easily 25 or 30 great posts in this thread. I think this thread could pass the essay portion of Bar Exam by itself. Props to the OP for stewarding the conversation, and the other lawyers (and the law students, and others!) for supplying the tutorials on civil procedure and conflicts of law. I haven't yet seen an article on the web about this topic that is pithier than this thread. A reporter who wanted to dig into this story would be smart to start with this thread to get started.
July 12th, 2011 at 12:23 PM
#738
One Lie on top of another on top of another
With each new Lie coming out of OSU and Gene Smth this long hot summer is flying by...THANKS O-LIE-O $tate...thank you
July 12th, 2011 at 1:49 PM
#739
O-LIE-O $tate
Now that's a new one...at least for me.
July 13th, 2011 at 8:32 AM
#740
