ESPN v. OSU Update -- OSU calls the feds?
I didn't see it coming, but the U.S. Department of Justice (DOJ) just joined the ESPN v. OSU case a couple days ago.
For those unfamiliar with the case, ESPN is trying to use a FOIA-type law to get potentially juicy emails from OSU. ESPN thinks those emails will contain information about NCAA violations. The two are duking it out in the Ohio Supreme Court.
Welcome the feds to the fight. See the documents announcing the DOJ's entrance here. My first reaction was shock. Now, however, I have a clue about what's going on.
OSU has been arguing that FERPA, a federal student privacy law, means that it can't share the emails with ESPN. ESPN says that FERPA doesn't cover these emails, and even if it did, OSU is not required to follow it because following FERPA is optional for state schools (all the statute does is condition federal aid on your school's compliance with the law).
Here's my guess at what happened next: OSU calls the federal agency responsible for enforcing the laws and says "hey DOJ, ESPN is saying your statute isn't worth wiping oneself with." The DOJ then comes out swinging, ready to defend the federal law.
While the DOJ will presumably be filing a "friend of the court" brief that he judges don't have to factor into their decision, I guarantee they will read it closely. Another bad thing: the DOJ's got a ringer. She clerked on the Supreme Court, she's ultra-smart, and basically she does this for a living. She regularly defends federal laws from these types of challenges:
http://www.law.georgetown.edu/faculty/facinfo/tab_faculty.cfm?Status=Fa…
This is really starting to get interesting now.
November 10th, 2011 at 1:36 PM ^
So my understanding then is this: The DoJ will tell the Ohio SC "don't you dare rule in favor of our laws being optional" with the argument that if they do it will totally undermine the whole idea of "do this or no money for you." ESPN will argue that ruling in their favor based on the law-is-optional argument is no precedent at all because it changes nothing and that the Ohio SC shouldn't be skeered of doing so. Yes?
November 10th, 2011 at 1:36 PM ^
If there's one thing that THE Ohio State University does even better than NCAA violations, it's stonewalling NCAA investigations. I really hope the entire truth is uncovered someday soon.
November 10th, 2011 at 1:45 PM ^
Doesn't the DOJ have anything better to do than get involved in this bullshit?
November 10th, 2011 at 1:57 PM ^
The viability of using federal funding as a tool to enforce "optional" laws is right up there on the list of important issues for the feds. I'm not going to get to into it (and I really can't given board rules), but think of all the laws currently written that way, most famously the drinking age/legal driving limit laws. The DOJ has a very vested interest in making sure state courts don't start negating this method of writing laws by ruling them optional to follow under state laws.
November 10th, 2011 at 2:02 PM ^
I don't see the state court here ruling the laws optional, rather they interpreting in what situations these laws are to be used. This is what courts are supposed to do.
November 10th, 2011 at 2:17 PM ^
ESPN's secondary argument (from what I remember, someone feel free to correct if it's not) reads like: "the language of the law doesn't ban OSU from releasing information, it only threatens OSU's federal research/financial aid funding if they don't follow the law. Therefore, they can release the information without doing anything the federal law doesn't ban."
The federal government obviously doesn't want that to happen, especially given the other ramifications I tried to allude to above.
November 11th, 2011 at 11:06 AM ^
since the first one is full
November 10th, 2011 at 2:05 PM ^
The Department of Ed doesn't have any other carrots (or sticks) to use at this point to get schools to follow federal education rules. The threat of pulled funding is the only thing that can keep schools in line.
November 10th, 2011 at 2:16 PM ^
BOOM
/publicpolicy'd
November 10th, 2011 at 2:02 PM ^
The DOJ doesn't want the laws they use weakened. Period. They're not going to let some sort of flimsy precedent on FERPA be established that they then have to tackle when they're actually actively interested in preserving some sort of federal documentation that's important.
November 10th, 2011 at 2:13 PM ^
It's a damn good argument on the part of OSU. I'd have absolutely no problem making that suggestion to them if I were giving them legal advice.
I realize that on this Board, OSU is a highly unsympathetic institution. Is ESPN any less unsympathetic?
November 10th, 2011 at 2:44 PM ^
Not unsympathetic but in this case I happen to be rooting for their side of the arguement to prevail. Sort of like when I root for a team I normally dislike in situations where their victory helps further my team's overall objectives.
November 10th, 2011 at 1:54 PM ^
How many crimes does it take to get to the center of an OSU scandal? The world may never know...
November 10th, 2011 at 1:54 PM ^
FERPA only applies to grade-like things, right? So, what could be in those emails that relates to grades? Players failing classes? So, shouldn't the court rule that the documents should be turned over with grades redacted?
November 10th, 2011 at 1:57 PM ^
It covers the student's full education record (grades, financials, etc.) as well as personally identifiable information about the student that they haven't provided the institution explicit authorization to release.
November 10th, 2011 at 3:04 PM ^
Couldn't OSU still redact that information though and hand it over to ESPN?
November 10th, 2011 at 3:09 PM ^
They'd have to redact any documents so thoroughly that the student's identity wouldn't be able to be discerned from them, which means they would be OSU letterhead and then black boxes.
November 10th, 2011 at 3:14 PM ^
Their claim is that they cannot, because the student would still be identifiable even if his name was redacted.
That's a plausible argument--it wouldn't be hard to guess who was being redacted out of Sarniak's e-mails or phone calls.
November 10th, 2011 at 5:12 PM ^
easy: they just release the documents NCAA Football for 360 style. Its not Terrelle Pryor from Janette, PA its Student Athlete #2 from Monroeville, PA. Problem solved.
/EASports'd
November 10th, 2011 at 1:54 PM ^
If the DOJ gets involved and directs the Ohio SC, then the full emails will never see the light of day and OSU will "win." In other words, the OSU coverup will continue and they will walk away laughing at the NCAA.
November 10th, 2011 at 1:55 PM ^
No...everything is just fine everywhere else in the Big 10. Fortunately there are no bigger or more pressing issues for the Department of Justice to get involved in the rest of the conference schools right now.
November 10th, 2011 at 2:06 PM ^
I know the Department of Education is getting involved a little North East of Columbus if that's what you're referencing...
November 10th, 2011 at 2:01 PM ^
Thanks for the summary.
I'm going to assume most of the emails were sent through the OSU network. In the event they were sent from outside sources (like a yahoo address to an OSU address or a OSU address to a yahoo address), this could get very interesting.
November 10th, 2011 at 2:04 PM ^
so what are the chances at this point that espn wins the battle
November 10th, 2011 at 2:20 PM ^
I took a media law class when I was in law school. Basically, provided that ESPN complied with the request, they will get something. Granted, it may not be what they want, and OSU can redact a lot of the information, but FOIA requests generally end up getting granted.
November 10th, 2011 at 3:06 PM ^
Thanks BlueNote. You're my one-stop shopping source for all things ESPN v. OSU litigation related. It'll be interesting to see how the court rules with this new interpleader involved. I'm sure they will give the amicus brief credence but state courts do not like the issue of federal preemption being thrown in their face. If anything, they look to find a way around the issue so they can issue a ruling on the merits. I suspect that may be at play here too. Maybe.
November 10th, 2011 at 3:16 PM ^
...since the DOJ's interest seems only to involve ESPN's secondary argument.
It seems to me the suit stands or falls on the decision about whether FERPA applies to these records.
November 10th, 2011 at 3:10 PM ^
The Fed's aren't actually becoming a party to the case. The Dep't just wants to be able to file a "friend of the court" or Amicus brief. Theoretically, it could be to side with OSU, it could be to side with ESPN (doubtful) or it could be to let the court know its preferred interpretation of the law (e.g., we have no opinion on whether FERPA covers these particular records, but we disagree with the argument that a school's potential loss of federal funding does not preclude it from complying with a FOIA request). My guess is it's the third option, and the brief will deal with technical issues without promoting a particular ruling for or against either party.
November 10th, 2011 at 3:42 PM ^
[Warning: only read this is you are a law dork]
I'm going to wait for the feds to educate me on this one, but there might be an interesting constitutional issue here. Other funding-based federal laws are designed that way to keep them constitutional. There are some areas (like drinking age) where the federal government knows that it doesn't have the constitutional authority to preempt states. So it simply says "hey, we're not forcing the states to do this, we're just offering them some cash in case they follow our law."
There are a lot of Supreme Court cases on this that I haven't read, but my general understanding is that, if it is so much money that it's considered "coercion" of the states, then the federal law is unconstitutional.
I'd guess that's why FERPA is based on funding rather than just a "states, you must do this" law. Privacy laws are generally state laws.
I expect OSU to argue that the money tied to FERPA is so immense that it couldn't possibly turn over the documents, thus violating FERPA and losing the funding. That sounds like "coercion" by the federal government, which would mean . . . FERPA is unconstitutional? If this is the case, then OSU and the feds may actually be at odds on some issues.
November 10th, 2011 at 3:57 PM ^
A school has to sign a PPA in order to receive federal aid in which the institution agrees to abide by all relevant federal guidelines. I don't know whether a school has the option to cut that off mid aid year. I'm assuming that OSU has already received funds from the current year, so I don't know if they even have the legal option to break that agreement to honor a FOIA.
November 10th, 2011 at 4:33 PM ^
and it's an interesting wrinkle.
ESPN would probably say that the PPA doesn't matter for the analysis: You shouldn't be able to "contract out of" FOIA. If that were the case, then Tressel could sign a contract to pay OSU $1 million dollars in exchange for OSU not turning over emails in response to FOIA requests. When the FOIA requests come, OSU could say "sorry, we have a contractual obligation not to disclose these."
Just playing devil's advocate here. I am actually a big fan of a strong FERPA. I also hate OSU, so I'm torn on this one.
November 10th, 2011 at 4:47 PM ^
Unless it is shown that the docs ESPN wants can't be reasonably construed as educational records. I'm an advocate of strong FERPA too.
I'm sure that a contract between two nongovernmental agencies wouldn't overrule a FOIA request, but it'd be interesting to see if the federal government would have the same view about an institution that has made an agreement with the federal government.
And there are potential criminal charges associated with violation of some of the PPA items (not FERPA, though), so I know it's taken pretty seriously.
November 11th, 2011 at 12:34 AM ^
I can see the need for FERPA in general but I do feel like athletic departments cover a lot of crap up under the lame excuse of FERPA. It's one thing for a paper to release the grades and GPA of a bunch of student-athletes but it's completely different when asking a school about NCAA violations committed by someone. Or asking Alabama about the medical status of some of the players that Saban cut.
November 11th, 2011 at 9:18 AM ^
But in 99.9% of cases a student's education record is not anyone's business but his own. Protecting the rights of every student outweighs the potential for abuse by ADs in my opinion.
I don't know what student athletes sign regarding releasing their info to the NCAA, though. Schools have to get some kind of release from the athlete or else they wouldn't be able to report them as ineligible for grades, etc.
As long as schools have the ability to report it to the NCAA I don't see the need for private information to become public.
November 11th, 2011 at 9:23 AM ^
I thought the NCAA already had the documents ESPN is trying to get. Am I wrong about that?
November 11th, 2011 at 10:22 AM ^
I'm not even sure what ESPN is trying to get. I'm just saying if they are legitimately considered part of the educational record, OSU has a good argument in my opinion.
November 11th, 2011 at 10:52 AM ^
But that's my point. Why are they legitimately part of the educational record? How is taking money from outside boosters part of a student's educational record? It has nothing to do with education. FERPA should definitely keep educational matters private but this isn't educational.
Just because someone is a student doesn't mean that everything he does is education-related.
November 11th, 2011 at 6:31 PM ^
FERPA has always been interpreted to cover a much broader category of information than just a student's coursework. It covers financial records, disciplinary records (unless criminal), records of extracurricular activities, etc. A good rule of thumb is that if the activity has official school sanction it is probably going to be considered to be part of the educational record and is probably going to be treated as covered by FERPA by any institiution.
November 11th, 2011 at 10:56 AM ^
Are e-mails between Sarniak and the coaching staff part of Pryor's educational record? Does it depend on the contents (an e-mail regarding his work in the classroom might have a different status than an e-mail about improper benefits)?
Ultimately what's being determined--not legally, but practically-- is whether there will be any outisde check on the NCAA's enforcement work. It's all well and good to say that as long as the records are turned over to the NCAA that's enough...if you trust the NCAA to always act appropriately and evenhandedly on the information they receive.
November 11th, 2011 at 12:11 PM ^
We don't know what the NCAA asked OSU for. And we don't know what the NCAA was given access to. So we don't know what the NCAA has.
In theory, the NCAA should have had access to most of the stuff. FERPA doesn't stop the NCAA from viewing emails because student-athletes sign a FERPA waiver for the NCAA.
However, OSU is also claiming attorney-client privilege on some documents that ESPN wants. It's at least conceivable that OSU withheld those documents from the NCAA based on the attorney-client privilege. Now ESPN will probably challenge whether those documents should actually be considered "privileged" under the law. If ESPN wins on that point, it may get docs that the NCAA doesn't have.
November 10th, 2011 at 3:48 PM ^
Under FERPA law the parents of the student cannot be told any information about the student without documentation that the student will allow it. Without this documentation the institution can only tell the parent that the student is enrrolled which is public knowledge and can be found online without contacting the school. This interpretation of the FERPA law comes from my previous experience working within am university academic office.
November 10th, 2011 at 3:50 PM ^
Students have the right to block even enrollment data from release. If a student dosen't want her parents (or anyone else) to know whether she is enrolled, the school is not permitted to release the information.
November 10th, 2011 at 8:51 PM ^
but those emails clearly have something awesome in them. tOSU would rather go full on legal with ESPN and the DOJ than hand over some emails. If ESPN manages to get their hands on them I'm sure ohio state is going to find themselves in the middle of another NCAA investigation. go espn go
November 10th, 2011 at 11:45 PM ^
On a relevant but useless note: I feel smarter reading threads like this on MGoBlog.