A little disappointing but not really surprising. Let's hope the records Ohio is forced to release have something juicy.
Edit: Link to the court opinion.
A little disappointing but not really surprising. Let's hope the records Ohio is forced to release have something juicy.
Edit: Link to the court opinion.
I think we can take some satisfaction in the following conclusions of the Ohio Supreme Court (from the OP's link).
In today’s 7-0 per curiam opinion, the court also found that OSU officials had committed “per se” violations of the Public Records Act by failing to explain how ESPN could modify some of its record requests after the university had rejected them as “overbroad,” and by erroneously stating that the university was not required to disclose records related to an ongoing NCAA investigation.
The question is what info and if ESPN ammends their requests, they could have to release even more info.
They need to find a way to force Ohio to release the "Sarniak" emails. I think that would be the clincher on any major violations.
So were Tressell's emails to to Sarniak, since they contained information about Pryor, "education records" under the court's reasoning? If so, didn't OSU/Tressell violate FERPA by transmitting the "education records" to Sarniak?
According to the Court's opinion, you need a parents permission to share education records with a third party.
The e-mail, ONCE SENT, became an educational record.
That would imply a couple things that I'm not sure I would assume:
1. There is damaging evidence in those emails
2. The NCAA investigators either never looked at those emails, didn't care, or already weighed that information in determining the penalty.
While ESPN may not be able to get their hands on the emails, my bet is that the FERPA protection doesn't apply to the NCAA investigators. I would assume that OSU and the student athletes must provide the NCAA access to that information to be able to compete. So, if the NCAA has access to those emails, and we assume there is damning evidence in them, then we must conclude that either the NCAA used that information in determining the penalty or OSU never shared those emails with the NCAA.
The only way it results in further penalties is in the case that OSU didn't share the emails with the NCAA, which would be rather hard to believe.
It could result in a juicy story, though, and continuing shadenfreude at Buckeyes' expense.
The NCAA would seek everything it wanted, and if OSU didn't supply it all, there would be big and immediate problems with the NCAA. Any indicia of a failure to cooperate on the part of OSU would have been big problems for their sanctions case last year.
I strongly presume that the NCAA already saw everything it wanted to see; most likely everything that ESPN wants via FOIA, but hasn't gotten.
So I don't think this is a "sanctions" matter at all.
I think it is mostly ESPN wanting to embarass OSU, wanting to make a legal statement about FOIAs in Ohio (and elsewhere) and wanting to hammer the general use of FERPA to shield college football stories.
1. ESPN has reason to believe that there is damning information that the NCAA saw and chose not to act on, in which case it's primarily the NCAA and not OSU that stands to be embarrassed by disclosure.
2. ESPN has reason to believe that your strong presumption is incorrect and OSU was able to conceal damning evidence from the NCAA, and is attempting to use the courts to force disclosure.
The NCAA typically asks for "all documents pertaining to X" and they have no way of knowing whether there are relevant documents in addition to those they see unless there's reference to such a document in what's been made available (in which case OSU would no doubt say "oops, our bad, we found a few more e-mails. here you go.).
As an example, remember when someone was prepared to present evidence on tatgate to the NCAA but left the meeting when the NCAA refused to guarantee his confidentiality? What if he then went to ESPN and said "my life's in danger if this gets out so I can't give you permission to use it directly, but here's what's out there if you look for it"?
1. The NCAA saw some remarkably incriminating documents and chose not to act on them or even to report on their existence.
2. Ohio State would, in the course of the investigation, withhold certain things from the NCAA, in the hopes that no one would find out (risking enormous additional sanctions); yet they'd turn around and give those same things up to ESPN in response to a FOIA request.
Your unnamed reference was, I gather, to Chris Cicero. Who is not a current NCAA student athlete, is not an employee of an an NCAA member institution, and is not an attorney for a student-athlete or a member institution. Cicero had not motivation to give up anything; and he probably knew a long time ago that he had probably said to much (or not enough to the right people) and/or who probably felt stiffed by OSU, and was in a lot of trouble (he's under a recommendation for a 6-month license suspension) for divulging too much client information in an improper way. Yeah; he's not a great source for a document request.
As should have been clear from the header I'm outlining some additional possibilities (and not necessarily even particularly likely ones). It is you who are presuming that (1) it is absolutely impossible for the NCAA to fail to act on incriminating evidence and (2) it is absolutely impossible for OSU to withhold documents from the NCAA and then turn them over to ESPN in response to a court order (I agree that they wouldn't do so voluntarily, and it's clear that they didn't or it would never have gone to court in the first place).
These are things you cannot know for certain, and #2 doesn't even seem particularly plausible. To fail to respond to a court order would put this in a whole different realm, legally and practically, than to fail to respond to a toothless request from an organization without subpoena powers.
the unnamed reference was the "former friend" of Terrelle Pryor who broke the story on Outside the Lines that Dennis Talbott was allegedly paying TP tens of thousands of dollars for autographed memorabilia. He's still unnamed at the moment and if memory serves, he was going to talk to the NCAA but they couldn't assure him of staying anonymous, so he didn't. But I couldn't find the story and I'm tiring of looking up old osu silliness and waiting for us to keep beating them on field.
He wasn't officially named; I think a likely name was being tossed around on Buckeye message boards but I can't remember who it allegedly was and I don't have time now to search.
It's been a while since the story broke, but IIRC, there was speculation that Tressel contacted Sarniak regarding Pryor's involvement in TatGate. There was also speculation that there are internal emails between Tressel and other Ohio officials regarding Sarniak and his involvement in the situation. I think Sarniak's involvement would somehow indicate that Tressel was not the only Ohio official to know about the situation, which should change the LOIC status of the school.
As far as the NCAA goes, I would not put it past Ohio to hide documents from them. If Ohio did present them with all the info, you are assuming the NCAA has no vested interest in helping Ohio cover up the worst of the offenses. I would not be as willing to believe this before the Cam Newton shenanigans at Auburn a few years ago.
It wasn't speculation. Tressel admitted he forwarded emails to Sarniak. I fail to see how Tressel forwarding emails to Pryor's guardian who lives in PA would have any bearing on whether anyone else at OSU knew about tatgate.
First, I don't think Sarniak was ever Pryor's legal guardian, but more of a "mentor". Also, I think ESPN wanted to use Sarniak's name as a simple way to search through Ohio's vast email system to pull any messages involving the TatGate topic. Sarniak is also being held up by Ohio's FERPA defense because anything involving him would obviously involve Pryor, so redacting the student's name would accomplish nothing. I assume that Sarniak is more involved than anyone is letting on, so I'd be curious what other communications between him and the Athletic Department are floating around.
At the time that ESPN filed these requests for information, they were digging for any and all info they could use in investigative pieces about OSU. Ohio State wanted to only give what they were legally compelled to give, so as to give ESPN less ammunition to use against it.
It doesn't even matter whether or not the emails would have resulted in major violations; ESPN writing more stories about OSU was reason enough for OSU to not want to accede.
I'm not sure why you would assume that the FERPA protection does not apply to NCAA investigators. FERPA is federal law. The NCAA is neither a government agency nor a law enforcement agency. The NCAA can request and punish unfulfilled requests all they want, but the university's higher priority should be to comply with federal law to protect students.
Given the University's willingness to leak psychiatric information about the whistleblowing GA in the Clarett case, I respectfully suggest that your assumption about their priorities is probably unfounded.
Aren't student-athletes required sign a limited FERPA waiver allowing their school to share information with the NCAA?
You are correct... I did not know this, and I don't know the specifics of each waiver, but that is true. Ran across an interesting investigative piece on the very topic of using FERPA to cover-up misconduct within athletic departments for 2009, by none other than the Columbus Dispatch. Irony?
I wonder if the 6th Circuit would like to examine the issue, especially in light of the heavy reliance on their Miami University opinion. Perhaps the Ohio Supreme Court has it wrong; I honestly don't know. I thought the plain language of FERPA wouldn't cover these types of documents, but it seems there is authority supporting the Ohio S. Ct's holding.
It's not a federal issue. It's state law. Therefore, no federal review. (Even if there was one, it would go to SCOTUS, not the 6th.)
It's a state question in the first instance, given that the issue is application of Ohio's freedom of information act.
But FERPA could supply a federal question; I don't know. I think I agree with you.
To clarify, to me, it's a state case because the request was made under Ohio's version of FOIA. There is a federal statute involved, FERPA, but the issue is whether Ohio State violated the FOIA statute. There's no allegation that OSU violated FERPA, so I don't really see a federal issue, and certainly not one that SCOTUS would have any interest in.
The only thread of federal jurisdiction being the federal question(s) raised under FERPA. You're quite right to note that unless and until OSU was alleged to have violated FERPA, there may be no justiciable federal issue.
I actually agree with you guys- you're right, I fear. But wait- I think there can be a case made that the interpretation of FERPA cited by the Ohio S. Ct. is incorrect. I mean, if I'm ESPN, I might try to think of a way to appeal the FERPA portion, somehow. But I can't think of a way as I sit here, not getting paid to do so, and I don't think it would necessarily be intelligent, efficient, or well-received. And the definition of "educational records" could be worth a look. I guess it wouldn't hurt to try if you're ESPN- you don't care about whether it's efficient, well-received, or even intelligent.
It's not entirely clear to me how ESPN could get this into federal court. But your question is a really excellent one.
What do you think? Do you think that ESPN could now find some federal jurisdiction? Is there already some federal litigation ongoing?
As for the "fan-boys." I am just going to come right out and say it. It is pretty damn ironic that people here, as fans of the University of Michigan, might suggest that OSU got home-team fan-boy treatment in the Ohio Supreme Court. Because the FERPA issues raised by OSU might someday be invoked by the University of Michigan Athletic Department just as easily. I guess that for some, "Us versus Ohio State" trumps "universities versus the media."
What the court is really saying is that they will bend over backwards to keep truly damaging information from making it into the "food chain." I would imagine that a court outside of Ohio would see things differently.
Did you actually read the opinion, or was this the answer you had saved for the day it came out? I'm guessing the latter.
The term "NCAA Investigators" is somewhat misleading. They have no real athority to force an institution to produce anything outside of the threat of penality if they don't voluntarily comply. So if a school such as OSU produces emails and says "that's all there is to see" the NCAA cannot force them to open their records up beyond that point.
I think there is smoking gun in those emails and that's why OSU is fighting so hard to keep them from being disclosed. I do not believe the NCAA has seen everything and OSU knows it.
I think you are looking far too much into this. If there was a "smoking gun" in the e-mail, why would OSU risk not giving it over to the NCAA knowing there was a distinct possibility it could become public as a result of this lawsuit? Multiple people at OSU (including those outside of the athletic department) know the contents of that e-mail as a result of this lawsuit - and I believe the judges do too. Every employee at OSU aware of the contents of that e-mail is risking his job by not properly reporting any violation or submitting the e-mails to the NCAA. I can assure you that the NCAA has seen the e-mails if they are in any way relevant.
And it would also be completely illogical for OSU to turn over the Tressel emails voluntarily that started this whole scandal, yet now decide to start a institution wide coverup.
Bottom line is that OSU's fight against ESPN transcends the OSU football program and this particular scandal; it is a very important privacy issue that could set precedent for ALL universities moving forward. This is not simply OSU vs. ESPN - this is all public universities vs. the media - as can be seen by the amicus briefs in support of OSU. Trust me, Michigan's legal department is just as happy with this result as OSU is.
Ohio State has confirmed to Scout that the NCAA has seen the documents in question.
I respectfully disagree. If the emails turned over initially contained simply the correspondence between Tressel and Sarniak, for example, they would implicate him and him alone. If, upon further and more extensive searches of email records it was discovered that Smith or even Gee were copied I could easily see OSU wanting to withhold those records from public display.
In some ways the NCAA's authority is limited to the threat of punishment, they have no ability to force compliance on anything. I see it similiar to when a parent believes their child is doing something wrong but has no proof. They may threaten horrible punishments if the child doesnt "confess" but at the end of the day, if the child doesnt confess the parent has no way of really knowing what did or didnt happen. I think OSU is sticking with stonewalling because they have to and they know there isnt much that can be done to force them to do otherwise.
You claim "multiple people outside of the athletic department know of the contents of the emails". Really? Why? What if the only two people who knew the content were Smith and Gee himself. They have somewhat of a vested stake in protecting the information wouldn't you say?
Elaydin's comment above makes this discussion moot (OSU has confirmed that the NCAA has seen the e-mails in question), but I just wanted to clarify what I meant. You asked:
"You claim "multiple people outside of the athletic department know of the contents of the emails". Really? Why? What if the only two people who knew the content were Smith and Gee himself."
The e-mails were specifically reviewed by the compliance department before the suit began, and then by the legal department after the suit was brought forth (which could also include any outside counsel). So this would imply multiple people know of its contents across multiple OSU departments.
I'm not claiming Elaydin's statement to be incorrect but that is the first time I've heard that anyone outside of OSU has read the email's in question. I would begrudgingly change my opinion if either you or Elaydin would provide the link showing that Scout did, in fact, review the disputes emails.
As much as I hate being proven wrong I will accept defeat on this one if Elaydin is correct. FWIW - has anyone else heard this before or was I the only one who missed that revelation?
that was the Ohio State Supreme Court turning their noses up at ESPN as much as possible while awarding them some victories. I wonder if it's that judge's style to write such nice things about defendants in court opinions or whether it was a one-time thing.
I agree- I got that vibe too. I am not familiar with the normal way this justice pens opinions, but I am with you; sure seemed like they were trying to "gently" slap ESPN a bit.
Guess the ohio SC didn't want to take the fall for destroying the "myth / legend" that was jim tressel. After all in this day and age ohio has to have it's football program, I mean ... Show Me the MONEY !!!
Senator Buckley, who drafted the law, has commented that it was intended to protect educational records, as in academic records and the like. It was never intended to go as far as the courts have taken it. For instance, Ohio refused to turn over lists of people for whom students left game tickets if you might be able to infer who the student was from the name of the recipient. WTF? How is that "directly related" to the student? His name isn't even on there. The problem with this case was two-fold. First, there was a lousy 6th circuit case that seemed as if it would doom the effort to get the records. A court could have written around that decision had it chosen to, but the Ohio Supreme Court is renowned for its superficial analysis of just about any issue. The second problem was just that superficiality of analysis. The court assumes that a record that mentions an athlete is "directly related to the student[s]." So how is a record "indirectly" related to a student? A record should be deemed directly related when it was created about the student; and indirectly related when it was created for another purpose, but incidentally mentions the student. So emails to Sarniak are directly related to Sarniak, and only indirectly related to the students that may be discussed in them. Not a hard distinction, and one consistent with the purposes of the public records act, which is to open up the workings of government. And not a distinction clearly prohibited by FERPA. But hardly surprising that the court did not try too hard to find a way to open this up.
This is excellent analysis, and I like your take w/r/t "directly" vs. "indirectly." Also, thanks for the knowledge re: the Ohio SC; I didn't know this about them. That's unfortunate.
Isn't it in anyones mind that the court was unbiased and just saw this they way they saw it? I would hope that privacy and the law would not be effected by which team you root for on Saturday. Just because the situation at Ohio was slimmy doesn't mean that a persons rights to privacy should be waved. I would much rather a football program get away with being a little on the crooked side than MY privacy be effected by some kid getting tattoos and breaking NCAA rules. NCAA rules mean nothing in the larger picture but court rulings do.
The entire college football world is observing this. From now on, all you have to do for any coach's e-mail is claim that it is covered under FERPA and therefore should not be part of the public record. If Brady Hoke sends an e-mail to a booster instructing him to leave a duffel bag full of cash on Ty Isaac's doorstep, it's covered under FERPA. I, for one, hope that our athletic department is watching. in retrospect, we were horribly naive during the Fab Five/Ed Martin investigation. We could have probably gotten off with a lot lighter punishment if we had adopted the aggressively defensive posture of OSU. Making a good faith effort to follow the rules or punish yourself if you are caught is stupid.
The only thing I question about your analysis is whether it applies to recruits and not students. But you're point is correct. The Ohio Supreme Court seriously expanded FERPA. Of course, its decision is not binding anywhere but Ohio. Perhaps congress will amend the law to clarify its intent.
If you are thinking that member-institution universities can escape [NCAA] scrutiny by hiding behind FERPA, I think you are terribly mistaken.
Nobody claims "FERPA privilege" in dealing with the NCAA; it is only with respect to media outlets and their investigations, basically.
In the matter at hand, The Ohio State University never told the NCAA that they couldn't have anything because of FERPA. OSU simply told The Worldwide Leader in Sports Information that ESPN couldn't have some of the university communications about specific students so that ESPN could post it all on the internet and spin it on tv.
The Fab/Five Martin investigation couldn't have been saved and/or forestalled via a FERPA claim. The NCAA came to town, and looked into everything and Michigan was not about to deny the NCAA anything that they wanted. Chris Webber could tell the NCAA to buzz off, but only because he was under criminal jeopardy and his own interest was something he viewed as clearly superior to Michigan's interest. Webber didn't have any more eligibility to lose. he was an NBA multimillionaire. Michigan, for its part, wasn't about to make a FERPA claim versus the NCAA. Michigan wanted to do the right thing, fess up to what Martin may have done with some of the players, and put it to bed after the obviously painful sanctions. Plus, when the U.S. Attorney's office is investigating a major fraud case, they aren't about to be stopped by FERPA.
That information about specific students that ESPN wanted to put all over the internet and TV was suspicious communication between Jim Tressel and Terrelle Pryor's sugar daddy. This is the kind of thing that the FOIA exists for. They aren't just internal documents about what grade Terrelle Pryor was receiving in remedial English. Being told by OSU that the NCAA saw these and had no problem with them doesn't exactly reassure me. Quite frankly, it's hard to come up with anything remotely resembling a legitimate reason why OSU should be allowed to withhold communications between Tressel and Sarniak, especially since Tressel didn't communicate his knowledge about Tatgate to his compliance department.
Michigan might not have been able to hide behind FERPA with the Fab Five case, but I'll bet that we could have just fired Steve Fisher and blamed the entire thing on him while claiming that there's no way he could have known what was happening in his program. In that case, we could have just hired Dutcher as our head coach instead of Ellerbe and gotten a lot lighter punishment.