Calling all MGoLawyers Re: Ohio

Submitted by 74polSKA on December 2nd, 2011 at 9:28 AM

In the wake of Meyer Mania, I need my Ohio schadenfreude fix.  I checked the Ohio Supreme Court web site and there are a bunch of new documents regarding the case of ESPN vs Ohio.  I am the layest of all laypersons, so I need my lawyer friends to help glean any pertinent information.

I wasn't encouraged by the Meyer press conference where he stated that Gee and Smith assured him no more NCAA penalties are coming.  Everyone in Cbus is convinced the NCAA will accept Ohio's self imposed penalties.  It is encouraging that everyone from Ohio involved in the process seems to have lied at some point, so why should I believe this.  Keep fighting for me ESPN.



December 2nd, 2011 at 9:54 AM ^

I would assume that the issue the amicus curiae brief addresses is the question of whether the information ESPN wants to get from OSU is protected from Freedom of Information requests. You cannot, for example, force schools to disclose student grades, or health information, or other things covered by confidentiality guarantees. OSU is arguing that these confidentiality rules should be interpreted broadly, ESPN that they should be interpreted narrowly. Of course an association of universities is going to argue for less exposure to FOI requests rather than more, no matter how the requested information is meant to be used. 


December 2nd, 2011 at 10:06 AM ^

To your last point that an association of universities would argue for less exposure...I certainly understand why that would be (and is) true, but at the same time, if the majority of those institutions have nothing to hide, what is there to lose by supporting a more narrow interpretation? It makes the universities look good for trying to help get to the bottom of the whole thing, plus, it makes it harder for the few schools in need of covering up, to do so. This not only cleans up the game, but also helps to level the playing field for all the schools/programs who are/have always played within the rules.


December 2nd, 2011 at 10:34 AM ^

I would tend to agree with you, but this particular instance is all about NCAA. It's not as if (to the best of my knowledge) ESPN is asking for transcripts, health records, family or personal information, just papers related to the Tatgate/Tressel cover up. Just because a piece of paper has a student's name on it, doesn't mean it's private or personal or whatnot and subject to being withheld. I am not at all advocating that the universities, courts, or anyone should allow every document be released, but I would put a dollar on there being at least some papers that have, up tot his point, been withheld that are not exaclty personal student/university papers. Having a ruling that makes OSU give ESPN certain papers doesn't  completely take out FERPA regulations. Any court with common sense (on this case, and, especially, in the future if this were to go in ESPN's favor) would have no problem drawing a line between proteced and not protected paperwork. That, I think, any university should be able to live with, and, in fact, want.

Feat of Clay

December 2nd, 2011 at 10:47 AM ^

First off, every University has something they'd rather not the press know about.   Not always because it's something "bad" but because it's something that will invariably be misinterpreted and jacked up.    (This isn't just a higher ed issue; I think every industry has the some concerns like this)

Second, media requests are a pain in the ass.   They are a fact of life, and of course universities comply as they must, sometimes even cheerfully..... but a PITA they are.

Third, once you let something out,  you can't put the cat back into the bag.   The legal remedy for being too restrictive is handing over the info after all.  The legal remedy for revealing too much is OOPS SORRY HERE ARE YOUR DAMAGES now let us bend over and let the feds ream us too for violating federal laws.

So in general, institutions are going to be in favor of regulations (and legal interpretation) which give institutions maximum discretion (within the law) to say no to the press.   Particularly on thorny issues.  Even if, in this particular case, they would like to see OSU disclose more.



December 2nd, 2011 at 11:07 AM ^

In theory, perhaps, if news organizations could be trusted to use the information honestly. But in practice news organizations can distort material very effectively if they are in pursuit of a hit piece. We saw this in the Free Press "practicegate" investigations. It was evident at the outset, and became clearer with every published article, that Rosenberg and Snyder were looking for ingredients to support a hatchet job. They were requesting reams of material including internal emails, and then whatever information they got was presented in a slanted and decontextualized way, creating a distorted impression of the real situation.

See also the so called "Climategate" emails. Pore over thousands of emails from researchers to one another and you'll find some where people say things to one another like "[Scientist X] is up to his old tricks again. I'm never going to accept another of his dishonest articles for [Journal Y]". and "The way you set up the graph doesn't present your point in the most effective way - if you choose scale Z and initial year VVVV the picture is more compelling." My own emails contain lots of stuff like that - there are people in my subspecialty - as with any other - who are just dishonest and incompetent, and you get tired of their antics. [Fortunately or unfortunately, nobody has any money to make or lose from my research, so my emails are safe.] And you give friends an collaborators advice about the best way to arrange their arguments to persuade an audience. But in the hands of unsympathetic news organizations, that becomes "CLIMATE SCIENTISTS EXCLUDE OPPOSING VIEWS AND DISTORT THEIR DATA!!!!"

Don't get me wrong - from a legal point of view (though I'm not an expert) the claim of "protecting student confidentiality" here seems pretty far-fetched and I expect OSU will lose. But if I were a university president I would at least try to keep things like internal emails under my own control. 



December 2nd, 2011 at 9:37 AM ^

but it looks like there are a bunch of briefs supporting OSU from various parties, and there is a response from OSU saying they fulfilled their legal obligations and are legally prohibited from giving ESPN the documents requested.

The Ohio SC has not ruled or responded, at least according to the filings on that site.

Section 1

December 2nd, 2011 at 9:38 AM ^

I am just supposing that the Court had a deadline of 11/30 for filing amicus briefs.  Activist and news media organizations side with ESPN, in wanting broader FOIA access.  Education groups want to uphold the principle that FERPA trumps state FOIA laws.

Has nothing to do with the pending NCAA NoI re: Ohio State, but you probably knew that already.

I think it is nuts to think that the NCAA won't enhance Ohio State's self-imposed penalties.  I also expect that many people on this Board will never be satisfied with any penalties short of the death penalty in OSU's case.


December 2nd, 2011 at 9:43 AM ^

I do understand this has no impact on the current NCAA case, but could lead to further cases depending on what's revealed.  As far as the death penalty, a few months ago I might have wanted that.  However, the recent issues that several schools have had with assistant coaches and young boys have put Ohio's violations into perspective.  There are much worse things happening in this world than athletes getting free tattoos.  That being said, anything that can blacken the eye of "Buckeye Nation" is a bonus in my book.

Indiana Blue

December 2nd, 2011 at 12:53 PM ^

but from a tattoo parlor that was under investigation by the FBI for drugs and money laundering ... and that players were getting paid for autographing memorabilia.  Plus ... does any rational person believe that tsio knew absolutley nothing about this?   Did the players stop visiting the place after tressel told TP's handler?  Answers  -  NO

The fact is that the boosters were still paying cash to the players (ala - Reggie Bush) even during this summer.  The real question is does tsio actually get away with knowingly cheating and lying to the NCAA?  And why, since it is now a FACT that tressel lied to the NCAA so those players could play in the Sugar Bowl, would the NCAA grant them a pass ... which then gives EVERY LOSER program in the NCAA the go ahead and cheat and lie because there will now precedence that little to no penalties will be invoked.

Go Blue!


December 2nd, 2011 at 9:54 AM ^

A bowl ban and scholarship reductions should be effing MANDATORY.  They lied and petitioned to get eligible players into a bowl game last season.   They repeatedly allowed scholarship players to receive perks and violate amateur status and looked the other way.

It's only reasonable that they are forbidden from bowl appearances and docked scholarships.  If I were in a position of power I'd double the penalty and dock them five scholarships for two years and give them a two year bowl ban.

Coastal Elite

December 2nd, 2011 at 9:56 AM ^

She's looking out for the long-term interests of the university as an institution. If Ohio is forced to turn over a bunch of documents and substantially limit the FERPA protections afforded to their students, that precedent could have repercussions down the road for all of our schools in numerous areas outside of football. MSC is trying to protect the university in the long run rather than trying to advantage the football program in the short run. I'm not saying her opinion is right, but her priorities are.


December 2nd, 2011 at 10:00 AM ^

Hatred of Ohio shouldn't be confused with broader issues. I am no fan of Ohio, but I am not a fan of rolling back FERPA and expanding FOIA. These requests seem to be a fishing expedition from ESPN. If they are merely looking to boost ratings and to satisfy prurient interests, that isn't enough for me.


December 2nd, 2011 at 10:06 AM ^

What if they're looking to independently judge the adequacy of the NCAA's enforcement mechanisms? As things stand, no one other than the school and the NCAA sees any of the evidence the NCAA uses as the basis for its rulings--if ESPN were to discover that the documents had been materially misrepresented that would seem to be of more than just "prurient" interest.


December 2nd, 2011 at 10:26 AM ^

Let's just let state institutions do whatever they want behind a veil of secrecy!!! I mean they can cover stuff up (like any internal Sandusky investigation) and that can allow them to continue "doing good" by keeping that public trust!!!!



As long as the people requesting the documents PAY for their production, there is little reason that anything should be held back.  Maybe the names of some students (but not staff or coaches), but that would be it!!


Vigorous use and enforcement of FOIA is one othe reasons that the United States is a great country and its government is "somewhat" trusted more than others.


"The only thing I know about the dark is you can't see in it." - Roy Hobbs


December 2nd, 2011 at 10:27 AM ^

It really doesn't seem like this case would threaten any privacy students are entitled to. The documents they ask for aren't "Terelle Pryor documents", they cover a non-student (Sarniak) communicating with school officials about non-educational records. On top of that, the only reason people relate Pryor to Sarniak are media statements that Pryor himself has made, so it doesn't seem like the same standard as say, a family member, should be applied when defining "identifiable information". I don't see how this would affect student privacy in the least no matter how the court rules.

Also, if there is protected information in those emails, Tressel, Smith and Gee need to hear from the DOE, because they did a major disservice to Terelle Pryor's educational privacy rights by disclosing that information.

O Fo Sho

December 2nd, 2011 at 9:55 AM ^

I don't have the ability to start my own post, however wouldn't it appear that Sandusky's attorney is doing a horrible job serving him?  If anything he needs someone to guide him on PR.  Every time his attorney speaks it reflects negatively on Jerry.  And Jerry doesn't need any help in that department. 


December 2nd, 2011 at 10:03 AM ^

Google Joe Amendola and Mary Iavasile.  That could explain why he's not doing a bang up job representing Sandusky.

Edit:  I know, I know.  An attorney's personal choices doesn't mean he can't do a competent job.  I'm not sayin, I'm just sayin. 


December 2nd, 2011 at 10:30 AM ^

What confuses me is why wouldn't names be redacted to protect a student's privacy and te documents made available?  I thought Ohio had done that with other documents that had been released previously.


December 2nd, 2011 at 10:37 AM ^

I don't think Pryor would mind.  I mean, even if he did wrong, everybody screws up.  Everybody kills people, so what's the big deal!

I am fine protecting students rights, but he is not really a "student,: just a poorly-educated young employee.  Has ESPN tried that argument?


December 2nd, 2011 at 10:41 AM ^

If Ohio State just comes out and says "those documents? No, you can't have them, because they're all about Terelle Pryor," what do you do? You can't un-ring that bell, but at the same time, if you allow then to withhold those documents you create a HUGE loophole.


December 2nd, 2011 at 10:37 AM ^

IMHO, the biggest point of contention regarding the juicy stuff is whether these particular documents are covered by FERPA. 

ESPN's argument on that front is on page 16 of this document.

Ohio's response is on page 22 of this document.

I have no idea which way this is gonna come down.


December 2nd, 2011 at 11:20 AM ^

The argument that FERPA is optional for OSU, while it has some intellectual sexiness, never really had a chance. 

On whether FERPA applies to the emails that OSU refused to turn over, I would normally pick the university to win.  However, apparently the Ohio Supreme Court has previously taken a very narrow interpretation of what constitutes a protected record under FERPA.  At one point in OSU's brief, they flat out tell the Ohio Supreme Court that they're wrong and the federal courts are right... and ask the court to reverse its previous rulings.  That can't be a good thing for OSU.


December 2nd, 2011 at 11:15 AM ^

ESPN will file its reply to all of those briefs next week.  Once that happens, the lawyers are done and we are just waiting for the judges to decide.  I will post a diary picking apart all the different arguments. 

After taking a quick look at things, I think it's going to boil down to the judges reading the secret emails and trying to decide whether they are "education records" under FERPA.  All the new developments (feds filing briefs, non-profits filing briefs) are just noise. 







December 2nd, 2011 at 12:31 PM ^

I agree that it seems to boil down to the education record classification. Breifly going over the documents I noticed that many of them seem to use the literal definition of anything that contains personally identifying info of a student. Using this definition, all the administration needs to do to block FOIA requests is to put a student's name into every incriminating e-mail. Surely the spirit of FERPA isn't to allow administrators to avoid any FOIA requests simply by including a student's name. I hope the judges and ESPN consider the fallout of the ruling if they allow administrations to cover up conspiracies by including students.

Sac Fly

December 2nd, 2011 at 11:44 AM ^

He blew that press conference, except Ohio fans thought he was telling the truth when he was lying. He panicked when the media started to get restless on the topic of the spread, so he lied to them and said he would use I-Form and one back sets.


December 2nd, 2011 at 11:57 AM ^

we need a Sarbones-Oxley equivalent for AD's/ President's. There's too much money floating around (recruiting), and the legal framework is way far behind.

The profit focused nature current D1 programs warrants it. Have the NCAA give players a very modest stipend, any monetary gain the player receives beyond that would jeopordize the tax exempt status of the athletic department. Watch how quickly things would then shape up.