Daily: AD Aware of Gibbons Decision 12/19

Submitted by Bando Calrissian on

According to a Michigan Daily report, including information confirmed by Dave Ablauf via a phone interview, Brendan Gibbons met with Athletic Department officials and faxed a letter waiving his rights to appeal his expulsion from a Schembechler Hall fax machine on December 19th. Four days later, Brady Hoke announced Gibbons would miss the bowl game for a "family matter."

http://michigandaily.com/article/gibbons-document-faxed-athletic-depart…

"At the latest, the Athletic Department was made aware of the permanent separation on Dec. 19, 2013, and it is unclear whether the football program or Michigan coach Brady Hoke were aware of the Office of Institutional Equity’s earlier finding that Gibbons was responsible for sexual misconduct. The Office of Student Conflict Resolution notified Gibbons on Dec. 19 that he would be permanently separated from the University.

“December 19 is whenever the letter was sent and the kid came to talk with the Athletic Department,” said Athletic Department spokesman Dave Ablauf in a phone interview with the Daily on Wednesday.

He later added: “That could have been the time that Brendan Gibbons talked to coach Hoke.”

Gibbons’ separation stems from an incident on Nov. 22, 2009, according to documents. This corresponds with previous media reports that Ann Arbor Police carried out an investigation of a Michigan football player related to an incident on that date.

The document was sent at 4:02 p.m. on Dec.19 from a fax number associated with the football program. Gibbons signed the document, waiving his right to appeal the sanction. It’s not clear from the markings on the document who received the fax transmission.

The letter was faxed from the offices of the football program four days before Hoke told reporters at a Dec. 23 press conference that Gibbons would not travel to the Buffalo Wild Wings Bowl in Tempe, Ariz. due to a “family matter.” It’s not clear whether Hoke was involved in the Dec. 19 meeting described by Ablauf."

MCalibur

January 30th, 2014 at 11:34 PM ^

It's insane to me that the University's own policy is to keep the Athletic Department in the dark about this stuff for this long. That choice is what is making Hoke look foolish and further adding to the University's embarrassment over this situation.

I understand the confidentiality thing when a normal student is accused, but when its a student-athlete there needs to be a synapse mechanism between offices that at least keeps them informed of what is going on.

The president makes it clear that any tampering with the investigation to protect an accused player will result in the firing of the head coach and athletic director. No one else needs to know. Coach, AD, and player talk about the situation and they cook up whatever story they prefer to spin.

I dont see why this could not or should not happen and it pisses me off that it did not happen.

 

 

MCalibur

January 31st, 2014 at 12:42 AM ^

I think the the massive public scrutiny that the Michigan Athletic Department receives in its handling of situations like this justifies giving cases involving *some* athletes "special case" status. Especially the football and basketball programs, maybe hockey.

Mind you not in all cases. Sexual misconduct and physical assault:  yes. Vandalsim, Jaywalking, and parking tickets: no. Substance abuse, DUI: not sure but I lean toward yes. You get the picture... 

Also, not for all individuals. A situation involving someone on the track or swimming team would of course be just as serious but the attention would likely be non-existant. A musician on scholarship: no. A full-ride student in a research lab: also no. Normal knucklehead student: no. A good place to start would be with an answer to the following question: are there any bloggers that focus specifically on this aspect of the University? Go from there.

It really is only the "major" sports that I think need to be reconsidered specifically becuase of the PR aspects and media attention in those instances. I would expect that the offices within the Univerity would be able to strike an appropriate balance as to where, exactly, the lines are drawn.

 

 

 

MCalibur

January 31st, 2014 at 1:42 AM ^

They also do not "enjoy" the same level of anonynity that every other student would enjoy. My position is that student associated with the revenue sports in particular are celebrities and forfeiture of *some*, I repeat SOME, privacy is the natural consequence of being a celebrity. It sucks but that the reality of modern American Society.

These guys receive extra benefits and come to Michigan specifically to represent us in a very public way. The enjoy the benefits that the public interest the University of Michigan Athletics derives, unfortuantly that also comes with certain burdens. They are given access to educational resources that every other student does not have acess to. That's OK by me. However, that access comes at the price of being held to a higher level of accountability to the people providing them that access.

Yes, these expectations should be disclosed during the recruiting process. Furthermore I believe ther are disclosed, particularly by Brady Hoke. We have a term for it: Michigan Man. I hate the way the term is applied and flaunted in the public domain, but its a real thing that I personally respect and appreciate.

"Do not accept this scholarship if you do not accept everything that comes along with it. You represent Michigan. Do not [mess] this up, son." If that means we miss out on the Brendan Gibbons of the world, cool beans with me.

Alton

January 31st, 2014 at 7:22 AM ^

Technically student-athletes do not enjoy the same privacy protections that other students enjoy.  To give 2 examples, they sign HIPAA waivers to allow doctors to communicate directly with their coaching and training staff regarding medical issues, and they waive certain rights to privacy in regard to grades, to allow the athletic department to ensure that they remain eligible (and to allow coaches to check with their professors to ensure they are attending class, etc.).

Internal communications are one thing, external communications are something else, and statutory privacy protections should still apply to external communication. 

grumbler

January 31st, 2014 at 9:24 AM ^

Its insane to me that you think that the University would give the Athletic department special access to the student disciplinary process and so invite exactly the kinds of troubles that brought down Penn State.

There is no up side to the University giving the AD special priveleges when it comes to disciplining athletes for violations of student conduct codes.  I am extremely happy that the university is following the policies I advocate, and not the ones you advocate.  It would piss me off to discover that the University was risking its reputation and football program just to buy the athletic deparment some more time to consider its public response.

MCalibur

January 31st, 2014 at 10:06 AM ^

I'm not advocatiing that the university allow the Athletic Depertment to influence in any way the investigation or disciplinary outcome of "high profile" incidents. I'm merely saying: "hey, its in the university's overall best interest to give the AD a heads up when something like this is brewing."

The travesty that occurred a Penn State is exactly the right thing to be concerned about. What happened there has nothing to do with who was informed and has everyhting to do with how they acted upon that information. No one did anything. JoePa, the Athletic Director, the President.

Another example: the Gordon Gee Tressel thing. "I hope he doesn't fire me." Disgraceful.

I've already spelled out what I think should happen but I'll do it again:

The OSCR informs the President and Athletic Director when a case that has been predetermined to be High Profile blips the radar. The President reminds the Athletic Department that any perceived or real attempt to interfere or otherwise influence the investigation into the matter will result in termination of employment of the Coach and Athletic Director if appropriate. Any real or perceived resistance to cooperate in the investigation will result is termination.

At that point the Atheltic Director and Head Coach need to decide how they want to handle the player's eligibility. And its their responsibility to ensure the Values and Priorities of the University of Michigan are well represented: 1) Maintain Unimpeachable Integrity, 2) Win Championships. That's their job. Help them do it well.

We all want the same things, homeboy. 

 

 

Ed Shuttlesworth

January 31st, 2014 at 10:07 AM ^

The athletic department's passivity was really no different than Penn State's, though the underlying acts and allegations are obviously not in the same stratosphere.

My theory of the case as it stands is that Brandon put protecting the "brand" over doing what's obviously right, much as Penn State did.   Remember: no one would ever have heard of any of this, but for the leaks to the Daily.

grumbler

January 31st, 2014 at 10:37 AM ^

You don't understand what i am objecting to.  The creation of a system whereby the investigation of athletes for rules violation triggers a "High profile" alert and grants the Athletic Director access to the procedings of the student disciplinary system is exactly the sort of policy that creates a perception that the Athletics Department is out of control.  There is no real upside (other than a slight possibility that the PR is more polished) to allow suh access, and a huge downside:  not only is the Athletic department more priveleged than, say, the Engineering School, but it is also more scrutinized.  Even if the president of the university were to issue blood-curdling threats against AD interference in the process, it would not be possible to avoid the perception that such priveleged access to the disciplinary process was designed to give athletes considerations not given non-athletes - because, in fact, that is precisely the purpose of the access.

I think it far, far wiser to just treat athletes like any other students when it comes to the disciplinary process, and to maintain their privacy as far as possible.  Their professors and OSCR should not have access to what happens in the athletic disciplinary process, and the athletic department should not have access to the OSCR and in-class disciplinary process.

MCalibur

January 31st, 2014 at 11:40 AM ^

However, the downside you mention *already* exists and is not going away. The Athletic Department is more privileged than every other area of the University AND they are already more scrutinized. That scrunity is exactly what this is all about, IMO. You seem to think the downside you fear is hypotheticalw when it is, in fact, the grim reality. There is no way to avoid the perception that athletes get special consideration, they already do in every aspect of university life. And in this case, that special consideration isn't a good thing. If you get in trouble, then you get even more eyes on you,so avoid trouble at all costs. 

You also dismiss the upside as "not real",  why? The negative attention that the athletic department is getting as a result of its (mis)handling of this situation is a cost everyone associated with the University is paying for: University Staff, Students, Alumni, Supporters. If you fall into any of those categories then you're dealing with this story at some level.

The Univeristy of Michigan needs to be aligned, from top to bottom, in order advance and enhancing its image as a intergalactic-class institution of higher learning. That is something we certainly agree on. The President establishes the mission and hires an Ahtletic Director that supports the mission. The AD needs to hire a coach who understands what the mission and is capable of executing it. Its that simple.

The Penn State situation occured because of an extreme lack of courage and perspective at EVERY SINGLE RUNG in the ladder within the Athletic Department. Their Athletic Department didn't have special access to the information, they had the EXCLUSIVE access to the information. I am *certain* that if Penn State's version of the OSCR had been privy to the information, the outcome would have been different. No one acted upon what they knew, so nothing changed.

You're giving the Michgan's Athletic Department more credit than they deserve and the President/OSCR/OIE less credit than they've earned. I trust all of them to get it right because there is no other choice.

Njia

January 31st, 2014 at 12:53 PM ^

That the AD and University "mishandled" the situation. Lacking all of the facts of the case (which neither you, nor I, nor most anyone else is ever going to have) you are led to the conclusion that this is mishandled because of what spin doctors are calling "optics" these days. 

I'd wager that if we had all of the facts, we'd find that the AD, Coaches and University handled all of this as they had been told, and on balance, did so very thoroughly and professionally. Since we don't have all of the facts, the optics look terrible and clearly, considering the scant facts released by the University in light of the Daily articles, none of the official parties involved could care less.

MCalibur

January 31st, 2014 at 1:23 PM ^

I was trying to present the duality of opinions regarding the handling of it by the athletic department. Obviosuly not everyone agrees as to how well the public aspects of this situation were handled. Personally, I would have preferred that Hoke had been given the opportunity to think of something better to say but he was denied that opportunity because of the internal policy choices of the University. I agree that with the information available now, it looks like they got this mostly right. But I think they could have done better and I would like them to in the future. 

I guess if you have anything to say other than unflinching flattery then you're a nay-sayer. Whatever.

grumbler

January 31st, 2014 at 2:06 PM ^

All of the upsides you mention can exist without the athletic department being given any special access to the student disciplinary system.  In fact, they do exist right now, because no one has ever been expelled from the University and continued to compete in athletics or receive scholarship money.

The only result of having a special "high profile" status for student-athletes would be to create the perception that the student justice system doesn't work impartially in their case.

MCalibur

January 31st, 2014 at 2:50 PM ^

It's the case that is high profile. All I'm saying is that accusations of violent crimes involving student-athletes as respondents should be passed along to the athletic department so they can prepare an appropriate reaction if/when the time comes.

I'm talking about a very limited territory, but that's getting snowed under by the rest of the discussion.

Look at the situation we have here. The athletic department was not involved in the investigation until the punishment had been rendered. Yet, the perception of an impartial system tilted in favor of athletes is exactly what is being bantied about by rival factions. It looks like the University delayed their reaction until Gibbon's athletic eligibility had been exhausted. No one who is unaffiliated with Michigan in some way cares to dig out the information that has been uncovered and discussed by this community. We're a sliver of people who heard the initial news. Everyone else thinks that Michigan Athletic Department is slimy and still smarmy.

The perception you are trying to avoid is unavoidable, it will exist no matter what you do. So, design your internal policies so as to maximize your objectives in these situations. Those objectives, in order: 1) maintain unimpeachable integrity, 2) appropriatley manage the negative publicity that these cases will inevitably produce.

BlueinLansing

January 30th, 2014 at 11:39 PM ^

criticizing people who have to make hard decisions just because they don't like the decisions.

 

Being an AD, head football coach, executive responsible for people is a very difficult thing because people do dumb, stupid and sometimes criminal things and the people in charge have to find a way to handle them.

 

The only 2 people who know all the facts are Gibbons and the unnamed woman.

GoBLUinTX

January 31st, 2014 at 12:05 AM ^

it would matter what Hoke would have said.  If Hoke knew that Gibbons had been expelled, and there is yet no supporting evidence, anything he said short of the absolute truth about the expulsion, would be construed as evasive by those that want to be offended.  Because in the end, one does choose, or not, to be offended by the words of others.

michelin

January 31st, 2014 at 2:10 PM ^

as noted elsewhere in this blog, a "family matter"  could be a vague but legitimate reference to a matter related to the Family Educational Rights and Privacy Act (FERPA) | U.S. ...

 

.FERPA gives parents certain rights with respect to their
children's education records. These rights transfer to the
student when he or she reaches the age of 18; but such
matters of privacy still are likely to be discussed within
the family.  The even stricter privacy standards of the
university committee also could legitimately be viewed
as similar family concerns.

I agree with those here who believe that UM lawyers either directly (or indirectly through Brandon) told Brady to use the term "family matter".  I think that the use of such a term in court would hardly be considered perjury. 

IMO, there may be legitimate concerns about how this matter was handled, but his is not one of them.

 



 

Erik_in_Dayton

January 30th, 2014 at 11:58 PM ^

So far it seems fairly safe to say that the school's sexual assault response system was not very good in 2009. You could argue that it was terrible. You could also argue - though I don't know that I agree or even have enough information to decide - that Gibbons and Lewan should have been kicked off the team in 2009. But the "family matters" statement just doesn't get me worked up, especially given the legal limitations of what Coach Hoke could say.

BigBlue02

January 31st, 2014 at 12:05 AM ^

This is fucking dumb. Since Hoke knew what happened when he said the bit about "family matters" in the presser, anything less than saying Gibbons was kicked off the team for being expelled from school for sexual misconduct would also be a lie.

Kilgore Trout

January 31st, 2014 at 12:30 AM ^

He could have (and in my opinion, should have) said that he won't be playing because he is not eligible. From the Daily's articles, it looks like the University could have said he was expelled because of the nature of the incident, but I can, on some level, understand them choosing not to. But to say that he couldn't have been more direct or truthful due to FERPA seems to be a very limited reading of the rules.

Clarence Beeks

January 31st, 2014 at 12:38 AM ^

Saying he was expelled would have violated FERPA. FERPA doesn't even permit a university to confirm or deny enrollment without permission from the student. The most likely reason for the "family reasons" statement is that it is the disclosure that Gibbons himself allowed.

Kilgore Trout

January 31st, 2014 at 12:43 AM ^

From the second Daily article:

"Frank LoMonte, executive director of the Student Press Law Center, said FERPA does not prohibit the disclosure of the outcome of Gibbons’ disciplinary case because University investigators concluded that he was responsible for behavior that equates to a sexual offense.

“They’re just wrong that FERPA applies to a finding that a person committed a sexual assault,” LoMonte said. “So that’s not a valid reason to refuse comment on a disciplinary outcome.”"

GoBLUinTX

January 31st, 2014 at 1:18 AM ^

It has been pointed out that the quote only partially addresses the issue.  I don't have it handy, but the actual wording states that the judgement shall only be disclosed to the aggreived.  The aggrieved in this case is the female victim.

Kilgore Trout

January 31st, 2014 at 8:04 AM ^

By my reading, your explanation is the partial one. The full explanation has been interpreted as:

 

; Starting with a clear exception, schools may disclose — without the accused student's consent — the final results of a disciplinary proceeding involving alleged acts that, if proven, would constitute a violent crime or non-forcible sex offense:1

 

 
  • to anyone if the alleged perpetrator is found to have committed the offense
  • only to the alleged victim if the accused is not found responsible. In this case the victim must be told not to disclose the outcome to a third party"

So since they concluded that he was responsible, they could have disclosed it to anyone based on this. (The obvious herring is that we don't know for certain what specifically they found him responsible for). 

Some more...

From the government's website.

"

§99.39   What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide—manslaughter by negligence

Criminal homicide—murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))"

more...

"

§99.31   Under what conditions is prior consent not required to disclose information?

...

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that—

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

Njia

January 31st, 2014 at 8:16 AM ^

"if proven". 

Gibbons was expelled based on a "preponderance of evidence" by a University committee, not "guilt beyond a reasonable doubt" by a court of law. If I were looking for the hair to split, that would be it. 

Yeoman

January 31st, 2014 at 10:47 AM ^

...the university's definition of "sexual misconduct" as it relates to an assault differs from Michigan's criminal sexual assault statute. They reached no finding as to "rape" or the equivalent because they made no finding as to force or coercion. All the university cares about is consent or the lack thereof.

grumbler

January 31st, 2014 at 9:37 AM ^

Some lawyer, with no facts about the case, argues that "if A is true, the school can release the information."  The school says that it cannot release the information.  The assumption of many on this board is that the school is therefor lying, because they think that A is true (though you, KT, specifically note that this is the crux of the issue, so don't think that i am talking to you here).

If the university's lawyers, with knowledge of both the facts and the law, conclude that discosure is not lawful why would we choose to believe a contrary opinion by someone with knowledge of the law but no knowledge of the facts? It doesn't strike me as logical, unless people are just looking for reasons to impugn the university.

Ed Shuttlesworth

January 31st, 2014 at 9:59 AM ^

The school has a policy of not releasing information, which is its decision.  I wouldn't say it's the wrong decision, necessarily.

But it's not a policy they're legally obligated to adopt.  They don't *have* to safeguard the privacy of the process in sexual misconduct cases as much as they apparently do.

And, anyway, the issue is the football team's decisions and processes, not the university's.  (I'm assuming there, of course, that there was no influence of the university's process by the football team.  There doesn't appear to be any evidence of that.)

So let's stay focused on the real issue -- the football team keeping Gibbons (and Lewan) on the team for 2013, given all that was revealed and happened in 2013.  That remains an indefensible decision, on any objective reading.  The "family matters" thing was just the final act of deflecting attention away from something that had been indefensible for months.

Kilgore Trout

January 31st, 2014 at 10:24 AM ^

I don't think we know that they necessarily thought it was unlawful to disclose it. The law definitely doesn't require them to, as far as I can tell. I am just trying to say that (assuming, like we have both said, that this is about a sexual crime that fits the conditions above) people who claim that they couldn't have given more details about what happened are wrong. 

There's a legitimate debate about whether they should or shouldn't have. My inclination is that they should have because it was inevitable that it would come out and avoiding it at the time makes it seem like they were hoping no one would ever find out.

Yeoman

January 31st, 2014 at 10:50 AM ^

and you'll understand why they didn't. The facts are a little different in that case of course and Wells probably has a better case than Gibbons would, but it's been critical to X's defense that they didn't make the disclosure you wish Michigan had made.

.

grumbler

January 31st, 2014 at 2:13 PM ^

"(assuming, like we have both said, that this is about a sexual crime that fits the conditions above)"

That's just it:  I don't think that the reasons for his expulsion fit the conditions for disclosure.  Why not?  Because the University's lawyers, with access to both the facts and the law, say it doesn't.

Speculation by people with knowledge of the law but no knowledge of the facts does not persuade me (not saying this is you;  this is directed at the lawyer quoted in the Daily who argued, without any evidence, that the university's lawyers were wrong)..

Ed Shuttlesworth

January 31st, 2014 at 2:21 PM ^

"That's just it: I don't think that the reasons for his expulsion fit the conditions for disclosure. Why not/ Because the University's lawyers, with access to both the facts and the law, say it doesn't."

And that's a vaild perspective, because it isn't 100% clear that the findings constitute the "violent crime" necessary to trigger the broader ability to disclose.  I think it's clear they do, but the University has to be sure not to overdisclose, and the way you do that is to adopt the policy they've adopted -- which is to stay quiet in every single case and not worry about intrepretation.

As I've said, it's the football team's investigative and disciplinary processes that went way, way off track here -- and that's the reason Hoke and Brandon should probably go.  Other than the four year gap between act and punishment, there's nothing on the current record that leads to any suspicion about the university disciplinary process.  .

pescadero

January 31st, 2014 at 7:55 AM ^

From the registrars office -

http://ro.umich.edu/ferpa/

 

"Directory information may appear in public documents and may otherwise be released to individuals outside the University without the student's specific consent. The University of Michigan has designated the following items as directory information: name, address and telephone number, UM school or college, class level, major field,dates of attendance at the University of Michigan, current enrollment status, degree(s) received and date(s) awarded, honors and awards received, participation in recognized activities, previous school(s) attended, height and weight of members of intercollegiate athletic teams."

Clarence Beeks

January 31st, 2014 at 9:33 AM ^

From the University's own FERPA policy:



"Non-disclosure of directory information may be requested by currently enrolled students. Non-disclosure means the University may not release any directory information about the student, except as permitted under the provisions of FERPA. The University may not even acknowledge to third parties that the person is a student."

Yeoman

January 31st, 2014 at 12:59 PM ^

But I don't see anything there that prohibits the University from acknowledging that a non-student is not a student. Non-disclosure can only be requested by currently enrolled students.

What I think people are missing is that in late December classes weren't in session. No one was enrolled at that time. Come January and the resumption of classes, the school could state that an individual was not enrolled for the winter semester, but not before that semester started.

radfan5

January 31st, 2014 at 1:01 AM ^

Would'nt Hoke saying he was off the team for a violation of team rules also be a lie? He didnt get kicked off the football team. He was expelled from school. I just dont get it. Why do people want the lie that had to be told, to be worded differently.