ESPN reply in Ohio FERPA case

Submitted by 74polSKA on December 27th, 2011 at 8:57 AM

ESPN has issued its reply brief in their case vs Ohio.  I've used up all my Christmas cheer and would still like to see ESPN win this case and Ohio get LOIC as a result.  Even if there are no further NCAA sanctions, I'd enjoy watching more Ohio arrogance go down in flames.



December 27th, 2011 at 10:20 AM ^

I'm no lawyer, but ESPN's response seems to show that the precedent for this type of case not being covered by FERPA has already been set.  I hope this case has enough national attention that the Ohio SC won't do anything improper.  I think that's why they got the Feds involved so that they can have another level of blame if tosu doesn't win this case.

Urban Warfare

December 27th, 2011 at 2:13 PM ^

public records decisions have trended towards narrowing access to public records in a wide range of cases.  I'd be surprised if they reversed course in this case.  My guess is a 5-2 or 6-1 decision in Ohio State's favor with Pfeiffer and maybe McGee Brown dissenting. 

Also, under Ohio State's record retention policy, they've probably destroyed a lot of the records ESPN requested.   There's no reason they'd still have emails from 2005 forward.

Darth Wolverine

December 27th, 2011 at 9:42 AM ^

No way Ohio gets LOIC. If they didn't get it from the already completed investigation, they won't get it from this court case. The stuff that happened with the tattoos and "charity" events was enough for LOIC, but it won't happen at this point.


December 27th, 2011 at 9:53 AM ^

If the NCAA gets definitive evidence that Ohio lied to them, they can revisit the case or open another one.  Ohio avoided the punishment they deserved, but ESPN is a pretty powerful enemy to make.  ESPN will probably deduce that if Ohio is hiding something, it's because they actually have something to hide.  

At any rate, Ohio is keeping their investigation in the news, even after the "punishment" has been handed down. That can only be a positive for Michigan.



December 27th, 2011 at 11:19 AM ^

ESPN has devoted quite a lot of time and money to taking on Ohio in Ohio via this court challenge. One suspects that they have some knowledge of what is contained within the emails or else they would not be pursuing it with this type of legal action. I suspect that Ohio is probably more worried that someone else in possession of these emails (Sarniak for example) flips. 

Certainly, for all their limitations as a media/news source ESPN is disturbingly powerful and influential in the modern sports landscape. They are the wrong enemy to make for Ohio; this is good for us.


December 27th, 2011 at 1:36 PM ^

...and these aren't mutually exclusive, is messages between the athletic department and DiGeronimo. From the reaction of Posey's mother, I've suspected that it was the athletic department that had arranged those jobs for the players. Anything showing that they knew they were getting them jobs they weren't qualified for or were getting paid for work they weren't doing would be another nuke.

A third possibility is internal documents relating to Pryor's free run of the equipment lockers. Or anything relating to a coverup of the cars. There's no end to the mines that could possibly go off if anyone ever gets uncensored access to internal communications.


December 27th, 2011 at 1:56 PM ^

And we already know that the car dealer that provided Archie's car also employs football players during the summer. It's about halfway down in this article:

Ohio State's Top Compliance Person Drives Courtesy Car

Yes, I know that's not a violation, but there are plenty of ways things could have gone wrong.


December 27th, 2011 at 11:09 AM ^

I stood up for Posey for what seemed his disproportionate punishment and got pilloried, so I don't expect this to go over well either, but two things should be considered:

1.  ESPN, in this situation, has motivations that are not far detached from those of the Freep in their witch hunt.  ESPN is not looking for justice, but for readership, and nothing about this sort of request is inherently for the good of football, the players or the institutions. 

2.  OSU is not alone in their resistance to this request.  Student privacy is important, and several university assocations have submitted briefs defending OSU's position.


This is not a trivial matter (more important than whether players got free tattoos or deals on cars), and there are few reasons for coming to a preference that are more trivial than the downfall of the Buckeyes.


December 27th, 2011 at 11:26 AM ^

This isn't about student privacy Brad; this is about covering up inappropriate communication between a representative of Ohio and an external individual. This is not relating to education records at all; rather, Ohio taking a scorched earth approach to protection of their interest. Certainly, the institution could care less about Pryor's privacy.


December 27th, 2011 at 2:25 PM ^

is the task before the court. They won't negate FERPA altogether and I'll be very surprised if they create a situation in which all University correspondence that might in any way reference a student is protected under any and all circumstances from any open-records request.


December 27th, 2011 at 3:42 PM ^

As I am aware from my reading about university obligations related to my own academic information/records FERPA is hardly an iron clad protection from any/all open records request. Indeed, the questions before the court relate to student related communication and neither student records/academic information. I suspect the court will rule a limited exemption for ESPN related to the specific emails between Sarniak/Tressel (unredacted) with clear instruction regarding student records/academic information to instruct future questions.


December 27th, 2011 at 5:50 PM ^

which you suggest to be requisite for such cases.   All too often, the invocation of this fantasized boundary is the work of lawyers who seek to further their own ends.  Granted, student rights to privacy are important, but now the talk of this right seems to be a transparent effort to protect an unethical school---not to protect an innnocent student. 

Remember, the information sought by ESPN is not the record of a student but the conversations between a lying coach and a "low life" who once tried to bribe police and who now has been paying a player under the table.  Regarding the payments, Pryor waived his privacy rights to that information when he himself publicly revealed the payments (in an effort to avoid further penalty from the NFL).

If there is truly personal information that relates to his school performance, fine--let us consider his rights to keep that confidential. 

But do not forget that he and his school admittedly lied and violated rules--and in so doing, cheated other students and their schools.

-what about the rights of innocent students who were harmed by OSU's cheating---eg the athletes in the Sugar Bowl who lost NFL draft value when they had to play ineligible players?

-what about the monetary losses of schools that had to play vs. a school that disregarded the rules?

-what about the public's right to know if the NCAA is not doing its job in policing t'o the schools?

So, when lawyers conveniently ignore such questions about competing rights, please spare us here from the song and dance about a "solid legal boundary.."

And please do not tell us that OSU is stonewalliing to protect the rights of the rights of a student against the release of academic information.  It is seeking to cover the tracks of the admistrators and board--who are responsible for this scandal.


December 27th, 2011 at 2:19 PM ^

at the very least, OSU would look hypocritical if it released private information about a student to a "low-life" who was known to have paid Pryor in the past , who was told by the NCAA he could no longer do this, and who nevertheless continued to do so.

The obvious question is: why did Tressel spend hours on the phone and use scores of text mails and emails to communicative with Sarniak (and not with TP's own parents or those of any of the other Tat-five)?   I have heard no convincing explanation so far, have you?

I wonder: Did Tressel know Sarniak was still paying TP?   Was Tressel so unusually communicative with Sarniak in the hopes that further payoffs from Sarniak could keep Pryor from leaving school (which he at first promised to do). Did Tressel also hope to keep TP from squealing? 


December 27th, 2011 at 2:36 PM ^


I am quite certain that the three (if not more) national university associations that submitted legal briefs in support of OSU is not particularly concerned with OSU's athletic sanctions either.

If this gets resolved so that OSU never has to release the information and the spector of "Ohio got away with it" lingers on for eternity, I am perfectly willing to right that off as the cost of universities providing for the well being of their students.

Priorities, fergodsakes.


December 27th, 2011 at 4:01 PM ^

Brad, I am aware of the university associations submission of supportive legal briefs in support of Ohio State's position in this case. Of course, one would expect university associations to partner with their membership to protect their collective interest of proprietary information management (regardless of the legal veracity of their claim in support). 

Do you really think that protecting emails/texts from a member of the football administration/pseudo faculty (head coach Jim Tressel) to an individual not affiliated with the university (Sarniak) fall under the 'well being' of students as might be protected under the FERPA legislation? Certainly, at this point it is unclear why Tressel was sending this communication to Pryor's "mentor" and if appropriate releases had been achieved for that material. Further, it is unclear (but will need to be clarified for the supreme court in Ohio) what, if any, of that material might have related to Pryor's personal information or academic status (as protected by FERPA). Certainly, the FERPA legislation was never intended as a stop loss catch-all for any/all student related material in order to enable universities to guard their own interests. I suspect that the court will recognize this and make a determination that at once protects student adademic information while leaving the door open for communication that is unrelated to the need for FERPA safeguards (such as the Tressel/Sarniak emails).

Ohio is hardly protecting the well being of their students; I am sure ESPN will invest in this case as long as necessary.

Reasonable interpretation of legislation fergodsakes.


December 27th, 2011 at 11:40 AM ^

1) ESPN's motivation is its business--reporting news (albeit related to sports); what is wrong with that?  But more important than its motivation is compliance with legislation.  ESPN makes very strong arguments, supported by legal authority, that Ohio has refused to cooperate with the laws and provided no reasonable justification for doing so. 

You are trying to compare the Freep with ESPN, but what facts other than their existence as providers of news (for sports) make the situations similar? 

2) the reply brief makes very clear that Ohio is trying to argue that any document or communication that mentions the name of student is a "student record.' The communications at issue are not between the student and his/her university.  The communications at issue are between Ohio and a third party.  Moreover, the law does not protect a student from the laws at issue simply because of that person's status as a student.  If it did, no unversity would have to comply with the compelled disclosure of information, because the unversity could label all communications as "student records."  This hypothetical situation is a very good reason for several university associations having "submitted briefs defending OSU's position."  Those unversities could shield any misbehavior from the public if those briefs are found credible.  You have thus ignored the motivation(s) of those unversities for supporting Ohio's position. 


December 27th, 2011 at 11:50 AM ^

I get what you're saying about readership, but if you're ascribing ulterior motives to ESPN, surely Ohio State has them too.  Nobody could make the case with a straight face that Ohio State is genuinely concerned with student privacy and nothing more.  After all, ESPN is asking for emails between administrators and employees that contain a name that doesn't belong to a student - there's nothing overtly student-related about their request, on its face.


December 27th, 2011 at 11:31 AM ^

Reading that document was interesting. ESPN brings (non-lawyer) some valid points and really seems to be pointing out osu's defense for everything of 6 yr old child saying "Not it." I would guarantee there are some juicy details in those emails or ESPN wouldn't be investing the resources they are into this. I hope they win & this opens up more ugliness for osu.

In reference to the above post about protecting student's privacy; that's actually addressed in these documents & ESPN brings up a great defense. They're not asking for the students grades, medical records, etc. They're asking for 3rd party emails from the athletic department regarding a student that has nothing to do with their education. Protecting truly private matters is important, which is what FERPA intends to do. But, I think this is not about the 'educational' records as it is athletic.

It almost seems ESPN is getting pissed off by osu's arrogance in not even responding to their challenges. I bet behind the scenes osu is going "oh fck, oh fck, court please help us on this."

I just hope osu gets bent over like they should...My soon to be brother in-law is getting so annoying with the arrogance. osu fans literally think they're going to win 10 straight years again because of meyer & he also believes they're going to run a pro style offense because of what urbie told dunn ( i laughed & said i hope b. dunn enjoys blocking for braxton).


December 27th, 2011 at 11:39 AM ^

of questionable ethics (as pointed out by two of their previous ombudsmen) over the years makes this the proverbial pot calling the kettle black. I would like to see Ohio burn in hell though.


December 27th, 2011 at 11:55 AM ^

I am forced to wonder if ESPN has pursued it this far because they have what they consider a reliable lead on what is in these e-mails. The tone of the reply is basically that Ohio is using a conveniently vague interpretation of FERPA that would allow even the maintenance records on the campus restrooms to be protected, and Ohio being Ohio, you almost can't help but assume there is somethingthe NCAA doesn't yet know that they would rather not be part of an ESPN story. It just seems like ESPN manhandling these e-mails from them at some point, printing a story which makes ESPN look more astute as an investigative body than the NCAA, and the resulting fallout would be, for them, unfortunate.


December 27th, 2011 at 12:46 PM ^

Right. It's pretty obvious Ohio's motivation throughout the entire investigation has been to maintain its *snicker* sovereignty, and in no way cooperate with any governing body, and even went so far as to obstruct, and thumb its nose at outsiders. This FERPA case is no different. They're simply stalling and deflecting to avoid punishment, and trying to maintain a ridiculous posture of standing apart defiantly. They act almost like they're an independant school.


December 27th, 2011 at 12:03 PM ^

OSU turned it over to NCAA, so nothing further will come from this other than the public probably getting to see some interesting documents that will hopefully further stain OSU.


December 27th, 2011 at 2:24 PM ^

I would be surprised if the NCAA doesn't already have the records ESPN is seeking.  I'm guessing there is an exemption that allows the NCAA to review FERPA protected information so I don't see how this case would possibly result in any more sanctions for OSU.


December 27th, 2011 at 2:30 PM ^

There is such an exemption, but the NCAA has no means by which to compel a school to provide the records.

If the NCAA has seen these records and if there is damning evidence there that goes beyond what was acknowledged in the COI findings, that would be a much bigger story than any one school's violations could ever be.


December 27th, 2011 at 3:06 PM ^

I'd be surprised if the NCAA had not seen these documents.  I know the NCAA does not have subpoena power over the general public, but don't member schools have to turn over requested documents or face sanctions?  I'm pretty sure the NCAA has the right to sanction individual athletes who do not submit to interview requests so it would only make sense that the NCAA has similar power to sanction member instiutions who do not turn over requested documents. 


December 27th, 2011 at 5:14 PM ^

This whole thing about ESPN asking more questions than the NCAA (potentially) speaks to one wondering what the World Wide Leader's intentions are related to this whole investigation. Is it for E:60; a longer documentary, Mag article, to scoop Yahoo and SI after gettting left in the dust last spring? Is it book related or all of the above? One wonders what would compel ESPN to spend this much money and effort...

Mr Miggle

December 27th, 2011 at 5:57 PM ^

My best guess is that ESPN has a source, but they need confirmations before they can run the story.

As far as the time and expense, no self-respecting news organization would just give up after getting stonewalled. I don't think the legal process in this case should be especially expensive. There won't be protracted litigation.