ESPN v. Ohio State Recent Developments
Last week the Ohio Supreme Court issued a scheduling order in ESPN's case against Ohio State for not turning over documents. ESPN claims that a number of public records request have not been honored by OSU. Among the missing records are emails involving Sarniak, records regarding NCAA violations, and others.
The scheduling order sets a timetable for the case to be decided over the next few months. Because a many-months crawl to justice would be too quick for OSU, the university recently tried to slow things down.
Yesterday, OSU asked the Ohio Supreme Court to refer the case to mediation. If the court agreed, then the scandal-hungry media company and the scandal-plagued university would try to resolve things amicably with a powerless neutral person to help facilitate the dialogue. As you could imagine, mediation has a wonderful chance of making both sides extremely happy. /s
ESPN must respond to OSU's recent request on Monday. Presumably, ESPN will oppose mediation, mainly because there remain fundamental differences between both sides over the scope and effect of FERPA (the federal student privacy law). ESPN thinks it doesn't apply to emails about NCAA violations, and OSU disagrees. Based on the letters from both sides that appeared in yesterday's filing, the two sides have no chance of meeting in the middle. ESPN would undoubtedly leave mediation without the smoking guns it so desperately seeks.
I view Ohio State's request for mediation as having two main objectives: (1) to take this fight out of the public eye; and (2) to prolong the process. Dragging things out is in OSU's interest because it increases ESPN's costs and it also promises that any revelations from the mysterious documents (if they ever see the light of day) will be old news once they emerge.
This would be a wonderful opportunity for the Ohio Supreme Court to punt, so to speak. While I don't think there's much merit to the mediation request due to the intractable FERPA issue, I would never underestimate an elected official's aversion to making a controversial decision.
Yes, these judges are elected. Long live democracy.
Stay tuned.
[edit: as always, the court documents can be found at this link]
September 29th, 2011 at 11:54 PM ^
Good stuff, BlueNote. I concur re: mediation; especially since this is, essentially, a fundamental disagreement over a legal question: whether or not a law (FERPA) applies to a set of facts. It's not a "fact" or "damages" question. It seems asinine that anyone would ever think mediation is even a remotely intelligent idea in this case if they were looking at it impartially. I'd hope the judge denies the request, as it's nothing more than a delay tactic.
Can you tell that as a litigator I think mediation is nothing but a massive waste of time almost always because a.) if you're the plaintiff, there's no guarantee that the defendant is going to take it seriously and there's no threat of any real sanction for less-than-true good faith because what happens at the mediation is confidential and usually can't be discussed in front of the judge, and b.) if you're the defendant, your position isn't going to be changed by the plaintiff offering the same arguments they've already been offering and/or the opinions of a mediator, many of which are people whose opinions you don't really respect to begin with?
Yeah. I hope the judge sees through this.
ALso, seriously: Mediation to decide interpretation of a question of law? Isn't that the whole f'ing point of, you know, having a judge? Juries decide facts; judges decide law (unless it's a bench trial, then judge does both). The only way ESPN should even consider participating is if they think that tOSU has at least a 50/50 chance of prevailing with their legal argument, which, from what I've read, isn't likely.
September 29th, 2011 at 11:58 PM ^
I think OSU is asking for mediation rather than arbitration, meaning that the mediator would probably not make any decisions and would not have the ability to bind the parties. He or she would merely try to guide the parties to an agreement.
OSU would never voluntarily agree to a situation where it releases damaging documents. ESPN is spending thousands of dollars for the sole purpose of getting damaging documents.
Mediation is worthless to ESPN, and it would merely find itself back in court, in the same position as before, with many more months behind it.
September 30th, 2011 at 12:19 PM ^
No, I know- that's what I was saying; mediation isn't binding and is a delay tactic here. Binding arbitration would be a whole different story, as it would bring finality to the situation. Though why you'd take the determination of a question of law that is probably a first impression issue in Ohio out of the hands of the judiciary and put it in the hands of an arbitrator seems...foolish, unless you're convinced the judge is corrupt/in the bag for tOSU and you can't get the case transferred to a different judge somehow (which in Federal court is usually the case; you're stuck with the judge assigned the case).
September 30th, 2011 at 1:54 PM ^
Makes more sense now. I agree: mediation not good when you have groundbreaking issues of law to decide.
September 30th, 2011 at 5:50 PM ^
I have substantial expereince in mediating cases including being a mediator. There is value in mediation because the purpose is to bring the parties to an agreement by narrowing their difference.
Typically mediation is used in damage and divorce cases but it has expanded to many other areas of the law.
In this case, a mediator can discuss exactly what it is OSU is objecting to and what ESPN will agree to taking into account OSU objections. It does not have to be take it or leave proposition. Mutually the parties give up something drawing them to a settlement. Should this case go to trial, it go take years for resolution so mediation is an effective solution.
September 30th, 2011 at 9:19 AM ^
does not seem to be a textbook mediation scenario. I have always viewed mediation as a way for both sides to come together and have any false beliefs or expectation identified and disposed of. Rarely leading to any kind of resolution, but effective in clearing out clutter and identifying the real issues as opposed to insignificant (but often hotly contested) collateral disagreements. Mediation to decide interpretation of a question of law, pointless (and improper). Mediation to bring to light that the interpretation of a question of law is not as significant as both sides may think (and also to bring to light that two sides are now just disagreeing for the sake of disagreement) could be an effective tool. But I agree, not in this case.
September 29th, 2011 at 11:53 PM ^
STATUTORY INTERPRETATION IS THE JUDGE'S DOMAIN, DAMMIT! Leave the mediator out of it.
I don't know why this pisses me off. I guess I shouldn't get pissed off by parties pulling b.s. moves in litigation, seeing as it happens. . . . constantly.
September 30th, 2011 at 9:51 AM ^
I don't know exactly why it pisses you off, but I know why it pisses me off. THE Ohio State University has been getting away with systemic and systematic cheating for years now. They always deny, they always stonewall, and they always game the system to their advantage. And when someone is about to testify to the NCAA, they suddenly "change their mind" because of death threats.
Probably what pisses me off the most is that cheating is an essential element in their continued success on the football field and basketball court. When you add Gordon Gee having Mark Emmert "wrapped," it just makes things even more frustrating.
The best development in all of this is that they are pissing off ESPN. When they are actually trying to be journalists, they are the wrong entity to engage in battle. They have great resources, and sink their teeth in like a pit bull on a raw rib-eye steak. ESPN has their share of bad points, but it is great to see THE Ohio State University make an ememy of them.
September 29th, 2011 at 11:55 PM ^
Mediation makes no sense here because there is nothing to be bargained. If ESPN is legally correct they should get all the documents. This is not a case where concessions can be made by either side or there is some middle ground to reach. Is OSU going to bargain with ESPN over what documents they are going to release? This is a total time-stalling move by OSU to avoid the NCAA from finding out more information before they make their ruling, as as well as hoping the public will not care when the facts do come out. Can't imagine ESPN would agree to mediation here and will probably made to look like the bad guy. ESPN is often the bad guy, but not in this case.
September 30th, 2011 at 12:59 AM ^
My thoughts exactly. It's not like ESPN is asking for sums of money which can be negotiated down to some point where both sides are happy to take what's offered. This is a yes-or-no question for ESPN, not a scale of numbers.
September 30th, 2011 at 12:59 AM ^
Maybe they could just redact every other letter, or substitute pseudo names like "Moe Szyslak" instead of Sarniak...
September 30th, 2011 at 12:01 AM ^
Thanks, guys.
I can now justify foregoing my CivPro reading for tomorrow.
September 30th, 2011 at 12:15 PM ^
Best comment ever. Civ Pro is actually crucial if you're going to litigate. That being said, you don't learn much from class in Civ Pro. Or at least I didn't; the textbook and actual rules are really all you need.
October 1st, 2011 at 9:26 AM ^
Don't forget that in the Daley Center the judges just do whatever the fuck they feel like and the rules of civil procedure may not even apply. 28 days to file an amended complaint/answer or 28 days to respond to discovery requests is really just "Get it done before the next status date/CMC" for 75% of them (Obviously Flanagan is a completely different experience all together, getting to ring her bell the first time for settling a case was a memorable day).
September 30th, 2011 at 12:20 AM ^
September 30th, 2011 at 1:40 AM ^
I agree completely with what you said. if there isn't anything damning to the university, then why not just release them instead of beating around the bush and dragging things out even longer.
September 30th, 2011 at 6:32 AM ^
It's all about the kids.
September 30th, 2011 at 7:43 AM ^
So, now OSU is a tragic hero in this scenario, too?
September 30th, 2011 at 7:53 AM ^
September 30th, 2011 at 12:36 AM ^
September 30th, 2011 at 1:07 AM ^
Can someone summarize this in a concise fashion.
September 30th, 2011 at 1:33 AM ^
September 30th, 2011 at 1:52 AM ^
September 30th, 2011 at 9:39 AM ^
If I provided all the necessary background, the post would be a lot longer. I wanted to spare everyone all the reading. My target audience was not lawyers but mgobloggers who are decently informed about Ohio State and some of their recent problems giving documents to newspapers and media. I apologize if it got jumbled.
Part of the problem is that the events in this court case do not lend themselves to one-sentence descriptions of what happened. You need to know the history before you understand the new development.
In the future, I will probably provide some links to previous posts and diaries about OSU's troubles producing documents.
http://mgoblog.com/diaries/more-osu-dirt-come-foia-battle-between-school-and-media-heats
http://mgoblog.com/mgoboard/espn-sues-ohio-state
September 30th, 2011 at 1:39 AM ^
ESPN -- We know you guys are douches, and we know you has documents proving it.
OSU -- Maybe, but you'll never know becuz the documents involve our "students," and we're not allowed to release documents with information about students.
ESPN -- You guys don't understand teh law. Give us us documents.
OSU -- No.
ESPN -- I'm telling Dad.
OSU -- Wait no hold up.
ESPN -- Dad, do something.
OSU -- NO! Dad, don't you think Grandma should just figure this out instead? I don't have to do what she tells me.
Dad -- If that's okay with ESPN.
ESPN -- LOL
September 30th, 2011 at 7:06 AM ^
perfect analogy.
well done.
September 30th, 2011 at 8:00 AM ^
September 30th, 2011 at 10:06 AM ^
Yes! This is exactly why I hate litigation and why people hate lawyers. All the procedural posturing and bullsh-t that goes on in litigation (motions to dismiss, motions to compel discovery, motions, motions, motions, blah, blah, blah) simply serve the purpose of clogging the court's docket and running up fees. As I mention below, the most interesting part of this litigation is that OSU is using state funds to handle their defense. As such, they incur no fees! This just seems inherently wrong to me. They have nothing to lose in using stalling tactics. Its insane.
September 30th, 2011 at 12:17 PM ^
Perfect, except change "Grandma" to "random person on the street."
September 30th, 2011 at 7:00 AM ^
There is no dollar amount to split in half.
(No offense to mediators, but those of you who have been involved in the process get the point.)
September 30th, 2011 at 7:13 AM ^
They should just settle it in the Thunderdome already. Two men enter, one man leaves. Winner gets the documents.
September 30th, 2011 at 7:45 AM ^
I hope ESPN gets to the chainsaw first.
September 30th, 2011 at 11:49 PM ^
Whomever breaks a deal, gets The Wheel...
September 30th, 2011 at 7:20 AM ^
You are getting your cock kicked in by yahoo sports on this stuff, it's time for you to make a stand and bully someone for a real story or else just run your funny commercials and talk about who is the most "now" athlete, whatever the hell that is.
<br>Sincerely,
<br>Sports fans
September 30th, 2011 at 7:29 AM ^
This is like a cage match between Mayweather and Bin Laden. I hate them both but I have front row seats and must root for one of them to win.
September 30th, 2011 at 8:56 AM ^
I must say, OSU is playing their cards perfectly. They were faced with 7+ years of illegally paying players, having a shady coaqch, the Tat5... and will come out of this relatively unscathed. It sickens me that this will happen, but well played OSU!
September 30th, 2011 at 9:43 AM ^
craig james should mediate this dispute. he knows what is best for us.
September 30th, 2011 at 9:58 AM ^
I really hope that ESPN continues to play hardball on this. I'm worried that they'll back down. OSU has no legitimate reason to not release those e-mails. The most likely conclusion is that they are desperately trying to hide something embarrassing.
September 30th, 2011 at 10:11 AM ^
ESPN's approach to these disputes is fairly pragmatic. If they believe they are going to get newsworthy information, they will keep fighting.
ESPN is willing to spend the money.
September 30th, 2011 at 10:52 AM ^
I hope that you're right. I really do. Common sense is on ESPN's side this time, but OSU will try to turn this into a war of attrition, and they have escaped over and over again from certain doom. This is an uncharacteristically aggressive move by a network that usually just kisses ass and acts as a propaganda machine for the leagues that they cover. I don't think that they've got the stomach for it.
September 30th, 2011 at 10:59 AM ^
was by Ohio State, when it played hardball on producing documents. ESPN is doing what any self-respecting news organization with funding does when they perceive that the government is not following the rules, and when there is a possible front-page story at the bottom.
This may seem unusual from a sports infotainment perspective. But if you can imagine for a moment that ESPN also has people serious about news -- real news -- then it's not surprising at all.
September 30th, 2011 at 10:09 AM ^
The most interesting part of this litigation is that OSU is being represented by the government! Did you all know this is how it works in defensive litigation for this public university? It seems insane that OSU did not have to hire outside counsel but I admitted have no knowledge about this kind of situation.
Also interesting is that ESPN is only represented by one named lawyer. I just assumed that they would have hired Big Law Firm and have had several lawyers file notices of appearance. Very interesting that is not the case. Maybe its an effort to keep fees to a minimum?
September 30th, 2011 at 10:16 AM ^
There are a handful -- or less -- of experts on FOIA-type laws in the state of Ohio. I'm talking about people who regularly represent newspapers and other media organizations in their quest to retrieve documents from public bodies.
Usually, these are the old "newspaper lawyers," and they handle other types of disputes for news organizations as well (libel suits, subpeona requests, etc..). There is only enough newspaper work in Ohio for maybe three or four top notch newspaper lawyers.
ESPN's attorney is very good. He is probably one of the best attorneys they could have chosen to represent them.
The fact that his name appears alone does not mean that no one is helping him. I would guess that he has one associate (younger lawyer) helping him behind the scenes. However, this is not such an enormous case that a single lawyer couldn't handle it.
September 30th, 2011 at 10:25 AM ^
Very interesting. I didn't even think that there were lawyers out there that specialize in FOIA requests but it makes sense. I just never thought about it before. Obviously there is at least one other lawyers helping but I would have assumed that the lead partner would have been kind enough to list him/her in the signature block. Is the least he could do - this is a huge profile case for a young associate!
Any idea about the government representation of OSU? Is this normal procedure for a public university?
September 30th, 2011 at 10:49 AM ^
Honestly, I don't have much experience in Ohio. Any Ohio lawyers out there who can speak to who usually represents state bodies in litigation?
I THINK that the Ohio Attorney General represents state bodies in all litigation. In my limited Ohio work (non-FOIA), I've also seen private lawyers appointed by the state ("special attorney general" or something like that) to represent a university. But I don't have a lot of Ohio experiences to draw from.
The Ohio Solicitor General is a special group that represents the Ohio Attorney General in appellate cases (for example, the Ohio Supreme Court, U.S. Supreme Court). The Solicitor General's office is generally filled with high quality attorneys, but they are also understaffed and stretched thin.
September 30th, 2011 at 2:43 PM ^
I would say that your description is pretty much spot on. I would not be surprised if special counsel is brought in by the AG's (which is quite common in some areas of law).
September 30th, 2011 at 11:04 AM ^
very telling.
September 30th, 2011 at 11:36 AM ^
ESPN should demand recusal by any Buckeye lover on the OSC; if not, move for a change of venue.
We'd be happy to hear the case here.