OT: ESPN v. Ohio State Continues

Submitted by BlueNote on August 2nd, 2011 at 9:03 PM

Today, Ohio State submitted its Answer to ESPN's Complaint in the news organization's lawsuit for public records: 

http://www.sconet.state.oh.us/tempx/691799.pdf

The filing itself tells us very little because, well, Answers generally say very little.  

The most interesting part is an attached letter from OSU to ESPN effectively saying "Hey bro, we actually wanted to give you documents, and it was not cool when you sued us."  OSU is also trying to appease the Ohio Supreme Court by suggesting that it's already provided all the documents it has.  This is a bit half-hearted but it's better than Ohio State's previous position, which was basically a va te faire foutre.

The other mini-revelation is that, yes, this case is still going.  I'm still trying to figure out how long we can expect this odd mandamus action to continue in Ohio's highest court, but you can rest assured that it was not settled quietly since ESPN filed its Complaint three weeks ago.

I'm not sure what happens next but I'm going to look into it.  I plan on providing an analysis of the legal arguments once we get something more substantive from Ohio State.

If you are holding out hope for more scandals from that school down south, then ESPN v. Ohio State may be your best bet.

Comments

gremlin

August 2nd, 2011 at 9:06 PM ^

OSU isn't going to give up anything that is going to harm their football program.  They will erase.  And who is going to catch them in the act erasing documents?  No one.  Sucks, but that's life. 

psychomatt

August 2nd, 2011 at 9:29 PM ^

Destroying documents is a very high risk move nowadays. Everything is stored and copied electronically and it's impossible to be certain you get everything. And it only takes one person with a beef or conscience to spill the beans and you are looking at criminal penalties.

But it's very likely that OSU can continue to stall and avoid turning over anything they don't want to until after the NCAA hands down its final ruling and penalties. After that, unless the NCAA is willing to reopen a closed matter, whatever comes out will be largely moot.

Section 1

August 2nd, 2011 at 9:46 PM ^

Not in the ordinary sense.  ESPN doesn't have an independent cause of action against The Ohio State University.

Rather, it would be a public records violation.  And depending on when and how it had been destroyed, perhaps not a violation.  (But probably would be; most public records acts would prohibit destruction.)

And a plus grand +1 for the OP's elegant use of French.

BlueNote

August 2nd, 2011 at 10:30 PM ^

I was going to save this as part of a larger legal diary on this case, but one of the more interesting tidbits from Tressel's interview with the NCAA concerned the destruction of documents.  Or rather, the destruction of a single problematic document.

Tressel admitted during his deposition that he personally used to keep a list of those blackballed from the football program.  Tressel says he was told (unclear if by counsel or compliance personnel) that he should destroy the list because it could be considered a public record.  He quickly added (perhaps saving himself) that this all happened before Doug Archie joined the staff, which I seem to remember was about 3 or 4 years ago.  

Tressel should have realized that one of ESPN's current records requests was for just such a document.  Ooops!  It doesn't exist.  So I suppose ESPN won't be writing a story about that one. 

It's an interesting legal question that I haven't been able to explore quite yet about whether this act of destruction was illegal.  It probably doesn't violate the Ohio Open Records Act unless there was a records request outstanding at that time.  The Open Records Act is about revealing government documents, not about what documents the government must keep.  

However, the act of destruction may have violated document retention rules established by statute or perhaps by Ohio State itself.  I simply don't know if those rules exist.  They do in Michigan.

I fully expect ESPN to make light of Tressel's little admission in some later filing before the court.  Whether illegal or not, it certainly doesn't instill a sheen of honesty to the program.

ILwolverine

August 2nd, 2011 at 9:13 PM ^

I still think nothing substantial comes from this.  They are asking for documents already provided to the NCAA so I'm not going to hold my breathe for a major scandal.  I hope I am wrong.

ChuckWood

August 2nd, 2011 at 9:26 PM ^

These "documents" could expose the NCAA more than OSU.

I imagine the NCAA hates ESPN.  Other than their bowl contracts, ESPNs constant reporting and breaking of college football violation stories puts all the pressure on the NCAA to do something about it and punish teams hard.  

BlueNote

August 2nd, 2011 at 10:04 PM ^

You are assuming the NCAA investigators are actually competent at investigating.  From everything I've seen in this case and others, NCAA investigators have never discovered anything that a news organization or a whistleblower didn't slap them in the face with.

Even if investigators had access to emails, that doesn't mean they actually asked for them or looked at them.  

And even if an investigator looks at the same document  ESPN does, my money is on ESPN being the one to realize its importance.

 

mGrowOld

August 2nd, 2011 at 9:29 PM ^

I have to begrugingly give props to OSU for showing other renegade programs how to deal with the NCAA when your finally caught.  Most (if not all) schools have taken the contrite, we're real sorry and will never do it again route and self-flagilated until they thought the NCAA's would be satisfied that justice was served.

OSU took the exact opposite approach and it seems to be working.  They basically called out the NCAA and challenged them to do anything about it.  They (softly) slapped their own wrists and then looked the NCAA in the eye and said "we will be OUTRAGED if you try and do anything more".  Instead of being apologetic they were defiant and the cowardly blowhards in the enforcement wing of the NCAA sheepishly backed down.

MadtownMaize

August 2nd, 2011 at 11:39 PM ^

USC did not exactly roll over for the NCAA.

As to your tag; there may have been a time in the political history of the USA where speak of Ayn Rand and her book Atlas Shrugged was not considered a "political topic". I do believe that time has long since passed. I respect that you have an opinion which you are certainly entitled too, but I do believe this is a "No Politics" blog.

lbpeley

August 3rd, 2011 at 7:32 AM ^

tag forever and no one's ever said a thing about it. Hell, I bet most posters - like myself- rarely care about or even look at tags. Now that you've mentioned it I googled it. That's the only way I know what that means. Quit being a pansy just because you don't agree with his views. Right now there's 3 people for sure who know what that means. You, me and him. Even at worst it's a vague reference. Grow a pair.

stefan-nyc

August 2nd, 2011 at 10:09 PM ^

The letter attached to OSU's Answer as Exhibit 1 appears be missing page 2.  I say this based on the partial sentence that begins at the end of page one ("Indeed, we regularly interacted"), but does not continue onto the next page.  However, the reference numbers on the  bottom of each page of the letter do not reveal a missing page.

The letter itself is a total stonewall.

Adding to ESPN's obstacles is the fact that 3 of the 7 Justices of the Supreme Court of Ohio attended OSU's Law School.  At least 3 other Justices attended other law schools in Ohio.

I'm not suggesting that Ohio's high court would not faithfully interpret and apply the law toward OSU, but I'm not so sure they'd be in any rush to put a stop to OSU's blatant stalling and stonewalling tactics.

HAILtoBO

August 2nd, 2011 at 10:40 PM ^

I just can't see how the NCAA won't take scholarships away or provide a bowl ban of any nature. They clearly were able to gain high end recruits with the money hand bags and the way players were treated while attending the school. If Denard can't afford cable in his apartment then how can pryor get away with driving a new vette every week?

Tater

August 2nd, 2011 at 10:41 PM ^

Maybe somewhere, sometime, someone will dig deep enough to make THE Ohio State University pay for their cheating, stonewalling, and witness tampering.  

If there's one thing the MSM has demonstrated repeatedly since the internet era began, it's that they always have an agenda, no matter how hard they try to portray objectivity.  If OSU pisses off enough media outlets and personalities, something closer to the truth will eventually surface.  

It would be great if some of the Ohio media whose agenda has been to help OSU end up with an agenda to expose the truth.   For example, Bruce Hooley could end up being a very imporatnt figure before it's all said and done.  Going outside of Columbus, George Dohrmann could be pissed that the "sacred brotherhood" silenced all of his witnesses and dig deeper, too.  

It is often said that the truth will set us free.  Somehow, though, I have a feeling that it won't be very kind to OSU.

pdgoblue25

August 3rd, 2011 at 9:24 AM ^

Keep recruiting going, and get this team ready to be on the field. 

Ohio State is probably going to win 9 games this year because they still have a great defense, and running game. The cupboard was stocked with talent to the point that they can get by a down year in recruiting by their standards. 

 We're also going to have to live with that they're going to get off with very light punishment because Gene Smith has some serious contacts in the NCAA, and because Ohio State is a cash cow.  It's going to make their fans even more unbearable than they already are which I didn't think was possible.

It was fun while it lasted, but the NCAA is an absolute farce.  This is the biggest middle finger, we don't give a fuck example that I have ever witnessed, but we're just going to have to deal with it. (I'm just trying to prepare myself)

74polSKA

August 3rd, 2011 at 10:50 AM ^

Is it standard practice in this type of case for the State Solicitor General, Attorney General and several of his staff to represent the Respondent?  Is there a conflict of interest between a state agency representing a state entity in a case presented to another state agency?  I'm obviously not a lawyer, I didn't understand anything you wrote that wasn't English, but I was curious.  Great information and I look forward to further analysis.  The locals are pretending this case doesn't exist.  After all, the Ohio BMV cleared tosu of wrongdoing so all the other articles amount to a "witch hunt", right?