Urban Meyer clause in extension: "Failure by Coach to promptly report...."
This is a clause in Urban Meyers contract extension he signed in April. Can legal minds on the board translate this, so no one misinterprets it, because at first blush, it looks like he will definitely be fired:
Failure by Coach to promptly report to Ohio State's Deputy Title IX Coordinator -- Athletics or Ohio State's Title IX Coordinator any known violations of Ohio State's Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence, and stalking) that involve any student, faculty, or staff or that is in connection with a university sponsored activity or event... a "known violation" shall mean a violation of Title IX that Coach is aware of or has reasonable cause to believe is taking place or may have taken place.
HatTip Bryan Fischer, twitter
LINK: https://twitter.com/BryanDFischer/status/1024783198033608704/photo/1
Yeah, that's the 'interesting' thing about this case, that while Urban looks bad, his wife egregiously violated her reporting responsibilities with direct knowledge of abuse by an OSU employee. So far Urban is taking all the arrows, curious to see if the focus ever turns to Shelly, who said all the right things to the poor woman yet didn't seem to do anything substantial to help her.
So let's say his wife definitely knew about the abuse, and there was evidence, like an email. And let's say she told Urban. In an investigation, would she admit she told him or lie to protect him?
If I’ve learned anything from watching decades of TV crime dramas, it’s that a spouse doesn’t have to testify against their partner. But Mrs. Meyer might want to testify, because, you know, co-eds.
Isn't that in criminal cases? This would be an NCAA issue, no?
you are thinking of either the marital communications privilege or the spousal communications privilege, two overlapping privileges recognized by most states in regards to testifying against a spouse. i believe most jurisdictions have curtailed those privileges and carve out exceptions for things like DV, and sexual assault.
what the import of the clause cited is that it gives ohio the ability to fire with cause and thus avoid millions in buy out costs. if they actually end up canning meyer (still skeptical it will got that far), then they will use the clause to negotiate down the severance package.
My understanding of the carve-outs (and it's been almost a decade since I last had to read them, so I could be well off), though, usually apply to each spouse talking about the other; it used to be that abusive husbands, for example, would try to claim spousal privilege against wives and say they couldn't divulge what was said during their marriage. They could likely claim the privilege here, but that still places the onus on at least Shelley to report the abuse she knew about from those conversations with Courtney.
either spouse could 'enforce' the privilege on the other, or claim it if still married. that's the marital privilege and would keep the spouse from testifying in civil or a criminal court. the spousal communications privilege survives even if the marriage doesn't, and protects communications between spouses that occurred during the marriage. i.e., urban could tell wife not to share what he told her and vice versa. both of those have been sharply limited and in some cases eliminated in our lifetimes with the advent of greater sensitivity to DV, etc.
August 1st, 2018 at 10:49 PM ^
Yeah, I was really just trying to make a joke...
August 1st, 2018 at 11:14 PM ^
I caught that, but you actually made a good point.
Title IX is not a law and spouses are not protected from testifying. It is a conduct policy of the NCAA. Violation is grounds for dismissal and school sanctions, but not necessarily criminal outcomes.
Mongo - Title IX is a federal civil rights law passed in 1972. Public Law No. 92‑318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688.
I have no idea whether the spousal or marital privileges might apply.
I'm no MGoLawyer, but for those focused on Title IX, that's not what the clause uses for its basis. It says "any know violations of Ohio State's Sexual Misconduct Policy."
Based on OSU's Policy, domestic violence is considered "relationship violence" and "(a)ll such acts of relationship violence are forms of sexual misconduct under this policy" (p. 3).
I think he's toast.
To clarify - Meyer's obligation is to report any know violations of OSU's policy. Since he didn't report (and my guess is OSU or media has evidence that his wife told him or he otherwise knew about it - especially given Smith's history), that's what the institution can use as its cause.
August 1st, 2018 at 10:31 PM ^
Well caught. Zach Smith is faculty/staff, and the Policy clearly includes as misconduct "relationship violence" and "domestic violence" (each is defined in more detail in policy).
Certainly if if they wanted to, they could potentially use this to try to void the contract/buyout. There's still a timing issue (new contract was this year), but that's arguable.
(I am an MGoEmploymentLawyer)
The next paragraph says Meyer gets to explain his actions and OSU can simply say that makes sense so whatever.
https://twitter.com/BryanDFischer/status/1024783198033608704
True - but that clause only pertains to "terminating for cause under this Section 5.1 or Section 4.2." The clause about Title IX reporting appears in Section 4.1. I'd guess that they don't have the latitude or appetite to allow him to worm his way out of those violations, given what happened at PSU and Baylor.
August 1st, 2018 at 10:34 PM ^
That says that if they are terminating for cause (which they likely would do here) they have to give him the chance to explain himself, is all, unless he did something nuts like murder someone on national TV. And they have to give it to him in writing.
If they are terminating him for cause this is not a hurdle at all. That ship has already sailed.
Title IX or not, it's knowingly and deliberately looking the other way when domestic violence was occuring.
If Meyer knew, he's as big a monster as any Title IX breaker; if not bigger.
Not an attorney, but a state university employee involved with Title IX compliance issues from time to time. He's absolutely in violation of that clause. If he wasn't, that would also mean that we couldn't punish half of the fraternity bros who sexually assault women when they're at a party at an off-campus location. They'll negotiate a buyout to save face for everybody, but neither side will be willing to admit that they are or aren't in violation, lest a show cause warning come down from something more powerful than either of them.
So actually the potential for a show cause warning from the NCAA combined with OSU AD thinks this is the season is why I think they will try to make this fizzle out by deflecting, making some concessions, and claiming good behavior.
But isn’t the relevant contract the one that was in place in 2015?
There was some language cited from the 2018 contract that makes him required to disclose any violations he knew of... even if they occurred earlier. I think people are talking about the 2018 contract because its applicable and because it was more broad in scope. Actually I don't think anyone has brought up his 2015 contract yet.
The passage is clear: If Meyer hears that a team staffer physically abuses someone, Meyer must officially report it. If he doesn't, he's in violation. What is unclear about this? It couldn't be clearer.
I was just on 11W and one of the most upsetting things I saw was how much better it looks on mobile than mgoblog.
August 1st, 2018 at 10:10 PM ^
This may be off topic, but how does a multi million dollar contract use vague words like promptly? Why not put in an actual time frame?
August 1st, 2018 at 10:19 PM ^
In my industry when I'm making sop's for compliance I use lots and lots of terms like "appropriate levels" and "reasonable amounts".
In other words, "I produced these documents because you made me, and to cover my ass; please don't actually hold me responsible for things"
Because Meyer also has lawyers that worked on this contract and its language.
August 1st, 2018 at 10:12 PM ^
And let me say this: If I'm a parent of a kid who is being looked at for football scholarships, this is what I'm thinking: If he will not report on domestic violence in his own staff, WHAT ELSE WON'T HE REPORT?
August 1st, 2018 at 10:22 PM ^
Well it sure as hell does not stop parents from sending their daughters to MSU, so I doubt it will make any difference here.
August 1st, 2018 at 10:52 PM ^
Urban was aware, but not fully aware.
August 1st, 2018 at 10:55 PM ^
The “failure to report” issue won’t be a problem for Meyer. His boss-Smith-was likely informed. Those two guys are a package deal here. They will concoct a story that saves them both or they both go.
August 1st, 2018 at 11:06 PM ^
I believe it was George Bluth who said it best:
George: You cannot arrest a husband and wife for the same crime.
Michael: Yeah, I don't think that's true, Dad.
George: Really?
Michael: -nods-
George: I have the worst f@#$%*^ attorneys.
Since I can't figure out how to imbed the video: https://www.youtube.com/watch?v=75iv3RKQUAM
August 1st, 2018 at 11:24 PM ^
I feel like there's a little bit of barking up the wrong tree here.
For starters, Shelley is an OSU employee. But, as someone in the thread sagely pointed out, her duty to report likely applied to a narrow list of people. Patients, perhaps people under her authority if she has any, etc. A fellow coaching wife is, to her, a "friend," and I don't believe any mandatory reporting laws obligate behavior for that sort of relationship, nor would an employment contract.
Urban is different, both because of the stated contract language and his role as an authority to Smith.
Miggle mentions the clause that can be used to terminate Meyer for backdated violations, but I don't think that's a must-execute clause. The key here is that all of this contract language was inserted this past spring, after the key events had already taken place. Had this language been in his contract from, say, 2014, he's dead in the water. The fact that he may not, in 2015, have been contractually obligated to report if he was aware of allegations of abuse, maybe provide a small amount of wiggle room.
It won't be easy to excuse something now clearly forbidden because it wasn't forbidden at the time, though, especially in today's culture.
I don't know if OSU is going to try to keep him employed. I think that if they do a very large and significant suspension (like, till October) is almost totally necessary, but then the investigation going on might be to make sure there are no other skeletons. Because you can't render a final verdict and sentence that isn't firing and then have any bad news, anything at all, come out after.
August 2nd, 2018 at 12:03 PM ^
The Liars quote at the B1G media day, “this was a really tough decision to fire smith”
He nailed it alright the worse quote in college football history!