July 30, 2014

ESPN v Ohio State: The Lawsuit and What It Means

Sometimes people can apply laws in a manner that is inconsistent with the spirit in which the law was first enacted by the legislators. In the case of Ohio’s Open Records laws, the public’s right to know stems from a general mistrust of the English Monarchy.

In fact, as recently as 1901 in the Superior Court of Cincinnati, the court made the following judgment:

In England the fountainhead of justice is the king. . . . The courts are his courts, and the government is his government. Whatever power the people have he has granted to them; and if no grant has been made to them to examine the public records, it may well have been in England that they have no such power.

But in this country . . . the people are the fountainhead of justice. The courts are their courts, and the government is their government. Whatever power they have not granted to their officials remains with them. . . .

As public records are but the people’s records, it would seem necessarily to follow that unless forbidden by a constitution or statute, the right of the people to examine their own records must remain.

It is in this spirit that Ohio’s General Assembly enacted the public records statute in the state. Because The Ohio State University is an entity formed by the government and carries out a public function and receives public funds, they are required by this law to not only keep and maintain all public records (including correspondences such as email and phone records), but also to turn these records over to anyone who would like to see them.

This is obviously a fundamental aspect of what democracy in America is all about. It allows the public to always have access to information and to make sure that it truly is the people who have the power in this nation. This freedom is meant as a defense against corruption and tyranny.

However, this law also means that anyone, including news agencies such as ESPN, can ask to read the emails of a football coach who is employed by the University. Now, I’m not so sure that this law is in place so we can know what is going on with the football coach at the school. That seems a tad silly, but the law is the law.

And so it is that ESPN has sued The Ohio State University in an attempt to force the University to turn over records that the University has deemed exempt from this open records law. I am by no means a lawyer, so I can’t even begin to opine on what falls under the exceptions listed under the state code, so for that aspect of this, we’ll simply let the courts decide.

However, what we can do is consider the meaning of all this. Why is ESPN still asking for these records and why is Ohio State not turning them over?

To figure out what it is that ESPN is digging for, a good place to start is by looking at the initial request. The case can be viewed on the Ohio Supreme Court’s website, and among the documents is an affidavit from ESPN reporter Tom Farrey. Exhibit A in said affidavit is a copy of the email Farrey sent to Ohio State on April 15, 2011 in which he made the initial request for documents. Exhibit C is a 2nd request for information sent on May 11, 2011.

The point of contention here is the information Ohio State has withheld. Exhibits B and D document Ohio State’s response, and they include a line item inventory of which records have already been turned over, which documents were still in the process of being collected, and which records Ohio State refused to turn over.

If we look at the email response OSU sent to ESPN on June 21, 2011, we can see which specific requests OSU denied to ESPN. Here are the items ESPN asked for, and OSU’s reason for denying them per Exhibit D in the affidavit:

  • ESPN: “All documents and emails, letters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since 1/1/2010 related to an investigation of Jim Tressel.”
    • OSU: “We will not release anything on the pending investigation.”
  • ESPN: “Any and all emails or documents listing people officially barred from student-athlete pass lists (game tickets) since January 1, 2007.”
    • OSU: “We would deem this to be overly broad per Ohio’s public record laws.”
  • ESPN: “Any report, email or other correspondence between the NCAA and Doug Archie or any other Ohio State athletic department official related to any violation (including secondary violations) of NCAA rules involving the football program, since January 1, 2005.”
    • OSU: “We would deem this to be overly broad per Ohio’s public record laws.”
  • ESPN: “Any handbook or similar document describing the investigative or other procedures of the Ohio State athletic compliance department.”
    • OSU: “Looking into this.”
  • ESPN: “Any reports, emails or other notes sent from or to any athletic department staffer, including but not limited to athletic compliance representatives, regarding Dennis Talbott. Please note that Talbott sometimes uses other forms of his name to identify himself, including ‘DJY Talbott’ and ‘D. Jay Talbott.’”
    • OSU: “I do not believe this is a proper records request as you are seeking information rather than a specific record, but I will provide you with information soon about Doug Talbott.”

Everything else that Farrey asked for Ohio State either had already provided or were still in the process of pulling those records.

Furthermore, the documents also include an affidavit from an ESPN producer named Justine Gubar who asked for all emails that pertained to Jim Tressel, Terrelle Pryor, Devier Posey, Daniel Herron, Mike Adams, Solomon Thomas, Ed Rife, Ted Sarniak, Chris Cicero, Gene Smith, Gordon Gee, and Doug Archie. Ohio State denied this request by citing FERPA, which protects the privacy of student records at public universities.

Again, I won’t comment on the legality of applying FERPA to this request. However, the fact that ESPN is still trying to get these records, specifically the emails pertaining to Jim Tressel, tells me that ESPN believes that Jim Tressel did indeed forward this information to Gene Smith and that, contrary to OSU’s assertion, this was not an oversight by one rogue operative.

It would be dangerous to start making assumptions either way, but there are some variables to consider here.

First and foremost, the very fact that Ohio State self reported the initial Tressel emails makes me skeptical that there’s some grand cover up here. If Gene Smith knew what had happened and knew what Tressel had done, it would seem to be a bizarre move to initiate a self report which would open Ohio State to this kind of scrutiny.

Second, it’s hard to fathom just how large this cover up would presumably have to be. If Tressel really did forward the emails from Cicero, the cover up wouldn’t end with Gene Smith, it would have to include Doug Archie, lower members of compliance, the legal office, and maybe even other assistant coaches, perhaps even Luke Fickell. Would Ohio State really undertake such a massive cover up effort, only to self report the violation several months later? It’s possible, but doesn’t seem especially likely.

Finally, I have to question whether Jim Tressel would allow his reputation, his legacy, and his livelihood all to get unceremoniously tossed aside just in the name of not implicating the higher ups at Ohio State. As I have stated before, NCAA compliance is the duty of the compliance officers. If Tressel really did forward the email, he surely would have sent it to at least the compliance office and to Gene Smith, thus the point of emphasis on any cover up with lie with them more so than even Tressel.

And therein lies the crux of this issue. ESPN is looking for a lack of institutional control. The same LOIC that the NCAA has not found at Ohio State. OSU may not have turned over the pertinent emails to ESPN, but that doesn’t mean that the NCAA hasn’t seen them. I would be remiss to sit here and tell you that there’s no way there’s a larger cover up at play here. There very well could be, and if there is, the results would be absolutely disastrous. So make no mistake, this is pretty serious. ESPN is looking for proof to essentially kill the Ohio State football program.

But they can’t find what doesn’t exist. So why would Ohio State deny their request if they have nothing to hide? I remember some people saying the same kind of thing when the Patriot Act was first enacted. “If you don’t have anything to hide and you’re not guilty, then why should you care if your rights are violated?”

One of my favorite quotes of all time is the famous Benjamin Franklin saying “He who would trade liberty for some temporary security, deserves neither liberty nor security.” Above all else, this speaks to principle. Just because you’re innocent doesn’t mean you’re not entitled to your privacy and your rights. This is the issue that the courts will decide. Does Ohio State’s status as a public institution supersede the football program’s right to maintain its confidential records?

Whatever happens, this is a fascinating case. It is pitting the largest sports media outlet head to head with the largest athletic department in the country. It’s a colossal battle that could have significant ramifications no matter what the outcome. When you consider the fact that ESPN is producing the Longhorn Network for the University of Texas and also owns the SEC Network, the issue takes on another twist as well (but that’s a completely different topic). Intrigue, rights, conspiracy, possible conflict of interest, perceived bias…this case really has a little bit of everything.

This has been an exhausting process for Ohio State and its fans. I think most of us had hoped that Ohio State’s response to their notice of allegations was the beginning of the end. If ESPN wins this case, and if they do find incriminating evidence, then we are only at the beginning of the next stage. And that stage is one no Ohio State fan wants to go down. Here’s to hoping that Jim Tressel really did act alone in this.

  • http://gooddoctorzeus.blogspot.com DocZeus

    All in an effort to defend some arbitray, corrupt rules of the NCAA… Ugh. I find ESPN’s action far more egregious than anything Jim Tressel/Gene Smith/Terrelle Pryor/or the Ohio State University could have possibly violated.

  • Stinkfist

    “To figure out what it is that ESPN is digging for, a good place to start is by looking at the initial request”

    ESPN is digging for a story to trump Sports Illustrated’s. SI got to perhaps the biggest investigative sports story of the year, while ESPN still thought this was only Tressel and the 5 suspended guys.

  • Tron

    This whole thing has been odd since the beginning. If it comes out that Gene Smith knew about everything, and told Tressel to keep quiet and fall on the sword. That they weren’t going to fire him, so he eventually got tired of dealing with it and decided to resign, I wouldn’t be surprised at all.

  • Stinkfist

    and honestly, I do not see how this is in Disney/ABC/ESPN’s best long-term interest to bring up information that could put Ohio State football on a similar level as SMU 30-or-so years ago. ESPN would lose its high money Ohio State broadcasts. Not just the once a year GameDay, but the nationally or regionally televised Saturday afternoon games. Ohio State boasts one of the biggest fanbases in the country, and therefore, some of the best games to put on TV. I can only visualize any short-term ratings-benefit for ESPN lasting a month or so

    /But I’m sure ESPN knows that they’re doing

  • oribiasi

    If it bleeds, it reads; people love to hear more and more about declines and falls of massive/popular organizations. They need ratings and they know people would flock to read this stuff. It’s like watching a car wreck on the side of the road; everyone stops to see.

    We live in Ohio so it feels odd to us, to read about this and to see so much interest. But if this were at Notre Dame or That School Up North, I would relish the chance to read more.

  • Tom

    I’m not sure in what sense the football program has a right to maintain its confidential documents; as you mention, it’s part of a public institution that is required to keep and provide public records to whoever asks for them. So I think comparing this to the Patriot Act which really did violate people’s rights is a bit far. But, I am no lawyer either. Also, as full disclosure I am a Michigan fan so my view is certainly colored by that. I appreciated reading an even-handed take by a Buckeye partisan.

  • http://www.waitingfornextyear.com Andrew

    @oribiasi: Because Notre Dame is a private school, they would have no obligation to turn over the records to the media. At least, that is, assuming Indiana’s open records law is similar to Ohio’s.

    @Tom: That sort of applies to your comment as well. Under the strict interpretation of the law as written, you’re right, the University probably doesn’t have a right to privacy. But I think it’s funny that OSU’s status as a public University means their football program has no right to privacy. But schools like USC and Notre Dame do have a right to privacy. The open records laws were not written to enforce NCAA rules, it was to prevent abuse of public funding. I guess that’s where I kind of have a problem with this. But I do appreciate your comment and I think your point about the Patriot Act is a fair one.

  • Garry Owen

    All this talk of the Patriot Act is about to get my politics ire up. Please stop. Please.

  • architrance

    Great article. But whatever happened to presumed innocence until proven guilty?

    Just because ESPN is asking for all of these documents doesn’t mean their is necessarily anything provocative in them. They are just demanding them because they can. Maybe they find something, maybe they don’t. They hope they find something that could lead to more news stories/heart ache at OSU and the courts have granted them this right, so they’ll exercise it.

    Can you imagine all of the wasted time at the university of people digging through all of these thousands of emails, documents, etc. to send to outside media outlets like ESPN. I wonder how many other similar requests have been made? This is really utter bureaucracy at its greatest.

    And don’t make an enemy of the mainstream media, because they will continue digging and digging until they find something, anything that can ruin you all in the name of “a story”.

    Also, I still can’t believe that all of this stems from something that I feel like these players had an inherent right to do: SELL THEIR OWN PERSONAL PROPERTY. Yes, it wasn’t an ideal situation – selling it for tattoos, etc. but it was their own personal property, do they not have a basic right to be able to do with it what they please?

    I know they violated NCAA policy, but I feel like those policies have gotten completely out of hand. And it seems like 99% of the NCAA’s effort is just to punish those that break it’s bylaws, not aiming to attack the problems at the root. They would rather treat the symptom and ignore the cause, granted, this is much easier.

    But they are killing the innocence and passion of amateur sport for me.

    Finally, if Sarah Palin can be forced to turn over thousands upon thousands of her own PERSONAL emails to the media, I see no reason why any of this will ever be stopped.

    It used to be that the Red Sox or Yankees were the Evil Empire, but I think we’ve ignored the 800 lb gorilla in the room… EESPN!

  • http://twitter.com/cpmack Chris M

    @ #9 – “Can you imagine all of the wasted time at the university of people digging through all of these thousands of emails, documents, etc.

    There is a simple way around this. The first time something is requested, publish it on the internet and leave it available for a period of time. This would certainly help to alleviate duplicate requests.

    What ESPN is asking for seems to be every email ever sent in the sports program, which certainly wouldn’t fall under the letter of the public records law. There probably needs to be some more specificity to the request. That’s my hope, anyhow.

  • Kai

    Has it been definitively proven that tOSU discovered the emails and self-reported immediately? I’ve seen a few places where Commissioner Delany has contradicted tOSU’s version of events (e.g., he stated that they found out via a FOIA request…on a couple of occasions). Doug Archie indicated that it was possible some open records requests could have gone to other individuals in the Athletic Department without his knowledge.

    I’m curious to see what happens in the coming months. I’m assuming one of two things will happen 1) NCAA adds penalty in the range of 5-6 scholarships for one year, possible bowl ban. or 2) a new series of allegations will be levied in the next month, and the hearing will be pushed back towards the end of the season. tOSU gets to play in the inaugural B1G season with no postseason restrictions (punishment will be levied after the completion of competition). Thoughts?

  • spqr2008

    What’s ironic about this is that by using the public records request to attack Ohio State over NCAA rules, ESPN is wasting Taxpayer dollars in the hours the athletic department will spend defending itself and if unsuccessful, finding and assembling the information requested.

  • mike

    ““If you don’t have anything to hide and you’re not guilty, then why should you care if your rights are violated?””

    just because im not guilty of something or have nothing to hide doesnt mean i should be ok with having my rights violated.

  • http://www.waitingfornextyear.com Andrew

    @spqr2008: Actually, Ohio State can charge ESPN for any costs associated with pulling these records. The lawsuit will waste taxpayers’ dollars, sure. But the pulling of the records themselves is something ESPN will have to pay for.

  • bayrocket

    Sarah Palin didn’t turn over her personal emails. The State of Alaska turned over her official state emails, and then pruned the state emails of other state employees looking for things Sarah sent from her personal mail.

    tOSU should be giving the media an open look at everything they have. A university has no inherent right to privacy. If this were Michigan, you’d be waiting with torches.

  • joe

    they want our tv money, and they won’t stop till they get it

  • subadai

    @architrance

    “… I still can’t believe that all of this stems from something that I feel like these players had an inherent right to do: SELL THEIR OWN PERSONAL PROPERTY.”

    Very naive. Do you really think that the NCAA is is stripping their guns for action over some kids selling golden trinkets for tatoos? No, they are about to blow OSU out of the water because the adults at the helm of a multi-million dollar enterprise (the OSU athletic program) lied to the NCAA about some some kids selling golden trinkets for tatoos.

    Think of it like this. You have a kid and you have some ice cream in the freezer. You tell the kid “we’re having ice cream for desert tonight so don’t eat it when you get home from school.” You come home from work and the ice cream is gone. You ask the kid, “Did you eat the ice cream I told you not to eat?” The kid says “No.”

    What is the bigger problem as a parent? Your kid eating ice cream? Or the kid lying to you about it? I don’t know how it worked in other folks houses, but I got my ass whupped alot harder for lying than for the things I lied about doing – or not doing.

    The NCAA is the parent here and OSU is the kid about to get his ass whupped. For lying. Not for eating ice cream.

  • Garry Owen

    @ subadai

    The problem with analogies is that there is always a better one.

    Try this one: Parents hire a babysitter for their kids and tell the babysitter to not let the kids play with their toys (that the parents let them have). Why? Because “other kids don’t have toys to play with.” The kids play with their toys. The babysitter has reason to believe that they did (because a neighbor kid tattled on them), but when the parents ask the babysitter if the kids played with their toys, the babysitter says “no.”

    The babysitter gets fired; the kids get “whupped.” Both may be justifiable outcomes, but it’s not “naive” to question why either should occur based simply on an arbitrary parental rule, particularly given the sorry justification that the parents give for the rule.

    This analogy game is fun.

  • architrance

    @subadai

    Analogies are nice, but it really has nothing to do with this situation. First of all these are ADULTS not children that you can scold or “whup.” Secondly, I understand that Tress “lied” by not reporting this infraction. Thus he’s out. That’s what the system demands.

    I just argue that the root behavior that began all of this should be perfectly acceptable, because I believe a person should have the right to do whatever they like with their own personal property. There was technically a proper transaction here, they sold their property to someone that wanted and valued it and was willing to pay a good price for it. That’s how society functions. They weren’t doing anything illegal, they weren’t doing anything that would affect their play on the field, they weren’t gaining any kind of unfair advantage. But, the NCAA doesn’t allow someone to sell their own personal property, so now they pay the price. Great. Had they never done this, Tress would never have needed to “lie” about it.

    I even take a little issue with the insinuation that Tressel lied. He was tipped off by a lawyer (and OSU alum) involved in an ongoing Federal investigation of a drug dealer, in which these players were not implicated, just named. By bringing the players involvement to light you risk the chance of harming or undermining an ongoing Federal investigation going after a ring of drug dealers. What’s worse?

    Well said Garry.

  • mgbode

    as long as ESPN and their objectivity are in question…from Stewart Mandel about the new Longhorn Network:

    From the moment this 20-year, $300 million deal was announced, it’s been astounding just how deeply the company is getting into bed with one of the schools it covers journalistically. Granted, conflicts of interest are unavoidable in sports media these days. This website is owned by a company (Time Warner) that holds the rights to NBA, PGA and NASCAR programming. But ESPN isn’t just testing the separation between church and state with Texas; there isn’t one. Case in point: The ever-popular GameDay crew (Chris Fowler and Co.) will be appearing live from Austin for the channel’s Aug. 26 debut. ESPN and Texas are now one and the same, and you can’t tell me it won’t affect the way GameDay, SportsCenter, Outside the Lines, et. al., cover Mack Brown’s program. In a sport where many fans already live in a constant state of paranoia that the media is propping up someone else at their expense … well, ESPN is flat-out doing it. It should make for some interesting signs the first time GameDay goes to Norman.

    Read more: http://sportsillustrated.cnn.com/2011/writers/stewart_mandel/07/13/russell-wilson-wisconsin-mailbag/index.html#ixzz1S0WacZtD

  • Garry Owen

    @ mgbode:

    It also makes me seriously question ESPN’s motive in aggressively attacking the prized possession and primary revenue-driver (i.e., OSU) of their only real college football competition: The Big Ten Network.

    Their intercourse with Texas is also a fantastic way of ESPN ensuring that any prospective marriage between the Longhorns and their chief rival the Big Ten (or, more accurately, the BTN), as rumored last year, will ever occur. (Pardon the innuendo. It just sort of flowed, and I didn’t want to change it after it happened.)

    What better way to prevent the Big Ten from becoming a broadcast juggernaut than by destroying the Big Ten’s primary cash cow and simultaneously and prospectively squating on their best expansion opportunity (considering that Notre Dame is already “spoken for”)?

    There’s nothing pure or credible about the “4 letter.”

  • mgbode

    @Garry – wait, you sound like ESPN would potentially skew it’s reporting on a subject due to self-interest:

    http://sportsillustrated.cnn.com/2011/writers/andy_staples/07/12/mike-leach/index.html?sct=cf_wr_a1

  • Steve

    architrance – Tressel never needed to lie about it. And I’m not sure why you keep using quotes around lie. It’s his duty to report what he’s heard to the proper authorities. And I still can’t believe the “Its a federal investigation!” line is still being used. Tressel could tell Pryor’s “mentor” about this, but not his compliance department? Bull. Ohio State has bounced back and forth between whose fault this is, but we’re always delivered a moving target. Either Tressel did some incredibly shady and inappropriate things that easily deserve getting fired over, or a few more important people at the top were in on this. And I’m not sure why the author is using the self-reporting by Ohio State as anything meaningful. The only reason there was a self-report was because the legal department was responding to a FOIA. And that is why I am all for ESPN’s request here. Clearly Ohio State has no intent of telling the truth until they are absolutely forced to do so. It’s damn embarrassing to be a Buckeye fan right now. The program needs to man up, put it all out on the table, admit how badly they really screwed up, and demonstrate some actual interest in cleaning things up and working within the rules.