Thursday, July 14, 2011


The following is from twitter account @GregDoubleU regarding the suit filed by ESPN requesting emails from The Ohio State University athletic department.

Be sure to contact Greg on twitter @GregDoubleU with feedback!

The following comments do not neccessarily reflect the opinions of Script Ohio, this blog is intended to give readers of the Script Ohio blog a format to express their opinions

A Skeptic’s Take on the ESPN vs. Ohio State Lawsuit

The recent story that ESPN has filed a lawsuit against The Ohio State University should come as no surprise to anyone. For months, Jim Tressel supporters have argued that he was “jumping on the grenade” for the likes of his superiors, most notably Athletic Director Gene Smith, and that it was unfathomable that a man of his character could orchestrate something like this without the knowledge of someone higher up the totem pole. ESPN seems to agree and they have turned to the Supreme Court of Ohio in what appears to be an attempt to show that this scandal reached beyond Jim Tressel.

Ohio State fans have cried every foul they can think of to assert that ESPN has crossed the line here. But even if many of the Buckeye supporters are correct and the network actually has an agenda, it is important to note that Ohio State can only face significant problems as a result of their own repeated attempts to cover up the truth and disseminate misinformation. As it stands right now, Ohio State swears the rabbit hole goes no deeper and that no one besides Tressel was to blame. The Athletic
Department has thrown everything it owns behind that argument specifically to avoid the dreaded “lack of institutional control” charge that almost certainly would come if the scandal is found to have reached beyond Tressel. They need this to be the end and they have a lot more at stake here than ESPN. ESPN is playing with house money and they have called what they believe to be a bluff on the part of Ohio State
by requesting records they believe to be public. The only risk for ESPN (aside from the litigation costs)is the potential alienation of the Ohio State fan base. That is hardly a deterrent though. Ohio State fans have harbored rage for the network for quite some time and don’t appear to be warming up to ESPN anytime soon.

ESPN has issued several requests for documents, but the one I feel is the most significant is matched up with what I feel is the most bizarre response from Ohio State. ESPN requested all correspondence between Tressel, Gene Smith, OSU President Gordon Gee, and Compliance Chief Doug Archie that pertain to Ted Sarniak. I see this as a clear attempt to show that knowledge of the violations extended beyond the Ohio State football coach. Sarniak, as it is well documented, is the now infamous Pennsylvania businessman who served as a mentor to the now equally infamous Terelle Pryor and was supposedly alerted to the problems in Columbus before the Athletic Department or the NCAA. In response to this particular request, Ohio State is attempting to hide behind the Federal Educational Rights and Privacy Act (FERPA). Whether the information is protected is a matter that the Ohio Supreme Court will ultimately decide but the argument seems to be a desperate attempt to keep things secret on the part of the university. FERPA exists to protect the students’ personal information – grades, financial aid, and other educational records. ESPN claims that the requested communications between Ohio State personnel are not considered education records and they should be released to comport with the state public records law. In support of their argument, ESPN’s lawyers have cited a string of cases from Ohio and other states where courts have limited the protection offered by FERPA and ordered the release of public records. Among these cases are several examples pertaining to collegiate athletics.

Of course the key question we should all be asking is why Ohio State would want to keep the records private? I suppose it is possible that they may believe the records contain information that is legitimately protected by FERPA. Unfortunately, I cannot imagine what that would be and why it would overlap with any discussions about Ted Sarniak. It is also theoretically possible that the Athletic Department may want to keep from having to prove its own innocence. From their perspective, they may not feel that ESPN has made a legitimate request and may see no purpose in releasing records that will only prove what the university is now preaching to the world – Tressel was the sole problem and we fixed it by getting rid of him. Although I understand it somewhat, that argument doesn’tregister with me either. I see no reason why they wouldn’t release those documents to ESPN if they
contained nothing damaging especially in the face of a specific request for those specific documents. The university itself said it released “voluminous” stacks of information to ESPN. So why would they want these particular pieces of information kept away? And why are they attempting to use the questionable FERPA defense and avoid the Public Records law that compels them to release these types of documents?

In my mind, the more likely scenario is that those conversations show “a lack of institutional control.” If that is the case, Ohio State’s only option is to hide behind FERPA and hope the Ohio Supreme Court collectively wakes up on the right side of the bed, buys their argument, and rules that the records are exempt from Ohio public records law. After reading through the information submitted in their brief to
the Supreme Court of Ohio, ESPN’s lawyers have crafted what appears to be a legitimate argument as to why FERPA does not apply to these particular records. Assuming the argument is accepted and the records are released, where does that leave Ohio State and the pending NCAA investigation? And what does ESPN gain from exposing Ohio State?

Let me start with my view on the second question: Ohio State and its representatives have continually drawn a line in the sand, retreated from it, redrawn the line, and re-retreated from it. Frankly, they look ridiculous to the national media and I don’t think very many people inside and outside of the state believe the scandal really began and ended with Tressel. If there is malfeasance at the top of the
Athletic Department, it will be big news that every media outlet will want to report on and ESPN (along with every other media source) would love to be able to say they exposed Ohio State.

Additionally, I think it is at least possible that this may be an attempted check on the pending NCAA investigation. If a “lack of institutional control” argument is constructed by ESPN, the NCAA will essentially be forced to levy a harsh penalty on Ohio State. For outsiders who have claimed that Ohio State has received favorable rulings from the NCAA, it will look like justice served and remove any question from an investigatory body that can do, essentially, whatever it wants. I do not think this has anything to do with elevating the SEC and University of Texas Networks as many have alleged since ESPN has a television contract with the Big Ten as well. No Ohio State relevancy means no Big Ten relevancy which means fewer meaningful games for ABC/ESPN and a lot fewer viewers on Saturday afternoons in the Midwest. Yes they are in business with the SEC and the University of Texas, but cutting off their nose to spite their face makes ESPN zero dollars.

In terms of the pending investigation, a cover-up at the top of the Athletic Department can’t be good for business. Additionally, the repeated attempts to remedy the situation without actually remedying the situation will make Ohio State look ridiculous if this is not the end of the problem. I see no way Gene Smith has a job much longer if there is something damaging in those records and they are ultimately

From a more long-term perspective, the NCAA would be forced to impose sanctions that
would leave Ohio State out of bowl games for a few years and reduce their number of allocated scholarships. Finally, I can’t imagine a top-tier coach who would want to come anywhere near the head coaching job.

To be fair, Ohio State’s attorneys have not yet responded to the legal arguments put forth by ESPN. They will have their chance to say why FERPA does apply. Further, these documents have not been released and it is only speculation as to what is in them. But the amount of effort being spent to obtain them on one side and protect them on the other makes me think something is amiss. Earlier in the week, I was asked to assess the situation and give a gut reaction to it. As of right now, I cannot say that I get a good feeling. From my perspective, it looks like Ohio State has something to hide and I think it is safe to assume they are not hiding something that makes them look like strict followers of the rules. Sorry Buckeye fans. As a fellow Ohio State fan I am preparing for the worst and I will be shocked and surprised if this ends well for the Buckeyes when the legal system runs its course.

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