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The battle between ESPN and Ohio State continues
RICHARD WEINER
Legal News Reporter
Published: January 9, 2012
Even though football coach Jim Tressel and his quarterback Terelle Pryor are long gone from Columbus, The Ohio State University and the cable sports television network ESPN are still engaged in a legal battle over the release of information about their former situation from the school.
ESPN has just filed a reply brief with the Ohio Supreme Court in the case of State ex. rel. ESPN, Inc. v. The Ohio State University (Case No. 11-1177), which was filed in July as a mandamus action to force the university to give ESPN documents relating to the Tressel events that the network says it requested, but did not receive.
The university has consistently held the position that it had given the sports network all of the documents that it could, but always claimed that certain documents could not be released to the public under the federal Family Educational Rights and Privacy Act (FERPA; 20 U.S.C. § 1232g; 34 CFR Part 99)).
ESPN is disputing that FERPA covers the documents that it is requesting from the university.
The battle is basically over the reach of FERPA, and whether the privacy clauses of that act apply to information that could be gleaned from NCAA violations.
FERPA dates from 1974, when it originally passed Congress as the Buckley Amendment. It was intended to both give students access to their records and to ensure that only the student and authorized people would be able to access those records.
It applies only to schools that take federal money, and applies only to students over the age of eighteen. FERPA grants three primary rights to parents and eligible students:
The right to inspect and review/right to access education records;
The right to challenge the content of education records;
The right to consent to the disclosure of education records.
The Act has been amended numerous times since it was originally passed.
ESPN’s original Complaint in mandamus requested that the school turn over to the network emails that mentioned Tressel; Athletic Director Gene Smith; former player Terrell Pryor; Pryor’s mentor, Pennsylvania businessman Ted Sarniak; and the attorney who blew the whistle on the tattoo mess, Doug Archie.
The university responded to the Complaint by saying that some records were protected under FERPA, and that it could not physically produce some of the records because, basically, it had an IT problem.
In the last week of 2011, ESPN filed a Reply Brief, written by Cincinnati attorney David Greiner.
In that brief, Greiner accused the university of using “all of the misdirection in its playbook,” by conflating the school’s (unsuccessful) attempts to avoid NCAA sanctions with the privacy of student records.
The brief states that the university, “cannot avoid the inconvenient truth that it violated the Public Records Act in its response to ESPN's requests," Greiner wrote. Records concerning NCAA violations and resulting investigations are not student records, he wrote, stating that records, “generated in the course of OSU's efforts to remain in the good graces of an independent, private governing body are not education records.”
Ohio State’s game plan may be more common that is generally recognized. According to an in-depth, five-part series by the Columbus Dispatch, FERPA has been used by universities to hide records from the public in ways in which the law was never intended.
That study concluded that FERPA is, “a law with many conflicting interpretations. And that makes it virtually impossible to decipher what is going on inside a $5 billion college-sports world that is funded by fans, donors, alumni, television networks and, at most schools, taxpayers.”
The series found that numerous schools, or at least their athletic departments, tried to protect student-athletes from bad publicity by redacting records of NCAA rules violations, or, as in the Ohio State case, simply refusing to turn them over to the press, all in the name of FERPA.
Ohio State actually has a history of doing this, including one instance where a baseball player doubled as a bookmaker, and one where two players, who turned out to be All-American football players Will Smith and Chris Gamble, took improper benefits from Playboy Magazine.
Other schools who used the same tactics in refusing to officially release student information, including names, have included Arizona State (gambling on Facebook); Clemson (selling a bowl ring); New Mexico (underage recruit drinking and fighting at a strip club); Oklahoma (agent benefits); Texas A&M (selling complimentary game tickets); and UTEP (the younger brother of Carson Palmer received improper benefits from the Raiders/ former Bengals QB).
The Ohio State-ESPN case, however, may be the first time that a FERPA case involving redacting student-athlete records has made it to a state Supreme Court.
Noting this, the ESPN brief asks the Ohio Supreme Court to, “join with courts from around the country in sending an unmistakable message to collegiate athletic departments -- you cannot hide your misdeeds behind FERPA and you must honor your obligations under the PRA (Public Records Act)."