Nebraska lawsuit is about answers, but it also illuminates the ultimate question: What is the B1G hiding?
The most adroit quarterbacks can throw a pass they know will be incomplete but will likely result in pass interference and an automatic first down.
That’s essentially the point of 8 Nebraska players’ lawsuit against the Big Ten filed Thursday. It’s unlikely the athletes and parents behind it expect the conference to actually reverse its decision to postpone fall sports, as the suit requests.
But moving forward with the legal process could draw out information not only the Huskers want but also players, fans, coaches and even some administrators have sought since the B1G made its move to the spring. The 13-page lawsuit lists legal terms such as wrongful interference, breach of contract and declaratory judgment and asks for an injunction that would prohibit the conference from enforcing its decision to postpone.
The complaints echo those that have reverberated throughout the league. A flawed process. Vague and uninformative communication. It’s the latest step in a saga of subjects-vs.-leaders that includes Ohio State quarterback Justin Fields’ 300,0000-signature petition, public outcry from coaches including Nebraska’s Scott Frost and the Buckeyes’ Ryan Day, and protests from player parents demanding information.
Wednesday, parents from 11 schools — all but Wisconsin, Minnesota and Indiana — issued a joint letter to Commissioner Kevin Warren requesting transparency into the B1G’s decision-making process, the ability for input moving forward and a plan for what spring football will actually look like. Thursday, prominent college athletics attorney Tom Mars submitted a Freedom of Information Act (FOIA) request for details on the postponement choice.
The Huskers and their B1G counterparts want to know what new info arose between the conference’s schedule announcement Aug. 5 and postponement release 6 days later. They want to know if there was a vote among school presidents and chancellors, and if there is, who voted to play and who voted to punt?
But more than anything, the lawsuit encapsulates the central question gnawing at the very fiber of the conference and major college football during the COVID-19 pandemic.
What the heck is the B1G hiding?
On its end, the conference has issued two largely ambiguous statements — one on Aug. 11 when the fall season was canceled, one in the form of an open letter from Warren — and a Warren interview on Big Ten Network that caused more confusion than clarity. Its legal team said Thursday the lawsuit “has no merit.”
“Eight students out of hundreds — eight students from one school out of 14 — are seeking to overturn a decision that will affect thousands of people,” Minneapolis-based B1G legal rep Andrew Luger said, according to the Omaha World-Herald. “And they are doing so under the most stretched legal theories that one can imagine.”
Perhaps Luger hasn’t seen players, coaches and parents from the likes of Ohio State, Penn State and Iowa saying the same things as Nebraska’s camp in recent days.
Besides, overturning the decision isn’t necessarily the point.
Lincoln radio host Jack Mitchell has a unique perspective on this layer of the B1G melodrama. Before his current gig on KLIN’s morning drive-time show, he graduated from the University of Nebraska College of Law and worked as a practicing attorney.
Mitchell disagreed with a tweet from the Associated Press’ Eric Olson sharing thoughts from Tulane Sports Law Program Director Gabe Feldman that the suit’s primary objective is “catharsis.”
Gabe Feldman, director of Tulane Sports Law Program, told AP colleague @ralphDrussoAP re: #Huskers player lawsuit: “This is a statement lawsuit. This is a catharsis lawsuit. This is a publicity lawsuit. There does not appear to be a legitimate cause of action.”
— Eric Olson (@ericolson64) August 27, 2020
“There’s one other purpose that’s possible here,” Mitchell said during an interview with KLIN’s sister station 1620 the Zone in Omaha, “and that is the same purpose that drove the parents to write their letter and demanded in that letter, which was uncovering documents, recordings, anything related to the process making the decision.”
Members of Nebraska’s parent group — 6 of whose children put their name on Thursday’s lawsuit — had threatened the B1G with legal action if it didn’t respond to its demands for transparency by Monday. But listing players Garrett Snodgrass, Garrett Nelson, Ethan Piper, Noa Pola-Gates, Alante Brown, Brant and Brig Banks and Jackson Hannah theoretically gives the suit a better chance at moving through the legal system because they’re the ones directly impacted financially. The parents didn’t stand to further their playing careers or capitalize on impending NCAA legislation that will allow collegiate athletes to make money off their likeness for the first time.
The suit also calls for $75,000 in damages, and that’s by design — a higher number would deem it eligible for shifting to federal court, where a judge might not be as favorable to the local university.
Mitchell points out that if the case were allowed to move into a “discovery” phase, the documents and information B1G parents have been demanding for days could be turned over. Whether that info is made available to the public is another piece that would need to be addressed in the court proceedings.
I mean, the claims aren’t the best, but I think they just want to get past a motion to dismiss and get to discovery. That’s the end game here. https://t.co/NEjhoNju5m
— Jack Mitchell (@JackMitchellLNK) August 28, 2020
(You can listen to Mitchell’s entire interview for additional context, by the way.)
The B1G obviously doesn’t want that to happen. Based on its comments Thursday, it might file to have the case dismissed entirely. If that’s upheld, that’d be the end of it.
The league has until Monday to respond.
Luger told the World-Herald the B1G isn’t subject to FOIA requests. He also said to honor the players’ request would set a dangerous precedent for any student who wanted potentially confidential information from institutions.
“These plaintiffs disagree, I understand that,” Luger said. “But that’s not a basis to pick apart (Big Ten) internal processes, to get documents that nobody has a basis to see, for a lawsuit that we are firmly convinced will fail on the merits.”
Interesting, considering every conference member except Northwestern is a public institution funded in part by local taxpayers. Financial information and other internal data are matters of public record at state schools.
Why should an unprecedented decision that impacts thousands of students — not to mention local communities like Lincoln, which is projected to lose $300 million with no fall football — be any different?
But that’s a secondary question. Mystery No. 1: Why hasn’t the B1G just followed the Pac-12’s lead and laid bare its evidence for postponement?
Is it because its leaders really did base their decision on a flawed study as has been claimed? Are they embarrassed to show the grave detail of their disjointed meetings, in which Warren played the middle man between doctor, athletic director and school president and couldn’t keep people on the same page? Or to have the public learn they banked on the false assumption the ACC was going to wait till spring, too, as reported by Sports Illustrated?
Is this about ego, or is it about something else?
What’s happening in the B1G might speak to the general disorder lurking behind the scenes in college administrative offices throughout the country. Even before the COVID-19 pandemic, many institutions saw costs and tuition fees both rising at alarmingly rapid rates, suggesting the bursting of an economic bubble in the future. Coronavirus is accelerating the movement along that trajectory and might force colleges to completely revamp their financial infrastructure.
As we’ve said before, imagine a highly-publicized class-action lawsuit from athletes impacted by COVID-19 on top of all that. They’d never admit it, but it had to have played into the B1G presidents and chancellors’ decision.
In any case, this all could have been avoided. Still could be, in fact — lay out your findings, have a press conference with Warren and medical leaders and use the opportunity to present a solid winter or spring plan. Show your work while spinning things forward.
But in a conference where coaches are having to come up with return-to-play options while Warren hides out in his home office somewhere in the Twin Cities, it’s no surprise it’s come to this.
And “this” isn’t a mere Hail Mary as some have suggested. Nebraska players and their folks aren’t desperate. They’re hungry for answers.
Just like the rest of us.