On Dec. 20, the NCAA hit OSU with big penalties and explicit findings that former Coach Tressel “purposely hid” information and is “not credible.” The casual observer might surmise that this decision brought to a final end the trail of troubles experienced by OSU over the previous year.
— But back in August 2011, ESPN filed a Freedom of Information action to force Ohio State to release (among other things) emails sent to, or received from, Terrelle Pryor “Advisor” and wealthy glass manufacturer Ted Sarniak. The briefs in this matter (the final one was just filed on Dec.23), combined with the NCAA’s unequivocal finding that Jim Tressel is “not credible,”give hint that OSU’s President Gee and AD Gene Smith – both of whom barely survived the massive “Tat-Gate” earthquake in Columbus last year – might be getting some advice from their lawyers that there exists the constant and not-so-distant rumble of a very big Aftershock which can hit OSU in 2012.
— The media — and the briefs — have focused on one main issue in the ESPN suit: whether – as OSU claims — the Federal Educational Rights and Privacy Act [FERPA] ban on release of “Educational Records” (without advance written consent from the student or parent) is an absolute bar to any production of any document which even once mentions a student. Though ESPN’s prospects appear good for eventually obtaining a court-ordered production of those records withheld by OSU (more on this later), it’s important to recognize that both sets of briefs omit any mention of a second related and very explosive issue:
Whether Ted Sarniak has, at any time since Pryor’s high school years, been a “representative” of OSU’s athletic interests [a “booster”] under NCAA Bylaws.
— By way of background, if Sarniak at any time functioned as an NCAA-defined OSU booster, then the many gifts and benefits which Sarniak allegedly showered all these past years on his advisee Pryor would have been considered benefits provided by OSU in violation of NCAA bylaw. Which would’ve have increased a) the likelihood of an NCAA finding that OSU had been “lacking in institutional control;”; b) the nature and severity of NCAA penalties; and c) the likelihood that even more of the many OSU football victories since Pryor arrived on campus in 2008 might be vacated.
But wait, you say, didn’t the NCAA decree long ago that Sarniak was not an OSU Booster?
— It’s true, OSU got the answer it (and Head Coach Jim Tressel) badly wanted on this important question back in September 2008, after some eighteen months of negotiations with, and investigation by, the NCAA, when NCAA staffer Jackie Thurnes decreed that Mr.Sarniak was not, in fact, an OSU booster. OSU presumed, as of that ruling in September ‘08, that the matter was settled – for good.
But alot has changed since that Sept. 2008 “Sarniak-Not-Booster” decision — all of which Gee and Smith desperately hope the NCAA will ignore:.
— 1. Tressel received the first email from Attorney Cicero, informing him of the memorabilia sales by players, on April 2, 2011. The discovery of this email on Jan. 13, 2011 put it into a “bombshell” status, as it made immediately evident to any reader that Tressel had lied, and had known of the illegal sales for nine months. But, within just one day of receipt of this Cicero email, Tressel forwarded it to Ted Sarniak. This forwarding email is just as much a bombshell, but as regards a different issue: whether Sarniak was an OSU Booster. Tressel “purposely hid” the Cicero emails from Gee, AD Smith, and Compliance Office Doug Archie – but also “purposely” sent the emails to Ted Sarniak, who at that moment, we can infer, was the most important person on earth — in Tressel’s view — in terms of protecting and promoting OSU Football’s overweening interest in winning. The question ought be put anew to the NCAA’s Jackie Thurnes: is there any other proof needed of Sarniak’s actual status as an active, and critically necessary OSU booster than this one extraordinary email which Tressel obviously assumed would never see the light of day?
— 2. I’ve noted in previous postings the “make-believe” character of much NCAA investigation and adjudication, including specific illustration of its’ common de facto rule of evidence interpretation:“Coaches and AD’s Never Lie, Players Do.” But that de facto rule is now, for purposes of any issues now or previously litigated before the NCAA which involved Jim Tressel, out the window. The only presumption which can now be applied is the NCAA’s own: that Tressel is and was not credible and is capable of hiding evidence.
— And if you review the record leading up to the Sept. 2008 “Sarniak-Not-Booster” finding by the NCAA, you will note that Ms.Thurnes actually interviewed Tressel in August 2008 regarding these Sarniak-Booster issues. Should Ms.Thurnes and the NCAA — and OSU’s Gee and Smith – now have some very significant doubt about the truth of what Tressel told Thurnes in that August 2008 interview — and what he may have been “purposely hiding” from her then?
—- And shouldn’t it occur to Thurnes, the NCAA, Gee and Smith that a complete review of all Tressel emails, going back to 2005 when he began recruiting Pryor, be undertaken to see if those emails might shed — just as the Cicero emails did – light on more lies by Tressel?
— So this slight diversion brings us all the way back to the ESPN Freedom of Information action — which seeks many of those very Tressel emails which would be extremely probative on the Sarniak Booster issue. The pot is going to be stirred. And we can see that OSU’s Gee and Smith are using their argument in that case —that the emails and other documents are “Educational Records” which cannot be released — to hide what any objective observer must conclude is potential evidence of material misrepresentation, fraud, and misconduct by Tressel Gee, Smith, and OSU.
— We’ll explore in our next posting how these issues, and OSU’s handling of the pending FOIA lawsuit, ties in with a pattern of deception and misrepresentation undertaken and enacted not just by Jim Tressel, but by President Gee and AD Smith for now 12 months.