Mary Jo White-Wash: OSU Report Dots the ‘i’ in ‘Script Ohio’ for Meyer and AD Smith

There she is, Mary Jo White, silver tuba glinting in the sun, marching in step behind the baton-waving drum major, around and about the moving, living ‘Script Ohio‘ text message which is spelling out, O, then H, then I, then O, unfolding on the grand green pre-game OSU Horseshoe stadium, until White is at that spot, and the crowd is fully-frenzied, the band blares, and White overtly sweeps one leg out and around a quarter-turn at a time, to bow grandly, north, east, south, and then west, the crowd exploding — and then bows swiftly down to deliver her 23-page whitewash report to the sacred turf, to serve as the dot on the ‘i’ of the ‘Script Ohio.’


White has opened the season for the Buckeyes, by writing a white wash report which ought be set out next to the one-holer out back, alongside last year’s Sears Roebuck catalog, where it might serve an honest function.


Didn’t We See This Movie Before? In 2002, OSU AD Andy Geiger”s written statement annual evaluation of head coach Jim Tressel’s said that Tressel was not faithfully reporting NCAA violations he knew about.

And Gene Smith, who became AD in 2007, has already had his department wracked by crushing scandal relating to serious breaches of duty of report violations. In April 2010, Tressel got emails from a booster-attorney in Columbus, informing him of NCAA violations, involving sale or trade of OSU memorabilia by players, including Terrelle Pryor. Tressel’s first action was not to report the issues to OSU or the NCAA, but to email Pryor’s ‘patron’ back home in Pittsburgh, a local man who served as a mentor/father figure to Pryor. In September, Tressel filled out a mandated form, averring that he was unaware of any NCAA violations. When the U.S. attorney sent a letter to OSU in mid-December, concerning the same memorabilia sales by players, Tressel again denied any knowledge of any such events. OSU filed a self-report with the NCAA, which recounted Tressel’s lie that he had known nothing of the events. Much hoopla surrounded the pending question as to whether the 5 players would play in the upcoming bowl game, and Tressel publicly, on national TV, chastised the players for their involvement (the players were allowed to play in the bowl game.)

Two weeks after the bowl game, someone at OSU happened to review Tressel’s emails, and found that he had, for the previous 9 months, been lying about having had no knowledge of the violations. But, instead of immediately reporting Tressel’s obvious, long-running fraud, OSU sat on the information for three weeks. All these Tat-gate events took place while Gene Smith was athletic director.

What should Smith have learned from the Tressel scandal?: 1) an electronic trail is important; 2) concealing a job-related electronic trail is strong evidence of both culpability and insubordination; 3) That good administration of an athletic department requires a) mandatory retention of all electronic communications; b) mandatory ‘one-click’ forwarding reporting of all possible violations, not just obvious ones. (All Tressel had to do, for example, back in April 2010, was forward the attorney-booster’s email to Smith, or OSU compliance — with one click.)

The Guts of White’s whitewash is this part of her report:

“The failure of OSU personnel to respond promptly to two July 25, 2018 records requests from the school pa,per, “The Lantern,” for emails and text messages, as well as
any call history, between Urban Meyer and Zach Smith from July 18, 2018 through July 24, 2018 and between Oct. 25, 2015 and Dec. 1, 2015, and the same communications between AD Gene Smith and Coach Meyer for the same dates for any materials “pertaining to Zach Smith.” On July 25, 2018, these requests were forwarded to Julie Vannatta, Senior Associate General Counsel, who, on July 25th , emailed AD Smith, and
Diana Sabau, Senior Associate Athletics Director, and instructed them to retrieve responsive emails and texts from Coach Meyer’s phone. On July 26th , Vannatta asked Amy Nicol, Director, Internal Operations for Football, and Brian Voltolini to “go get [Coach Meyer’s] phone and check his texts with Zach.” Although all of these individuals were aware of the requests – and indeed both AD Smith and Sabau responded that they had no documents on their end – no one appears to have actually checked Coach Meyer’s phone or even approached him about the requests. Had Coach Meyer’s phone been examined and processed promptly at that time, we would know definitively that the August 1 article’s revelations had no impact on the evidence we received for July 23rd and dates in 2015. While the absence of prompt and effective follow-up is problematic and frustrating, we want to be clear that we have found no evidence suggesting that Coach Meyer was aware of the records request before we brought it to his attention during the Independent Investigation.”

Nobody lifted a finger when directed to go get Urban Meyer’s text messages. The delay of about a week, until after it was discovered that all texts on Meyer’s phone, older than a year, had been deleted (and that others may have been selectively deleted), left plenty of time for Meyer to do a cover-up, by consulting with Voltolini about how to do the deletions. This parallels the three week delay, after Smith discovered Tressel’s emails on Jan. 13, 2011, before Smith reported Tressel’s fraud to the NCAA: both delays gave to Tressel, and now, Meyer, plenty of time to scurry to bury the facts and cover the tracks.

Other Meyer events echo the Tressel scandal. Tressel lied to a riveted national audience, during the Christmas season preceding the 2011 OSU bowl game. Meyer similarly lied to the circus-ring of press and public which surrounds the Big Ten summer pow-wow. The difference?: NCAA staffer Tim Nevius artfully cross-examined Tressel in a deposition, and proved that Tressel had “purposely lied” — which was the conclusion explicitly made in the COI report.

Like Tressel’s rinky dink lies to Tim Nevius (“I didn’t report the emails I got because the tattoo-shop fellow was a known criminal, he even associated with murderers, I just couldn’t, I just froze), Mary Jo White was confronted with Meyer’s a) Tressel-like excuse that he didn’t ‘intend’ to lie (despite the fact that he repeated the lie eight times, and had had numerous specific discussions on the topic the previous night); b) greasy-kid-stuff assertion that he’s always had serious memory issues due to medication; c) wild assertion that he nonetheless had perfect memory about a phantom meeting with Courtney Smith eight years previous. Nevius and the NCAA saw through this variety of nonsense which tends to issue, apparently, from the mouths of OSU head football coaches. But White, in her desperation to white-wash, was locked in: the whole nation already knew, from the transcript of the Big Ten presser, that Meyer had lied.

So what did she do? — a quick look at a pertinent other finding by White helps show her zany solution:

“Meyer told us that his primary reason for firing Zach Smith was because he failed to bring both the order of protection and the criminal trespass matters to his attention, and instead Meyer heard about them from news and social media reports; Coach Meyer considered these failures to be violations of the core value of honesty.”

Here White and Meyer hoist themselves, and Gene Smith, by their own petard. Mary Jo White should have made a nearly-identical finding about Urban Meyer — as follows:

He failed to bring highly relevant information about Zach Smith’s lengthy, appalling history, to Gene Smith’s attention, and instead G. Smith heard about them from news and social media reports. Gene Smith considered these failures to be violations of the core value of honesty.”

That sort of finding should have been followed with another by White: “Gene Smith should have fired Urban Meyer for many of the same reasons Meyer fired Zack Smith.”

Instead, White dared go where reason, evidence, objectivity and good faith dared not go, and tried to wallpaper it over, by making the ouija board conclusion that Meyer hadn’t intended to lie.

What did Gene Smith actually learn from the Tressel scandal? These events all show: a) a lack of institutional control in Gene Smith’s athletic department; which b) Smith intentionally creates and preserves. Smith saw — and substantially caused — the Tressel failure-to-report scandal — and nonetheless failed to have in place in 2018 procedures which would require preservation of all electronic evidence, and prompt reporting of all possible violations.

It’s not that Gene Smith sloppily failed to learn the obvious lessons from the Tressel scandal. To the contrary: he rejected them, in favor of the a directly contrary course of action. The repetition of the same kind of failure-to-report events only seven years after the Tressel scandal caused Tressel to resign, shows that Gene Smith’s department lacks institutional control because he wants it that way: he has intentionally set up an environment which encourages people to bury facts, and cover the tracks.

Forensic Restoration of Deleted Text Messages: But here’s the final reason why Mary Jo White will be invited to the OSU football team’s annual awards banquet next January, where she will receive the same ‘gold pants’ trinket memorabilia which all the players get (if they beat Michigan), and a letter-sweater: deleted text messages are commonly recoverable. It might cost money, but OSU is paying White $1,500 an hour, so cost is not a relevant factor. Text messages can be recovered. But Mary Jo White didn’t want them. Mary Jo White should’ve gone after the texts, and also recommended: 1) termination of both Meyer and Gene Smith; 2) immediate new OSU policies mandating that a) all athletic department electronic communications always be preserved, and b) that immediate reporting of all possible violations always take place, with one click.

Instead, OSU remains, even now, an operation which encourages burying the facts, covering the tracks, and lies. And Mary Jo White?: she dotted the ‘i’ in ‘script Ohio,‘ and the ‘i’ in ‘lies.


About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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