Photo Credit: Eric Francis

Nebraska Football Players’ Legal Battle with Big Ten Continues

September 18, 2020

A lawsuit against the Big Ten filed by eight Nebraska football players doesn’t seem to be going away anytime soon.

At the outset of this week, the Big Ten made its first official response to a lawsuit seeking to invalidate the league’s postponement of the fall football season. The players’ suit calls into question whether a vote ever took place within the Big Ten’s Council of Presidents and Chancellors (COP/C) to postpone the season, relying on public comments made by University of Minnesota President Joan Gabel and Michigan State President Samuel Stanley saying a formal vote didn’t necessarily happen.

In a 23-page brief filed Monday by the Big Ten, the league called the suit a “fishing expedition” and asked that Lancaster County District Court Judge Susan Strong deny the player’s motion for limited expedited discovery and set an expedited briefing schedule on a motion to dismiss.

“Plaintiffs are eight University of Nebraska student-athletes who disagree with the COP/C’s decision and seek to have it overturned,” the Big Ten’s brief read. “But Plaintiffs’ desire for a different outcome does not equate to a cause of action allowing them to overturn a duly-made decision by the governing body of the Big Ten that impacts thousands of people in and around the fourteen member schools. There is no legal authority that allows Plaintiffs to substitute their judgment as to safety and the risks presented by the pandemic for that of the COP/C. Plaintiffs’ claims ultimately will be dismissed.

“Plaintiffs know this. They also know that in the normal course of litigation, that dismissal would end Plaintiffs’ fishing expedition. To circumvent this reality, and obtain what is the true objective of their baseless complaint—information about the COP/C deliberative process—Plaintiffs have filed this motion for expedited discovery. To be clear, the Big Ten opposes this motion, not because of a concern as to what its internal 4 documents will show, but because it is an unwarranted intrusion into the legitimate deliberative process of a non-profit decision-making body that should not be permitted. Again, even if Plaintiffs were entitled to the information they seek (and they are not), that information would not support a claim for relief. The Court should not indulge this meritless probe, and Plaintiffs’ motion should be denied.”

The players have asked for documents that prove a vote took place, documents that reveal who voted which way, and documents that shed light on the medical justification for the Big Ten’s decision to postpone its fall season.

To date, the league has not provided much publicly in the way of its specific health and safety concerns.

The standard window of 45 days to produce such materials, the players are arguing, would make the suit irrelevant as it would bleed into October, when other conferences have already begun playing football.

The latest the Big Ten could begin a season and still participate in a College Football Playoff is Oct. 10, according to prominent radio host Dan Patrick, who reported Tuesday that sources suggested to him an Oct. 10 start date is being targeted by the league. Reached by text message, Nebraska Athletic Director Bill Moos said that date is merely a rumor. Asked directly if there was any truth to it, he said, “No.” On NET’s Big Red Wrap Up show Tuesday night, Moos added “right now, the earliest we’ve discussed is a Thanksgiving model.” Moos serves on a subcommittee for the Big Ten’s Return to Competition task force focused on scheduling models.

The Big Ten’s argument is that the players have no right to the information they’re seeking, and their entire case is based on three claims that the league didn’t vote, didn’t have the requisite 60% approval as set forth by league by-laws, and based its decision on one medical study.

The league revealed in its filing that an 11-3 vote in favor of postponing the season took place on Aug. 11. That information came by way of a sworn affidavit from Northwestern President and Council Chairman Morton Schapiro.

It also jibes with what Nebraska’s own COP/C representative, Chancellor Ronnie Green, has said publicly on multiple occasions—that a vote took place and, though not unanimous, there was “overwhelming” support for the league’s decision.

Among the three dissenting votes were Nebraska, Ohio State, and Iowa. The working theory is university presidents who voted against playing a season didn’t want their votes public as that would put them in direct opposition of their athletic coaches and players who wanted to play a season.

In response to the Big Ten’s latest filing, the lead attorney representing NU’s players, Mike Flood, said Tuesday “there continues to be a fact dispute about whether there was a vote.”

“The Big Ten has chosen to dribble out limited, additional information so it can wrongly claim it has answered our questions while it continues to hide relevant information all the while claiming it has been ‘transparent,’” Flood said in a statement.

The players are also contending that the postponed season represents a breach of contract, to which the Big Ten replied: “It is settled law that student-athletes do not have standing to bring claims to enforce conference by-laws as third-party beneficiaries.”

I asked a well-regarded law professor for help interpreting which side has ground to stand on, and he was strongly opposed to the claims made against the Big Ten.

“Even if there were no vote, the suit still would be a baseless complaint,” said Marc Edelman, Professor of Law at Baruch College’s (NY) Zicklin School of Business. Edelman teaches, writes, and consults in the area of sports law. “There is nothing that provides college students a fundamental right for their school to offer an extracurricular program such as football. And irrespective of whether the decision was made by vote, by conversation, or unilaterally, these students are not a member of the Big Ten and thus they are not guaranteed certain rights in terms of the Big Ten process with respect to whether or not to offer a season.

“If these athletes would like to be involved in the decision-making as to whether to play or cancel games, their recourse should be attempting to form a union and gaining the right to bargain over hours, wages, and working conditions with their school. Or, alternatively attempting to file an anti-trust action and arguing that the 14 teams that compose the Big Ten conference cannot act concertedly. There are real avenues for change that exist here, but these college athletes are not attempting to challenge what’s occurring by attempting to form a union, and they are not challenging the collective action under anti-trust law, as they could. It seems they are simply arguing they have the fundamental right to require their colleges to offer football in a pandemic, and that does not seem to jibe with anything that is a well-established legal principle.”

Edelman said if he was advising the eight players, those two options would be his suggestion for legal action. Either attempt to organize the Nebraska football team to vote to form a union and bargain against the University of Nebraska under state law or against the Big Ten or the NCAA under federal law. It’s worth noting here that only eight families are represented on the lawsuit.

Kim Newsome, mother of Nebraska cornerback Quinton Newsome, told ESPN there are “a lot” of parents both at Nebraska and throughout the Big Ten who don’t have the same issues with the league.

“Yeah, I would love to see my kid play, but then again, at what risk to his life, his safety, long-term effects?” she said. “The kids, of course they want to play. But we as parents, they may be adults, but we still have to give them guidance and advise them on life decisions. The people making the most stink about it are not looking at the big picture. They’re looking at the now, not the latter days. I want my child to live a long life. I don’t want him to have health conditions down the line.”

Alternatively, Edelman said Husker players could have used anti-trust law and attempted to challenge the collective decision of the 14 member schools as constituting an illegal restraint of trade where each school should have made an independent decision.

Players and parents, he said, are never involved in the decision-making process of college sports.

Edelman said 90% of cases that are filed never make it to the trial stage and “a substantial percentage” disappears under a motion to dismiss for failure to state a claim.

“Stated in the way it was stated by the lawyer does not create a legal claim, in my opinion, whatsoever,” he said. “That’s why I strongly agree with the Big Ten conference that the way the claims are made should and would be dismissed.

“There are so many bonafide legal challenges that are going on right now against the NCAA and its member colleges for all types of things that reasonably may violate anti-trust law and the publicity rights of college athletes. But this one particular case filed against the Big Ten by these eight families is not grounded in any real legal claim. And it’s unfortunate that this claim was filed because, if anything, it takes away attention and validity from the very real legal and human rights issues that exist right now in college sports.”

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