“Hey Coach – I hope you’re not too upset with me…”
“Don’t worry about it – we’ll just pretend it never happened…”
“Are you sure? Won’t we all get in more trouble then?”
“Relax – I’m The Senator…”
I wrote this paper for my Sports Law class a few weeks ago. Once I decided I’d start writing this blog, I figured that it would make a worthy first post.
According to the NCAA, Ohio State University student-athletes Terrelle Pryor, Dan Herron, DeVier Posey, Solomon Thomas and Mike Adams each broke NCAA eligibility rules when they either sold memorabilia to or were given special treatment in the form of discounts on tattoos by Edward Rife – the owner of Fine Line Ink Tattoos in Columbus, Ohio. This memorandum is designed to assist you in understanding Ohio State University head football coach Jim Tressel’s actions after he became knowledgable of the situation regarding his student-athletes, as well as my thoughts on if/how Coach Jim Tressel should be reprimanded.
Summary of Facts
Tressel has told NCAA officials that he knew nothing about these violations committed by his student-athletes. However, emails obtained via FOIA actions show that in April 2010, Tressel received information that his student-athletes had committed the above violations. The emails, as well as Tressel’s responses to the aforementioned emails, show clearly that Tressel knew about potential violations having been committed by student-athletes under his supervision. Tressel chose not to relay this information to Ohio State officials or compliance staff. Furthermore, Tressel signed a NCAA disclosure form in September of 2010, five months after receiving emails enlightening him to the existence of potential violations, stating that he (Tressel) was unaware of any violations occurring under his watch. Stemming from these violations by the aforementioned players, and his subsequent lying to NCAA investigators, Ohio State University head football coach Jim Tressel is now facing NCAA rulings regarding his future. At issue is whether Tressel, who is now known to have had the violations by the student-athletes brought to his attention in April 2010 acted appropriately as per his contract and the NCAA Bylaws upon receipt of such information.
Coach Tressel’s Contract
On June 30, 2006, The Ohio State University and Jim Tressel entered into an employment agreement which superseded the prior agreement between the parties. The effective date of the contract ranges from February 1, 2006 through January 31, 2013. According to the contract, Tressel serves “at the pleasure of the Director of Atletics”. Section 5.1 of the contract contains a list of circumstances where Tressel could be subject to “Termination by Ohio State for Cause.”
The contract between Coach Tressel and Ohio State University, in section 5.1 reiterates that “Coach serves at the pleasure of the Director,” before stating that, “No further payment or benefits shall be made to Coach if the Director notifies Coach that it is terminating this Agreement for cause, which, in addition to any of its other normally understood meanings in employment contracts shall include, but not be limited to the following”. At issue here are a number of clauses, quoted below:
Fraud or dishonesty of Coach in the performance of his duties or responsibilities under this agreement as determined by Ohio State; or
Fraud or dishonesty of Coach in preparing, falsifying, submitting or altering documents or records of Ohio State, NCAA or the Big Ten conference, or documents or records required to be prepared or maintained by law, Governing Athletic Rules or University Rules, or other documents or records pertaining to any recruit or student-athlete, including without limitation, expense reports, transcripts, eligibility forms or compliance reports, or permitting, encouraging or condoning such fraudulent or dishonest acts by any other person, as determined by Ohio State; or
Failure by Coach to respond accurately and fully to any request or inquiry relating to the performance of his duties hereunder or the performance of his duties during his prior employment at any other institution of higher learning propounded by Ohio State, NCAA, the Big Ten conference or other governing body having supervision over the athletic programs of Ohio State or such other institution of higher learning, or required by law, Governing Athletic Rules or University Rules, as determined by Ohio State; or
Failure by Coach to report promptly to the Director and to the Office of Compliance Services in writing any violations known to Coach of Governing Athletic Rules or University Rules by Coach, the assistant coaches, students or other persons under the direct control or supervision of Coach, as determined by Ohio State; or
Commission of or participation in by Coach of any act, situation, or occurrence which, in Ohio State’s judgement, brings Coach and/or Ohio State into public disrepute, embarrassment, contempt, scandal or ridicule or failure by Coach to conform his personal conduct to conventional standards of good citizenship, with such conduct offending prevailing social mores and values and/or reflecting unfavorably upon Ohio State’s reputation and overall primary mission and objectives, including but not limited to, acts of dishonesty, misrepresentation, fraud or violence that may or may not warrant arrest by the relevant authorities.
Additionally, Tressel’s actions merit examination under the Article 10 of the NCAA Bylaws, which contains the sections of interest below, all of which are found in Section 10.1, labeled “UNETHICAL CONDUCT,” of the NCAA Manual, where a violation under Section 10.1 “may include, but is not limited to the following”:
Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution.
Coach Tressel’s Contract
Coach Tressel’s actions following his becoming aware of football student-athletes under his supervision committing violations of NCAA rules constitute a breach of his contract with Ohio State University. For further details, see below.
Section 5.1 of Coach Tressel’s contract with Ohio State University outlines offenses which, if committed, can result in the Coach’s firing for cause:
Clauses e & f:
Sections e & f of Coach Tressel’s contract with Ohio State University are relatively broad, but clearly relate to one another. The two clauses dictate that Coach Tressel must act in an honest fashion while performing his duties at Ohio State University (clause e), and then clarify that the required honesty also applies to the Coach’s preparation of documents for receipt by Ohio State University, the NCAA, or the Big Ten conference, among other institutions. Such documents include, but are not limited to: expense reports, transcripts, eligibility forms or compliance reports”. Tressel’s actions – specifically his signing of an NCAA Certificate of Compliance Form on September 13, 2010 – which according to Ohio State University’s Self Report on this matter had the effect of “indicating he has reported any knowledge of possible violations to the institution.” Tressel had information about possible violations, yet chose not to share this information with Ohio State University or its compliance officials. Additionally, he signed a document that reiterated the notion that he knew nothing of such potential violations. His actions clearly constitute a violation of clauses e and f under the terms of his contract with Ohio State University.
Clause g of the contract between Tressel and Ohio State University clearly states that anything other than an full and accurate response to “any request or inquiry relating to the performance of his duties hereunder or the performance of his duties during his prior employment” brought about by “Ohio State, NCAA, the Big Ten conference or other governing body having supervision over the athletic programs of Ohio State.” Coach Jim Tressel violated clause g of his contract by not following the rules set forth under clauses e and f. The NCAA inquired by way of a Certificate of Compliance Form about whether or not Tressel had reported any and all potential violations known to him to the proper channels within Ohio State University. Tressel signed the form – indicating that he had told Ohio State University of any and all potential violations – but in reality, he knew of the potential violations awaiting Pryor, Herron, Posey, Thomas and Adams. Tressel’s inaction upon the knowledge of potential violations, and his subsequent action of fraudulent reporting to the NCAA constitute a violation of his contract under Section 5.1 g.
Clause m of Coach Tressel’s contract with Ohio State University clearly states that the coach must “report promptly to the Director [of Athletics] and to the Office of Compliance Services in writing any violations known to Coach.” When Coach Tressel was alerted via e-mail on April 2, 2010 of potential violations by football student-athletes under his jurisdiction, he was required to alert the Director as well as the Office of Compliance Services in writing. When Tressel chose not to alert either the Director or the Office of Compliance Services either promptly, or at any point in the near future, he was in clear violation of his contractual duties.
Clause o of the contract between Coach Tressel and Ohio State University states that the Coach is obligated not to bring himself or Ohio State “into public disrepute, embarrassment, contempt, scandal or ridicule or failure by Coach to conform his personal conduct to conventional standards of good citizenship” as well as not to “[reflect] unfavorably upon Ohio State’s reputation and overall primary mission and objectives, including but not limited to, acts of dishonesty, misrepresentation, fraud or violence”. Coach Tressel’s actions in the wake of his becoming knowledgeable of potential violations by student-athletes under his tutelage violate many of these stipulations laid out in clause o. As of this writing, Ohio State University and Coach Tressel are currently under tremendous public disrepute, contempt, scandal and ridicule by sports fans, sports television channels, radio hosts and newspaper columnists around the country. These negative feelings toward Coach Tressel and Ohio State University stem from the actions taken by players under Coach Tressel, but have been amplified greatly in response to new findings regarding Tressel’s prior knowledge of the student-athletes’ violations and his subsequent dishonesty, fraud, and misrepresentation of that knowledge. Such dishonesty, fraud, and misrepresentation leading to such a backlash of negative feelings toward Ohio State University as a result of Coach Tressel’s actions represent a clear violation of Section 5.1 o.
NCAA Manual, Bylaw, art. 10.1 (“Unethical Conduct)
In the NCAA Manual, the Operating Bylaws can be found. Bylaw Article 10.1 outlines what actions by student-athletes or institutional staff will be considered “Unethical Conduct” by the NCAA. One type of unethical conduct expressly outlined by the NCAA is the “refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution.” In their Self-Report, Ohio State University openly admitted that Coach Tressel was in violation of Article 10.1.
Jim Tressel’s Actions
In April 2010, upon receipt of emails from a Columbus lawyer and former Ohio State University football player, Tressel chose not to follow his contractually obligated course of action. Instead, Tressel broke from his contractual duties, and did not tell his Director of Athletics or the Office of Compliance Services of the violations by the student-athletes under his watch in a prompt manner. Tressel then initiated further e-mail correspondence with the lawyer in Columbus in order to ask whether the lawyer had more details about involvement of other players in the violations. The lawyer replied with no further information.
In September, Tressel was given another opportunity with which to disclose the information about violations by football student-athletes at Ohio State University. Again, Tressel chose not to share the information he’d become privy to with Ohio State University or the NCAA. However, Tressel signed a NCAA Certificate of Compliance Form which, according to Ohio State University’s Self-Report, “[indicated] he has no reported any knowledge of possible violations to the institution.” Tressel’s signing of this NCAA Certificate of Compliance Form while knowing of the potential violations partaken in by Pryor, Herron, Posey, Thomas and Adams constitutes fraud, or misrepresentation of his knowledge. In reality, what this means is that Jim Tressel lied to both the NCAA and Ohio State University.
From September through December, Jim Tressel continued to withhold information about violations of NCAA rules from Ohio State University and the NCAA. Tressel allowed all of the aforementioned student-athletes to participate in games for Ohio State University. Ohio State University proceeded to win a share of the Big Ten championship, amassing a record of eleven wins and one loss during the regular season.
In December, 2010, Tressel continued to mislead Ohio State University about his knowledge of potential violations after Ohio State University was alerted of potential violations by the United States Department of Justice. On December 16th, when Ohio State University officials questioned Tressel about his knowledge of the student-athletes’ activities, Tressel still declined to admit that he had any prior knowledge of wrongdoing by the football student-athletes.
According to Ohio State University’s Self-Report, Tressel was asked later in December if he had any knowledge of the violations prior to the University receiving outside notice of the violations. This time, Tressel “replied that while he had received a tip about general rumors pertaining to certain of his players, that information had not been specific, and it pertianed to their off-field choices. He implied that the tip related to the social decisions/choices being made by certain student-athletes. He added he did not recall from whom he received the tip. He also stated that he did not know that any items had been seized. However, the email that was sent to Tressel in April has been released, and though it has some information redacted, clearly states that, “they seized 70,000 in cash and a lot of Ohio State Memorabilia; including championship rings.”
Conclusion (So, what should happen now?)
Ohio State University football coach Jim Tressel was clearly in violation of many parts of his contract, having withheld his knowledge of NCAA violations from both Ohio State University and the NCAA. His withholding of information from both Ohio State University and the NCAA was a repeated offense, having had many opportunities to do so, Coach Tressel decided not to share the information that had come into his possession about the violations committed by the five football student-athletes under his program.
The self-imposed penalty given to Coach Tressel by Ohio State University is nowhere near harsh enough. Fining Tressel $250,000, which amounts to seven percent of his salary is extraordinarily weak. Tressel’s suspension of the first five games of the 2011 season is also very lenient. Such actions by Ohio State University make a mockery out of trying to deter such behavior in the future. If a coach knows that the “going-rate” for committing such violations – allowing players who should be ineligible to continue to compete, and then lying to both the school and the NCAA about not having known about any violations – is seven percent of next year’s salary and a two-game suspension (also applied next year), is it really much of a deterrent to future behavior along the lines of Tressel’s recent actions?
In 2009, Oklahoma State University wide receiver Dez Bryant was suspended for the entire season for lying to his school and NCAA investigators about his relationship with Barry Sanders. The idea that a coach, who should be held to a higher standard than players due to the fact that they are professionals who get paid to coach student-athletes, should be given less of a penalty than a player for violating Article 10.1 of the NCAA Bylaws is unconscionable.
Using Dez Bryant as a precedent, Jim Tressel should receive, at the minimum, an unpaid one-year suspension from all activities relating to coaching college football, whether at Ohio State University or any other institution. However, my recommendation would be that Jim Tressel receive a two-year ban from college athletics, and that Ohio State terminate his contract for cause due to his inaction with regards to this case.
Do I think his punishment will be this harsh? No.
However, if the NCAA wants to show that they do not take these types of matters lightly, Tressel should get the proverbial hammer.
Post them below!