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  • The Buckeyes have launched an investigation into head coach Urban Meyer's awareness of WR coach Zach Smith's history of domestic violence, leaving people at every level of involvement with legal questions to answer.
By Michael McCann
August 01, 2018

As reported by college football reporter Brett McMurphy, Ohio State football coach Urban Meyer is accused of misleading media on July 24 when Meyer alternatively downplayed and denied awareness of domestic violence allegations previously brought against his former wide receivers coach, Zach Smith. During the Big Ten media day July 24—one day after Meyer fired Smith in the wake of Smith becoming the subject of a temporary restraining order—Meyer described a 2009 incident in which Smith was arrested for battering his pregnant wife, Courtney Smith, as “what was reported wasn’t actually what happened.” Further, Meyer said of a 2015 incident in which Smith was accused of battering his wife as being news to him. Meyer explained that he had received a text the night before (July 23) about an incident involving Smith in 2015 but that “there was nothing . . . once again, there’s nothing—once again, I don’t know who creates a story like that.”

McMurphy’s reporting indicates that Meyer may have known much more about Smith’s alleged mistreatment of his ex-wife than Meyer had let on to the media. The reporting also suggests that Meyer should face serious questions as to why he kept Smith on his staff until last month.

Late Wednesday, Ohio State placed Meyer on paid administrative leave. The university will now investigate whether, and to what extent, Meyer and other university officials could have violated their legal and contractual obligations.

• Ohio State Opens Investigation Into Urban Meyer, Whose Job Hangs in the Balance

Smith, 34, was served a domestic violence civil protection order in July. The order is set to last five years and prevents Smith from going within 500 feet of Courtney Smith. To be clear, a domestic violence civil protection order is not a criminal conviction. Such an order requires a lower burden of persuasion—“good cause” or “preponderance of the evidence”—than the “beyond a reasonable” burden necessary for a conviction. Murphy’s reporting also indicates that Smith will have an opportunity to contest the order in court on August 3.

Still, the issuance of the order is cause for serious concern—it means that a judge has at least tentatively found that Courtney Smith is in immediate and present danger of violence and that such an order is necessary to protect her and her two children (the Smiths have two children, one is eight years old and the other is six) from Zach Smith.

Smith, who was on Meyer’s Florida coaching staff from 2005—09 and who had been on Meyer’s Ohio State coach staff since 2012, is no stranger to domestic violence allegations and their criminal law implications. As McMurphy details, police arrested Smith for aggravated battery on a pregnant victim in 2009. Courtney Smith declined to pursue the charge, allegedly at the behest of persons close to Meyer. Smith was also investigated by law enforcement in 2015 for assault, domestic violence and stalking. He and his wife divorced in 2016, but a year later Smith was accused of making threats while trying to enter his ex-wife’s residence. He received a criminal trespass warning following those alleged threats and then violated the warning this year. The violation led to an arrest for misdemeanor trespass.

While Smith’s record of allegations is disturbing, it should be noted that Smith has not been convicted of any crimes.

McMurphy’s investigative reporting contains numerous details as well as excerpts of key pieces of evidence and legal records. McMurphy obtained text messages purportedly sent from Smith’s wife, Courtney Smith, and Meyer’s wife, Shelley Meyer, which indicate that Smith’s alleged acts of domestic violence may have been known to Urban Meyer and other members of the Buckeyes’ coaching staff for several years. Courtney Smith contends that all of the Ohio State coaches’ wives knew. That said, in an interview with Stadium, Courtney Smith acknowledged that she did not confirm with Shelley Meyer if Shelley had told Urban about the 2015 incident.

Legal implications, including if Ohio State eventually seeks to fire Meyer

There are a number of legal questions that various stakeholders will attempt to answer in the approaching days, weeks and months. One is whether Urban Meyer and/or Shelley Meyer may have failed to adhere to reporting obligations under the Title IX (as well as reporting obligations under the Clery Act and Title VII) and, if so, the potential ramifications for them and Ohio State. As with other Ohio State employees who supervise students, both Urban Meyer, as head coach of the Ohio State football team, and Shelley Meyer, as an instructor in Ohio State’s College of Nursing, are required to make timely reports of certain allegations of sexual violence and harassment to relevant university administrators. Those administrators include Ohio State’s Title IX coordinator and, in the case of Urban Meyer’s reporting, athletic director Gene Smith.

Under Title IX, allegations that require reporting are those that concern the programs or activities of the university; here, an Ohio State football coach allegedly battering his wife likely qualifies as concerning the university. To bolster that interpretation, the university’s sexual misconduct policy unambiguously states, “Any employee who receives a disclosure of a sexual assault or becomes aware of information that would lead a reasonable person to believe that a sexual assault may have occurred involving anyone covered under this policy, must report all known information immediately” (emphasis added). Potential violations of Title IX can be investigated by the Justice Department’s Office of Civil Rights and persons victimized by such violations can bring civil lawsuits against the university.

There are many unanswered questions as it relates to potential reporting issues. For one, it’s possible that university officials were already aware of the 2015 allegations against Smith—either through the Meyers or through other persons, including members of law enforcement or court officers—before Meyer’s press conference. Along those lines, the fact that Urban Meyer denied awareness of the 2015 allegations to the media doesn’t mean that he took the same approach with university officials. Meyer was not under oath while speaking with the media, nor was he otherwise obligated to tell journalists the truth.

Along those lines and like in any major sports controversy involving a large university, it is safe to assume that there are many more important facts that will become known. Those facts could substantially change the trajectory of the story and how we interpret the behavior of those implicated.

In addition to reporting issues, there is the possibility that Ohio State might eventually seek to fire the 54-year-old Meyer and do so “for cause”—meaning without pay and due to alleged unethical behavior. Meyer’s employment contract, which runs through 2023, is set to pay him more than $38 million over the next five years. Under the termination provision of the contract, the university retains the right to fire him for cause in a number of circumstances. A public version of Meyer’s contract (this version is from the point in which the contract was extended in 2015) mentions the following “for cause” circumstances:

In addition to those three provisions, Doug Lesmerises of Cleveland.com reports that when Meyer signed his latest contract extension in April, he agreed to a provision requiring him to report certain types of allegations of sexual assault and stalking involving any student, faculty or staff. Per that provision, Meyer must report allegations for which he is aware and allegations for which he has reasonable cause to believe took place.

Depending on how the facts develop, any of those four provisions could theoretically apply to Meyer: He could be accused of violating the university’s sexual misconduct policy, engaging in dishonesty in his duties as coach, failing to notify his athletic director about potential violations of university rules and neglecting to report allegations of sexual assault and stalking for which he possessed a sufficient degree of awareness. 

By placing Meyer on administrative leave, Ohio State will investigate the allegations and review its options. Further, by placing Meyer on paid leave, Ohio State avoids the potential legal pitfall of financially harming Meyer before making substantive determinations against him. If the university doesn’t give Meyer a fair shake—such as by punishing him before finding him at fault—he could argue in court that he was denied due process. In that same vein, Ohio State placing Meyer on paid leave ensures the school doesn’t unwittingly give him an opportunity to seek a court injunction to return to work.

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Should Ohio State at some point move to fire Meyer with cause, he would almost certainly then sue the school for breach of contract. Meyer would stress, among other points, that Smith was not convicted of any crimes. In addition, Meyer would argue that he was under no legal obligation to fire Smith and that none of Meyer’s superiors instructed him to fire Smith. Meyer might also express or imply that other university officials, such as the athletic director, general counsel and dean-level administrators, had multiple opportunities to learn of, and respond appropriately to, the allegations against Smith. To the extent Meyer could implicate other university officials in any wrongdoing, the school might seek to avert a lawsuit and negotiate a settlement with him.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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