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  • Ohio State could have fired Urban Meyer with cause it if wanted to, but there are a number of reasons why the school would instead opt for a three-game suspension.
By Michael McCann
August 23, 2018

Ohio State’s decision on Wednesday to suspend Urban Meyer for three games, despite finding that he engaged in multiple types of misconduct that would have justified firing him with cause, reflected a calculated choice. It is a choice that could pose far-reaching implications for the school.

Taking stock of Meyer’s missteps and how they implicate his employment

As revealed in Wednesday night’s press conference and in the accompanying investigative report, Meyer erred in several ways, including as follows:

• Meyer failed to inform athletic director Gene Smith of Zach Smith’s problematic history when Ohio State hired Zach Smith in 2012 as wide receivers coach. Zach Smith was on Meyer’s Florida coaching staff from 2005 to ’09. In the press conference, Gene Smith observed that a pre-employment background check on Zach Smith failed to reveal that in ’09 Zach Smith was arrested for aggravated battery on a pregnant victim (the victim was Smith’s then-wife, Courtney Smith). Gene Smith was unaware of that important fact when he agreed to hire Zach Smith. Meyer, however, was well aware of this information. Yet Meyer omitted mention of it to Gene Smith in discussions about Zach Smith’s hiring. Stated differently, the limitations of a background check on Zach Smith should not have kept crucial knowledge away from Gene Smith—Meyer should have been simply been more forthcoming with Gene Smith, his superior.

• Meyer appears to have breached the language, or at least failed to live up to the intended spirt, of the university’s sexual misconduct policy. The policy compels reporting on a range of violent and otherwise inappropriate acts that are based on sex or gender. The policy refers to “sexual misconduct” as including conduct that is non-consensual or that “has the purpose or effect of threatening, intimidating, or coercing a person.” It goes further to compel disclosure of any information “that would lead a reasonable person to believe that a sexual assault may have occurred involving anyone covered under this policy.” There is relevant ambiguity. The report acknowledges that some university employees have been under the impression that an arrest or formal charge is necessary to trigger a reporting obligation—and thus Meyer might have had an honest misunderstanding of the policy. In addition, the report indicates that there was no mandatory reporting of domestic abuse, so long as the abuse did not involve sexual violence or sexual assault, until August 2016. Back in 2015, Meyer failed to adequately report his knowledge of law enforcement investigating Smith—whom Meyer directly supervised—for assault, domestic violence and stalking. Meyer appeared to communicate some or all of what he knew to Gene Smith, but both Meyer and Gene Smith were technically obligated to inform university compliance officials of acts that could be interpreted as violating the sexual misconduct policy, and they failed to do so. The fact that Zach Smith ultimately wasn’t charged with a crime didn’t extinguish any responsibility of Meyer to adhere to his university obligation to report a possible sexual misconduct involving a subordinate.

• Meyer was untruthful and deceptive during Big Ten media day on July 24, 2018. During his press conference Meyer deflected questions about his knowledge of Zach Smith’s past, downplaying the allegations, feigning ignorance and attempting to obfuscate with statements like “what was reported wasn’t actually what happened.” Although the investigative report curiously concludes that Meyer did not “deliberately lie” it nonetheless acknowledges that he “clearly misspoke and made misstatements.”

• Meyer appeared to engage in spoliation of evidence. The report notes that investigators reviewed “10,000 pages of Coach Meyer’s text messages from the past year” yet saw no messages older than one year. The report also contains an account of how Meyer and associate athletic director Brian Voltolini reacted to Brett McMurphy’s damning report on August 1 of text messages between Courtney Smith and Meyer’s wife, Shelley Meyer, and the inference that both he and Meyer were well aware of the 2015 incident. As the report makes clear, Meyer and Voltolini conspired to delete old texts on Meyer’s phone by adjusting the settings on Meyer’s phone so as to delete messages older than one year, out of concern that media could obtain access to Meyer’s phone. This is consistent with the fact that even if Meyer owned the phone, certain information on the phone could have been vulnerable to a public records request given that Meyer’s employment at a public university. This would be especially true of texts that concerned a public matter, such as whether an employee complied with reporting obligations under a public university’s sexual misconduct policy. In deleting old texts related to a public matter, it’s possible that Meyer failed to follow Ohio State’s record preservation policy. Meyer could have had other, and perhaps more valuable, reasons to delete old texts. Most notably, by deleting the texts, Meyer prevented his employer from gaining information that could have been used to justify firing him with cause. In short, Ohio State leadership had several grounds to construe Meyer deleting old texts as contravening his employment duties.

Meyer’s employment contract, which is set to pay him more than $38 million over the next five years, contains a lengthy termination provision. It authorizes the university to fire Meyer for “for cause”—a classification that would relieve the school of the obligation to pay him—on several grounds implicated by the Zach Smith controversy. Those grounds include Meyer: violating any university rule; engaging in fraud or dishonesty; failing to adhere to reporting obligations and neglecting to personally comport himself in a manner consistent with good sportsmanship and with the moral, ethical and academic standards set by the university. Given the university’s findings, any of those conditions could have been invoked by the school to justify firing Meyer with cause.

Understanding Ohio State’s strategy in response to obtaining this information

Given the above findings, the obvious question is why didn’t Ohio State fire Meyer with cause. There are at least four key reasons.

First, Ohio State didn’t want to fire Meyer, with or without cause. This is perhaps the most important reason. Despite his missteps and lapses in judgment, Meyer, 54, enjoys a 73–8 record at Ohio State. Many experts regard Alabama coach Nick Saban and Meyer as the two best coaches in college football. If Ohio State fired Meyer, his replacement would almost certainly not be as skilled. The team would likely suffer on the field and in recruiting. To that point, the Buckeyes’ football program is an extremely valuable asset to Ohio State. The Wall Street Journal finds its total value to the school exceeds $1 billion and U.S. Department of Education data indicates that the program annually brings in about $90 million in revenue. If a head coach of a different team at Ohio State had engaged in identical conduct, it’s quite possible that Ohio State would have fired him or her. Meyer, by virtue of who he is and the value of the football program, was likely treated much more favorably.

Second, Ohio State didn’t have to fire Meyer. This is a similar but still different reason. Contractual language empowering one party to take a particular action doesn’t compel that party to do so. Here, the university found certain aspects of Meyer’s conduct and mindset to be redeeming. For instance, investigative team chair Mary Jo White observed that Meyer “impressed us with a sincere commitment to the Respect for Women core value that he espouses and tries to instill in his players.” She also noted that Meyer “acted in good faith,” including when he assumed there was insufficient information to trigger a reporting obligation.

Meyer, for his part, admits that he “should have done more” and “was sorry for that.” Many will disagree and contend that his behavior should be viewed in a more critical light. Also, Meyer’s apology to Buckeye Nation, particularly in the absence of an accompanying apology to Courtney Smith, seemed at best misplaced and at worst a sign Meyer wasn’t really sorry. Yet the decision to retain or fire Meyer is not up to the many. It is up to a relatively small group of persons that include the Ohio State Board of Trustees and top university officials.

Third, had Ohio State fired Meyer, it would have invited questions as to why other high-level university employees weren’t fired along with him. Gene Smith, for example, was responsible for reviewing and monitoring Meyer. Smith’s three-week suspension confirms that the university regards him as blameworthy. Smith, in turn, reports to the Ohio State president Michael Drake and coordinates with various other persons reflected on university organizational charts. In other words, persons with substantial influence on the decision to fire Meyer possessed self-interested reasons to downplay his wrongdoing and to discourage the university from firing him.

Fourth, Meyer would have had 38 million reasons to litigate a for-cause firing, and a protracted legal fight could have been very damaging to Ohio State on multiple levels. Per the terms of his employment contract, Meyer had the right to litigate a contract dispute in Franklin County, Ohio. Had he been fired, Meyer could have sued the school for breach of contract, defamation and possibly also for violating the Americans with Disabilities Act. He would have asserted that while he admits to making mistakes, none rose to the requisite level to warrant a for-cause firing. Further, he would have stressed that university leadership and investigators distorted and exaggerated the record in ways designed to scapegoat him. Meyer’s use of medication, and its apparent side-effects, could also have proven relevant in a lawsuit, since he might have insisted that his medical condition was to blame for some of his missteps.

College Football
Ohio State, Urban Meyer Don't Look to Have Satisfied Anyone—or Learned Anything

To that end, contract interpretation matters. While the literal wording of Meyer’s contract suggests that it would have been easy for Ohio State to fire him with cause, Meyer’s attorneys would have argued that such language must not be viewed in a vacuum and must instead be interpreted in accordance with precedent. Meyer’s attorneys would have attempted to locate case law where courts interpreted identical or similar contract language. Those attorneys would have hoped to prove that an employer must demonstrate especially egregious conduct on the part of the employee to justify invoking such language. The attorneys would have then contended that Ohio State failed to show that Meyer engaged in such conduct.

Meyer would have also asserted that the self-styled “independent report” was hardly “independent.” Meyer would have stressed that the “independent board and working group” was commissioned by the Board of Trustees, the same entity that has the power to fire Meyer. Meyer could have also maintained that the investigation could not have been “independent” when the entity commissioning it was poised to save $38 million if the board produced a document that gave cover to fire Meyer with cause.

Further, Meyer would have highlighted that the investigation was admittedly incomplete. Private investigations lack subpoena powers, which prevents investigators from forcing witnesses to turn over emails, texts and other documents. To that point, the report acknowledges that investigators “attempted to, but were unable to retrieve text messages for” several critical witnesses, including three extremely relevant persons: Gene Smith, Zach Smith and Voltolini. Private investigations also can’t force witnesses to testify under oath. Witnesses in the Zach Smith situation who had reasons to worry about being blamed could have been inclined to lie, exaggerate or omit information in interviews with investigators without worrying about the possibility of perjury charges.

The report also mentions that Meyer periodically takes medicine that “can negatively impair his memory, concentration, and focus.” Investigators also observed that Meyer “sometimes had significant memory issues in other situations where he had prior extensive knowledge of events.” The report suggests some of Meyer’s answers during Big Ten media day reflected not ill-intent but rather blameless health conditions. In any lawsuit over a firing, Meyer’s attorneys would have argued that the university admits medication impacts Meyer’s focus and concentration and thus perhaps played an exonerating role in his missteps. Both federal and state laws provide protections for employees with health conditions and who use medication.

A lawsuit would also expose Ohio State leadership and other employees to heightened public scrutiny. Meyer, perhaps more than any other public employee in the state of Ohio, has the financial wherewithal to expend considerable money litigating against a public employer. His legal team could have forced substantial pretrial discovery on Ohio State, including requiring that emails, texts and records be turned over and compelling Ohio State officials to testify. Given that Meyer has been employed in such a prominent position at Ohio State since 2011, he is likely aware of numerous pieces of information that might reflect negatively on various persons employed by the university. Meyer is, in short, a threatening figure and not someone the university would take lightly in litigation. A lawsuit by Meyer would most likely lead to a financial settlement with the university, thereby negating some of the cost advantages for the school in firing Meyer for cause.

Further, a lawsuit could cast a cloud over the Buckeyes program and its recruiting efforts. While the school would likely be able to hire a prominent person to replace Meyer, that person would almost certainly be viewed by recruits and their families as a downgrade.

Ohio State might have traded one set of problems for another

Ohio State, then, made a decision that retains a talented coach and averts a legal showdown with an affluent and informed person and all of the accompanying fallout that would follow. Yet going forward, the university will be vulnerable to sharp criticism that it is insufficiently sensitive to domestic violence—particularly since Courtney Smith’s name went glaringly unmentioned in the press conference by Drake, Smith and Meyer in their prepared remarks. SI’s Joan Niesen details why the words of university leadership and Meyer’s words failed Courtney Smith and Andy Staples explains why Meyer’s explanation doesn’t square with all of the facts. These lines of criticism won’t go away anytime soon.

In addition, consider the next time an Ohio State employee is accused of similar levels of wrongdoing as Meyer and is subsequently fired. He or she will openly wonder why Urban Meyer was treated so differently. If the answer is simply “Meyer wins football games,” that would conclusively signal the university’s priorities. It would then be up to the Ohio State community to accept or reject them.

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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