In the latest development over whether Urban Meyer satisfied his legal and contractual duties to notify Ohio State administrators about domestic violence allegations against former assistant coach Zach Smith, the Ohio State University Board of Trustees on Thursday announced that it was convening an “independent board and working group” to investigate how the university responded to the allegations. The board will include two prominent legal figures—former acting U.S. Deputy Attorney General Craig Morford and former U.S. Attorney for the Southern District of Ohio Carter Stewart—as well as former Ohio Speaker of the House Jo Ann Davidson and three OSU trustees (Alex Fischer, Janet Porter and Alex Shumate).
From a legal standpoint, the convening of the board is significant for several reasons.
First, the summoning of a specialized board creates some degree of distance between the university and Meyer, whom the university on Wednesday placed on paid administrative leave. If the university instead relied exclusively on its own general counsel and other attorneys employed in the university’s office of legal affairs, Meyer and his legal team would have a greater opportunity to argue that the school failed to satisfy due process requirements in how it evaluated him.
To that point, should Ohio State ultimately fire Meyer with cause—which, as I explained on Wednesday, would mean that he loses the right to receive the more than $38 million remaining on his employment contract—Meyer would almost certainly sue the school for breach of contract. In such a lawsuit, Meyer would argue that university officials were motivated or even pressured to interpret evidence and testimony in a light adverse to Meyer. After all, the school would like this controversy to go away quickly—if it saves roughly $38 million in the process, even better. A so-called “independent board” to some extent insulates the university from the investigation’s findings and suggests that those findings were credibly made. Conclusions reached by the board will be viewed as “independently reached” rather than as byproducts of a university-led perspective.
For similar reasons, Ohio State has elected to place Meyer on paid administrative leave rather than suspending him without pay. A suspension, Meyer’s legal team would contend, implies that the university has already reached a conclusion about Meyer’s guilt. To the extent such a critique is valid, the university can’t credibly present itself conducing an impartial investigation, nor can it claim that Meyer has been accorded a sincere chance to defend himself. Given that Ohio State is a public university, it will need to satisfy due process requirements in how it handles Meyer. If it appears that Meyer was prejudged by the university, Meyer’s attorneys would pounce on that to argue the coach was victimized by unlawful bias.
By convening a specialized board, the university gains the advantages of putting the situation in the hands of talented and skilled investigators. Morford and Stewart, two former top prosecutors, will know what they’re doing and they’ll have the necessary skill set to acquire evidence and learn facts. Both men also do not appear to have educational ties to Ohio State—Morford is a graduate of Hope College and Valparaiso University School of Law, while Stewart holds degrees from Stanford University, Columbia University and Harvard Law School. They are presumably not Buckeyes fans whose association or fandom could be cited by Meyer as potential grounds for prejudice.
Restraints on the specialized board’s role and influence
The “independent board and working group” is not without limitations and vulnerabilities.
For one, it’s not really independent. The university is presumably paying the board’s members, a point which the members will surely appreciate. This is not a board picked by an independent body without a stake in the controversy. To be sure, the university would like the board to find the truth. However, even if Ohio State does not verbalize such a point to the board, the university would prefer the truth not implicate top officials at the school. Further, whether or not the specialized board is given real autonomy, the fact that the university is presumably paying board members stands in the way of complete independence.
In addition, the specialized board is not designed as a fully autonomous entity. Ohio State’s press release specifically expresses that the “independent” board “will direct the work of the investigative team and be available to provide consultation and advice and assist with communication to the full board on the matter.” This language indicates that the specialized board will collaborate with the Ohio State Board of Trustees. Furthermore, half of the specialized board’s six members are also members of the Board of Trustees. This point further emphasizes that the design of the board is to be connected to, rather than separate from, the university.
Second, the specialized board will lack powers enjoyed by prosecutors and other government officials. Irrespective of how many former prosecutors and former public officials are members of a private investigative board, the board is a private enterprise. Such a board lacks subpoena powers, meaning it can’t compel witnesses to speak or share evidence. Likewise, the board can’t force witnesses to testify under oath. This means that witnesses can knowingly lie without fear of being charged with perjury. Given that witnesses often have reasons to distort their recollections in ways that deflect blame from them, witnesses often become less reliable narrators of past events when they’re not deterred by the very serious requirements of delivering sworn testimony.
In some cases, there are workarounds to these dynamics. For instance, an Ohio State employee might not be legally compelled to speak with the board, but if that employee fears being fired for failing to cooperate with an investigation, he or she may open up and share electronic records. However, these workarounds are less useful when witnesses are not employed by Ohio State.
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.