There are a lot of ways for student athletes (and their coaches) to get into trouble but, until recently, trading school memorabilia for tattoos was probably not on anyone's Top Ten List. In March 2011, a tit-for-tat[too]-related scandal erupted when head football coach Jim Tressel revealed that he had not disclosed to higher-ups certain e-mails implicating starting quarterback Terrelle Pryor and several other players who had made such an exchange with a local tattoo parlor. Under National Collegiate Athletic Association rules, this fell under the category of accepting improper benefits, and Tressel ultimately resigned.
During the resulting NCAA investigation, at least 20 media organizations, including ESPN, sent public records requests to Ohio State to access documents related to the scandal. Among other things sought by the media were e-mails with the key word "Sarniak," which referred to Ted Sarniak, a Pennsylvania businessman and mentor to Terrelle Pryor and a recipient of Tressel's e-mails regarding the tattoo parlor exchanges.
The media companies' requests were made pursuant to Ohio's so-called Sunshine Laws, a/k/a the Public Records, Open Meetings & Personal Information Systems Act. In an effort to avoid disclosure, the University invoked the federal Family Educational Rights and Privacy Act ("FERPA"), which prohibits educational institutions from releasing "education records." The University also argued that certain of the other records were protected by the attorney-client privilege.
In response to the University's action, ESPN picked up the ball and filed a lawsuit asserting that FERPA was inapplicable to the e-mails, and that Ohio State was violating state public records laws by not complying with its request. ESPN advanced two arguments that the e-mails were not educational records. First, ESPN argued that the records concerning Sarniak and compliance by Ohio state coaches and administrators with NCAA regulations did not directly involve Ohio State students or their academic performance. Second, they argued that the e-mails were not "maintained by an educational agency or institution," and thus they did not fall within FERPA's scope.
After wending its way through the lower courts, the Supreme Court of Ohio, on June 19, 2012, made a final decision, finding merit with both parties' arguments on the applicable law.
As to the scope of FERPA, the court found that Ohio State was correct in asserting that FERPA prohibited the disclosure of the requested e-mails. As to the argument that the e-mails were not educational records under FERPA, the court took a broad view of the definition, holding that e-mails only need contain information directly related to students (in this case, information identifying the student athletes) to qualify. The court rejected the argument that the e-mails had to contain information related to students' academic performance in order to qualify as an educational record.
As to the issue of who maintained the records within the meaning of FERPA, the court also agreed with Ohio State, finding that the Ohio State Department of Athletics properly "maintained" the e-mails by retaining copies of all e-mails sent to or by any person in the department, and keeping all documents related to its investigation of the tattoo scandal in secure electronic files.
Although the court agreed with Ohio State that FERPA barred the disclosure of the e-mails identifying student athletes, it also agreed with ESPN that the e-mails should be released. How did the court square that circle? It ordered Ohio State simply to redact the e-mails to delete any information that personally identified any students or their parents, and provide ESPN access to those redacted e-mails.
So, though the score was FERPA - 1, Sunshine Law - 1, it appears that ESPN was the victor and plunged over the goal line with the requested e-mails.
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