The Big Ten’s 23-page written brief left more questions than answers, according to attorneys representing Nebraska football players, who say it strengthens the push for even more transparency into why it decided to postpone the fall sports season.
The attorneys for eight Nebraska football players made a 19-page filing of their own Tuesday that came less than 24 hours after the league contended that the entire case was a “fishing expedition.” Both statements followed an initial motion from player representatives last week asking for the Big Ten to turn over documents related to its postponement decision — including vote details and medical data — in a matter of days.
Lancaster County District Court Judge Susan Strong could make a ruling this week. NU player reps are asking for the league to produce documents by noon Friday.
Lead attorney Mike Flood spearheaded Tuesday’s reply by the players, writing that much of the Big Ten’s brief confirms that there are disputed facts on which his clients are entitled to answers and not just “cherry-picked information.” Among them:
» Was there really an actual vote by the Council of Presidents and Chancellors to postpone fall sports? The Big Ten included a sworn affidavit from Northwestern President and Council Chairman Morton Schapiro, who said the decision came by an 11-3 vote. But the counter is that two school presidents — Minnesota’s Joan Gabel and Michigan State’s Samuel Stanley — both publicly said last month there wasn’t a formal vote.
» What specific medical information did the league consider? NU player reps said the Big Ten was too vague in its description of “sound feedback, guidance and advice from medical experts.”
» What is the full scope of league bylaws and governing documents that student-athletes fall under? The Big Ten’s 13-page submission of its bylaws included 11 that were completely redacted, with only a few paragraphs describing that 60% of COP/C votes are needed for a decision. It is “unreasonable” for student-athletes to be held to a contract they are unable to read in full, the brief said.
While the Big Ten argued Monday that anything shorter than a standard 45-day window to produce documents would be unwarranted, Nebraska player attorneys cited the “good cause” standard, which exists when the need for expedited discovery outweighs prejudice to a responding party. They also narrowed their scope for requested medical data — from March 15 to present in the original complaint to July 1-Aug. 12, the day after the postponement decision came down.
Waiting until mid-October for the league to disclose more materials, the brief argued, could render the complaints moot since the college football season starts this month. Players will begin enduring damages, including the ability to grow their personal brand and potentially profit from their name/image/likeness whenever that legislation goes into effect.
Said the brief: “The Big Ten should not be permitted to run out the clock.”
Player reps also pushed forward with their contention that the postponed season represents a breach of contract on multiple levels that can be explored further as the case continues:
» Student-athlete status as third-party beneficiaries. The brief rejects the Big Ten’s notion that it is “settled law,” and cites several cases to the contrary. It’s “disingenuous” to say the league bylaws don’t describe an intent to benefit student-athletes, it said, then redact most of those bylaws in a filing.
» A direct contract between student-athletes and the Big Ten. Despite all scholarship players signing financial aid documents that says in part they agree to “full compliance … (with) the rules, regulations, bylaws and other legislation of the Big Ten Conference,” the complaint is enough to move forward for further discovery.
» A covenant of good faith and fair dealing. The league is not being “transparent” as it argues. It continues to conceal vote specifics, evidence that a vote occurred and specific medical data.
In a statement, Flood said the league has revealed nothing that would prevent the discovery process from moving forward.
“The Big Ten has chosen to dribble out limited, additional information so it can wrongly claim it has answered our questions while it continues to hide relevant information all the while claiming it has been ‘transparent,’” Flood said.
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