Eight Nebraska football players filed a lawsuit against the Big Ten on Thursday, seeking a reversal of the postponement of the fall sports season and greater clarity as to how league leadership arrived at that decision.
The 13-page complaint contends that the postponement should be overturned because it was an "unjustified" decision based on flawed and misapplied medical information and didn’t follow established procedures in the decision-making process. The suit is being filed in Lancaster County District Court.
Husker players represented are Garrett Snodgrass, Garrett Nelson, Ethan Piper, Noa Pola-Gates, Alante Brown, Brant Banks, Brig Banks and Jackson Hannah. Those whose families are “core” members of the Nebraska parents group — which first presented the possibility of legal action in an open letter last week — are Snodgrass, Hannah, Nelson, Piper and the Banks brothers.
The players’ attorney, Mike Flood, said the lawsuit “isn’t about money or damages, it’s about real-life relief.” Nebraska student-athletes followed every precaution and protocol as laid out by the University of Nebraska Medical Center with the expectation of playing football this fall. An “arbitrary and capricious” decision takes away that opportunity, he said.
“Our Clients want to know whether there was a vote and the details of any vote, and whether the Big Ten followed its own rules in reaching its decision,” Flood said. “Sadly, these student-athletes have no other recourse than filing a lawsuit against their conference.”
Specifically, the document raises three counts against the Big Ten:
» Wrongful interference with business expectations. For football student-athletes, the season is a chance to work toward a career as a professional player as well as develop personal brands for eventual monetary gain under name/image/likeness legislation. Canceling the fall campaign based on what is now outdated or inaccurate medical information — while not taking into account why players are actually safer in a team environment that tests them regularly — cannot be justified.
» Breach of contract. The league — through reputation, public statements and its own documents — has established that it exists in part to benefit its student-athletes. It potentially violated that contract by not holding a vote within its Council of Presidents and Chancellors.
» Declaratory judgment. The Big Ten not voting on the decision, or at least being unwilling and/or unable to produce records of such a vote, violates its governing documents. The decision should be invalid and unenforceable.
The lawsuit says represented players won’t seek or accept damages of $75,000 or greater in the action.
A couple hours after the complaint was filed, the Big Ten released a statement saying the players' lawsuit “has no merit.”
"The Big Ten Conference Council of Presidents and Chancellors overwhelmingly voted to postpone the fall sports season based on medical concerns and in the best interest of the health and safety of our student athletes. This was an important decision for our 14 member institutions and the surrounding communities.
"We share the disappointment that some student-athletes and their families are feeling. However, this lawsuit has no merit and we will defend the decision to protect all student-athletes as we navigate through this global pandemic. We are actively considering options to get back to competition and look forward to doing so when it is safe to play."
Later on Thursday, Judge Susan Strong heard an initial motion to expedite discovery in a 30-minute virtual hearing with Husker player attorneys and Big Ten rep Andrew Luger, a Minneapolis-based lawyer.
Luger argued that there is “no precedent” for a court to overturn the decision of a governing body.
“We are of the strong view that there is no claim here,” Luger said. “Eight students out of hundreds — eight students from one school out of 14 — are seeking to overturn a decision that will affect thousands of people. And they are doing so under the most stretched legal theories that one can imagine.”
Student-athletes, he said, do not have the right under any contract to be privy to governing documents in the Big Ten. Ruling in their favor would allow any student-athlete to try to find flaws with any decision by any governing body.
“These plaintiffs disagree, I understand that,” Luger said. “But that’s not a basis to pick apart (Big Ten) internal processes, to get documents that nobody has a basis to see, for a lawsuit that we are firmly convinced will fail on the merits.”
Luger also suggested that the case may belong in federal court and that no Freedom of Information Act-like law applies to the Big Ten. He said if the Big Ten proves that there was a vote, “the entire case goes away”, according to the language of the lawsuit.
League Commissioner Kevin Warren, in an Aug. 19 open letter, wrote that the Council of Presidents and Chancellors' decision “was overwhelmingly in support of postponing fall sports and will not be revisited.” He later added, “the decision was thorough and deliberative, and based on sound feedback, guidance and advice from medical experts.”
Strong gave the Big Ten until 5 p.m. Monday to file a written brief in response to the motion.
The Big Ten and Nebraska officials have publicly turned their attention to a possible winter/spring football season in recent weeks. A spokesperson for the Nebraska athletic department told The World-Herald on Thursday it had no comment on the current lawsuit.
Nebraska Athletic Director Bill Moos and UNL Chancellor Ronnie Green have also made clear that they are preparing for a season in January or later.
“Football will definitely be after the first of the year,” Moos said last week.
Still, public pressure and grassroots efforts continue against the league. A petition by Ohio State quarterback Justin Fields has well over 300,000 signatures. A group of player parents representing 11 Big Ten schools — all but Wisconsin, Minnesota and Indiana — issued a collective statement Wednesday expressing a “total lack of confidence” in Warren’s ability to lead and communicate.
Nebraska parents, in an Aug. 20 letter written by Flood, laid down an ultimatum for the Big Ten to provide documents related to the decision-making process as well as scientific data considered by last Monday or face a lawsuit. The deadline passed with no communication from the league, the group said on Twitter.
The eight Nebraska players signed letters of engagement earlier this week. The football team returned to a 12-hours-per-week workout model this week after taking the last two weeks off following the postponement decision.