The Big Ten’s decision to reverse course and join the SEC, ACC and Big 12 in playing football this fall comes as the conference faces mounting legal actions over its original move to cancel. The reversal should diffuse efforts to expose emails and other sensitive communications sent by conference executives and university leaders.
Last month, a group of Nebraska football players sued the Big Ten. They asserted that the cancellation would unlawfully deprive them of commercial opportunities—including those to profit from their name, image and likeness. The players maintain the conference lacked a valid justification to cancel and relied on unsound data regarding the risk of COVID-19 to football players. They also questioned whether the conference followed its own voting procedures. The lawsuit came on the heels of similar legal threats voiced by parents of Nebraska football players.
Most recently, Nebraska state attorney general Doug Peterson requested the conference turn over documentation and financial records related to the conference’s cancellation. In a letter to Big 10 commissioner Kevin Warren, Peterson warned, “the Conference appears to be out of compliance with the Nebraska Nonprofit Corporation Act.” Peterson stressed that compliance with state law requires transparency in decision-making.
Meanwhile, attorney Tom Mars, who advocates for the use of COVID-19 waivers for college football and who has been a sharp critic of Warren, has filed a series of FOIA requests to the 13 public universities in the Big 10. (Northwestern is the conference’s only private school.) Mars demanded emails and other exchanges related to university leaders’ decision to cancel. His search words include “Big 10, bubble, Covid-19, cardiologists, football, myocarditis, public relations, reputation, Kevin and Warren.” Mars confirmed in a text message that he will withdraw his requests now that the conference is moving forward with fall football.
It is unlikely that any external force—even an attorney general—could have compelled the Big Ten to play football this fall against its wishes. The Big Ten, like other conferences, has substantial discretion under bylaws to decide whether and when games are played. While the conference’s decision-making may have been flawed or even unlawful, it is unlikely a court would have issued a remedy that forced the conference to play.
The interests of the conference likely weren’t the only strategic consideration for Big Ten leaders, university presidents and athletic directors in deciding to change course. Litigation exposes them to more personalized risks, including having to testify and publicly share emails and texts they assumed were private. Even if their conference would have eventually “won” a legal war, individuals associated to the Big Ten could have suffered collateral damage.
With the conference’s reversal, the incentive for football players to continue legal actions and incur legal fees will greatly diminish. A person familiar with the players’ litigation anticipates the players will drop their lawsuit. That move would spare conference and university officials of pretrial discovery. Meanwhile, the focus of players, fans and other interested parties would return to what they seek most: football.
