|By Paul Watler
Jackson Walker L.L.P.
As a young lawyer in 1985, a case came my way that combined several passions: college football, newspaper journalism and the First Amendment. I was the associate attorney assigned to help apply legal muscle in support of our client, The Dallas Morning News. The newspaper’s mission was to use open records law to pursue allegations that Southern Methodist University was illicitly paying football players – the pay-for-play scandal documented decades later by the ESPN 30-for-30 film, Pony Excess.
Two local Dallas metro daily newspapers and a network affiliate television station intensely competed to break the story, including filing freedom-of-information litigation against the National Collegiate Athletic Association and the Southwest Conference. The journalists were more successful than the lawyers. The courts held that the NCAA and the conference were not subject to the Texas open records act, but the news organizations never stopped chasing the story.
In 1986, WFAA-TV of Dallas dramatically exposed secret cash payments to football players that continued after SMU had been placed on NCAA probation several times. The consequences for SMU were swift and severe. The school became the first and only recipient of the NCAA “death penalty” banning it from football for repeated NCAA violations.
More than a quarter-century later, two new cases of news reporting exposing alleged NCAA football rules violations at major universities afford an opportunity to judge the current state of investigative sports journalism. The SMU case was a textbook example of the public service performed by serious and indisputably accurate reporting. One recent case met that high journalistic standard, but the impact of another was more ambiguous.
Beginning in 2011, reporter Dan Kane of the News & Observer in Raleigh, N.C. published a series of reports of widespread academic fraud that benefitted the football program for years at the University of North Carolina. Kane, subjected to condemnation and even death threats from Carolina fans and others, was vindicated with the release on Oct. 21 of an independent investigation commissioned by the university. The consequences were once again severe as nine university employees were either terminated or placed under disciplinary review for roles in the scandal. Exposing the scheme resulted in the indictment of a former UNC academic department chairman and earned Kane major journalism awards and recognition.
The same week that the UNC report was released, Oklahoma State University disclosed the results of an outside investigation it commissioned in the wake of a series of 2013 investigative reports by Sports Illustrated. The magazine reported that over more than a decade, the OSU football program allegedly paid players, tolerated rampant drug use by athletes, benefitted from sexual favors from members of a co-ed booster group to recruit players and gave players improper academic assistance. But far from validating SI‘s investigative reporting, the OSU report challenged it as “fundamentally unfounded.” Although the school’s investigation turned up a few relatively minor infractions, it reported that its outside investigator was unable to corroborate the central accusations by the magazine. Sports Illustrated responded with a short press release standing by its articles and pointing out the limited scope of the university’s inquiry.
The SMU and UNC cases show that investigative sports reporting of the highest order can reform scandalous practices in college football. But sometimes the subject of the reporting disputes its accuracy and declares its hands clean of wrongdoing. That should not mean that any major college football program, earning millions in the public arena from young athletes putting their safety at risk with each snap of the ball, is suddenly off-limits for serious journalism. The value of investigative journalism is not judged by those cast within its scope. As a person who loves both college football and the First Amendment, I am convinced that the sport has never been more appropriate for examination by the independent lens of investigative sports journalism.
— Paul Watler is a partner at Jackson Walker. He can be reached at email@example.com.