When football players at Ohio State University swapped championship rings, jerseys and other memorabilia for tattoos and their coach tried to cover up the violation, the institution wasn’t required to release documents related to the incident because they were protected by the federal student privacy law.
In 2012, the Ohio Supreme Court sided with the university over ESPN, which asked for records looking into the NCAA’s investigation of Ohio’s above mentioned actions. In the end, the records were protected by the Family Educational Rights and Privacy Act.
FERPA, which was passed in 1974 as a way to protect students’ privacy when it comes to education records, prohibits universities from releasing that information to the press or public at the risk of losing federal funding.
Ohio isn’t the only university to withhold information about college athletic scandals, such as sexual assault, under a law aimed at education record privacy, and it is definitely not the most recent.
At the University of Oregon, Vanderbilt University and the University of Montana, FERPA was cited to withhold records and information related to sexual assault allegations. FERPA was even cited at Florida State University to withhold records about Heisman-winning quarterback Jameis Winston, who has been accused of sexual assault in December 2012.
Universities often cite FERPA when an athlete has been removed from the team “for some kind of disciplinary or legal reason,” or when the behavior of a coach or athletic department employee has come into question, said Frank LoMonte, executive director of the Student Press Law Center.
However, all college athletes must sign a waiver agreeing to disclose their education records to the NCAA in any case the non-profit association needs to publish or distribute the information. Unlike universities that receive federal money, the NCAA is not bound by FERPA.
Sign to play
Before an aspiring student-athlete can dress out with the team, they need to sign all of the necessary paperwork, including the Student-Athlete Statement, which is used to “assist in certifying eligibility,” according to the waiver.
One section of this form is called the Buckley Amendment Consent, where students agree to disclose their educational records, including the results of drug tests, school transcripts and pre-college test score.
The waiver promises the student-athletes that they will not be identified by name “in any such published or distributed information.”
However, the waiver also allows the NCAA to disclose “information regarding any infractions matter in which you may be involved” to third parties as required by NCAA policies, bylaws or procedures.
Although all NCAA athletes must sign the waiver, the agreement’s language differs between divisions. While the Division I form does not specify to which third parties information may be released, the Division II and III agreements specify third parties may include the media “as necessary to correct inaccurate statements reported by the media or related to a student-athlete reinstatement case, infractions case or waiver request or to recognize your selection for an academic award.”
“The NCAA wants to be able to protect itself if there winds up being a controversy over the eligibility of particular players and wants the ability to disclose that information so that it can defend itself against any kinds of accusations,” said Jeff Hermes, deputy director of the Media Law Resource Center. “Is that necessarily aligned with the players’ interest? It’s difficult to say in the abstract.”
And while the NCAA may release information to third parties, Brad Wolverton, a senior writer at The Chronicle of Higher Education, based in Washington, D.C., said he does not see the NCAA releasing any information about a student-athlete to the press.
“The only thing they’re going to do is what the school allows them to do, and then I guess the student has to agree to it in writing,” he said “And, usually it’s when there’s negative information that is incorrect and they may want to correct the record.”
But LoMonte still sees this particular provision in the waiver as “the most noteworthy.”
“So what that’s saying is that if the NCAA feels like they’re under attack that they’ll gladly compromise students’ privacy in order to save their own reputation,” he said.
The NCAA did not respond to email or telephone requests for comment.
Schools crying FERPA
Jill Riepenhoff, a reporter at The Columbus Dispatch, spent six months in 2010 investigating how universities use FERPA to withhold information about athletics that are categorized as education records, possibly incorrectly.
“They all censor information in the name of student privacy, invoking a 35-year-old federal law whose author says it has been twisted and misused by the universities,” Riepenhoff wrote.
Aside from problems she had with universities declining to release information about athletics while citing FERPA, Riepenhoff said the problem is with FERPA. The law, created by former U.S. Senator James Buckley, was intended to protect students’ privacy when it came to academic records.
“FERPA is an ill-defined law and it gives schools a lot of wiggle room to throw a blanket over whatever they want and because of all of the inconsistencies in court rulings it’s really, really difficult to challenge anything about FERPA,” she said.
Universities can find several ways to use FERPA to deny records requests, LoMonte said. One way is if a student-athlete is charged with a disciplinary infraction that “doesn’t quite rise to the level of a violent crime.”
“It might be a minor drug possession or an academic dishonesty matter, and the person is removed from the team and the school cites FERPA,” LoMonte said. “That’s the grayest of the areas where there’s not a criminal record created, and the infraction is arguably academic or somehow related to the athlete’s performance as a student.”
Even with the troubles reporters can have and can encounter with school officials using FERPA while they’re trying to cover newsworthy events involving athletics, there are still ways to report on the story.
Riepenhoff said she encourages student journalists to remain persistent and to point out inconsistencies in refusals to provide records.
Wolverton said that student journalists facing a FERPA issue should remind their sources they “have a job to do.”
“Be up front about your intentions,” he said, “but be open to asking any questions that you want to know the answer to and not worry about any sort of stipulation from some FERPA form that might get in your way.”