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Urban Meyer and Ohio State Become Yet Another Cautionary Tale of What Not to Do

Urban Meyer, one of collegiate football’s most lauded and recognizable coaches, is undoubtedly in hot water. Whether he will join the ranks of the unemployed, however, is yet to be determined, along with the resolution of a host of unanswered questions. The amount of information related to this story is already substantial and impossible to recount in this post, but a quick summary follows.

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On July 23rd, college football writer Brett McMurphy posted on his Facebook page that a civil protection order was filed against Ohio State wide receivers coach Zach Smith by his ex-wife. McMurphy further set forth a number of domestic violence accusations made against Smith as far back as 2009. Smith was fired that same day by Ohio State without much public explanation. Later that day, McMurphy posted additional information on his Facebook page, recounting further allegations of abuse against Smith, including incidents occurring in 2015.

The next day, July 24th, Urban Meyer was asked during Big Ten Media Days about his knowledge of the domestic abuse allegations against Smith from 2015, and he responded, “I was never told about anything.” He claimed he was first notified of the issue via text the night before. On August 1st, Ohio State placed Meyer on paid administrative leave pending a full investigation.

On August 3rd, Meyer issued a written statement saying that he in fact had learned of the 2015 incident against Smith and followed proper protocols by “elevating the issues to the proper channels.” He also addressed his statement to Big Ten Media Days. In this regard, Meyer acknowledged he had “failed” in responding to a question, claiming it was not his intention to be “inaccurate or misleading,” and also claiming that he was “not adequately prepared to discuss these sensitive personnel issues with the media.” Additionally, he apologized for his statements. Ohio State has since announced that they have hired an independent panel and investigative firm to review this situation and anticipate having a conclusion to the investigation within the next 14 days.

Many Questions Remain

These details and a host of other publicly disseminated information still leave numerous questions remaining, including whether these questions will ever be answered:

Is Meyer’s statement that he went through the proper reporting protocols accurate? If he did not, then Meyer certainly could be in trouble for violating his contractual obligations and Title IX, both of which require him to adhere to certain reporting obligations when advised of allegations of sexual violence or harassment against university employees.

What happened in 2015 when Meyer “elevated” the allegations of abuse against Smith to the proper channels? Was an investigation conducted? What was the result? Why was it determined to keep Smith on staff, and not on leave pending the investigation? Why was it determined that Smith was not to be fired back then? The fact that Ohio State didn’t have some explanation of their actions—and now require a full-scale investigation into these issues—doesn’t bode well for them.

Why was Smith fired the day McMurphy’s report came out? Assuming Meyer did in fact report this issue and Ohio State appropriately reviewed the incident, why did they terminate Smith last month? If they determined back in 2015 that it didn’t warrant termination, why would it warrant termination now? Simply because a public article had come out?

Why was Meyer not “adequately prepared” to discuss the Smith allegations after a report had come out the day before?  While I’m not saying the cover-up is worse than the crime in this particular instance, as we don’t have all the information yet, why was Meyer not anticipating that he would get a question of this nature during a media day? At minimum, state no comment. Don’t go out and explicitly state you knew nothing of the domestic violence incident, and then have to retract that with a written statement days later. While Meyer calls it a “failure” or “inaccurate” on his part, a large portion of the public is simply calling it a bold-faced lie, which is a terrible look.

Why did McMurphy post his stories on Facebook? This one is actually answerable, courtesy of an interview McMurphy gave to Deadspin. McMurphy was laid off by ESPN in April, with approximately a year and a half left on his contract. According to him, ESPN was on the hook for the rest of his contract unless he got another job. And while ESPN was paying him, his non-compete agreement forbade him from working with a competitor or a third party, including setting up his own website to compete against ESPN. However, McMurphy already had a Facebook page and consulted a lawyer who stated that posting it on Facebook would not violate the non-compete. So McMurphy continues to get paid by ESPN, stays relevant by posting the article on his Facebook page, and essentially scoops ESPN out of the story.

Meyer and Ohio State Provide Some Lessons for Employers on What Not to Do

While we won’t know for sure until the independent investigative team hired by Ohio State completes its report, it’s clear this situation was mishandled on many fronts already.

Employers certainly don’t want high level employees or management commenting internally or externally about allegations of sexual harassment and discrimination, and the company’s response, without being adequately prepared to do so.  Any misstatement or misrepresentation automatically creates the perception that proper steps were not taken. In addition, employers have to ensure that such allegations are appropriately investigated and documented, along with the ultimate resolution and reason for that decision. Unless the Ohio State investigation comes up with some concrete answers about what action was taken and why in 2015, the assumption will be that Meyer and the powers that be swept this under the rug.

The reality is that in this day and age, employers are best served by having documented and concrete evidence as to the steps they took in response to allegations of harassment and discrimination in the workplace, and the rationale for the ultimate steps taken. Otherwise, a harsh reality awaits. While employers are always at risk of getting sued by former employees for legitimate and non-legitimate claims, plaintiff’s attorneys in this climate are more emboldened, providing higher than normal demands for settlement and willing to take the case to a jury of the plaintiff’s peers. If the company doesn’t have substantial and documented defenses, the other side knows that they have a leg up with a jury who already goes into the case with a skeptical eye towards what they believe is corporate management’s historical mistreatment of allegations of sexual harassment and the like.

As for ESPN, assuming what McMurphy says is true, maybe you should think about re-visiting your non-compete agreement. I might know a guy.