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IOWA CITY — More than a year after 13 former Hawkeye football players filed a lawsuit accusing some University of Iowa athletics staff of racially motivated discrimination and harassment, attorneys are accusing the UI of “persistent and intentional subversion” and delay tactics and asking a judge to intervene.
Specifically, players want a U.S. District Court judge to compel the UI to turn over reports an independent review produced in 2020 on four key staffers: head coach Kirk Ferentz, offensive coordinator Brian Ferentz, assistant defensive coordinator Seth Wallace and former strength and conditioning coach Chris Doyle.
The players also want key financial documents; performance evaluations; cellphone records; agreements with the outside law firm Husch Blackwell LLP, which conducted the external review; and pertinent communications — like between UI and the Jacksonville Jaguars or coach Urban Meyer regarding Doyle, to whom UI paid $1.1 million as part of a separation agreement in June 2020 following accusations of racist and demeaning behavior.
“The parties have now extended discovery deadlines on multiple occasions and plaintiffs cannot wait for defendants to produce documents in good faith any longer,” according to a motion the players filed last week asking a judge to intervene.
“Defendants’ litigation tactics should not be permitted to continue lest they hypnotize this litigation into a state of inertia wherein plaintiffs await supplementation of documents over which defendants maintain a vice grip.”
Lacking documents they’ve demanded, the players’ attorneys said they were forced to postpone depositions of Kirk and Brian Ferentz, which already had been rescheduled for Jan. 18 and 19 after previously being delayed until the football season ended — due to scheduling burdens and conflicts.
“Plaintiffs respectfully request that the court order defendants to immediately produce all documents responsive to plaintiffs’ requests and grant attorney fees and costs incurred as a result of defendants’ discovery misconduct,” according to the players’ recent motion.
Due to the players’ frustration with UI delays in turning over documents, their attorneys in December circumvented UI by subpoenaing records directly from the Big Ten Conference, the NCAA and Husch Blackwell.
“Plaintiffs have waited patiently but need court intervention,” according to the players’ motions. “Plaintiffs fear additional delays seemingly meant to push the parties into the next football season.”
The subpoena of Kansas City-based Husch Blackwell — which UI “retained” in 2020 to conduct an “independent” review of alleged racial disparities within the Hawkeye football program — demanded, among other things, details related to findings the firm made public via summary report in July 2020.
Specifically, they demanded all documents related to player accusations of mistreatment, verbal abuse, racism and bullying by staff that were spelled out in the report, which found “the program’s rules perpetuated racial or cultural biases and diminished the value of cultural diversity.”
“The program over-monitored players to the point that they experienced heightened anxiety and maintained a culture that allowed a small group of coaches to demean players,” according to the public report. “We have separately provided four personnel reports to the university summarizing allegations of mistreatment made against current and former employees so that they may be addressed, as appropriate, pursuant to the institution’s personnel policies and procedures.”
In addition, the suing players want all emails, text messages, or other written communication from nine key football or athletics department staffers — or anyone else — that used any one of a long list of player names or keywords, including racial epithets and expletives.
But in a Jan. 5 email from one of the players’ attorneys to Husch Blackwell, he makes it clear the law firm is refusing to comply.
“It is my understanding from our discussion today that despite the University of Iowa’s (‘Iowa’) multiple public declarations that Husch Blackwell (‘Husch’) was hired to conduct an ‘independent investigation’ and Husch’s July 2020 report specifically stating Husch was asked to ‘impartially examine’ Iowa’s football program, Husch’s position is the services provided to Iowa were not independent, but done in the context of a traditional attorney-client relationship,” according to the email.
“As a result, Husch’s position is the attorney-client privilege attached to the relationship between Husch and Iowa.”
Although the players requested the Husch documents months ago, UI didn’t begin citing attorney-client privilege until December, according to court documents.
“In a Hail Mary effort to protect themselves from liability, defendants seek to prevent plaintiffs from uncovering the whole truth by claiming the investigation they previously characterized as ‘independent’ was actually performed within the context of a traditional attorney-client relationship,” according to the players’ attorneys.
In response to a request for documents showing Doyle discriminated against, bullied, demeaned or harassed players, UI attorneys asserted those allegations “have been denied, and thus there are no documents evidencing such claims.”
“Defendants want the plaintiffs (and this court) to entertain an alternate reality in which decision-makers have not already admitted responsibility for racial harassment that caused harm,” according to the players’ attorneys. “In the multiverse of their own creation, defendants are attempting to rewrite history.”
In objecting to the production of documents or failing to do so, UI attorneys with the State Attorney General’s Office have cited privacy laws, like the Family Education Rights and Privacy Act, or they’ve said “collection of responsive documents is ongoing.”
In a Dec. 10 letter to the players’ attorneys, Assistant Attorney General Jeffrey Peterzalek said the state is allowed to produce the requested documents until Sept. 13, 2022 and the UI is “doing their due diligence to gather all responsive documents.”
“However, with the pending bowl game, the football season is still very much underway and presents additional challenges to this gathering process.”
But the players argue they can’t move forward with their investigative process without UI cooperation.
“Plaintiffs never agreed to a rolling production, and defendants never requested leave of court to do so,” the players’ attorneys argued in court documents filed last week. “Still, they continue to produce documents at their leisure, persistently failing to produce documents by dates promised or agreed to.”
A status conference in the case is scheduled for Feb. 23. A jury trial is slated for 10 days in March 2023.
Vanessa Miller covers higher education for The Gazette.
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