I went to actually listen to the statements from Kevin Warren and Andrew Luger, the Big 10 lawyer. Here they are:
Kevin Warren after announcing that they were creating a league-wide voter registration initiative: "From a social change standpoint, I think our biggest asset is our right to vote and to be an educated voter. It's important, not only from national politics, but from local politics. Who is on your school board? Who is your local sheriff? Who is your district attorney? Who is your attorney general? Who are your judges? All those different things really mean something."
Andrew Luger in response to an expedited discovery motion: "I also do want to make it clear that I believe this is a cart before the horse problem. You only have a right to discovery, any discovery, if you actually have a recognizable claim. And having spent some time taking a look at this claim today, and anticipating what it would be over the last couple of days, we are of the view, the strong view, that there is no claim here. 8 students out of hundreds. 8 students from one school out of 14 are seeking to overturn a decision that will affect thousands of people. And they are doing so under the most stretched legal theories that one can imagine. A breach of contract where they're not privy to a contract governing the Big 10. And also a tortious interference claim where they have to prove that there was an unjustified intentional violation of their rights. There is no proof of that. There will not be any proof of that. So these are very, very weak claims that are not supported by the law and we're looking forward to making that argument and we would do that on an expedited basis. Finally, the relief that the plaintiffs are seeking here. 8 student athletes from one school seeking to overturn and make hundreds of athletes at 14 schools play football because they believe the decision was wrong. I understand and I can commiserate with the plaintiffs here and their families and their frustration. I played football, and I'm not crazy about the circumstances we're all living under, but one of the things that happens under these circumstances is somebody has to make the decision. And here, it was the Big 10 council of presidents and chancellors. They're asking essentially for this court to make its own decision and to overrule that decision by a governing body. There is no precedent for it, and we will be able to show in a motion to dismiss that this case has no merit. If they're given access to documents in the meantime, then the precedent will be set. If you disagree with a decision by the Big 10, by the 14 schools, any student anywhere, any student athlete anywhere, disagrees with one of these decisions, you have a right to go rummaging through the files to determine if you can poke holes in the decision. And I want to be clear here: the harm is incredible. The precedent that would be set by allowing student athletes to get access to internal deliberative documents by a governing body, essentially like a board of directors, because they disagree with the decision. And it's not just [that there] was a vote taken because the Big 10 has stated repeatedly: a vote taken, and it was overwhelmingly in favor of delaying and postponing the season. But they're also seeking a medical basis, and so yes, there's a great deal of harm going through the minutes, who said what to whom, who argued about what, who debated, by presidents and chancellors who had no idea that their deliberative process would be subject to discovery in a case by students who have no claim. And so we believe the cart should not be before the horse, that we should, on an expedited basis, brief this and bring a motion to dismiss. And I want to be clear about one point however. I haven't even had time to discuss with my clients today whether this case should be removed to federal court. It's a decision that they have to make. And so, one, they could decide to remove it to federal court and then the federal court decides the motion to dismiss, or we file it in front of this court. But I need time to do that. I need time to talk to my client. And there's no basis for saying that these plaintiffs need the internal, deliberative processes and records of a governing body. I haven't had time to brief this before the court, but the harm is substantial, and the precedent- this is unprecedented. And it's very, very broad to allow students who disagree with a decision to go reading through the medical analyses, the deliberations, the discussions, the debates. And to be clear, that while plaintiffs are just saying they want transparency, the Big 10 put out an open letter to the community explaining the basis for the decision, explaining the overall medical concerns, the safety concerns for all involved. These plaintiffs disagree. I understand that. But that's not a basis to pick apart their internal processes to get documents that nobody has a basis to see for a lawsuit that we are firmly convinced will fail on the merits. There is no foil law that applies to the Big 10. There is no data practices law that applies to the Big 10. This is an attempt around that. And again, I respect and understand the frustration of the families and these plaintiffs, but we have to operate under the law and there is no claim here and we'd like to be able to first brief that and then address discovery, but if the court wants to hear this discovery motion, I would ask for an opportunity to put in writing our argument, the plaintiffs to get expedited discovery under Nebraska law as my council teaches me today must show a probability of success under the merits. They can't do that, your honor."
So, frankly, the idea that Kevin Warren is telling athletes, "Don't just get angry. Go vote," was part of his secret plot to swing the election is ludicrous. Isn't that what you all want? People to stop rioting and take part in our Democracy?
And the conspiracy theory that the Big 10 has something to hide because they don't want to have to make every meetings' notes available to the public is equally laughable. Do you want somebody to be able to go through all of your emails, texts, video calls, etc.? Even if it's just that you speak more candidly in private, you have a vested interest in not allowing someone with malintent to go through every aspect of your professional life to find ways to either poke holes in your decision making process or to slander you.
