Is the ESPN, MAC contract a secret?

I asked this question when I requested a copy of the new 13-year, more than $100 million contract between ESPN and the Mid-American Conference from all six of the Ohio MAC universities. All six responded with the same, candid answer of, “We do not have any records that are responsive to your request.”

How can six public universities that allegedly signed a confidentiality agreement not possess a paper or electronic copy of a contract involving their participation for the next 13 years? How can these universities agree to a confidentiality agreement without having a copy of the contract?

After receiving responses from Kent State University, the University of Akron, Bowling Green State University, the University of Toledo, Miami University and Ohio University, all confirming that they, in fact, do not have a copy of the contract, I decided to contact Kent State Athletic Director Joel Nielsen, MAC Commissioner Jon Steinbrecher and MAC Chief Operating Officer Bob Gennarelli to try to get to the bottom of this mysterious contract and why no one, not even the universities, have direct access to it.

So many questions need answered.

So is the contract a secret or not?

Yes and no. The question remains ambiguous because the new deal is still a secret to an extent, in that it’s is still inaccessible to the public.

Kent State professor Karl Idsvoog claimed Gennarelli told him that he could not provide a copy of the contract because it is “proprietary” and said all universities have signed “confidentiality agreements.”

However, confidentiality agreements do not trump Ohio public records law. Under Ohio law, ORC 149.43, all contracts with public agencies are public records and must be provided upon request. It’s not legally permissible to circumvent the public records law by adding a confidentiality clause, Idsvoog said.  

Given said law, what’s the catch? Why isn’t the contract open to the public?

That’s because the universities never signed a confidentiality clause.

“I did not say that,” Gennarelli said. “The exact request to me was (Idsvoog) wanted me to send a copy of the new ESPN agreement to share with his reporting class. I told him I could not do that due to the confidentiality clause that was in the agreement that prohibited us from sharing any details of the agreement, including financial details. He then started talking to me about, ‘Well these are public institutions, and are you telling me that the public institutions don’t know what’s going on in the agreement and the terms of the agreement,’ and I said, ‘No sir, the institutions are well aware of all details of the agreement, including financial terms and the confidentiality clause, and they approved the agreement.’”

Gennarelli said Idsvoog interpreted his comments as saying the universities signed the contract, which they didn’t. When asked if Kent State signed a confidentiality agreement, Nielsen averted the question.

“The universities haven’t signed any confidentiality agreements,” Nielsen said. “Not at all, that’s incorrect, we haven’t signed anything. The confidentiality clause is between ESPN and its vendor, which would be the MAC.”

Nielsen said while Kent State and the other 11 universities involved in the agreement get revenue from the deal, just like Alabama would get revenue from a deal between ESPN and the SEC, the universities don’t have a contract with ESPN, just like Alabama doesn’t have a contract with ESPN or ABC.

“The way it works, and I think it’s pretty similar to the way the SEC, ACC, Big 10 and pro leagues, too, is the contracts with our media rights holders are not with each individual school — they’re with the conference.”

Because the contract is strictly between the MAC and ESPN, both privately owned companies, the contract falls outside of public domain and becomes inaccessible to the public upon request.

 “We have a confidentiality agreement within the contract with ESPN, but it’s signed between the MAC and ESPN,” Steinbrecher said.

Where is this contract, anyway?

The new television right agreement document is housed in the MAC’s corporate office in Cleveland, Steinbrecher said.

MAC Commissioner Jon Steinbrecher said that if a university wishes to view the contract, they could come to the MAC’s corporate office in Cleveland and request that information, but until then, the contract will remain housed in the MAC’s Office of Legal Counsel, Steinbrecher said.

“If (any of the universities) wish to come to our to view a copy or to our legal firm’s office to review a copy of it, they certainly could,” Steinbrecher said. “There was nothing in the contract that wasn’t reviewed with them.”

But if the universities reviewed the contract, why don’t they have a copy?

An interesting question I’m still trying to grasp after talking to two MAC officials and one athletic director.

All 12 of the individual schools within the Mid-American Conference negotiate and sign agreements on the universities behalf, Nielsen said. And because the terms of the contract are between the MAC and ESPN, the universities do not have a copy of that contract.

Confidentiality clauses and public records aside, though, how can these universities agree to an extensive contract like this worth millions of dollars not possess or receive a physical or digital copy of it?

Apparently it’s all just typical protocol for affairs like this.

“There’s strength in numbers in negotiating a deal that’s for a collective group, and ESPN, as does most television partners, doesn’t want to go out and have 12 different agreements for 12 different institutions and potentially have differences within those agreements, so the standard operating procedure is that you negotiate with a conference — that’s part of being in a conference,” Gennarelli said.

Makes sense.

Nielsen said the “basic parameters” of the contract the athletic directors received and voted upon were virtually identical to what other press releases disclosed.

 “All I know is that it’s a lot more money that we’re making now off television,” Nielsen said. “I remember that we have a lot more opportunities for games, I think three additional opportunities on campus to work with our own production companies on campus.

“We know what the over-arching issues are, obviously money’s an important thing, exposure, will it change our game times when we play. We talked about the basics, but we don’t go through the contract line-for-line — that’s the conference office and their attorneys that do that.”

Time out. How did the universities review the contract if they never saw the full contract?

 It took multiple interviews and a few weeks to figure out the process of approving the contract before the MAC and ESPN signed the dotted lines, but I think I finally have a better understanding.

Here’s how the assembly-line process works:

1. The athletic directors discussed the renewal of the current contract between the MAC and ESPN, which, before the new contract took effect in August 2014, only had three years remaining on it, in meetings held multiple times throughout the year.

   “The athletic directors met several times over the course of the academic year, and this was always a topic,” Gennarelli said. “There were updates at every directors’ meeting that we met in-person, there were conference calls that addressed the ongoing conversations and negotiations and ultimately our directors met earlier in May, and we put the final proposal in front of them, they blessed it.”

2. In May, the directors gathered with Steinbrecher and Gennarelli and received the Memo of Understanding from them. The Memo of Understanding is a condensed version of the contract, which ESPN takes and translates into a long-form agreement.

   “We just got the nuts and bolts of it, we didn’t get a contract or anything like that,” Nielsen said. “We just discussed it in one of our meetings, so we said it looks like a good contract.”

   Any approval of key provisions of the contract by the athletic directors was only an approval of recommendation to the Council of Presidents, Gennarelli said

   “Our Council of Presidents is the ultimate body that can say yes or no to anything we did with the agreement,” Gennarelli said.

3. Steinbrecher and Gennarelli presented the Memo of Understanding that had been approved a few days earlier by the athletic directors of to the Council of Presidents, composed of the presidents and chancellors of the member MAC schools involved. The council then casted a formalized vote of approval.

   “Our presidents met following that meeting and granted the commissioner authorization to move forward with the agreement based on the parameters we laid out in front of them,” Gennarelli said.

4. Under the authorization of the presidents, Steinbrecher said he executed the agreement by signing the contract between the MAC and ESPN.

   “The component parts of the contract were approved by our membership, meaning our Council of Presidents,” Steinbrecher said. “They were given verbal reports as we worked through the various stages of it. As we got to the end stage, I reviewed a Memo of Understanding with them, and they gave me authorization to move forward and conclude that agreement.”

   Steinbrecher’s name was the only signature representative of the MAC and member universities. Gennarelli said the perspective universities involved don’t have to sign the contract or even the Memo of Understanding because they empower Steinbrecher to sign the contract on behalf of the MAC.

How long did this process take?

Approximately two years.

“This (agreement) was not something that just happened overnight,” Steinbrecher said. “This was a multi-year process. We talked about the contract over the course of our negotiations and the various points within the contract over the course of several meetings.”

The presidents, who meet twice a year, deliberated the contract as it appeared on their agenda, and the athletic directors, who meet every four months, went over the contract in their meetings as well.

“All of this happened within the regularly scheduled meeting process,” Gennarelli said.

Do the universities at least have a copy of the Memo of Understanding?

Unfortunately and unsurprisingly, no.

Nielsen, Steinbrecher and Gennarelli all affirmed that the MAC collected the copies immediately after the meeting.

“We distributed a copy of the Memo of Understanding (to the athletic directors and presidents, separately) and then gathered those up at the conclusion (of those final meetings),” Steinbrecher said.

Even though Nielsen and MAC authorities claim that the universities don’t have a copy of the Memo of Understanding, I wish to complete public records requests to all six Ohio universities within the MAC, asking for those documents. Although the MAC is a private company, they shared the memo with public universities, and under Ohio law, ORC 149.43, all contracts with public agencies are public records and must be provided upon request.

However, if these documents were collected at the conclusion of the meetings with the sole intention of circumventing public law, the MAC’s plan might be untouchable. 

What’s next?

I plan on writing a separate article soon that will discuss what the MAC/ESPN contract means to Kent State’s student production piece. I will discuss Nielsen and athletic department’s plans to work with Thor Wasbotten, director of the School of Mass Communication and Journalism, in order to hash out the details of the continued working relationship between ESPN, TV2 and Teleproductions under the terms and conditions of the new deal. This piece will also take a look at certain provisions within the contract and certain things Kent State must do to fulfill its end of the bargain.

What other questions need addressed?

Despite the ground I’ve been able to cover in my last two commentaries, there are still a number of questions surrounding the MAC/ESPN contract that need answered.

• Why can’t the universities receive copies of the contract, even though Steinbrecher deems it “unnecessary?”

• Albeit Nielsen said he doesn’t have a copy of the Memo of Understanding, would any of the presidents have them?

• Why don’t any of the athletic directors require that he be given a copy of the contract?

• The athletic directors seem all right with not having a copy of the contract at their disposal, but what do the presidents think of that?

• Would an expert consider it a good business practice to not have a copy of a contract that requires your involvement for the next 13 years?

• How does keeping this contract secret benefit the taxpayers of Ohio? 

To complete my investigation, I plan on contacting JMC Emeritus Professor Tim Smith to pick his brain and ask his opinion about this procedure as a business practice.

Idsvoog told me he has experience with business law, as he is a former director of the school and taught law courses at Kent State for years.

Contact Richie Mulhall at [email protected].