Threatened lawsuit poses pivotal moment for University of Iowa football, experts say, with no pain-free way out
IOWA CITY, Ia. — The University of Iowa may be forced to choose between two bad options as it responds to the threat of a lawsuit claiming Black football players suffered for years in a discriminatory environment enabled by longtime coach Kirk Ferentz.
Eight of Ferentz’s former athletes sent a letter this month demanding $20 million and the firing of the coach; his son, Brian, who is his offensive coordinator; and athletic director Gary Barta. The university rejected those demands.
If the university agrees to a settlement, it would be viewed by the public as an admission of guilt and would likely spur similar lawsuits from former players, said two legal experts who reviewed documents about the potential case at the Register’s request. But allowing the matter to go to trial would potentially put Ferentz and his program under a cloud of doubt for months, making it difficult to recruit Black athletes and leading to depositions and cross-examinations of him and his coaching staff that could prove embarrassing.
Either path the university takes must include a further commitment to real change in the way Black athletes are treated, the experts said, or the reputations of Ferentz, Barta and any others involved will be damaged permanently.
“The university should be concerned about this and taking very strong efforts to fix it before it gets out of hand and utterly destroys the football program and utterly shames the university and the state of Iowa as being the poster child of racism,” said Thomas Newkirk, a Des Moines-based civil rights attorney who won a $6.5 million gender-discrimination settlement from the University of Iowa in 2017 on behalf of former athletic department employees Jane Meyer and Tracey Griesbaum.
Here’s a closer look at the legal strategies at play, and the challenges attorneys on both sides face as the case unfolds.
What's likely next? A lawsuit, and former Hawkeyes choosing sides
The demand letter, written by civil rights attorney Damario Solomon-Simmons of Tulsa, Oklahoma, gave Iowa a Monday deadline to respond or face a lawsuit. The university, through general counsel Carroll Reasoner, replied Sunday that it was already implementing necessary changes in the football program in light of a summertime investigation into allegations of racial disparities made by about 60 former Hawkeyes.
Both the demand letter, and the university’s answer, were standard maneuvers in a case like this, said Josh Gordon, a lawyer who specializes in investigations of college athletic departments and teaches at the University of Oregon.
Gordon has no doubt after reading the 21-page letter that the threat of a lawsuit is real, and will be the next step. He’s also certain the university has been bracing for such a move since June, when former players first raised concerns on social media about their treatment in Ferentz’s program.
“They’re showing a lot in terms of the evidence that they want to present, ultimately,” Gordon said of the letter on behalf of former Iowa football players Akrum Wadley, Kevonte Martin-Manley, Maurice Fleming, Andre Harris, Marcel Joly, Aaron Mends, Jonathan Parker and Reggie Spearman, all of whom were at the school in 2014 or later.
“These are very comprehensive allegations. A lot of those statements didn’t make their way into the investigation (by the law firm Husch Blackwell). They have quite a bit of new evidence. I don’t think you put that language in the demand as a pure bluff. You’ve already spent too many resources to come up with that level of findings.”
University lawyers, meanwhile, have likely been “scenario-planning” for weeks, Gordon said. There may already be negotiations for a settlement going on behind the scenes. And, yes, Gordon said such discussions would include the possibility of firing Ferentz, who is in his 22nd year as head coach.
“You have to weigh the potential consequences of termination, both intended and unintended, and whether that would even quiet this lawsuit,” Gordon said of Iowa’s lawyers.
“There’s no doubt that it’s come up in a meeting. That doesn’t mean it’s going to happen, but it has to be part of the conversation.”
Solomon-Simmons indicated that he is intending to make this a class-action lawsuit. So it’s possible that other Black former Hawkeyes will read about the claims and believe they suffered similar discrimination at Iowa, asking to join in the legal action. But there is a statute of limitations involved, which is why only recent Iowa players would be eligible, Gordon said.
On the other side, Gordon expects some of Ferentz’s former players to come to his defense and point to their positive experiences in the Hawkeye program. Ferentz himself has said he won’t comment on pending litigation, but he did say Sunday in a prepared statement that he was disappointed in the demands.
For players: Burden of proof is high, cash award uncertain
The first battle for Solomon-Simmons will be to try to get the lawsuit, likely filed in federal court in Iowa, declared a class-action. Iowa’s attorneys will fight that claim, Gordon said, asking that it be a mere civil lawsuit and limit those who can be involved.
Neither Gordon nor Newkirk believe that $20 million is a realistic goal. The dollar amount was selected to get public attention.
Damage awards are hardest to predict in racial bias cases, Gordon said.
The players will need to prove a pattern of “disparate impact” on Black athletes who played for Ferentz, Gordon said. That would involve a statistical analysis of graduation rates, transfer rates, playing time and more. The contention would be that stark differences were racially based.
“You’re arguing that (the university) created a culture that’s so harmful that you’re denying the benefits and privileges that you’d be afforded otherwise as a college athlete,” Gordon said.
Secondly, the former players would need to show “deliberate indifference” by the university in any practices that they believe were discriminatory. In other words, that Iowa was aware, or should have been aware, of what was occurring and chose not to address it.
“That’s not an easy standard to make,” Newkirk said. “It depends on when the complaints came to Iowa’s full attention and when they took enough steps to try to fix it. They’ve got to prove a pattern of behavior that covers all African-Americans.”
The case would come down to the “evidence trail,” Gordon believes.
“It’s a lot of he-said, he-said. Who else was there? Whose veracity plays better in court?” Gordon said of the testimony jurors would hear. “And then, of course, damages. These are very difficult matters to put actual dollar figures on.”
Gordon said it was natural for the players to also call for the removal of Barta and the Ferentzes as part of their claim. That’s because they are arguing that a pervasive change needs to be made in the program, including the addition of a senior athletic department administrator who is Black, annual anti-racist training for staff members and an advisory board devoted to improving the environment for minority athletes.
“You don’t want it to be purely about money,” Gordon said. “You also hope that the class (action) is advocating for current and future student athletes. So if you’re saying this is the person who has been at the head of the culture for 20 years, and you’re not calling for them to leave, then it seems disingenuous that you think there’s something very serious going on.”
For UI: Explanations needed for handling of Doyle, low grad rates
The university helped its cause by commissioning the outside review of its football program, Gordon said. That will help Iowa in its efforts to demonstrate to a judge that it was responsive to claims of racial bias, he said, and universities typically get a long leash when it comes to addressing those concerns.
Iowa’s actions included cutting ties with longtime football strength coach Chris Doyle, who was singled out for his behavior by many former players, at a cost of $1.1 million. Kirk Ferentz formed an advisory board of former Hawkeye players to advise him on ways to improve treatment of Black athletes. Broderick Binns, a Black man who once played for Ferentz, was elevated to a role overseeing Diversity, Equity and Inclusion in the athletic department. And there has been discussion of training for Ferentz and his coaches in ways to avoid racial bias.
However, the Husch Blackwell report did find fault with Iowa’s coaching methods for their negative impact on Black players. The university accepted the findings of that report, which could be seen as an admission of wrongdoing. Solomon-Simmons’ letter makes frequent mention of incidents that were revealed in the investigation.
Plus, Newkirk believes Iowa made a mistake in its handling of Doyle, who was with Ferentz for 21 years.
“The football program is like royalty and so they just have this arrogance that prevents them from seeing the forest for the trees,” said Newkirk, who cross-examined Barta and both Ferentzes as part of the 2017 trial.
“They tried to hold back the tide because they saw what was coming when they got rid of Doyle. It was a massive strategic error to pay him a million bucks, because it’s almost insulting.”
Doyle would certainly be deposed as part of any legal case, Gordon said. Iowa’s lawyers will have to explain why he was given a hefty paycheck on his way out the door if the university did indeed believe he was a central part of the problem.
The university could also be put on the defensive about its graduation rate of Black athletes. The school’s own research in 2018 found that it ranked last in the 14-member Big Ten Conference with a 42% graduation rate of Black athletes, compared to 81% of white athletes.
“That burden forces them to show that there are legitimate reasons to explain the statistical anomalies,” Gordon said. “The university might try to correlate those with high school GPAs or socioeconomic status. But that is not a good fact for Iowa.”
Newkirk said he will be interested to see whether the university hires an outside law firm this time, something it didn’t do in 2017, when it let the state attorney general’s office handle that case. He also will be intrigued to see how the school’s lawyers frame their defense if a lawsuit goes to trial. Newkirk was struck by the university’s stance in the Jane Meyer trial that there was no wrongdoing at all in its treatment of Barta’s former second-in-command. Meyer won all counts at her trial over gender and sexual-orientation discrimination. The university then settled the matter before any trial for Griesbaum, who was Iowa’s field hockey coach until Barta fired her.
This time, Newkirk believes the university can admit to mistakes in the football program, but insist that those aren’t evidence of racism and that the players are overblowing things. That stance might sway a jury of Iowans.
Newkirk is an expert in implicit bias, based on both gender and race. It was bringing those issues to the forefront that helped him win Meyer’s case. He believes that’s what’s at play in the football program as well, and is frustrated that the university has declined his offers to help root out such biases.
Settlement or trial? There's risk in both, and urgency for Iowa to clear this up
And so Newkirk hopes that meaningful change in the culture of Iowa’s athletic department is the result of whatever happens with this case. Both he and Gordon believe the university has no other option if it wants to clear its name and put this matter behind it.
“Can this be settled for a few million bucks plus actual positive changes? Probably,” Newkirk said. “But how can the university do that if it undermines the football program, if it leads to more lawsuits, if they have to fire Kirk regardless and pay out his contract?
"I don’t envy the lawyers for the University of Iowa trying to figure this out.”
Newkirk believes that may be too much for the Iowa administration to concede to. That’s why he thinks a trial is possible.
Gordon, on the other hand, contends a settlement is Iowa’s only real option. The weight of a racial-bias lawsuit, in a climate in which athletes are showing a willingness to publicly call out such mistreatment, would be too heavy for Ferentz to bear.
“It’s got to be an uphill battle to recruit African-American players to come there if this is an active part of the conversation. So every living-room conversation, he and his staff are going to have to explain why this is nothing,” Gordon said.
“If you’re in the household and you’ve got options, wouldn’t you choose the one that isn’t going through a major claim of 20 years of discrimination?”
On Monday, Jordan Oladokun, a Black defensive back from Florida, announced he was decommitting from Iowa, citing the racial climate in the program.
Gordon thinks Iowa could settle the case quietly. He believes the school could agree to make the structural changes the players are seeking and bargain down the dollar amount.
Newkirk sees that compromise as a possibility as well. But he thinks it would come at the price of someone’s job.
“They would have to add to that settlement a massive overhaul (of the football program) moving forward,” Newkirk said.
“And they’d have to have Ferentz be part of it and probably have Barta resign. The reason for them to settle it now is because they have one shot at keeping the momentum positive and not having this completely hang over their heads for two years. But they can’t just write a check and be done with it. They can’t just have platitudes.”
Mark Emmert covers the Iowa Hawkeyes for the Register. Reach him at email@example.com or 319-339-7367. Follow him on Twitter at @MarkEmmert.