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Iowa football discrimination lawsuit: What we learned from court's 21-page response and what's next

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The latest chapter in the Iowa football discrimination lawsuit has left both sides publicly claiming victory.

The lead attorney for 13 Black former players who allege mistreatment by prominent football staff members pointed to a 21-page ruling last week that the federal lawsuit could progress.

"This ... allows (the) plaintiffs the opportunity to take the depositions of relevant individuals related to the case,” the office of Tulsa-based attorney Damario Solomon-Simmons wrote in a news release, "including head football coach Kirk Ferentz and (former strength coach) Chris Doyle."

University of Iowa officials, meanwhile, pointed to the dismissal of six of the eight counts in the lawsuit (which seeks $20 million in damages plus the firing of Ferentz and other demands) by Judge Stephanie Rose in U.S. District Court for the Southern District of Iowa … and the dismissal of Ferentz and athletics director Gary Barta as defendants.

"The university is pleased the court dismissed six of the claims, dismissed Gary Barta and Kirk Ferentz as defendants, and limited the number of plaintiffs," the university wrote in a statement provided to the Des Moines Register. "We look forward to the presentation of the university’s defense in court by the Attorney General’s Office."

But will this actually get to court? What did we learn from Rose’s 21-page response to the university’s motion to dismiss all counts? What happens next?

To help answer those questions and others, the Register reached out to Joshua Gordon, a sports-conflict resolution expert and faculty member at the University of Oregon. Gordon has past familiarity with this case and agreed to review Rose’s ruling for the Register and offer his legal analysis.

Which counts survived and why?

The most damaging public-relations piece of the ruling from the university’s standpoint was that Brian Ferentz, a prominent Iowa assistant coach and oldest son of Kirk Ferentz, was consistently linked with Doyle in their alleged use of racist behaviors and language. As such, they are the two remaining defendants on Count IV (depravation of civil rights). 

Rose outlined the allegations that, “Doyle and Brian Ferentz would regularly use racial epithets and other racially discriminatory language” and they “commonly” used an insulting racial slur. The allegations describe coaches insulting Black players’ intelligence and mocking their social media posts in front of the team.

More: Leistikow: How has Iowa football improved on racial issues? Kelvin Bell provides his view

Doyle has denied ever using racist language and was removed from the program last June in a $1.1 million separation agreement. Brian Ferentz did not lose his job or position as offensive coordinator. He has publicly apologized to players who have had a negative experience in the Iowa program and vowed to improve.

Kirk Ferentz’s name was removed from Count IV by Rose because there was not enough evidence of “discriminatory intent.”

Count I (racially hostile environment) could have the most detrimental financial impact on the university, because the university itself and the Board of Regents are the defendants here.

However, in allowing Count I to continue, Rose again pointed to the alleged behaviors of Doyle and Brian Ferentz. Among the approximately 60 former players who spoke up last June, a repeated complaint was that Doyle would threaten to send Black players "back to the ghetto." 

Rose wrote: “The comments about players’ intelligence, gang membership and purported criminality are very severe — particularly coming from individuals in positions of authority such as Defendants Doyle and Brian Ferentz."

In the next paragraph, she added an important point: “The allegations are sufficient to state a claim for a racially hostile environment at this stage; to succeed at the merits stage, Plaintiffs will need additional factual development to tie much of the racial harassment to the individual Plaintiffs.”

In other words, these are only allegations for now … not proven facts.

“It’s a lot of he-said, he-said evidence. Doesn’t mean it didn’t happen, doesn’t mean that the claims don’t have merit,” Gordon said. “But it’s a controlled conversation anytime you walk into a courtroom, based on what is permissible.”

Former players sustained some setbacks

Gordon pointed out that there are two battles being waged: The legal battle and the PR battle. From the former players’ perspective, keeping some aspects of the lawsuit alive helps build public pressure that could lead to the university wanting to settle the lawsuit down the road.

“The public is going to be influenced by one or two sentences, or a tweet or a headline,” Gordon said. “Everyone’s battling for a headline.”

Of the 13 former players listed in the lawsuit, six were ruled to be outside a court-determined four-year statute of limitations to sue — Maurice Fleming, Andre Harris, Terrence Harris, Kevonte Martin-Manley, Reggie Spearman and Laron Taylor.

Of the remaining seven players, only Javon Foy, Aaron Mends and Brandon Simon were ruled to be within a more narrow two-year window to continue as plaintiffs on Count I (racially hostile environment).

Those three players plus Darian Cooper, Marcel Joly, Jonathan Parker and Akrum Wadley were ruled to be eligible to continue on Count IV (depravation of civil rights), which now focuses specifically on Doyle and Brian Ferentz.

Counts II (retaliation), III (systemic pattern of racial discrimination) and VII (failure to train and supervise, pursuant to Kirk Ferentz and Gary Barta) were dismissed. Counts V and VI (related to a conspiracy of discrimination) were voluntarily removed by the plaintiffs. Count VIII (breach of contract) was also dismissed by Rose.

Gordon said it is common for a legal team to pursue many counts, so that it has more opportunities to keep the lawsuit moving forward. So, while the plaintiffs saw many aspects dismissed last week, Gordon noted, "There seems to be enough here that they’re not going to walk away from the case."

Kirk Ferentz’s removal from the lawsuit is significant

The initial demands letter from Solomon-Simmons argued that Kirk Ferentz "witnessed, sanctioned and possessed intimate knowledge of widespread racial discrimination within the program." That piece of the lawsuit officially has fallen short. That can give Ferentz more relief and less baggage heading into his 23rd season as Iowa’s football coach. 

In addressing Count VII (failure to supervise), Rose wrote that the plaintiffs needed to establish that Ferentz: 1) had notice of a pattern of unconstitutional acts committed by subordinates; 2) demonstrated deliberate indifference to or tacit authorization of those acts; 3) failed to take sufficient remedial actions; and 4) that his failure to respond caused injury to the players.

"Fatal to (the) plaintiffs’ claim is Count VII does not allege any specific constitutional violation, much less that Kirk Ferentz had notice of such violation and failed to respond," Rose wrote. 

"Of course it helps to be able to say there’s not an active lawsuit with my name on it," Gordon said. "Every PR person is going to overstate what that means. Really, what it means is there was not sufficient evidence under a particular legal claim to move forward at this time."

Current strength coach Raimond Braithwaite, who was the top assistant strength coach during much of Doyle's 21-year run at Iowa, was also cleared as a defendant in the lawsuit.

Ferentz said recently, "Pertaining to our program, I feel like we’re in a really healthy spot right now. I think we’ve demonstrated that since last June. But our work’s not done. We know that.”

A paragraph in the university's statement to the Register echoed that sentiment. 

“The University of Iowa is working hard to improve our culture and become a more inclusive campus for all students," the UI wrote. "The stories shared by former athletes last summer resulted in significant reflection by our coaches, changes to our staff, and a commitment from the entire football program to improve. We thank the athletes for speaking up and believe we are on a positive path forward."

Are settlement talks next?

While both sides have publicly stated their desire to state their cases in court, Gordon outlined many reasons why both sides would now be motivated to pursue a settlement agreement. He expected off-the-record conversations to be occurring on that matter soon. For now, a scheduling conference is on the docket for 9:30 a.m. on May 26 to set a trial date.

Solomon-Simmons’ team did not reply to a Register interview request beyond the prepared statement.

“I still think this will end with settlement, ultimately,” Gordon said. "Once you get past summary judgment, you get into an evidentiary battle. And now you’re talking big money to defend and deal with depositions and discovery."

Gordon said the university would likely have a cost-benefit analysis “of what would it mean to settle now,” and that the plaintiffs would likely be trying to make a determination “about whether they can put a strong enough case together” to make a potentially large legal investment worthwhile.

The university, Doyle and Brian Ferentz would seemingly have more incentive to settle, Gordon said, because such a conclusion would leave no legal record of wrongdoing. Plus, evidence produced in the discovery phase could eventually become public record. At the same time, the former players last week saw their path to victory narrowed considerably and might be more open to accepting a settlement.

“(With a settlement), the university protects its image and brand and ideally doesn’t encourage future suits,” Gordon said, “and lets folks who were harmed at least feel somewhat whole.”

Bottom line?

“Both sides have enough to claim victory," Gordon said, "but both sides have plenty of reason to sit down and try to settle this thing."

Hawkeyes columnist Chad Leistikow has covered sports for 26 years with The Des Moines Register, USA TODAY and Iowa City Press-Citizen. Follow @ChadLeistikow on Twitter.