An agreement signed by former kicker Brendan Gibbons finalizing his permanent separation from the University of Michigan is marked as transmitted via fax from the Michigan football program — raising questions as to when football officials were aware that Gibbons had been found responsible for sexual misconduct.
At the latest, the Athletic Department was made aware of the permanent separation on Dec. 19, 2013, and it is unclear whether the football program or Michigan coach Brady Hoke were aware of the Office of Institutional Equity’s earlier finding that Gibbons was responsible for sexual misconduct. The Office of Student Conflict Resolution notified Gibbons on Dec. 19 that he would be permanently separated from the University.
“December 19 is whenever the letter was sent and the kid came to talk with the Athletic Department,” said Athletic Department spokesman Dave Ablauf in a phone interview with the Daily on Wednesday.
He later added: “That could have been the time that Brendan Gibbons talked to coach Hoke.”
On Friday, Ablauf wrote in an e-mail that his earlier comments were inaccurate and he could not confirm a meeting between Athletic Department officials and Gibbons on Dec. 19.
Gibbons’ separation stems from an incident on Nov. 22, 2009, according to documents. This corresponds with previous media reports that Ann Arbor Police carried out an investigation of a Michigan football player related to an incident on that date.
The document was sent at 4:02 p.m. on Dec.19 from a fax number associated with the football program. Gibbons signed the document, waiving his right to appeal the sanction. It’s not clear from the markings on the document who received the fax transmission.
The letter was faxed from the offices of the football program four days before Hoke told reporters at a Dec. 23 press conference that Gibbons would not travel to the Buffalo Wild Wings Bowl in Tempe, Ariz. due to a “family matter.”
Regardless of whether football officials were aware of the disciplinary investigations or OSCR’s subsequent sanctions, legal experts told the Daily that OSCR could have informed football officials at any point during the disciplinary investigation and proceedings.
As previously reported by the Daily, the outcomes of disciplinary proceedings in relation to violent or nonforcible sex offenses are not protected by the Family Educational Rights and Privacy Act, a federal law that describes handling and privacy protocols for student records.
But the law also doesn’t prevent the University from sharing details of any disciplinary record internally if administrators deem it necessary, according to Frank LoMonte, executive director of the Student Press Law Center.
“Even under FERPA, you can share disciplinary outcomes internally if there’s a business need to know,” LoMonte said. “That would be a classic example of the kind of disciplinary information that could be shared regardless of FERPA.”
FERPA states that it does not prohibit a school agency from “disclosing such information to teachers and school officials, including teachers and school officials in other schools, who have legitimate educational interests in the behavior of the student.”
It’s not clear whether OSCR directly informed athletic officials about Gibbons’ case. University spokesman Rick Fitzgerald declined to comment.
LoMonte said athletic officials are covered by this provision, as they should be understood to have an interest in the behavior of students in their program.
Documents reviewed by the Daily show that Gibbons was found responsible for sexual misconduct on or before Nov. 20. OSCR officials could have notified the Athletic Department of this finding prior to Michigan’s Nov. 23 game at Iowa, in which Gibbons played.
“It is routine for universities to share within themselves disciplinary information when it relates to an activity of another department that needs to be aware of that outcome,” said Mark Goodman, a media law professor at Kent State University. “I would argue that an athletic department, when a claim involves a student-athlete, is a logical place for the outcome of a proceeding to be communicated to.”
—Daily News Editor Sam Gringlas contributed to this report.
Clarification Appended: The story has been updated to include a recent e-mail clarification from Athletics spokesman Dave Ablauf.