Less than three minutes into last month’s Florida State University board meeting—and nearly an hour before the trustees voted to try to sue their way out of the ACC—chairman Peter Collins spoke about the importance of transparency.
“We have been criticized for having discussions publicly,” he said. “What many people critical of those discussions don’t know is that in Florida, we have the ‘Sunshine law,’ which dictates that any discussion such as this must be held in a public forum. Of course we would rather have these conversations privately… but we cannot.”
Florida State’s commitment to transparency, however, seems to have its limits. More than five months ago, Sportico filed an open records request for documents and written communications related to the school’s talks to raise private equity money through JPMorgan Chase to fund its athletics department. FSU’s public records custodian, associate general counsel Gavin Burgess, replied to the request in August by saying that the process of reviewing responsive records would take 3 ½ hours to complete. Since then, the school has continuously delayed releasing any documents.
In November, Burgess told a Sportico lawyer that the documents would be provided the following week. That never happened. Instead, 10 days later, FSU said someone from JPMorgan Chase would be reaching out to Sportico. (A representative for the bank declined to comment.) On Dec. 11, Sportico’s attorney sent FSU a letter accusing the school of violating the very same Sunshine law that Collins referenced in last month’s board meeting.
Now the school’s lawsuit against the ACC has provided FSU more pretext for delay. Burgess said in an email on Dec. 29 that the responsive records “will be reviewed to determine whether the litigation impacts the records as it pertains to any privileged or confidential information that must be redacted. The University will then fulfill the request.” He did not answer specific questions about the delay for the prior 4 ½ months.
In many ways, Florida State is the poster child for the rapid power shifts in college sports. Up until last year, the Seminoles’ place in the ACC was viewed by most as a safe harbor among the elite. But a lot has changed since then. The SEC and Big Ten have added members from other leagues, the Pac-12 is no more and the “Power Five” is increasingly looking like it will be the “Power Two.” Florida State is not the first to frantically pursue an exit toward the SEC or Big Ten, and it certainly won’t be the last, but for now, it might be the most interesting.
Sportico reported in August that the school was working with JPMorgan to explore the possibility of raising institutional capital to fund its athletic ambitions. Though private equity funds are buying into major U.S. pro leagues of all sorts, they have yet to find a way into college sports at the team level. Anything Florida State does in that realm would be nationwide news and closely watched by schools and investors across the country.
Back in August, private equity giant Sixth Street was furthest along in the talks with JPMorgan, according to sources. A representative for Sixth Street declined to comment. The discussions have continued as Florida State administrators became increasingly convinced that leaving the ACC was its best course of action.
Lawyers for the FSU board said last month that the ACC’s exit penalties—which they are now challenging in court—include $572 million in fees if Florida State left the conference right now. The Seminoles’ athletic budget in 2021-22 was $151 million. One way to limit that financial burden is to win the ACC lawsuit and leave for free. Another way might be to fund an exit via private equity.
Sportico filed its open records request on Aug. 4, asking for any recent agreement or term sheet between FSU and JPMorgan Chase. Sportico also asked for emails sent by FSU president Richard McCullough and senior athletics VP Kyle Clark that mention JPMorgan, Sixth Street or private equity. FSU confirmed receipt of the request that same day, and a few weeks later said that it had found more than 1,100 potentially responsive emails and that it would cost $200 to fulfill the request.
FSU confirmed receipt of the $200 check on Oct. 11, and in subsequent conversations repeatedly said the work was still in process. The letter from Sportico’s lawyers, dated Dec. 11, requested the records within five business days. FSU’s offices were closed Dec. 18 to Jan. 2, but those five days have passed without the records being provided.
Transparency has been a central theme in FSU’s push to leave the ACC. Collins repeatedly referenced the Sunshine law during December’s board meeting. So did McCullough, who reiterated that FSU’s board was holding the vote and preceding discussion publicly because it is required by law.
Last week, Florida attorney general Ashley Moody also invoked her state’s open records requirements in offering her public support of FSU’s lawsuit against the ACC. Moody has demanded that the conference turn over a copy of its ESPN media deal and other relevant documents.
“They are unlawfully keeping these documents locked away in North Carolina,” Moody said in a statement. “However, North Carolina and Florida state laws are clear that these agreements are public records and must be handed over immediately.”
Florida has become a hotbed for open records litigation: In July, the state’s ACLU chapter sued the Florida Department of Law Enforcement over its refusal to turn over immigration-related documents. The Washington Post is currently locked in a legal battle over public records related to travel by Florida Gov. Ron DeSantis. And last month, Disney complained in a lawsuit that the DeSantis-appointed oversight government for Walt Disney World has failed to release and properly preserve public documents.
College sports also has a spotty track record with disclosure. In 2016, for example, Georgia enacted a new law extending the required time for the state’s public athletic departments to respond to records request. The legislation, which pushed the response time from three days to 90 days, is colloquially called “Kirby’s Law,” after Georgia football coach Kirby Smart personally lobbied for its passing. Schools often claim that contracts signed with athletic sponsors are not public because they are handled by third-party intermediaries such as Learfield, which pays schools to manage their commercial rights.
A number of public universities in Florida, including FSU, have gone a step further. In 2019, Florida State’s board of trustees moved to establish FSU’s athletic department as a separate direct-support organization (DSO), which would effectively shield the Seminoles from the state’s Sunshine law—or at least make the decision to disclose records a voluntary one. Florida is unique in that it specifically exempts its university DSO’s from the Florida Public Records Law. (The University of Florida and Central Florida have also have availed themselves of this loophole.) The FSU records sought by Sportico, however, would not be subject to this records exemption, since they were either produced or are maintained by non-athletic university employees.
Thus far, no one from FSU has said otherwise. Then again, school officials haven’t said much of anything. As they tout transparency, they would do well to provide some of their own.
With assistance from Daniel Libit.