A woman alleging that she was sexually assaulted by Antonio Callaway in December 2015 boycotted a Friday hearing to determine whether Callaway violated Florida’s student conduct code over the appointment of a Florida booster to adjudicate the case, according to letters from her lawyer obtained by ESPN.
The woman’s lawyer, Title IX attorney John Clune, told ESPN’s Paula Lavigne and Mark Schlabach that Florida’s hiring of Jacksonville lawyer and Florida booster Jake Schickel to oversee the hearing "is beyond unacceptable," and wrote in a letter sent to University of Florida deputy general counsel Amy Hass this week that his client was willing to participate in the hearing prior to learning of Schickel’s hiring.
"This has been a difficult decision but as I previously indicated to you, the fact that UF has hired a football booster to adjudicate a sexual assault allegation against one of the team's own football players is a fundamentally skewed process in which [the complainant] refuses to participate," Clune wrote in letter sent Friday morning to UF deputy general counsel Amy Hass.
"To be clear, [the complainant] remains very willing to participate in a fair and unbiased disciplinary process. Mr. Calloway's behavior has had a great impact on her life and continuing as a student at UF is of great importance to her and her future."
ESPN uses "Calloway" in quoting at least one of Clune’s letters to Hass; the Florida sophomore’s surname is spelled Callaway. A copy of Clune's Friday letter obtained by Edgar Thompson of the Orlando Sentinel, one that ESPN quotes with "Calloway," redacts the names of both Callaway and his alleged victim in all but one use of "Antonio," but stars out the surnames on each usage.
Schickel is a founding partner of Jacksonville law firm Coker, Schickel, Sorenson, Posgay, Camerlengo & Iracki, and a former Assistant State Attorney, and graduated from both Florida and its law school in the early 1970s. He is also, per ESPN, a booster who has donated thousands to Florida’s athletic program.
A former track and field athlete at Florida, Schickel, 68, is a Scholarship Club donor to Florida Football Boosters, which requires annual contributions of $4,800 to $8,599, according to a 2014-15 Year In Review program published by the UF athletics department. According to the documents, Schickel is also a 3-Point Club donor to Florida basketball, which requires annual contributions of $2,000 to $4,999.
A donation at the Scholarship Club level allows a booster to purchase up to six season tickets to Florida football games, and access to premium seating at The Swamp when available, per Gator Boosters' website. While Florida's booster contribution levels for men's basketball have changed with the renovation of the O'Connell Center, a $2,000 donation entitles a booster to access to purchase loge seating in the new building.
In 2011, the federal government’s Office for Civil Rights sent what has become known as its "Dear Colleague" letter to American universities and colleges. The letter — which is now a "significant guidance document" for schools handling claims of violations of Title IX, the portion of the United States Education Amendments Act of 1972 that bans discrimination based on sex in higher education — includes guidelines for adjudication procedures related to claims of sexual harassment and sexual assault, including instructions to disclose — but not necessarily avoid — conflicts of interest.
All persons involved in implementing a recipient’s grievance procedures (e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the recipient’s grievance procedures. The training also should include applicable confidentiality requirements. In sexual violence cases, the fact-finder and decision-maker also should have adequate training or knowledge regarding sexual violence. Additionally, a school’s investigation and hearing processes cannot be equitable unless they are impartial. Therefore, any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed.
Florida cited confidentiality laws while declining to answer ESPN’s questions about whether it often hired Schickel to adjudicate conduct code violations, and Schickel didn’t respond to ESPN’s requests for an interview.
But Florida would issue a statement indirectly defending its selection of Schickel later on Friday.
"The University of Florida is prohibited to comment on the existence or substance of student disciplinary matters under state and federal law.However, I can tell you that our student conduct process may be handled by a hearing officer, who could be a university employee or an outside professional, or by a committee of faculty and students.
Any hearing officer and all committee members are trained and vetted for their impartiality. A hearing officer or committee member would not be disqualified or lack objectivity simply because he or she had been a student athlete decades earlier or purchases athletic tickets as more than 90,000 people do each year."
Clune told ESPN that Florida did not disclose Schickel’s conflicts of interest, and that his firm discovered them independently.
In addition to reporting on Florida's selection of Schickel, ESPN reported details of the events leading to the allegation of student conduct code violations by Callaway and former Florida quarterback Treon Harris that had not been previously reported, creating as many new questions as the outlet provided answers.
Per ESPN, the incident in question occurred in December, and the woman did not report it to police, instead pursuing a complaint through the university.
According to sources, the woman reported to Florida's student conduct and conflict resolution office that Callaway and Harris sexually assaulted her in early December. She didn't report the incident to police.
Gainesville police and University of Florida police previously confirmed to ESPN that they didn't have reports related to the alleged incident.
Callaway and Harris were suspended in January, but that suspension was not announced until March. Shortly after that announcement, Callaway's lawyer, Huntley Johnson, declared that Callaway should be reinstated, with his firm releasing a statement that included the phrase "This allegation has no merit."
At that time, Johnson did not comment on the nature of the alleged violations, and neither he nor his firm has, to my knowledge, done so since. But rumors flew on message boards in late January and early February indicating that Callaway and Harris were in trouble that was related to an alleged sexual assault.
A source told Alligator Army in early February that there was an ongoing investigation related to alleged sexual assault, then later added that there would be no further investigation by law enforcement into the case.
A separate source would later tell Alligator Army that the allegations related to alleged sex with multiple partners, and that Callaway and Harris had differing levels of participation in the incident.
I was never able to find a second source to corroborate either of those specific claims, or square one with the other, and thus I did not report either of those claims at the time. I relay them now because I trust both sources, and that information is obviously germane to other reporting.
But those sources did lead me to believe that any evidence against Callaway was scarce at best, and that he was likely to eventually prevail in a conduct code hearing, which was part of why I was able to write about the likelihood of his return in April.
Yet I was also unnerved by the near-total silence on what, exactly, both players were alleged to have done, and I made repeated reference to the secretive nature of the process (note "tight-lipped" in both links) when writing about Callaway (and Harris). I attributed that less to any incompetence by the many fine journalists on the Florida beat and more to the extreme care with which I was told Florida was handling the situation.
Lavigne and Schlabach also report that sources told them Harris's transfer from Florida was "part of a plea deal related to the Title IX case."
Harris, a junior from Miami, announced last month that he was leaving Florida and transferring to another school. Sources familiar with the case told ESPN that Harris agreed to leave Florida as part of a plea deal related to the Title IX case. He also apologized to the woman, the sources said.
What constitutes a "plea deal" in a case in which there were apparently no criminal charges nor likelihood of criminal charges is beyond me, and that reporting creates questions about whether any outstanding allegations against Harris were altered by his decision to transfer or apology.
Finally: That ESPN, the most prominent outlet for sports reporting in the world, is the first outlet to report an extensive finding facts in this saga — and that it has done so not just on the day of Callaway's hearing, but within hours of it — also strikes me as odd.
I have a very hard time believing that ESPN's Lavigne and Schlabach, who have done usually excellent yeoman's work on sexual assault and other criminal cases involving college athletes, including Gators, time and again — with Lavigne doing so despite being besieged by aggrieved fans following Tallahassee police including her phone number in one records release in December 2014 — only learned of this case today, or this week.
More likely, I think, is a scenario in which their reporting prior to this week didn't merit publication until a substantial allegation of wrongdoing was made. It strikes me as very possible that Clune's letters, provided by Clune to ESPN, were the tipping point for Friday's report.
And that seems to have struck Johnson as foul play. He hit back against Clune's letter with a blistering press release authored by Amy Osteryoung, his partner at Johnson & Osteryoung, decrying Clune's decision to go to the press.
It reads, in full:
"We have read what the complainant’s attorney has released to the press.
"We consider his actions inappropriate and an attempt at intimidation.
"Since the complainant’s attorney has chosen to go to the press in this matter, we assume that he will be releasing the hundreds of pages that made up the University of Florida’s investigation. We assume that he will be releasing the sworn affidavits in this case. We assume that he will be releasing the complainant’s text messages in the investigation. We assume that he will be releasing the complainant’s multitude of varying and conflicting stories.
"We are not going to besmirch his client in the press. The totality of the investigation which is over one-thousand (1,000 pages) will do that for us. Our client has asked us not to release anything at this point. Because of the conduct of the complainant’s attorney, that may change in the future."
But Clune complained in his letter sent Friday about materials submitted in Callaway's defense that addressed the sexual history of his client, which he said UF had assured Callaway's alleged victim would be excluded from the process.
I want to also tell you that I was greatly disheartened to learn for the first time last night that the hearing materials include extensive content submitted by Mr. **** about ****'s alleged sexual history. UF had previously assured **** and her advisor that per UF policy, all such information would be excluded from the process and that any material that had previously been submitted by Mr. **** would be placed under seal and not given to the hearing officer. Moreover, just as with the information that the hearing officer was also a football booster, UF apparently felt no need to disclose to ****, her advisor, or her victim advocate, of this change in decision regarding sexual history. As a result, **** is today wholly unprepared to address or rebut the sexual history allegations now contained in the hearing materials.
And discussion of alleged past sexual history by an alleged victim would track with what Johnson did with a 2014 press release defending Harris against a complaint of sexual battery, in which Johnson made note of testimony that someone else had sexual relations with the complainant in that case just prior to her alleged contact with Harris.
Given both sides' accusations of dirty pool, it would seem that attempts at intimidation might not be limited to one side of the table in this case.
ESPN's reporting, however, includes a phrase that includes the term "slut-shaming" that does not appear in the copy of the letter obtained by Thompson, who spoke to Clune about his client's decision to withdraw from the meeting. (Boldface mine.)
In the letter sent Friday, Clune also objected to Florida officials allowing the woman's past sexual history to be included in the hearing materials. "UF had previously assured [the complainant] and her advisor that UF does not tolerate such 'slut-shaming' tactics and that per UF policy, all such information would be excluded from the process and that any material that had previously been submitted by Mr. Calloway would be placed under seal and not given to the hearing officer," Clune wrote.
While it is possible that that addition was a clerical error on ESPN's end, this raises the question of whether multiple versions of Clune's Friday letter to UF exist.
I've reached out to Clune in regards to his firm's Friday letter.
Further complicating this case is the apparent fact that Callaway's hearing proceeded without his alleged victim on Friday, per The Gainesville Sun's Robbie Andreu.
Antonio Callaway's hearing Friday went on without the alleged victim and her counsel. Results will be revealed at a later date.— Robbie Andreu (@RobbieAndreu) August 5, 2016
If Callaway and anyone in his corner ended up defending him against no one, as seems likely, it would seem unlikely that the adjudication of the case would be a negative one for him.
But Florida proceeding with a conduct code hearing after an alleged failure to disclose a potential conflict of interest for the adjudicator and over the objections of one of the parties' lawyers doesn't seem like full justice. Not at all.
Since news of an investigation into a sexual battery by Jameis Winston broke in November 2013, I have endeavored to report on allegations like that with the utmost fairness and to combat the often toxic dialogue about such allegations. I wrote long and painstaking pieces encouraging Florida fans to be better than using the allegation against Winston as fodder for trash talk, and I wrote equally long and painstaking pieces encouraging Florida and Gators fans to be fair and just in regards to allegations in our own backyard when the 2014 sexual battery complaint against Harris was filed and then withdrawn.
I've probably both succeeded and failed in my endeavor.
But I want to renew my call to raise the bar for all of us, and add to it: When you see something, you need to say something.
So I have several things to say here.
- My information on this case suggests to me that Callaway was likely to prevail in his conduct code hearing. But hiring a booster to conduct it, even if that booster is better known to Florida as an adjudicator who had previously handled other cases, was a massive misstep, and failing to disclose his potential conflicts of interest was, at minimum, a sin of omission that opens Florida up to a valid Title IX complaint to the Office of Civil Rights.
- ESPN's reporting is very suspiciously timed, and the news of this breaking first at ESPN — rather than by multiple outlets using a press release at the same time, for example — primarily suggests to me that Clune has significant expertise in trying cases through the media.
- What seems true — Clune forcing Florida's hand by pulling his client out of a hearing that he alleges would be unfairly slanted against her — may not be the fullest and fairest accounting of a process that has been ongoing for more than six months.
- What seems true may still be more important than what is true, if reporters and readers are not assiduous about their work of producing and consuming the news.
- It may be more important that what is true, too, because what is true is often mostly or entirely lost in a case in which the core conflict is between two competing and contradictory narratives.
- Johnson has now allegedly gone to the well of discussing an alleged rape victim's previous sexual history twice, though we only have the insinuation from Clune's letter of such a practice in this case. That tactic is slut-shaming, and it is deplorable, and it ought to be rejected: A person consenting to have sex with another person does not necessarily reveal anything about that person's consent or lack thereof with a third person.
- Yet: That tactic, I am certain, has been very, very effective for thousands of defense attorneys, and the best defense for most clients is a vigorous, exhaustive one, which might require dirty pool.
Today, Florida State fans have seized on this tweet — sent on New Year's Day in 2015, as FSU fans protested "Noooo means noooo" chanting by Oregon players and fans to the tune of the Seminoles' "war chant" — as ... well, I'm don't know, exactly?
Must say: I'm enjoying FSU fans scrambling for the moral high ground now that there isn't a win to celebrate.— Alligator Army (@AlligatorArmy) January 2, 2015
That tweet was snarky, yes, and probably shouldn't have been, because I was genuinely gratified to see Florida State fans doing the hard and largely thankless work (last section) of calling out what amounted to a rape joke — especially given that too many of them, then and now, did and do things as obviously wrong as using Erica Kinsman — the former Florida State student who has alleged Winston had raped her — as an easy punchline.
But I also didn't use the phrase "moral high ground" derisively: I welcome anyone who wants to work toward fairer, more careful action and speech to spend years refusing low-hanging fruit and hearing people complain about you finding that "moral high ground." You, too, may eventually find that the high road is actually just a better place to be, and that those who complain about people finding the moral high ground are quite often people who want to drag everyone to the mud.
If years of endeavoring to be fair to even the worst Florida State fans are undercut by me smirking at some of those fans conspicuously donning the mantle of social justice after their embattled team's first loss in over two years, then so be it. I'm confident that the implications of ironic reuse of that tweet — that I have been posturing about social justice all this time, maybe, or that I'm somehow comfortable excusing or dismissing any and all things related to Callaway and/or Harris in ways I wasn't for Winston? — are undercut by my work.
And I also endorse this tweet ... even though this guy's literal next tweet calls me "ole bitch boy."
Once again, sexual assault allegations are not to be used as banter between rivals, #BeBetterThanThat— Lastsonofkrypton (@GodofKrypton) August 5, 2016
Finally: The thing that has come to worry me most about the current system for seeking justice within colleges and universities is that the system seems increasingly incapable of delivering full justice to anyone, especially in cases of alleged sexual impropriety.
Callaway deserves to have a hearing at some point, especially after six months that he has spent in limbo, and is entitled to a full and vigorous defense. Callaway's alleged victim certainly does, too, and is entitled to equally vigorous representation — and they both probably deserved a resolution quieter than this Friday's publicity about this case.
Justice, though, is rarely done by those who remain quiet, much like progress is not forged by the meek. They are processes, and they are messy; so is history. They may require uncomfortable honesty, and admission of fault, and stepping backwards and off pedestals to go forward. (I have long thought that Florida has striven to make itself the model NCAA program with great success; not having at least a safeguard in place to make sure a conflict of interest could be avoided, even though that's likely a problem originating with the academic and administrative side of the university, and not with the athletic program, is evidence that there is more work yet to do.)
I ask that you not give up, and keep trying, even when it is hard, and that you acknowledge that doing the right thing is always more important than doing the easy one.
I will try to do that, too.