Tuesday Thoughts: On further developments in the Antonio Callaway story

Since I published a 3,400-word piece on the case against Antonio Callaway that was set to culminate in a student conduct code hearing on Friday, nothing has actually happened in that case. Callaway’s hearing was reportedly held as I was writing it, or just after I published it, and — as is just the case in hearings like these — a judgment is not expected for some time, likely weeks.

But we did see several developments in the story that now includes the case as a constituent part, and I wanted to discuss them at length today.

Two of those developments came from the Tampa Bay Times’ Matt Baker, who first wrote a thoughtful and detailed examination of why the cases against Callaway and former Florida State quarterback Jameis Winston were treated differently by reporters that was published Monday morning. There's not a lot to discuss here that wouldn't be rehashing what Baker wrote, so please just read that.

More importantly, Baker followed that up by requesting Florida’s contract with the attorney who oversaw Callaway’s reported Friday hearing, only to be rebuffed by the school over privacy concerns.

An expert on open records that Baker spoke with about that decision called it "baloney."

"Well that's baloney," said Barbara Petersen, an open-records advocate and the president of the First Amendment Foundation.

Petersen said student privacy laws are designed to protect academic records, not business contracts with outside professionals. If students' information is in the contract, Petersen said, the university could redact their names as allowed by law and backed up by a 2010 Florida Supreme Court ruling against the NCAA and Florida State.

"Contracts are pretty much a boilerplate, and to say that all of the information in the contract would expose student conduct is baloney," Petersen said.

While I imagine that it’s possible that the contract has enough specific language that it would need to be heavily redacted to be released, it sounds to me like Florida could release that contract in such a redacted state without violating student privacy. Baker notes that Florida State promptly released its contract with Major Harding, who oversaw the December 2014 hearing on Winston’s conduct, upon request.

I don’t know that it is necessarily wrong for Florida to keep things close to the vest here — and I do imagine that many requests to this point by media members have been more informal, and not the sort that include Freedom of Information Act petitioning, meaning that Florida can act on its discretion and be completely justified in that decision — but it seems clear that Florida is going to be painted as evasive at best for doing so, with sincere concerns about student privacy deemed less than enough to merit a refusal to release records.

It’s also clear that Florida’s decision to appoint John Schickel — the Jacksonville attorney who’s made contributions to Florida (likely to buy season tickets for football and men’s basketball) that make him a booster of the school — as a hearing officer for Callaway’s hearing is going to be pilloried for a long time to come.

Sports Illustrated writer Andy Staples — a former Florida walk-on under Steve Spurrier, and a longtime Alachua County resident — did a fair bit of work to excoriate the school in a scolding piece published Monday. Just the first two paragraphs are searing.

University of Florida officials could have avoided looking shady. They could have avoided a choice that made it appear to the outside world that the school cares more about winning football games than it cares about its female students. They could have avoided a decision that was patently unfair to an accuser, to the person she accused and to the person charged with dispensing justice.

The people in charge at Florida could have avoided all of this, but instead they either willfully or negligently chose a person who donates to Florida’s athletic department—for the purpose of buying football and basketball tickets—to be the hearing officer in a student judicial affairs hearing involving Gators star receiver Antonio Callaway. Then, when an attorney for Callaway's accuser cited this as the reason the accuser would boycott the hearing, Florida officials—the university side, not the athletic department—then released a tone-deaf statement that proves they have no idea how much damage they could do to the people involved and to the university's reputation.

Staples isn’t wrong on the merits (though he does later misspell the surname of Florida spokeswoman Janine Sikes), or to be angry: Florida made an unforced error, clearly, in hiring Schickel, and compounded it with a statement that was more defiant than deferential. I, too, am frustrated by Florida’s response here.

But Staples also writes that this misstep was by the University of Florida, the school, and not Florida, the nine-figure athletics business — and that the latter was livid with the former for it.

Florida athletics officials, including athletic director Jeremy Foley, were furious with their university-side counterparts Friday for the way they handled this situation. If not for this, the athletic department could have explained any outcome with this: The university has handled this from the start. Here are all the steps that were taken. This was all by the book.

Now no one will believe that, even if it was handled exactly by the book. The school has placed the athletic department in a no-win situation. No matter what actually happened, this makes it appear as if the entire case was rigged to favor athletics. The Gators wind up the bad guys no matter the outcome.

To its credit, Florida’s athletics department has, so far as I can tell, done its proper duties in this case. It didn’t announce the suspensions of Callaway (and Treon Harris) immediately, but it did seemingly suspend them in tandem with the university promptly following the woman in question making her complaint to the school. It has repeatedly, via a variety of Jim McElwain quotes amounting to "no comment," demurred on the subject of the case, instead following the school’s lead in reinstating Callaway and Harris to classes and the football program.

And it has been nearly silent in speaking to reporters about it, to the point that none of the dozens of them on the beat, myself included, ever got enough to publish a story on the developing case prior to Friday.

Florida’s administrative side, though, seemingly didn’t see (very likely) or didn’t care (far less likely) about the obvious conflict of interest for Schickel, or its responsibility to disclose that to both sides of the case. And even if a) everything it had done prior to that decision was by the book and above-board and b) Schickel still did a fair and impartial job as the hearing officer on Friday, and would have done the same in the case of a hearing involving the woman who backed out of the hearing, that one decision corrupted the entire process.

Florida has, occasional Alligator Army contributor Neil Blackmon told me via Twitter on Friday, used Schickel for other hearings.

I trust Blackmon’s knowledge on this. And my guess, based on that fact, is that Florida probably has a pool of potential hearing officers or presiding adjudicators that it uses for proceedings like this, one that it likely works through based on availability and/or a rotation when it needs to staff up for a hearing.

Until last week, when John Clune, the attorney for the woman in this case, registered his sincere (and rightful) objections to Schickel’s selection for this case, the criteria for making that pool probably didn’t include whether a person had contributed to the UAA for the purpose of buying season tickets.

But the problem is that — in retrospect, but obviously — the criteria should have included that.

Sikes wrote this in Florida’s statement on Friday:

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.

Certainly, I imagine there are Florida ticket-holders whose objectivity and qualifications to serve in the role Schickel was hired to carry out are unimpeachable in practice — Schickel might well be one of them. In theory and in appearance, though, Schickel and any other booster or "booster" (in the looser, my-contributions-are-only-for-tickets sense) will not be seen as impartial, or qualified, because a talented lawyer like Clune will hammer home that point about impartiality.

And, true, it will be harder to find a qualified person for that role if avoiding even the appearance of bias must happen. Stripped of the scare tactics of calling Schickel a booster when he’s seemingly just forking over the fees that the UAA uses as a barrier to entry to buying better tickets, Clune’s argument is that no Florida season ticket-holder could possibly be objective in a case involving a Florida athlete, which is broad enough that it verges on the absurd.

If I were the lawyer for either side of a future Florida student conduct code hearing — and to be clear, I’m not a lawyer — I think I would raise objections about the educational backgrounds of anyone who attended Florida or any school that could be considered a rival of Florida, or about whether a person was a fan of any of the sports teams of that institution.

But I’d also raise objections about where someone has lived, and whether that person has personally benefited from the institutions in question. Schickel clearly benefited from the University of Florida, his alma mater: Why should he be trusted to adjudicate a case in which a major asset of one of Florida’s profitable divisions — an uncomfortably true description of Callaway — could be rendered worthless?

And, for that matter, why could former Florida Supreme Court Justice Major Harding, who had lived and worked in Tallahassee from the height of Florida State’s football success in the 1990s (as a justice) to the present day (in private practice), be counted on to deliver a totally impartial ruling in Winston’s hearing? Florida State did pick three potential adjudicators, and allowed Winston’s and Erica Kinsman’s sides to strike one choice each, but Harding had lived through boom and bust times in Tallahassee that correlated to the Seminoles’ success; why was he even in the pool? Couldn’t FSU have found someone who had no connection to a city in which the Seminoles are an important civic institution?

I have slid down a slippery slope here, as should seem obvious. But I think I'm here with Clune, who made mention of not just Schickel's apparent conflicts of interest based on his own education at and donations to Florida, but one premised on the "considerable financial support" (read: booster fees paid to buy tickets) of the partners of his firm, in a letter that he wrote on August 2 (boldface mine):

"To be clear, this letter is not intended to cast any aspersions about Mr. Schickel's character or his service to his alma mater," Clune wrote in an Aug. 2 letter to Hass. "However, UF should never have asked him to serve as an objective reviewer and decision-maker on this matter when the claim has been brought against a star member of the very team for which both he and his law partners have provided considerable financial support.

"Quite frankly, short of finding a relative of Mr. Calloway, I'm not sure how UF could have found someone with more conflicts [than] Mr. Schickel."

Clune's (seemingly successful) public objection to Schickel means that it will be fair game for any lawyer to pick apart the credentials of any adjudicator in any of these hearings across the country — or, as Clune did, push away from the table and make a spectacle of his objection to the adjudicator. (ESPN is quite probably "obtaining" these letters from Clune in the same way that a child "obtains" Christmas presents from parents and family.)

And that means that every school may now need to totally revamp its procedures for picking hearing officials, just one contingency of handling sexual misconduct complaints. That’s another line item added on to an exhausting and exhaustive process that is increasingly forcing schools — staffed by career academics, not trained lawyers — to act as parajudicial bodies, and navigate a byzantine system.

This brings me to the last point I want to make: It seems clear that the woman in this case, with her counsel, saw a complaint through Florida as her best (and maybe only) path to justice. Certainly, that’s the feeling that one gets from both what State Attorney William Cervone told ESPN on Monday...

"I had a conversation with officers at the university to see whether it was going to come this way," said Cervone, who said his office never fully investigated the allegations. "Based on what I knew then, I didn't think there was even a remote possibility of criminal charges. It would have been totally unprosecutable based on the facts given to me. It would have never risen to sexual assault or sexual battery."

...and what Clune said in firing back at Cervone for those comments.

Clune sent a letter to Cervone on Monday, a copy of which was obtained by ESPN, saying Cervone's comments were an "inappropriate and unethical abuse" of his position.

"One of the main reasons why my client did not report to law enforcement is that she was informed that you are loathe to prosecute a sexual assault against a Gator football player and now you have loudly confirmed just that," the letter also read. "Clearly, my client made the right decision to not pursue criminal charges."

It is possible — and maybe probable — that both of these statements are true, more or less. Cervone’s statement tracks with everything I heard about the fact-finding in this case, and with Callaway lawyer Huntley Johnson’s vociferous belief that the facts would clear his client. Clune’s charge jibes with the long-standing belief that Cervone and Johnson — personal friends who attend Florida games together, as ESPN notes in its report — are pals who handle Gators athletes’ transgressions with kid gloves, Johnson going full-bore in his defenses and Cervone soft-pedaling his prosecutions.

One major difference between the two statements, though, is that Cervone’s could be weighed out in the justice system, and may have been borne out in Callaway’s hearing even if the woman accusing him of sexual assault hadn’t boycotted the meeting. Cervone clearing himself of Clune’s charges requires disproving the negative of him being "loathe to prosecute a sexual assault against a Gator football player," even though Clune is — at this juncture, anyway — quite probably advising his client not to give law enforcement the case to handle.

And the perspectives of Cervone and Clune are wildly different. Cervone’s job is to prosecute those who need prosecuting, his duty to justice largely limited to criminal proceedings. He has very little to do with a potential civil suit in this case.

Clune, meanwhile, is probably angling toward a civil suit — I’m really not sure how else to interpret Clune pulling his client out of the hearing, taking his case to ESPN mere hours before the hearing was set to occur, and also maintaining that his client purposefully didn’t report the claim to police — and is also arguing from what appears to be his first position of leverage in this entire case, after Florida’s unforced error on Schickel.

And Clune, in what has become a career of advocacy for sexual assault victims, has largely gotten justice for them through civil suits that end in settlements and remuneration. While his client in this case seemingly won’t end up with either a criminal conviction or a student conduct code hearing ruling in her favor, Florida’s failures open it up to Title IX complaints — something that a friend told me Florida administrative personnel have generally considered "a matter of when, not if," given the profile of the school and the difficulty of covering every base —  that Clune routinely turns into settlements.

That complaint probably won’t stop Callaway from returning to the field as a Gator, nor Harris from returning to some field, somewhere. A lack of charges and clearance from a conduct code process that is now tainted by the specter of impartiality won’t make rooting for Callaway any easier, nor will it defend Florida from the charges — some fair, some foul — about its handling of this case. And who knows if a settlement will feel like the fairest possible judgment for the woman in this case?

Who knows if any of this is justice? It’s just what we’ll get.