Buffalo Sports

Feb 2, 2023

created a stir when he introduced an amendment to the latest defense authorization bill that would have reversed the current policy allowing top athletes of the military academies to defer their active-duty obligations to pursue professional opportunities in their sport. The timing of Gallagher’s amendment would have especially complicated things for Army linebacker Andre Carter II, who is projected to go as early as the first round of the upcoming NFL draft—perhaps the highest a cadet has been picked in a half-century. After ESPN sounded the alarm, Gallagher quickly amended his amendment to allow current service academy graduates the chance to defer. “Moving forward,” he said in a statement, “there is much more work to be done to ensure our military service academies are laser-focused on their core, taxpayer supported mission: training the next generation of warfighters.” (Emphasis, mine.) The incident served to remind the public of the peculiar—and at times, questionable—relationship between the service academies and intercollegiate athletics. Over the past 12 months, I have been trying to better understand that relationship; in order to do so, I have requested a number of Army West Point’s public documents related to its athletic department. These requests have been reflexively denied, as has been West Point’s practice for at least the last eight years. So, I am taking the matter to court. In 2015, Army followed in the footsteps of its Commander-in-Chief Trophy peers, Air Force and Navy, by petitioning Congress to allow it to spin off its entire athletic department as a separate nonprofit organization—Army West Point Athletic Association (AWPAA)—which would then contract with West Point to manage and run the department’s intercollegiate activities. The service academies’ main justification for establishing this set-up was to better financially compete in Division I college sports , and fundraise in ways uninhibited by the strictures and limitations of the federal government. To be sure, in the summer of 2021, AWPAA set about the mission to raise monies for a $145 million, privately funded fancification of West Point’s football stadium—earnestly dubbed the Michie Stadium Preservation Project, as if it were about keeping a military structure from caving in—which is due to break ground as soon as this summer. But if you want to know details of how this is being orchestrated, you’re out of luck. And it’s the same situation, I can confirm, if you want a copy of Army’s athletics multimedia rights agreement, its apparel agreement with Nike, its broadcast deal with CBS Sports Network, any NIL consulting contracts that it may have entered, or emails sent or received by its athletic department employees. “Please note Army West Point Athletic Association (‘AWPAA’) is a non-Federal entity and not subject to the Freedom of Information Act,” wrote Wen-Kang Chang, Army’s senior associate athletic director, in the first of several similar emails I’ve received. “As such, AWPAA will not be releasing any requested information/documents.” Though secrecy was perhaps not its main rationale for seeking to privatize athletics, it seems to have been treated as at least an ancillary benefit. Not only do the service academies habitually deny athletics-related FOIA requests, but their athletic associations each successfully petitioned the IRS to avoid having to file an annual tax return, called a Form 990, which must be publicly disclosed. Thus, Americans have less insight into West Point’s athletic department than they do for a private university like Notre Dame’s. On Wednesday, I filed a federal FOIA lawsuit against West Point and AWPAA. I am being represented by Yale Law School’s Media Freedom and Information Access (MFIA) Clinic , which has taken up the pro bono legal causes of journalists, news organizations and transparency advocates battling over everything from the State Department’s response deadlines, to police misconduct records, to the U.S. Food and Drug Administration’s clinical trial data. “Federal agencies should not be able to hide aspects of their operations from public scrutiny by moving them into separate entities,” said David Schulz, the clinic’s director and my attorney-of-record, along with Kelsey Eberly. “Today it’s West Point wanting to conceal the money it makes off its football program, and how that money is spent. Tomorrow it could be almost any federal agency with a program it wants to run in the dark.” Our suit contends that AWPAA is at the very least a “government-controlled corporation” that stands in the shoes of West Point, and should therefore be subject to FOIA. We’re also arguing that if West Point is not in physical possession of the documents I have requested, they at least have legal custody over them. Though it insists in this circumstance it is a wholly separate and independent entity, Army’s athletic department is “enmeshed within West Point and supervised by and financially accountable to the Secretary of the Army,” says the complaint, which was filed in the U.S. District Court in Manhattan. But you don’t have to take our word for it. In various other forums, West Point and AWPAA have explicitly made this point themselves. For example, in its 2016 application to the IRS for tax-exempt status, AWPAA stated that West Point’s “Superintendent exercises oversight and control of [AWPAA]’s activities through reports from the officers of [AWPAA] concerning all negotiations, plans, appointments, audits, and budget proposals of [AWPAA] which directly affect the charitable and educational purposes of [West Point]’s intercollegiate athletics program, all of which are subject to the approval of the Superintendent.” Two years later, when AWPAA petitioned the IRS for an exemption from filing a Form 990, it did so on the grounds that it was classifiable as either a “governmental unit” or “affiliate of a governmental unit.” It reiterated this status that same year when it filed amended bylaws with the state of New York, checking the box that it was a “government agency” or “controlled by a government agency.” Moreover, as we make note in our lawsuit, the controlling relationship is axiomatically established by Army’s membership in the NCAA . The “Institutional Control” Bylaw in the NCAA’s Division I manual states, in no uncertain terms, that “it is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association.” To that end, the NCAA mandates that the athletics buck must always stop with the school’s president or chancellor. Then there’s the myriad supporting evidence: AWPAA offices in a West Point-owned building; the athletic department staff all use “army.edu” and West Point phone numbers; Col. Gretchen Nunez, the military deputy athletic director, oversees the use of West Point’s resources within the athletic department; and so on. I am hardly the first journalist to have taken note of these discrepancies. In 2017, USA Today’s Brent Schrotenboer and Steve Berkowitz masterfully captured the service academy athletics’ secret state of affairs. In their reporting, Schrotenboer and Berkowitz interviewed former Secretary of the Army and New York Congressman John McHugh, who had at one time co-sponsored legislation that paved the way for the athletic associations to operate in their present fashion. McHugh expressed regret for how this process had come to be used to suppress records. “None of it was intended to shield information from the public,” McHugh told USA Today at the time. (Now a Washington lobbyist, McHugh declined my recent interview request.) Regardless, nothing within the legislation carved out a specific public records exemption—rather, the military academies have done what so many parts of our federal, state and local governments do when it comes to their practice of non-disclosure: they merely took it for granted. After its football program left Conference USA in 2005 to rejoin the ranks of the D-I independents, Army changed its team nickname from the Cadets to the Black Knights—a telling, if unintentional, proclamation of its surreptitious future plans. My experiences since last February with Army West Point’s public records custodian and AWPAA have been reflective of this posture of haughty defiance. At first, West Point’s public records custodian, James Bradbury, informed me that AWPAA, as a New York registered nonprofit, was subject to that state’s Freedom of Information Law, and that athletic records should be requested pursuant to that statute. However, when I did so, AWPAA issued an immediate denial. In a Dec. 5 email, Bradbury suggested that the issue at hand was largely my own misunderstandings. “You are confusing two separate organizations, the garrison at West Point which falls under the Freedom of Information Act and the Army West Point Athletic Association that is a private 503c which does not have to respond to FOIA requests,” he wrote. I have some prior experience dealing with taxpayer-supported institutions trying to conceal the work of their athletic departments. In 2016, I sued the University of New Mexico and its foundation for declining to turn over records related to UNM athletics. That litigation is currently under review by the New Mexico state Supreme Court, after I prevailed at the district and appellate levels. In 2020, I brought a legal challenge against the University of Colorado over its refusal to provide records related to Buffalo Sports Properties, CU’s exclusive multimedia rights partner, which is owned by Learfield. One of the records I sought was the five-year sponsorship agreement between Buffalo Sports Properties and gambling operator PointsBet . CU ended up turning that document over after I filed a notice of intent to sue for it in Colorado District Court. The agreement revealed a clause that would pay the university a $30 referral bonus for any new customers that it brought onto PointsBet’s app—incentivizing a public institution of higher learning to serve as a commission-based sales rep for a sports betting company. That controversial arrangement was finally nixed last month. When the MFIA Clinic sent West Point an administrative appeal letter on my behalf in December, protesting their FOIA denials, Bradbury followed up with an email accusing me of having failed to identify myself as a member of the news media—though I made this clear from the beginning. Nevertheless, Bradbury warned, not only would I now be subject to some sort of media surtax for duplication costs on any disclosable records, but my alleged deceit would potentially lead to West Point dismissing the requests. A few weeks later, Army Athletics’ newly hired corporate counsel, Abigail Howard, denied, without explanation, my request to obtain a copy of AWPAA’s application for tax exemption. Only when I directed Howard to the page on the IRS’s website that stipulates tax-exempt nonprofits must disclose these documents upon request from the public, did she then send the documents. West Point has struck a slightly less obstructionist tone of late, with Bradbury indicating that the garrison was now open to providing athletic department employee contracts, after months of refusing to do so. Almost a full year after I requested the first of those, I’ve been told that they are in process. That’s progress of a kind, I suppose, but not nearly sufficient. In his 2012 book , Carved from Granite, Brig. Gen. (Ret.) Lance Betros, the former provost of the U.S. Army War College, gives a detailed recounting of West Point’s increasingly complicated relationship with on-campus sports. “The negative effects of intercollegiate athletics have been especially noticeable since 1970, as Academy leaders have struggled to succeed in an athletic environment governed by business principles,” Betros wrote. “The overall failure of this endeavor has yet to inspire a rethinking of the assumption and goals that govern intercollegiate sports at West Point. Until that happens, the Academy will continue to fritter its resources in areas tangential to the institution’s core mission.” As Congressman Gallagher recently alluded to, this relationship demands even greater scrutiny now. What the ultimate mission of service academy sports should be—and to what extent it can accommodate athletes like Andrew Carter II’s chance to capitalize on their pro potential—is certainly an open question. Simply hiding the operations of their athletic departments from the public, however, is not the answer. Read More About: