Judge hears arguments in USA Today lawsuit to get metrics on Scott Frost, Fred Hoiberg contracts

A Lincoln judge heard closing arguments Thursday at a public-records trial over whether the University of Nebraska-Lincoln should have to release agreed-upon metrics for fired Husker football coach Scott Frost and men’s basketball coach Fred Hoiberg.

The trial pit the university, which turned down the request, calling it confidential information, against USA Today, which says it should be public under state law because it involves the expense of public funds.

The university provided Frost’s metrics to District Judge Ryan Post for his review. But in a twist, it was unclear if the agreement on Hoiberg’s metrics even exists in written form.

Jaclyn Klintoe, UNL’s director of university records, testified that she looked for a document and couldn’t find it, even after a meeting with athletic director Trev Alberts, who provided her Hoiberg’s paper employment file.

USA Today’s attorney, Michael Coyle, took issue with the lack of documentation, calling it bad business.

“We’re talking about Coach Hoiberg’s contract that doesn’t apparently even exist. In all due respect, I don’t think the court should countenance that type of activity,” he said. “We’re talking about the expenditure of hundreds of thousands of dollars, if not millions.”

Coyle said they weren’t asking for the secret recipe for Coke. They just want to know what Frost and Hoiberg had to do to make another million dollars. If it was win five games or six games and get to the Orange Bowl, so be it.

“And if it was something else, that’s not on us,” he said.

If it’s tied to salary, public records statutes demand that it be released, Coyle argued.

“These are public funds. This money belongs to the people and the people are entitled to know where it is spent,” he said.

According to previously released information, Frost’s restructured contract included a reduction in salary from $5 million to $4 million for this year, but also spelled out the opportunity to bump his salary back to $5 million in 2023 and beyond if the program achieved certain “metrics” in 2022.

As for Hoiberg, his salary dropped from $3.5 million to $3.25 million this season and the coach gave up a $500,000 retention bonus due him. Like football, Hoiberg’s contract included undisclosed “metrics” he and the team will have to meet.

Coyle said if Hoiberg’s metrics weren’t written down, that’s not good business and it doesn’t protect the people of Nebraska, whose tax dollars pay his salary.

The athletic department at Nebraska is self-sustaining, meaning revenue comes from ticket sales, sponsorships, donations and media rights deals. No money comes from state funds or student fees.

On the other side, Attorney Steven Davidson, who is representing the university, said Coyle’s narrative is better addressed to the Legislature than the court.

“The reason for that is because we have a statute that has particular words in it,” he said.

He said that by state law public employees’ salary and directory information is public information. But nothing more.

While some states, such as Maryland, get into how personal other information has to be to be excluded from public records, Nebraska’s statute doesn’t work that way, he said.

If it involves personal information about Frost or Hoiberg and their employment records individually, then it’s protected, Davidson argued.

But he suggested the judge didn’t even need to get that far, given that there was no evidence to show that a document even existed to be disclosed in Hoiberg’s case.

“What you have in the record is credible testimony from the director of records for the university whose job it is to know what exists and what doesn’t. And this does not exist,” Davidson said.

He said they could argue about whether it’s a good business decision not to put it in writing, but that’s not what this case is about.

As for Frosts’ metrics, which do exist in document form, he asked whether it even mattered any more, in light of Frost’s firing.

“We know that they were forward looking as to salary,” Davidson said.

And it involved what Frost was to make next year if he were still the coach, he said.

“That will now not ever happen. He will not receive dollars, public or otherwise, from the University of Nebraska in 2023,” Davidson said.

Journal Star reporters filed a public-records request seeking the same information as sought by USA Today and also were denied, then appealed to the Nebraska Attorney General’s Office.

In a letter dated Dec. 13, Assistant Attorney General Elizabeth O. Gau concluded the requested document could be lawfully withheld under Nebraska public-records statutes.

Post took the case under advisement and said he would rule within the next couple of weeks.