Nebraska attorney general Doug Peterson questions Big Ten on legality of football postponement

Nebraska attorney general Doug Peterson on Friday sent a letter to Big Ten commissioner Kevin Warren questioning whether the league has "operated in compliance with Nebraska law," and requesting all documents and information pertaining to its decision to postpone the 2020 fall sports season.

Peterson, an elected official and 1981 Nebraska graduate, asked for the Big Ten's response by Sept. 21. Peterson alleged in his letter that the Big Ten "appears to be out of compliance with the Nebraska Nonprofit Corporation Act." All nonprofits are expected to register within the states they want to conduct business, but Peterson alleged the Big Ten "is operating and conducting business within the State of Nebraska and/or failing to maintain registration" in the state.

"In order to receive the advantages to operate as a nonprofit organization in Nebraska, it is imperative that the organization operate with complete transparency regarding its decision-making process," Peterson said in a prepared statement. "Nebraskans expect transparency from nonprofits operating in this state, and the Big Ten Conference is no exception."

Out-of-state nonprofit organizations doing business in Nebraska that do not register face enforcement action by the attorney general's office, but the Nebraska Secretary of State's office is the agency that actually maintains the registrations. The requirements the attorney general's letter laid out go beyond what the secretary of state requires for out-of-state nonprofits. Colleen Byelick, chief deputy and general counsel for the Nebraska Secretary of State, said they have to file an application for a "certificate of authority to transact business," which is a two-page form that asks for basic information such as address, name, date of incorporation and directors and officers, along with a certificate of good standing from the state of incorporation, and a filing fee. Then they are required to update that information every couple years, she said.

The National Collegiate Athletic Association, which is a nonprofit headquartered in Indianapolis, which has member schools in Nebraska and conducts the College World Series in Omaha each summer, also is not registered with the Nebraska Secretary of State.

The Big Ten did not immediately respond to a request for comment, and Peterson declined further comment. The Big Ten announced Aug. 11 that it would postpone the fall sports season, including football, because of concerns around the coronavirus pandemic.

The league's council of presidents/chancellors voted 11-3 to postpone, with only Ohio State, Nebraska and Iowa electing to proceed with the fall season, sources told ESPN.

Peterson's prompt for transparency also included requests for:

  • All meeting minutes of deliberation among the university presidents and chancellors

  • All documents that show their decisions about the 2020 season were properly approved

  • All documents that relate to the financial impact of the league's decision

  • All "information, opinions, reports and statements" that the presidents and chancellors used to reach their decisions

The Big Ten medical subcommittee will present new testing programs Saturday to a subcommittee of conference presidents and chancellors, outlining options that weren't available when the conference postponed the season. The subcommittee will show eight of the 14 presidents and chancellors at least four rapid-response antigen tests now on the market that could allow teams to test daily and significantly decrease the amount of necessary contact tracing.

Last month, eight Nebraska football players filed a lawsuit against the Big Ten, seeking to invalidate the league's postponement of the fall football season and to award damages. The suit alleges that the Big Ten is in breach of contract by not following its governing documents, under which athletes are third-party beneficiaries.

"The Big Ten Conference Council of Presidents and Chancellors overwhelmingly voted to postpone the fall sports season based on medical concerns and in the best interest of the health and safety of our student-athletes," the league released in a statement at that time. "This was an important decision for our 14 member institutions and the surrounding communities.

"We share the disappointment that some student-athletes and their families are feeling. However, this lawsuit has no merit and we will defend the decision to protect all student-athletes as we navigate through this global pandemic. We are actively considering options to get back to competition and look forward to doing so when it is safe to play."