Army Athletics Turns Over Financial Records Following FOIA Suit
Army West Point Athletic Association, the legal entity that administers the military academy’s Division I sports programs, has begun turning over the first batch of what could eventually be thousands of pages of financial and contractual records that it has previously refused to make public.
The academy’s intercollegiate sports arm had long snubbed Freedom of Information Act requests, claiming it is not subject to federal disclosure laws.
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Army’s change in position follows a Sportico reporter’s FOIA lawsuit in February against West Point and the AWPAA, after the entities denied requests for numerous categories of athletic department records including NCAA revenue and expense reports, employee contracts and the athletic association’s agreements with third parties like Learfield and Nike.
The lawsuit asserted that, because of the controlling relationship West Point has over the athletic association, the latter should be considered a federal “agency” under FOIA and behave according to its transparency provisions. In June, in an effort to avoid the discovery process and a possible trial, the athletic association agreed to a court-ordered stipulation that it produce the records Sportico sought in adherence to FOIA, while maintaining, as a legal matter, that it operates outside the statute’s scope. The AWPAA further agreed to respond to future records requests by any member of the public as if it were subject to FOIA, while reserving the right to seek a judicial determination later about its status as a FOIA agency.
Among the records turned over this week was the original 20-page agreement, dated February 2017, that laid out the relationship between the U.S. Army and the AWPAA, a 501(c)(3) nonprofit. The ongoing agreement details how the two will work together to operate the business of Army’s 30 sports teams, including who is responsible for selling tickets (AWPAA), maintaining facilities (West Point), sourcing licensing/sponsorships (AWPAA), and approving media deals (West Point). From 2017-2022, the military earmarked $82.4 million to assist the AWPAA in its annual operations, money that was used alongside department revenue to fund Black Knights athletics.
The lawsuit against the AWPAA was filed in the U.S. District Court in Manhattan, with Yale Law School’s Media Freedom & Information Access Clinic serving as plaintiff’s counsel, pro bono. The suit argued that although West Point had officially spun off its athletic department to the AWPAA in 2015, it remains “in every relevant respect” controlled by the military academy.
“It is unfortunate that a lawsuit was required to get information FOIA requires to be made public,” said Jennifer Borg, a clinical lecturer at Yale Law’s MFIA clinic, “but the decision by West Point to move its athletics program to a nonprofit is part of a growing trend of government agencies creating nonprofits and outsourcing government functions in an effort to avoid public scrutiny. The outcome here is important, because public access to government information is essential for democracy to function.”
A spokesman for Army’s athletic department did not respond to a request for comment.
Up until now, Army’s position on disclosure had been in keeping with that of the other military academies, such as Navy and Air Force, which have similarly taken the stance that their athletics departments aren’t subject to FOIA because they are organized as separate nonprofit organizations. Indeed, it was the Air Force Academy that, in 2009, successfully lobbied Congress to include language in the National Defense Authorization Act that enabled the military academies to ostensibly place their athletic departments in the custody of outside associations. (The stipulation agreed to in June by the AWPAA does not extend to those other schools’ athletic associations.)
While the primary motivation for doing so was to have increased flexibility with its sports fundraising efforts, the academies also decided that this new setup entitled them to keep virtually all athletic department records secret. After AWPAA received its IRS tax exemption in 2016, it later petitioned to be exempt from filing a public tax return, Form 990, on the grounds that it is a “governmental unit” or “affiliate of a governmental unit.” In doing so, the Army’s athletic department became even less transparent with its finances than the athletic departments of private universities. This was despite the fact, the FOIA lawsuit contended, that to obtain this special status, AWPAA had to be “operated, supervised, or controlled” by a governmental unit.
The 20-page cooperative agreement was signed eight months after the AWPAA received its tax-exempt status. In the document, the Army agreed to transfer $12.7 million to the AWPAA to assist in athletics operations for fiscal 2017, with priced options rising annually through $14.4 million for fiscal 2022. (As of February 2023, the latest update provided, the Army had transferred $68.7 million of the $82.4 million awarded to the AWPAA in that span).
The agreement breaks down what the Army will provide to the AWPAA for athletics purposes, and what the organization is responsible for doing on its own. West Point, for example, gave the association all of the existing Black Knights sports equipment, facilities and offices, and committed to funding future venue maintenance and housing for select athletics employees. The AWPAA pays for all its travel, insurance, recruiting expenses, game-day logistics, summer camps and most other operations. Some people working within the AWPAA are considered government employees, others are not.
To cover all those costs, the AWPAA augments the annual transfers from the Army with revenue from things like ticket sales, licensing deals and youth camps. And while the organization can make initial operational decisions, the agreement makes it clear throughout that the Army is the “final authority for all intercollegiate athletic programs.”
Much of that program management responsibility comes through the Military Deputy Athletic Director, a government employee who assumed many of the responsibilities previously taken on by the department’s athletic director prior to the AWPAA reorganization. That position is currently held by Col. Gretchen Nunez. There is also a more traditional director of athletics, Mike Buddie, who is a non-government employee. As an example of the dynamic, the AWPAA can set football ticket prices, but they’re “subject to coordination and review” by Col. Nunez, according to the contract.
For team logistics, “the government supports the AWPAA’s effort to provide these services at the lowest costs to meet the mission requirements, but reserves the right to approve the best value means of logistics support when ‘lowest cost’ is not the sole factor in meeting program success,” according to the contract.
While the agreement explicitly covers nearly all the ways athletic departments generate money, it barely discusses one major funding avenue: donations. The contract makes a passing reference to “booster club activities” not being part of the agreement, but makes no other mention of fundraising.
In recent years, the AWPAA has been at the center of a “fully-donor-funded” plan to renovate Michie Stadium, the home of Army football, at an estimated cost of $145 million. In July, Buddie announced that the project, which was due to break ground this summer, would be delayed due to the unforeseen rise in construction costs in the wake of the COVID-19 pandemic. AWPAA said it would provide an update on the status of the renovation following this football season.
The documents disclosed to Sportico this month show the costs of a number of other athletic department facilities projects, which included completed work of replacing the turf of Army’s football practice field ($1,075,503), as well as line painting ($171,050) and the installation of dividers ($128,575) of tennis courts. Projects that are currently in progress include turf replacement at Michie Stadium for $2.7 million and the acquisition of a new Zamboni for $110,000.
Per the terms of the stipulation, Army will continue to process documents at a production schedule of 300 pages per month until it has satisfied the requests made.
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