Lawyers for fired Ohio State band director to remain on case


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COLUMBUS, Ohio (AP) — Fired Ohio State marching band director Jonathan Waters is holding onto the legal team fighting for his reinstatement — at least for now.

At a hearing Tuesday, attorney David Axelrod told a judge they'll stay on to defend Waters until it's determined whether his federal case will go to trial. His decision followed objections by the university, which said withdrawing would delay resolving the long-running, high-profile case.

Lawyers wanted out because Waters is no longer able to meet his financial obligations in either the federal case or a separate defamation case against the university. Axelrod said the legal team would "volunteer."

Waters said he's exploring his options should the case carry on into trial. Bruce Elfvin, a Cleveland lawyer specializing in employment law, was observing Tuesday's hearing and said he'll consider taking the case if a trial goes forward later this year.

"The bottom line is we want to see that justice is done," Waters said.

Ohio State fired Waters in July 2014 after an internal investigation determined he had ignored a "sexualized culture" of rituals, games and traditions inside the celebrated band. Waters has argued the report distorted the situation and his response to it and maligned what fans call The Best Damn Band In The Land.

Presiding via video from a courthouse in Florida, U.S. District Court Judge James Graham complimented Axelrod's decision.

"A lot of time and effort has been devoted to this case, on both sides — and by the court, for that matter — and it certainly would be in the interest of justice to complete the last final tasks headed into summary judgment," he said.

Ohio State's lawyer, Mike Carpenter, continued to argue against Waters' allegation that he was a victim of gender discrimination.

With more sweeping allegations tossed out earlier, Waters' last legal argument is that a similarly situated female — a university cheerleading coach — oversaw similar behavior and yet was given a second chance at keeping her job. The university says, under the law, Waters and the coach weren't similarly situated and that Waters was an at-will employee.

"There is not a scintilla of evidence that there was any discrimination based on gender against Mr. Waters," Carpenter said. He called Waters' legal efforts to request additional documents and depositions "a search for nothing."

Judge Graham opted not to immediately accept the university's argument that the coach wasn't in a parallel position to Waters'. The school bases the argument, in part, on the fact the cheerleading coach worked for and was fired by the university's athletic director, while Waters worked for the School of Music and was fired by University President Michael Drake.

It's a nuanced legal matter that Graham said he wants to see fully briefed before he decides.

The office closed a four-year investigation into Ohio State's handling of sexual abuse allegations shortly after Waters was fired. He alleges he was scapegoated in light of that negotiation because if the university had appeared to go easy on a male employee when abuse most often affects females, it would have looked bad.

The university dismisses the theory. Carpenter said the university got nothing positive from firing Waters, instead being subjected to "national publicity and national angst." He said Waters was terminated for several reasons.

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