Rutgers President Barchi was quite adamant that Mike
Rice, the men's basketball coach, was not fired for cause. He stated, "The
outside counsel says that could not be done...I fired him. Not for cause. I just
fired him." Not terminating the coach for cause cost the university
a little over a million dollars. In light of the report of the investigation of
the Rice matter, a fair question is why wasn't Rice fired for cause?
As part of the investigation of the alleged abuse and other misconduct
attributed to Rice, the university retained outside counsel to investigate. A
comprehensive report was
submitted, and on pages 34 and 35 of that report, the conduct of Rice was found
to have "crossed the line" of permissible conduct and to have
constituted harassment and intimidation in violation of university policy. In
addition, the report stated that the athletic director could reasonably
determine that the coach's actions tended to embarrass and to bring
shame or disgrace to the university in violation of the employment contract. The
outside counsel was not retained to give a recommended penalty; he did however
find a breach of university policy and of the employment contract.
"Cause" in Rice's employment contract is identified as: Material
breach of this contract(won-loss record shall not constitute a material
breach), neglect of duty, willful misconduct, act(s) of moral
turpitude, conduct tending to bring shame or disgrace to the University
as determined in good faith by the Director of Intercollegiate Athletics,
violation of University regulations, policies,procedures,or directives not remedied
after 30 days written notice...criminal conviction, or
unapproved absence from duty, other than for bona fide use of sick
leave in accordance with University policy without the consent of
the director. In his resignation letter, athletic director Pernetti stated
that his first instinct when he saw the video tape was to fire Rice
immediately, but the university decided to follow a process involving
university lawyers, human resources professionals, and outside counsel. After
reviewing the the independent investigative report, the consensus was that
university policy would not justify dismissal.
So, on the one hand, there is the claim that outside counsel said that
termination was not appropriate, yet on the other hand, the decision not
to terminate was based on consensus following a process chosen by the
university. Ralph Izzo, the chairman of the university's Board of Governors
stated that the university "paid dearly for good advice and I'm
not sure we got good advice in this case."
Perhaps a more accurate summary of what happened than that offered by Chairman
Izzo is that the university retained an outside law firm to do an investigation
which it did, and in reviewing that report of that investigation along with
some unidentified factors, university representatives decided that a
fine and suspension were adequate.... until unfavorable publicity
called the process into question. So, is there anything than employers and
their counsel can learn from Rutgers' handling of this matter?
From the perspective of drafting an employment contract, an employer wants to
include all possible reasons for termination so that it will not have missed
something serious enough to warrant termination, thereby exposing the employer
to liability for breaching the just cause provision of the contract. While it
is tempting to use a boilerplate definition of "cause," an employer
should consider the position in question, and with the aid of counsel, really
review what action or inaction would give rise to the need for termination.
It may be necessary to list non exhaustive examples with the prohibited
There is a level of intensity in coaching college athletics not found
in the ordinary workplace. Past experience has shown that coaches have been
terminated for striking opposing players; choking players; grabbing students;
bullying players; forcing injured players to practice; and partying with
college students. In light of these past misdeeds of coaches, a university or
college would want to make sure that such conduct fit into the definition of
"cause." in relation to specific categories. In this case, Rice's
actions do seem to fall within the category of bringing shame or disgrace to
With respect to outside counsel, a firm which is being retained to conduct an
investigation should do what was done in this case; identify the scope and the
nature of the engagement, and state specifically what is being done, i.e.
conducting an investigation into the designated areas. Upon completion, it is
advisable to once again identify the scope of the engagement and to indicate
that if additional work is requested upon review of the report, it
will be identified in writing with the specific additional actions to be taken
by the firm.
Apparently in the Rutgers case, hindsight required that someone take the
blame, whether deserved or not. There is nothing wrong with using a process as
was done in this case. In fact, using a process with
the involvement and input from different perspectives often
avoids mistakes. Here the process is not to blame; rather, those who should
have been more attentive during the process were not. As a result, Rutgers will
be literally paying the price.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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