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Does Steve Sarkisian have a strong argument in lawsuit against USC?
5:20 | College Football
Does Steve Sarkisian have a strong argument in lawsuit against USC?
Monday December 7th, 2015

Former University of Southern California head football coach Steve Sarkisian, who was fired by the school in October after athletic director Pat Haden said Sarkisian was “not healthy,” has filed a wrongful termination lawsuit against USC. Sarkisian wants his job back and seeks in excess of $30 million in damages. Sarkisian charges that USC violated multiple areas of law, including those that protect employees from employer discrimination on the basis of disability and those that protect contractual obligations. Sarkisian’s complaint asserts that he is legally disabled due to being an alcoholic.

Sarkisian is correct that alcohol is a recognized disability under the law. He is also correct that he may have been entitled to workplace accommodations from USC as a result of his disability. As explained below, however, USC will assert that the university fully complied with the law in its employment relationship with Sarkisian and that his demands for accommodations exceeded what ought to be considered “reasonable” under the law.

Assessing Sarkisian’s legal arguments

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Legal protections for disabled employees constitute a complicated and not always predictable area of law. Sarkisian’s complaint cites California’s Fair Employment and Housing Act (FEHA), which is a very similar law to the federal Americans with Disabilities Act (ADA). FEHA provides that employers cannot discriminate against employees with disabilities that limit a major life activity, which includes day-to-day activities like walking and working a job. Employees with such disabilities are considered qualified employees and are entitled to “reasonable” accommodations from their employers. Courts usually find that a proposed or demanded accommodation becomes unreasonable when it substantially disrupts the employer’s business practice or requires an alteration of the essential functions of a job. (For more on how the disability law regulates teams and leagues, see my recent Pepperdine Law Review article, “Do You Believe He Can Fly?”)

Provided qualified employees are able to perform the essential functions of a job and so long as those employees are not currently abusing alcohol or drugs, the law protects alcoholics and drug addicts from employer discrimination. In other words, employers can’t fire employees because those employees have the status of an alcoholic or drug addict. Yet employers typically can fire qualified employees if those employees are actively abusing alcohol and drugs.

Consequently, although Sarkisian’s status as an alcoholic is protected by the FEHA, the more that his drinking interfered with his work, the harder it will be for him to prevail in the lawsuit. It has been alleged—and not (yet) proven—that Sarkisian may have been intoxicated during games, practices and while on team flights. Sarkisian’s complaint asserts that on one occasion, the Salute to Troy prep rally on August 15, 2015, he only appeared intoxicated because of the interactive effect of having digested medication for anxiety and consumed slightly over two beers. His complaint also highlights his coaching success and the alleged absence of complaints by USC officials about his health and competence. Sarkisian, moreover, charges that efforts by USC to address his problems with anxiety, depression and alcohol were geared towards having him meet with USC sports psychologist Robin Scholefield—who has a Ph.D in clinical psychology but, as Sarkisian stresses, “is not a medical doctor nor is she an expert in addiction.” Sarkisian further contends that Scholofield recommended additional medication and that he “maybe take a few days off” rather than extensive rehabilitation that he believed was necessary. Taken together, Sarkisian insists USC acted unreasonably in addressing his health issues.

AP Photo/Richard Hartog

USC’s likely legal strategy to combat Sarkisian’s lawsuit

In response to Sarkisian’s lawsuit, watch for USC to portray Sarkisian’s retelling of purported facts to contain a combination of fictitious declarations and gross exaggerations. Keep in mind that the allegations contained in Sarkisian’s complaint are only allegations at this point. USC has surely anticipated that Sarkisian might file a lawsuit and has undoubtedly begun compiling all relevant records. These records include emails, handwritten notes and statements from university officials that portray USC as treating Sarkisian in a reasonable and caring way and that describe Sarkisian as irresponsible and incompetent. These records would almost certainly contradict some aspects of Sarkisian’s account. One likely discrepancy concerns whether the school would have consented to Sarkisian taking time off. While Sarkisian’s complaint portrays USC as denying him an opportunity to seek treatment, USC appeared to allow him to take an indefinite leave of absence prior to firing him.

USC will also be poised to argue that the kinds of accommodations that would enable a head football coach at a major program to perform his work duties while struggling with alcohol would so radically transform the essential functions of the job of head coach that they could not be considered “reasonable” under the law. For instance, although a leave of absence is normally considered a reasonable accommodation under FEHA, USC might contend that it would not be reasonable in this particular circumstance. This university could assert that if gave Sarkisian substantial time off, such a move would have prevented Sarkisian from performing vital job functions. Those functions include recruiting coveted high school football players, spending time with boosters and prominent alums and raising money for the university. On the other hand, watch for Sarkisian to respond that interim coach Clay Helton could have performed all or at least some of those duties while Sarkisian received necessary treatment.

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USC could also use Sarkisian’s depiction of the job as USC head coach as “tremendously stressful even under the best of circumstances” and one that necessitated 100+ hour workweeks against him. Sarkisian’s portrayal of the job seems to acknowledge that it requires a person who is uniquely fit physically and psychologically. This is particularly important given that USC must provide a safe environment for student-athletes, a legal requirement that seems incompatible with a coach actively abusing alcohol. As explained above, the more the accommodations would have necessitated a transformation of the job as head coach and imposed an undue burden on USC, the weaker the claim for Sarkisian.

In addition, USC will assert that it acted within the boundaries of contract law in firing Sarkisian “for cause.” A “for cause” firing is one where the employer does not pay some or all of the remainder of a contract because the employee has violated a significant term of the contract. Sarkisian’s contract dictated that if USC fired him without cause before Dec. 1, 2015, it owed him a liquidated damages figure of $11.25 million. USC will surely argue that it fired him with cause because he was unable to perform the essential functions of the job.

Both sides have reason to reach an out-of-court settlement—and probably will

While Sarkisian’s lawsuit could prove explosive if it ever gets to trial, chances are slim it ever does so. It is far more likely the parties will reach a settlement out of court long before a trial. Approximately 90% of civil lawsuits reach a settlement before trial.

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Also, each side here has clear reasons to settle. Sarkisian is only 41 and should have decades left in his coaching career. He surely knows that he will find it harder to land another coaching job while he has a pending lawsuit against USC. Other schools will be wary in considering him a coaching candidate at the same time he is engaged in a high-profile lawsuit against another school.

For its part, USC does not want Sarkisian to remain a cloud over the school’s football program and its new coach, Helton. USC might also be worried about the possibility of pretrial discovery uncovering damaging information about the school. For example, if evidence surfaces that USC knew that Sarkisian was drunk while supervising student-athletes, those student-athletes or their parents could threaten legal action against USC. The NCAA could also investigate.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.

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