Kevin Ollie was fired by UConn for "just cause," but the former men's basketball coach is challenging that reasoning. What does the firing mean and how can Ollie fight back?
The University of Connecticut may think it is done with Kevin Ollie—who coached the Huskies to a national championship in 2014 but whose teams failed to qualify for March Madness the last two seasons—but Ollie is by no means done with the University of Connecticut.
On March 10, UConn announced that it had “initiated disciplinary procedures to terminate the employment of [Ollie] for just cause.” The “just cause” classification is notable because schools seldom use it to fire coaches and because it indicates a finding of unethical conduct. If upheld, a “just cause” firing would also relieve UConn of an obligation to pay Ollie the approximately $10 million remaining on an employment contract that is set to expire in 2021.
Assisted by his attorneys and the union representing UConn teaching and research staff, Ollie could use a combination of grievance hearings, arbitration and litigation to contest the just cause firing. He might also exact some revenge in the process.
The unstated rationale for Ollie’s firing
UConn has declined to publicly explain why it fired Ollie, and why it intends to fire him for cause. UConn president Susan Herbst, for example, has remarked on Ollie’s firing by stressing the basketball program’s “proud history and a tradition of excellence.” She also highlights how the university intends to feature a program that students, alumni and fans “can be proud of.” Her choice of words suggests that the program is not currently engendering pride, which, in the context of firing Ollie, can be construed as a criticism of him. Yet, for reasons explained below, Herbst carefully avoids mentioning Ollie or even referring to him.
Similarly, UConn athletic director David Benedict has vaguely stated, “it is unfortunate that this decision [to fire Ollie] became necessary.” Benedict has not addressed why such a decision became “necessary.”
The most plausible explanation for Ollie’s firing is his possible connection to an NCAA investigation into UConn. As reported two months ago by The Hartford Courant and The Connecticut Post, the NCAA is probing whether the Huskies’ basketball program committed recruiting violations.
The NCAA probe comes as several major basketball programs have been implicated in criminal indictments. Allegedly, star recruits received thousands of dollars from assistant coaches and sneaker executives as inducements to attend particular schools. The federal government contends that these payments constituted illegal fraud.
To date, UConn has not been implicated in the criminal prosecutions. However, UConn recruited players who are rumored to have sought or received payments from other schools. Also, most of the evidence and testimony in the FBI’s investigation have been sealed from public view—meaning there is a great deal we do not yet know. In addition, UConn (or any other college) could have violated NCAA rules but not in ways that the federal government would portray as indicative of criminal conduct.
UConn and Ollie’s contractual obligations to one another
On Nov. 10, 2016, Ollie—who began his coaching tenure at UConn in 2012—signed a relatively straightforward employment contract extension with UConn. The contract contains provisions for base pay, public relations pay, deferred compensation, reimbursement for travel expenses and country club memberships and other benefits and perks. The agreement further mentions that UConn’s athletic director would conduct annual performance reviews to evaluate Ollie on four measures: (1) academic success of basketball players; (2) winning the American Athletic Conference regular season, winning the AAC tournament and participating in the NCAA tournament; (3) compliance with university, AAC and NCAA rules; and (4) fiscal responsibility. If Ollie performed well in these criteria, he would be eligible for salary increases and potential contact extensions.
As to his duties, Ollie agreed to “perform faithfully and conscientiously” and “maintain the high moral and ethical standards” expected of someone in his position. He also pledged to comply with university and NCAA rules and to “promote an atmosphere of compliance.” The contract warns Ollie that if UConn or the NCAA concludes that he violated NCAA rules, he would be subject to suspension without pay. Further, in the event of significant or repetitive violations, Ollie would be subject to termination of employment.
The contract thus expresses what one would expect from an employment contract of a DI coach: the coach is judged mainly on winning games, not violating university, conference or NCAA rules and ensuring that players remain academically eligible and, preferably, do well in their classes.
UConn’s rights to fire Ollie
Often college coaches’ contracts dictate that a school can buy out a coach and pay him or her a portion—but not all—of the remaining amount owed. Ollie’s contract contains no such clause. The contract is structured as something of an “all-or-nothing” proposition: UConn is either compelled to pay Ollie almost everything or is entitled to pay him nearly nothing.
For example, assume UConn concluded that Ollie was an ineffective coach and thus decided to replace him. In that scenario, the school would be expected to fire him “without cause.” This is the normal way a school fires a coach. It means the coach hasn’t engaged in any misconduct or wrongdoing, but the school simply decides it wants someone else to be the coach.
UConn would have plausible grounds to fire Ollie without cause. His team had a disappointing 2017-18 season, finishing 8th in the AAC and racking up an uninspiring 7-11 record in conference play. This comes on the heels of a 2016-17 season where the Huskies finished 9-9 in conference play and failed to make the NCAA tournament. Ollie’s recent ability to land top recruits could also be questioned. Though it landed two 3-star recruits, UConn failed to recruit any 4- or 5- star recruits for the 2018-19 season.
The problem for UConn in firing Ollie without cause is that his contract instructs that the school would need to pay out the remainder of the deal. As mentioned above, Ollie has about $10 million remaining on his contract. Only complicating matters, Ollie is the highest paid public employee in the state of Connecticut (former UConn football coach Bob Diaco, who was fired in 2016, earned more than Ollie in 2017 due to a buyout in his contract). In a state where a perceived lack of funding for public education is seen as harmful to low-income school districts, a fired football coach and a fired basketball coach representing the two highest paid state employees would invite valid criticism about spending priorities and the use of taxpayer money.
Alternatively, if UConn fires Ollie with cause, the school would be relieved of the obligation to pay him. Ollie’s contract details three categories of “just cause” circumstances. The first reflects the definition of “just cause” that is contained in the collective bargaining agreement between the University of Connecticut and the American Association of University Professors (AAUP). As UConn is a public university in a state where public university employees are allowed to unionize, the university’s teaching and research staff have unionized through the AAUP and negotiated a CBA with UConn. Although Ollie is not a professor at UConn, his employment rights nonetheless fall within the bargaining unit. Indeed, his contract expressly states, “the coach shall be entitled to the same personnel benefits as those currently provided to the members of the University of Connecticut Chapter of the AAUP.”
Under the CBA, “just cause” includes the following definitions:
• Neglect of assigned responsibilities;
• Insubordination, serious misconduct, or non-compliance with University of Connecticut Laws and By-Laws;
• Noncompliance with the Code of Ethics for Public Officials in Connecticut or with University, State, or Federal regulations governing research;
• The use of fraud, collusion, concealment, or misrepresentation of a fact material to obtaining employment with the University and/or obtaining promotion, tenure, salary increase, or other benefit;
• Sexual harassment, serious misconduct, or other conduct which impairs the rights of students or other staff members.
In addition to the definition of “just cause” contained within the CBA, Ollie’s contract includes two additional grounds: violation of any university, AAC or NCAA rule or policy, or a violation by an assistant coach or player that Ollie knew was a violation and didn’t take reasonable steps to address.
This language means that if Ollie helped to arrange a payment to a recruit, or knew an assistant coach made such arrangements and failed to report it, a just cause firing would be permissible. It also means there are a variety of non-recruiting circumstances that would justify a just cause firing.
The process for Ollie’s challenge
UConn has realized that it simply can’t fire Ollie with just cause and expect the matter to be over. This is why the university refers to an initiation of disciplinary procedures. For his part, Ollie has made clear he will put up a fight. “This process has just begun,” Ollie stressed in a recent statement, “and I intend to work vigorously to defend my honor and my integrity, and to defend my good name to the fullest extent provided under the law, the university grievance procedures and the NCAA compliance process.”
Ollie will continue to be paid while he appeals through the school. He is contractually entitled to several layers of appeal but is also contractually obligated to follow a certain procedure.
As a starting point, Ollie is essentially required to first appeal through the university’s grievance process. If instead Ollie immediately sues UConn for breach of contract, a judge would likely dismiss the complaint on grounds that it is not yet “ripe.” Normally judges require that a plaintiff first exhaust contractual and other private remedies before a legal controversy is considered appropriate for judicial review. Ollie’s contract contains several ways he can use university grievance processes to challenge his impending dismissal—he’ll need to try those first.
As an additional reason for Ollie to first appeal through the school: the CBA states that once an employee seeks a judicial review, the school “shall have no obligation to entertain or proceed with [a] grievance procedure.” In other words, if Ollie goes to court before going through internal UConn appeals, he could be denied a chance for a hearing from either the school or a court.
With these points in mind, Ollie will first seek a hearing before his director or the director’s designee. Ollie’s employment contract states that his director is the UConn athletic director, David Benedict. Ollie would not go into the meeting blind—under the CBA he has a right to receive a “statement of the reasons” for his impending dismissal and an opportunity to attempt to rebut them. The hearing should take place before the end of March, with a written recommendation that follows.
If Ollie fails in his hearing with his director, he then has a right to appeal to UConn’s provost—the chief academic officer of the university—or a designee of the provost. UConn has an interim provost, Jeremy Teitelbaum. He or a designee would conduct the appellate hearing, which would review the written recommendation by Benedict or his designee.
During these hearings with university officials, Ollie could rely on the advice of counsel and the union. Both Ollie and the university will approach these hearings with caution. They will both be mindful that new records and other documentation will be produced through these hearings. These very materials could later be reviewed by an arbitrator or a judge and ultimately impact whether and/or how much money UConn would pay Ollie. To that end, Ollie will try to avoid admitting any guilt during the hearings while university officials will try to avoid giving the appearance of unfairness or bias.
Assuming his university appeals fail, Ollie could then invoke his contractual right to arbitration. Per the CBA, Ollie and the university would both follow the American Arbitration Association procedure for the selection of a neutral arbitrator. Arbitrators are often attorneys and are sometimes retired judges or law professors. Arbitration hearings are similar to trials, but are much less formal and much more conversational—there is no judge, courtroom or jury, and opposing parties usually sit across from another at a table. These hearings are also conducted in private. After a hearing, the arbitrator would issue an award (ruling). Ollie and UConn would be obligated to accept the award as final and binding.
So game over? Not so fast. While parties in arbitration agree that the arbitrator’s award is “final and binding” the losing party can nonetheless challenge the award in federal court. Along those lines, though federal courts review arbitration awards with a high degree of deference, it is not a rubber stamp. A federal judge can vacate an arbitration award when the arbitrator failed to consider relevant evidence or when the arbitrator exceeded the powers of the position. Not to complicate matters, but if a federal judge vacates an arbitration award, the judge’s decision can then be appealed to a federal appeals court. If you recall Deflategate, this is exactly what happened there.
Ollie and UConn’s likely arguments
Given these different layers of appeal, Ollie’s challenge to UConn could take months or over a year. During that process, he would likely raise these types of arguments:
• UConn prematurely punished Ollie before the NCAA reached any conclusions about either Ollie or the Huskies basketball program—such a hasty move by UConn violated Ollie’s due process rights as a public employee since it prevented him from being able to wage an effective defense (stated differently: it’s hard for Ollie to argue he didn’t do something when it’s not clear what he will be accused of doing);
• UConn is deceitfully using the “just cause” classification to fire Ollie so that it can avoid paying Ollie the remainder of his contract;
• UConn is preemptively blaming Ollie for any wrongdoing in the Huskies program—UConn is preparing for the possibility that federal authorities charge persons connected to the program or the program is otherwise implicated in the FBI probe;
• UConn has damaged Ollie’s name by depicting him as corrupt and have made it impossible for him to land a similar coaching position;
• Ollie might offer emails, texts, witness testimony and other implicating evidence that depicts other persons at UConn as engaging in wrongdoing—the Justice Department will certainly be monitoring the disclosure of any new evidence that could impact the college hoops corruption investigation.
In contrast, UConn would likely offer the following kinds of arguments:
• Ollie was contractually obligated to avoid breaking university and NCAA rules, and he failed to do so;
• Ollie is implicated (somehow) in wrongdoing—if Ollie’s appeal ends up in federal court or if the NCAA issues a notice of allegations, more would become known about that wrongdoing;
• UConn carefully adhered to the contractually-specified process for terminating Ollie’s employment and committed no due process violations while doing so;
• Neither UConn nor any of its officials has made any defamatory comments about Ollie—as noted above, statements by Herbst and Benedict intentionally avoided any reference to Ollie;
• UConn might offer emails, texts, witness testimony and other implicating evidence to corroborate its assertion that Ollie breached his contract—and, as noted above, the Justice Department will be on the look-out for any new evidence that could impact the college hoops corruption investigation.
Ollie and UConn could settle their dispute at any time—and probably will at some point
Given that this dispute could turn rather ugly and public for all involved, it’s plausible, if not likely, that they will reach a financial settlement. Such a settlement would involve UConn paying Ollie a percentage of money that he would be owed if had been fired without cause. In exchange, Ollie would contractually relinquish any potential legal claims he might have against the school or its officials. In other words, while Ollie’s employment contract doesn’t have a buyout, the parties could essentially negotiate one ex post.
SI will keep you updated on the Ollie-UConn dispute.
Michael McCann, is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.