- With Kevin Ollie threatening to sue his former employer for defamation and false light, our legal expert looks at the case the ex-UConn coach is building and the way the university is likely to respond.
The already messy divorce between Kevin Ollie and the University of Connecticut became more contentious this week as Ollie, through his attorneys, threatened to sue the university for defamation and false light. One of Ollie’s attorneys, Jacques Parenteau, wrote a letter to UConn president Susan Herbst on Tuesday demanding that the university retract portions of 1,355 pages of documents recently released to news organizations. The documents relate to the university’s decision to fire the 45-year-old Ollie for “just cause” back in March.
Among the documents is a transcript of a November 2017 interview conducted by NCAA investigator Russell Register of Glen Miller, the former UConn associate head coach. Earlier in 2017 Ollie had fired Miller, a Connecticut native who coached at UConn for 14 years and who was popular in the university’s community.
During the interview Miller relayed a conversation he had with his wife, Yvonne Miller. Of relevance to this legal dispute, Yvonne Miller had befriended the mother of a UConn recruit. Yvonne Miller shared that the mother told her that Ollie had provided her with “somewhere in the neighborhood” of $30,000 to help her “make the move to Connecticut.” This supposed payment would have violated NCAA amateurism rules and been construed by NCAA enforcement officers as an impermissible inducement to a recruit’s parent. Of greater concern to Ollie, such a payment could also attract the attention of federal prosecutors who have charged various college coaches and sneaker executives with crimes relating to so-called “bribes” of top recruits.
Ollie’s attorneys contend that this accusation is categorically false and that its public release was designed to malign Ollie’s character and damage his prospects for future employment. The following is an analysis of the potential legal fallout ahead.
A brief primer on the ongoing Ollie-UConn legal battle
This week’s developments are merely the latest in the intensifying Ollie-UConn legal saga. It is a saga that pits an NCAA championship-winning coach who played 13 seasons in the NBA against his alma mater university—a university that also abruptly fired him. These developments also occur within the larger context of an FBI probe into college hoops corruption and accompanying federal prosecutions. These days, one of the worst accusations possible for a college basketball coach is to be implicated in the bribing of a recruit.
Before examining the most recent developments, it is useful to recall what took place in Storrs, Conn., three months ago. As detailed in my SI article at the time, UConn decided to fire Ollie with “just cause.” This move set in motion a legal battle that could take years to resolve.
The “just cause” designation is important on at least two levels.
First, it signifies a determination by UConn that Ollie engaged in the kind of wrongdoing that justifies a “just cause” firing under the language of his employment contract. Ollie’s contract, which is set to expire in 2021, delineates a number of circumstances that empower UConn to claim just cause. Among those circumstances: Ollie’s neglect of his assigned responsibilities; his non-compliance with university rules; his violation of any American Athletic Conference or NCAA rule or policy; and a violation by an assistant coach or player that Ollie knew was a serious transgression and that he didn’t take reasonable steps to rectify.
Second, the just cause distinction relieves UConn of an obligation to pay Ollie the approximately $10 million remaining on his contract. Given the severe financial ramifications of a just cause firing and the near certainty that the fired coach will then sue the university for breach of contract, the just cause distinction is seldom used by universities. Yet seldom doesn’t mean never. The University of Louisville recently fired Rick Pitino with just case in the wake of allegations that Pitino facilitated payments to the family of top Louisville recruit Brian Bowen. The move relieved Louisville of the obligation to pay Pitino the $37.8 million remaining on his contract. Pitino, in turn, sued Louisville in the U.S. District Court for the Western District of Kentucky for breach of contract. His case remains in litigation.
The 1,355-page document release relating to Ollie includes correspondences from UConn athletic director David Benedict, UConn labor relations counsel Kelly Bannister and other UConn officials detailing the rationales for Ollie’s firing. The university fired Ollie with just cause on multiple grounds. Those grounds include failure to comply with university policies and NCAA rules.
To illustrate Ollie’s alleged violations, one supposed violation concerned a well-known retired NBA star. At one point, Ollie allegedly arranged for Ray Allen—a former UConn teammate and close friend of Ollie—to call a high school recruit and encourage him to attend UConn. This may not sound like an especially egregious transgression. After all, Allen could have simply made a phone call to extol the virtues of UConn, his alma mater, and Ollie, who along with Allen formed a dynamic Huskies backcourt between 1993 and 1995.
But the NCAA sees these things differently. In this context, Allen was a “booster.” Under NCAA rules, a booster is a “representative of the institution’s athletic interests.” A person with such a designation includes those who, upon a request from a coach, assist in the recruitment of a prospective student-athlete. In most cases, boosters are barred from contacting recruits (or their parents) so long the booster’s intent to persuade the recruit to attend the boosted school. Ollie is thus alleged to have used a booster to advance his program.
Looming arbitration between Ollie and UConn
The word “alleged” is important in this discussion. Ollie has not yet had the chance to rebut the many allegations levied against him in front of a neutral party. These allegations stem from an on-going NCAA inquiry into UConn. The NCAA is examining whether and how the Huskies’ basketball program may have committed recruiting violations in recent years. Conclusions drawn against Ollie indicate that the NCAA will likely find that UConn breached NCAA rules. It is unclear whether UConn would face any sanctions.
As required by both his employment contract and the collective bargaining agreement (CBA) between UConn and the American Association of University Professors (although Ollie was not a UConn professor, his employment rights nonetheless fall within the faculty’s bargaining unit), Ollie has adhered to a required appeals process within the university. He most recently appealed to Herbst, who on June 19 informed Ollie by letter that she was upholding the “just cause” firing. She reached this determination on grounds that Ollie partook in multiple transgressions that violated his contract. “[E]ven a series of 'isolated' or 'de mimimis' violations,” Herbst reasoned, “can become a pattern of non-compliance.”
Ollie’s next step is to challenge UConn in an arbitration hearing. The CBA instructs that Ollie is entitled to a neutral arbitrator, who will likely be an attorney or a retired judge. The arbitrator will preside over a hearing that will in some ways resemble a trial but will be conducted in private office, rather than a courtroom, and will feature less formal procedures than are typically required in a trial.
What will be Ollie’s legal strategy for the arbitration? Here’s my prediction. Attorneys for Ollie will charge that UConn lacked sufficient grounds to fire him with just cause. They will contend that this public university, which relies in part on taxpayers’ monies, invoked the just cause designation under pretextual grounds—namely, to escape paying Ollie the remaining $10 million on his contract.
Ollie’s attorneys will likewise portray the university as essentially selling out Ollie to win the good graces of the NCAA before the NCAA decides whether and how to punish the school. Further, Ollie’s attorneys will highlight that no independent party has verified the NCAA’s allegations and that some of those allegations are based on hearsay, unreliable evidence and the assurances of witnesses who arguably cut deals with the NCAA to save themselves. To that end, the attorneys will depict UConn as failing to provide Ollie with the requisite due process required of a public university that seeks to terminate a contracted employee. The attorneys will also contend that even if some of the allegations are true, they were mostly inconsequential offenses that occurred haphazardly. Along those lines, Ollie’s attorneys will go out of their way to argue any proven allegations were neither impactful nor consistent with any pattern of intentional misconduct.
In response, expect UConn to attempt to portray Ollie’s arguments as frivolous, speculative and distracting. The university will stress that Ollie had multiple opportunities to persuade UConn officials of his innocence and he has failed each time.
The school will also provide documentation, some of which was already contained in the records release, that attempts to corroborate NCAA (and university) findings. It is worth noting that Ollie is accused of engaging in multiple rule violations. This kind of pattern of misconduct—provided it is established with credible facts—makes it difficult for Ollie to contend that he steered clear of trouble. If emails, texts, witness statements and other forms of evidence collectively reveal Ollie as a habitual violator of NCAA rules, Ollie’s attorneys will struggle in the arbitration. In addition, the university will underscore how language in the employment contract is relevant to the university’s capacity to find just cause. The university will insist that the language is intentionally worded in an expansive way so as to accord the university with interpretative discretion.
At the conclusion of the arbitration, the arbitrator will issue his or her “award.” In arbitration parlance “award” refers to a decision or ruling. The loser of the award can contest it in federal court. However, federal judges are required under the law to provide a high degree of deference to arbitration awards and therefore judges usually do not vacate those awards. Stated differently, whichever side the arbitrator selects as the winner in the Ollie-UConn dispute will most likely remain the winner thereafter.
You may be wondering why Ollie hasn’t already sued UConn. He is no doubt angered by how the university treated him. Ollie was unceremoniously fired just four years after coaching the Huskies to the national championship and only 15 months after agreeing to a contract extension at a time when many top programs would have coveted his services. It also seems clear that Ollie believes the university has made him a scapegoat for larger problems and, in doing so, badly damaged his reputation in the college basketball world.
The reason for Ollie not (yet) suing is straightforward: Ollie has been contractually required to challenge his firing through internal university appeals and, if that fails, arbitration. If Ollie filed a lawsuit right now, a judge would likely dismiss Ollie’s complaint on grounds that it is not yet “ripe”. In this context, lack of ripeness refers to Ollie having not yet exhausted his private dispute resolution options (remember, his arbitration has not yet occurred). In most cases, judges will only review legal disputes after the plaintiff has pursued all other required forms of dispute resolution.
Ollie’s potential claims for defamation, false light and tortious interference
Ollie’s attorneys believe that UConn not only broke the law in firing its client, but also in the manner in which the university has made sensitive information available to news organizations. Their basic argument centers on the release of the aforementioned transcript of Glen Miller in which he relayed what his wife, Yvonne, had told him about Ollie extending a $30,000 payment to the mother of a recruit. Such a payment, Ollie’s attorneys stress, not only never occurred but is also not mentioned by UConn as one of the school’s many reasons to fire Ollie. This depiction of the disclosure suggests that it may have been deliberately timed to harm Ollie right as Herbst reached her decision and also procedurally inappropriate, particularly since it is hearsay (i.e., Miller recalling his wife telling him what a recruit’s mother allegedly told her) and was uttered by a witness who spoke with the NCAA on the condition of immunity (which is usually given upon the expectation that the witness has interesting details to share) and who may have had an “axe to grind” against Ollie since Ollie had fired him.
For those reasons, Ollie’s attorneys believe the university may have committed defamation and false light. Taking defamation first, it refers to an untrue and reputation-damaging statement published or communicated to a third party. Here, Ollie would argue that UConn was obligated to screen the documents it shared with news organizations. A transcript in which Ollie is depicted as bribing a recruit—the kind of act that the U.S. Department of Justice now regards as a core element of criminal conspiracies to commit bribery, solicitation of bribes, mail fraud and wire fraud—is undoubtedly damaging to his character and, in turn, his career prospects. Whether the depiction is truthful or inaccurate is unclear. If Ollie in fact bribed a recruit, then regardless of whether the disclosure injures Ollie’s reputation there is no defamation: truth is an absolute defense to defamation.
A claim for false light is similar, but nonetheless distinct from, a claim for defamation. False refers to a statement that might not be literally false, but is presented in such a badly misleading and out-of-context manner that the typical person would find the statement to be highly offensive. A defendant accused of false light is only liable if it is shown that the defendant published the statement with reckless disregard for whether it would cause offense. For example, in Gannett Co. v. Anderson, a man who accidently shot and killed his wife sued a newspaper for writing an article in a way that arguably implied he had murdered her. As to Ollie, he could portray UConn as knowing full well that disclosure of the Miller transcript was not only unrelated to the firing but that it would immediately capture the attention of news organizations, who would in turn portray Ollie as unethical.
Ollie’s attorneys might also explore the possibility of a tortious interference with contract claim. The basic legal theory would be that UConn has intentionally damaged Ollie’s opportunities to land another head coaching job. If other universities now believe that Ollie bribes recruits, it would be much more difficult for those universities to hire Ollie—even if those schools regard him as an adroit recruiter of talent and as a skilled strategist during games.
UConn’s likely defenses
If Ollie files a lawsuit, the university would possess a number of powerful defenses.
First, UConn would insist that the lawsuit is not yet ripe. As explained above, Ollie is contractually required to pursue his grievances through arbitration. A judge would likely dismiss any lawsuit if it is brought prior to Ollie completing arbitration. Furthermore, federal law requires that judges who review arbitration awards must do so with high deference. Judges can only vacate awards under narrowly defined circumstances. In truth, if Ollie loses his arbitration award, he’ll probably lose any legal challenge in court.
Second, a UConn spokesperson has told media that Ollie’s attorneys caused the disclosure of the transcript. UConn claims that Ollie’s attorneys requested documents obtained by UConn in the course of the NCAA inquiry and the request was made not as part of a legal process, such as through a subpoena or a pretrial discovery order, but rather through Connecticut’s Freedom of Information Act.
As a public university, UConn must comply with requests for public records. The university determined that the information it compiled in relationship to the decision to fire Ollie, a public employee, did not fall within any category of information that would be privileged. The university also reasoned that once it made the disclosure of records to Ollie’s attorneys, it was obligated to share the same documents with others who made the same request—including news organizations. It is generally true that custodians of public records cannot “cherry pick” which requesters are entitled to those records: if the records are public, then “public” includes everyone and anyone who requests them under the relevant public records request law.
In response, Ollie’s attorneys would likely insist that they had no choice but to use the state’s Freedom of Information Act to obtain the documents. For one, it’s possible the university was unwilling to share the records voluntarily. Further, subpoenas and pretrial discovery requests were not realistic options because Ollie can’t file a lawsuit until after he exhausts his internal appeals and arbitration.
The university could also insist that, as a substantive matter, there was no defamation, false light or tortious interference. UConn will maintain that the transcript is simply that: a typed statement of a person talking. The university does not profess that the allegation of Ollie bribing a recruit is any way accurate or true, just as it doesn’t claim the allegation is inaccurate or false. The allegation was simply made by a witness who recalled a conversation he had with his wife.
UConn can also highlight that Ollie is a public figure, a distinction with legal significance. By virtue of his status as a public figure, Ollie must establish that UConn acted with “actual malice.” This means that UConn either knowingly published false and defaming information about Ollie or had reckless disregard for the information’s truth or falsity.
UConn can emphasize that regardless of whether the Miller transcript contained accurate or inaccurate assertions, the university had no reason to disbelieve those assertions. Indeed, UConn was simply sharing a public record in order to comply with a Freedom of Information Act request.
Likewise, UConn would insist that the transcript’s disclosure does not create a “false light” problem because the NCAA, not UConn, presumably produced the transcript. Further, UConn neither made any (apparent) attempt to edit the transcript nor did it alter the manner in which the allegations appeared. UConn would also reject a tortious inference claim as both highly speculative and inconsistent with the school’s own interests: the university would probably prefer to see Ollie hired elsewhere so that he would redirect his time and energy from battling UConn off-the-court to coaching a new team on-the-court.
Ollie and UConn could settle their dispute
At any point, Ollie and UConn could reach an out-of-court settlement where UConn agrees to pay Ollie a portion of the amount remaining on his contract in exchange for Ollie forgoing any legal claims that he may have against the university. It would be a fairly simple resolution that ends a public controversy. It would seem to make sense for both sides.
UConn wants to see the Huskies, under new head coach Dan Hurley, break free from the legacy of Ollie and the specter of litigating against Ollie. UConn knows that a lawsuit with Ollie could prove distracting to Huskies players, some of whom might remain loyal to Ollie. It could also negatively impact recruiting, especially if high school recruits or their parents fear that the NCAA is more likely to punish UConn if litigation leads to more damaging accusations.
Ollie would also gain from the closure of a settlement. His lingering dispute with UConn has damaged his reputation, particularly in regards to the allegation that he bribed a recruit. Had Ollie’s lawyers not requested the records that included the Miller transcript, it’s possible the university would not have released the transcript to news organizations at a later date. At only 45 years of age, and with a championship on his resume, Ollie should be able to land another head coaching position at a top program. Moving past UConn would be a step in that direction.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.