• Former Alabama wide reciever Antonio "A.C." Carter has sued Lane Kiffin, FAU and the state of Florida for fraud, breach of contract and unjust enrichment. Carter's best case may be his argument for unjust enrichment.
By Michael McCann
March 22, 2017

As first reported by Christopher Walsh of SEC Country, former University of Alabama wide receiver Antonio “A.C.” Carter has sued Florida Atlantic University head football coach Lane Kiffin, along with FAU and the state of Florida, for fraud, breach of contract and unjust enrichment.

Carter insists that Kiffin duped him in what turned out to be an unsuccessful exchange of recruiting assistance for an FAU football staff job.

Misled or misinformed—or both?

As Carter tells it, shortly after FAU hired Kiffin as head football coach in December, Wilson Love, Kiffin’s hire for strength and conditioning coach, reached out to Carter about joining the FAU staff. Carter was qualified for the position, having previously coached at Appalachian State, Eastern Michigan, Samford and other schools. He responded to Love’s inquiry with interest.

According to Carter, on Jan. 25—one week before the Feb. 1 National Signing Day, the first day recruits can sign National Letters of Intent—Love, acting on behalf of Kiffin, formally offered Carter the job of assistant wide receivers coach and assistant strength and conditioning coach. The job would be for one year and would pay Carter a base of $40,000 plus $4,000 in relocating expenses. Carter says he formally accepted the offer.

After accepting the offer, Carter contends that Kiffin asked him to recruit three players, including a coveted prospect whom Carter personally knows. Although Carter’s complaint does not offer the names of the prospects, SEC Country’s Walsh deduces the coveted one may have been D’Anfernee McGriff, a four-star running back who played at Leon High School in Tallahassee, Carter’s hometown. Carter says he recruited the three prospects, all of whom would later sign with FAU.

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Carter identifies several statements of assurance from Kiffin and FAU in arguing that his employment at FAU was certain and had in fact begun. Kiffin, Carter says, bluntly told him that his employment was “done.” Carter also received assurance from Love, who told Carter he would receive standard paperwork but that there was nothing to be worried about. Both Kiffin and Love, Carter asserts, also implored him to relocate to Boca Raton, Fla., where FAU is located, as soon as possible so that he could begin work. Further, Carter claims he received a welcome email from FAU’s Department of Human Resources on Jan. 30, and the email told him “Welcome to Florida Atlantic University. Athletics has notified us of your acceptance of a position with the Football program.” The email added, however, “the offer is contingent upon the successful completion of a background check.” Carter says neither Kiffin nor Love told him about the background check.

With the blessing and encouragement of the FAU coaching staff, Carter says that he and his wife hastily took steps to relocate to Boca Raton. They both quit their jobs in Alabama, and Carter’s wife began the school-transfer process for their school-age children.

Carter says he flew to Boca Raton on Jan. 31 and was picked up at the airport by Love, who drove Carter to meet the rest of the coaching staff, including Kiffin. The next morning, Feb. 1, Carter arrived at the FAU football facility for team workouts and a coaches meeting regarding recruitment and signings. Carter says he and Kiffin communicated throughout the day regarding recruits and the steps that Carter was taking to secure them. Carter succeeded in getting all three of his assigned prospects to sign with FAU.

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All seemed well, until the next day, Feb. 2. Carter received an email from FAU’s human resources department indicating that there were “concerns” regarding Carter’s “credit history, previous minor criminal charges/traffic violations, and driver's license history.” Carter says he responded to each of these concerns and provided the necessary paperwork to resolve them. Meanwhile, Carter continued to coach and perform work functions for FAU.

On Feb. 3, an FAU official told Carter that he would not be hired on account of two prior minor misdemeanor criminal charges. Carter was shocked. First, he thought he was already hired since he was working. Second, he stressed that one of the two charges wasn’t even prosecuted and the other was resolved through unsupervised probation. Carter pleaded but to no avail. He also claims that neither Kiffin nor athletic director Patrick Chun responded to his requests to meet.

Carter was particularly angered by FAU hiring other assistant football coaches with problematic backgrounds. Carter also says he was not paid for any of his FAU work.

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The lawsuit: the claims and likely defenses

Carter, a three year starting wide receiver at the University of Alabama from 1998 to 2001, clearly believes that he was used by Kiffin to land a star recruit and then tossed to the side once the recruit signed and a minor problem surfaced in Carter’s background.

Carter, it should be noted, has filed his lawsuit not in Palm Beach County, Fla., where FAU is located, but in Shelby County, Ala., where Carter resides and where he might obtain a more sympathetic judge and jury than he would in Florida. Kiffin, after all, is not exactly beloved in Alabama. He coached under Nick Saban at the University of Alabama between 2014 and 2016 as the Crimson Tide’s offensive coordinator. To the surprise of some, Kiffin left the Alabama to begin his new job at FAU prior to the national championship game against Clemson on Jan. 9. Kiffin’s complicated relationship with Alabama and Saban was detailed extensively by Pete Thamel in his Dec. 29, 2016, SI article.

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Carter’s lawsuit, filed on Tuesday, includes several claims, including for fraud. Under Alabama law, as well as the laws of other states, fraud refers to recklessly misrepresenting a significant fact without knowledge of the truth or falsity of the fact, when doing so is done with the intent to induce a person to act and the person then acts and is injured. Carter charges that Kiffin made certain and unequivocal assurances of Carter’s employment at FAU. Carter believes Kiffin did so either dishonestly or recklessly in that Kiffin should have checked first with human resources to see that Carter’s employment was—as Carter says Kiffin insisted—“done.” Carter’s lawsuit, as noted above, details the various ways he and his wife relied to their detriment on such an assurance.

In response, expect Kiffin and FAU to assert that Carter should have known better. These days, every university requires a new employee to pass a background check before that person’s hiring is complete. While for most candidates background checks are mere formalities—and it’s possible Carter was led to believe that was the case for him—sometimes a concern emerges during a check. Given that Carter has been employed as a coach at other universities, he may already experienced the background check requirement and arguably should have known he’d face the same at FAU.

Wilfredo Lee/AP

Carter also contends that FAU breached an employment contract. The contract was formed, Carter insists, when he accepted the terms of the deal in his conversations with Kiffin and Love. As further proof, Carter clearly worked for FAU after agreeing to the terms of a contract. In addition, Carter says he resolved the concerns raised in the background check.

As a defense, expect FAU to point out that Carter, who has been employed by other universities, should have known that no university official—even the school president or the football coach—can unilaterally hire anyone. University hirings normally take several days, and in some cases longer, to complete. Universities are bureaucratized and require numerous steps before the hiring of a prospective new employee can be considered final (or as Kiffin allegedly told Carter, “done”). Those steps include a formal background check and various compliance procedures to ensure that a putative hiring and the process that led to it would not violate anti-discrimination laws. These steps are particularly rigorous at public universities, such as FAU (as a disclosure, I am the chair of the faculty hiring committee at a public university law school and I work closely with the university’s department of human resources).

While Carter may have a compelling argument that he was inappropriately denied information about these procedures, FAU will likely argue he should have known they exist and he was also alerted about them in an email. FAU will also point out that whether a concern identified in a background check is resolved is up to the employer, not the would-be employee.

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Carter’s best argument likely centers on his claims for unjust enrichment and quantum merit. An unjust enrichment claim contends that a defendant was conferred a benefit that was not intended as a gift and now owes the party who provided the benefit fair compensation. Quantum merit refers to a plaintiff that worked for a defendant expecting pay but was not paid.

If Carter’s retelling of the facts is accurate, he clearly provided labor and strategic value to FAU, albeit over a short period of time. There is no evidence he provided those benefits under the assumption that he was a volunteer—he thought he was working for FAU. While FAU might insist that Carter knew or should have known his employment wasn’t certain, it appears Carter was entrusted by Kiffin with important duties and expected to perform them. Put differently, Carter likely believed he would have lost his job if he told Kiffin something to the effect of, “I’d like to help you out, coach Kiffin, and I know time is of the essence with these recruits, but I can’t until all of the paperwork is complete.”

As an added defense for FAU and the state of Florida, it is normally difficult to sue a public entity, including a public university, due to the doctrine of sovereign immunity. In general terms, sovereign immunity dictates that citizens cannot bring claims against the government and its agencies—including its public universities—unless the sued entity (here FAU and the state of Florida) agree to be sued. There are numerous exceptions and qualifications to sovereign immunity, but expect it to be noted by the defendants in future pleadings.

As often in lawsuits, particularly those that could become high profile, the possibility of a settlement is high.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.

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