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  • Even though Rich Rodriguez's firing by Arizona in the wake of the allegations levied against him by a former assistant was not for cause, there are still a few different ways all three parties can see each other in court.
By Michael McCann
January 03, 2018

The University of Arizona’s decision to fire head football coach Rich Rodriguez in the wake of sexual harassment allegations is a move that could soon resonate in courthouses. The university has fired Rodriguez without cause, meaning for reasons unrelated to any misconduct. When a contract employee (as opposed to an “at-will” employee) is fired without cause, the contract usually specifies how much money the employer will owe the employee. As reported by SI’s Bruce Feldman, Arizona is now obligated to pay Rodriguez about $6 million.

Arizona’s decision to fire Rodriguez without cause does not eliminate the possibility that Rodriguez will face civil liability for alleged wrongful conduct, nor does it eliminate the possibility that Rodriguez and Arizona will eventually face one another in court.

Here are five legal implications of the Rodriguez firing:

1. Rodriguez faces a $7.5 million lawsuit by a woman who accuses him of sexual harassment

Craig Harris and Anne Ryman of The Arizona Republic obtained a notice of claim filed by attorney Augustine B. Jimenez III on behalf of Melissa Wilhelmsen and her husband, Jason, with Arizona Attorney General Mark Brnovich; the full text of the notice of claim can be read on the Phoenix Business Journal’s website.

Before discussing Wilhelmsen’s notice, it’s worth explaining the role of a notice of claim in this matter. Under Arizona law, a person who intends to sue the state government, its agencies (such as public universities) or state officials (such as high ranking public university employees) must file a notice of claim within 180 days of the alleged incident or incidents. If a notice is not filed within 180 days, the prospective plaintiff can be deemed to have forfeited her or her claims. Assuming the notice is filed in a timely manner, it will then be accepted or denied on review within 60 days; in either outcome, the plaintiff can sue after the review. Wilhelmsen, who filed her claim on Dec. 28, is thus poised to file a lawsuit by late February.

The logic behind the requirement of a notice of claim is that it promotes judicial efficiency: It empowers the government to carefully examine allegations and potentially work out a settlement before a lawsuit is filed. Critics of the requirement contend that potential plaintiffs are sometimes unaware of the 180-day rule. Those potential plaintiffs might believe they have much more time to sue given that the statutes of limitations for many claims are often a year or two.

According to Wilhelmsen’s filing, she worked as Rodriguez’s assistant from 2011 to ’17. During this time, she says Rodriguez frequently engaged in inappropriate and sexually threatening conduct. For instance, Wilhelmsen asserts that Rodriguez tried to kiss her and walked around her shirtless. Further, she insists that Rodriguez refused to intervene when players sent her screenshots of their genitalia. She also maintains that the 54-year-old Rodriguez, who is married, demanded that she not reveal his sexual affair with another women (Rodriguez admits he had an affair with a person who does not work for the university).

If Wilhelmsen files a lawsuit, she would likely sue both the university and Rodriguez. She would assert sexual harassment and hostile work claims, and potentially related claims for defamation and intentional infliction of emotional distress. In such a lawsuit, Wilhelmsen would insist that Rodriguez’s conduct made her feel uncomfortable and that it interfered with her work. She would also maintain that the university failed to adequately supervise Rodriguez and failed to take appropriate steps that would have held Rodriguez accountable for his acts. Further, she might contend that the university retaliated against her—she says the university refused to allow her to transfer departments because school officials were afraid of upsetting Rodriguez. Wilhelmsen might also assert that she has been badmouthed with defamatory lies as a result of trying to hold Rodriguez and the school accountable.

As in any lawsuit, evidence and witness testimony would prove crucial. Texts, emails, videos, social media interactions and written notes sent by Wilhelmsen and Rodriguez would prove relevant, as would similar correspondences authored by persons who observed them. A key factor would be whether these exchanges supported or contradicted Wilhelmsen’s accusations.

Witness testimony would also be important. Did anyone observe Rodriguez behave as Wilhelmsen claims? If so, are there reasons to question that person’s impartiality? For instance, the spouses of Wilhelmsen and Rodriguez may be biased in how they describe their impressions and recollections. The same concern could be raised of persons who worked with Wilhelmsen and Rodriguez, such as members of Rodriguez’s coaching staff. Wilhelmsen’s claims would be strengthened if neutral persons supported her account. Further, if Rodriguez engaged in similar behavior with other female co-workers, it would help Wilhelmsen show that there was a pattern of misconduct that the university failed to correct.

Context and timing also matter. In the notice of claim, Jimenez (the attorney) stresses that jurors would be inclined to favor Wilhelmsen. “If this case were to go to trial in the current climate where #MeToo is in the headlines on a daily basis,” Jimenez warns, “neither male nor female jurors would have any sympathy for a public figure who used his authority and power to oppress and degrade his female assistant in such ways.”

2. Potential legal defenses for Rodriguez and Arizona

Both Rodriguez and Arizona would be armed with several defenses. The most obvious defense would be to reject Wilhelmsen’s assertions as false and exaggerative. Any kinds of exonerating evidence and witness statements would be used to advance such a defense. To that end, the university would stress that it thoroughly investigated Wilhelmsen’s claims and could not corroborate them. Last October, the school hired a law firm to review the claims. Wilhelmsen, the school asserts, refused to participate in the investigation and would not turn over relevant documentation. On Dec. 28 the investigation concluded without any finding of fault.

The university’s decision to finance an investigation into Rodriguez is itself a form of defense. For one, it shows that the school responded to Wilhelmsen’s assertions with action rather than passivity. Further, if in fact Wilhelmsen declined to cooperate in the investigation, it could signal that her claims were not sufficiently credible to withstand scrutiny. Alternatively, it might suggest that she declined to avail herself of an opportunity to hold Rodriguez accountable in order to better preserve her $7.5 million legal claims against Rodriguez and the school.

On the other hand, Wilhelmsen’s attorneys would stress that she was under no obligation to cooperate with the investigation. After all, she quit her job with the university last August and was thus a former employee by the time the investigation launched in October. Wilhelmsen’s attorneys might also emphasize that an internal investigation is hardly impartial. Arizona paid attorneys, who by professional duty are advocates for their clients, to conduct the investigation. Wilhelmsen might have reasoned that such an investigation would attempt to minimize the university’s potential exposure to Wilhelmsen’s claims. To that end, the investigation might have sought to debunk her assertions instead of fairly assessing them.

Since Arizona is a public university, the school and Rodriguez may also be able to invoke the doctrine of sovereign immunity. Generally speaking, sovereign immunity denies private citizens the right to sue the government and its employees unless the government has waived the immunity. This doctrine has numerous exceptions—including in Arizona—but could prove advantageous for the school and Rodriguez.

3. Why Arizona fired Rodriguez without cause despite the university’s expressed concerns

While Arizona’s internal investigation into Wilhelmsen’s claims failed to find Rodriguez at fault, the investigation nonetheless turned up other, unspecified information that worried the university. These concerns were significant enough that the school decided it could not continue to employ Rodriguez. Indeed, in a statement explaining Rodriguez’s firing, university president Robert Robbins and athletic director Dave Heeke stated, “Arizona Athletics did become aware of information, both before and during the investigation, which caused it to be concerned with the direction and climate of the football program.”

Given these concerns, it’s possible the university could have fired Rodriguez for cause. A review of Rodriguez’s previous contract with Arizona indicates that he could have been fired for cause stemming from a wide range of circumstances, including for violations of university rules and NCAA policies. If Rodriguez’s most recent contract contains similar “for cause” language, it is logical to assume that this publicly funded school could have tried to save $6 million by firing Rodriguez for cause.

However, had the university gone down that road, Rodriguez would have likely sued the school for breach of contract. Rodriguez would have insisted that whatever the university believes he did could not have warranted a firing for cause. Rodriguez would have then found himself in a similar situation to the one currently occupied by Rick Pitino, who has sued the University of Louisville for firing him for cause in the wake of the college basketball corruption scandal.

The risks for Arizona in litigating against Rodriguez are the same ones Louisville faces with Pitino. A lawsuit could lead to pretrial discovery, a process during which both sides must exchange evidence and provide testimony. It is during pretrial discovery that parties can be forced to reveal evidence that reflects poorly on them. For instance, emails where persons use inappropriate language could prove damaging to the reputations of Rodriguez and other persons employed by Arizona. Such evidence might also be useful to Wilhelmsen in her case.

The university is also mindful that a clean break with Rodriguez makes it less likely his firing will cast a shadow over the Wildcats’ next football coach and his staff. In contrast, a high-profile lawsuit involving the university and Rodriguez would—at a minimum—be a distraction to the school’s athletic program and perhaps even prove disruptive.

With those points in mind, Arizona likely made a tactical decision that a legal fight against Rodriguez would have proven more “costly”—which includes actual dollar costs along with time, energy and reputation risks—than simply paying Rodriguez to go away.

4. Rodriguez could still consider a defamation lawsuit against Arizona

Even though Arizona has fired Rodriguez in a way that ensures he is paid out, Rodriguez may nonetheless feel as if the school has wronged him. He might reason that the school, in the manner in which it fired him, tarnished his reputation. Likewise, the school has arguably made it harder for him to attract other elite coaching jobs.

As noted above, the school linked its decision to fire Rodriguez to unspecified “information” which caused the school to become “concerned with the direction and climate of the football program.” Such a vague and suspicious statement invites a number of red flags as to what such “information” might be. When Rodriguez inevitably interviews for coaching positions at other universities or with NFL teams, he will surely be asked about this so-called “information.”

Rodriguez thus might consider the possibility of a defamation lawsuit against the school. It’s possible that Rodriguez has agreed to waive any potential defamation claims as a condition for the school to fire him without cause. However, if no such agreement exists, he could contend that the school has defamed him through its statement explaining his firing.

The school would be ready for such a lawsuit. It would argue that its statement was not defamatory towards Rodriguez since the language in question only referred to the direction of the program rather than to Rodriguez. Such language also declined to associate Rodriguez with any specific fact. Further, if the “information” (whatever it is) proves true, it can’t give rise to a successful defamation claim: truth is an absolute defense to defamation. Also, as a public figure, Rodriguez would need to not only prove such information is untrue but also that the school had actual malice—that is, the school knew the information was untrue—in alerting the public about it. The school also might be able to invoke a sovereign immunity defense (discussed above). Lastly, statements made as part of the legal process are normally not eligible for defamation claims. The school would contend that its statement about Rodriguez’s firing stemmed from an investigation conducted by attorneys in anticipation of potential litigation.

As a separate point, Rodriguez could also consider a defamation claim against Wilhelmsen. However, her claims against Rodriguez have arisen in a legal process and are thus likely exempt from a viable defamation suit. The university is also a more appealing target for a defamation, suit given it has the financial wherewithal to pay off a sizable judgment.

Lastly, as with most lawsuits, it’s worth noting that a pretrial settlement between Wilhelmsen, Rodriguez and the university is a good possibility. Given the possibility of unwanted pretrial discovery disclosures and negative media headlines, the odds of any lawsuit connected to the Rodriguez controversy going to trial are likely low.

5. The NCAA is watching and will want to know more

The NCAA is likely interested in the “information” the university’s investigation into Rodriguez uncovered. While the information may be unrelated to any NCAA rules and policies, expect the NCAA to demand a full accounting from Arizona (assuming the school has not already provided one to the NCAA). Stated differently, while the NCAA is not a party to the Rodriguez dispute, it is nonetheless an interested party. It is also a party with the power to impose penalties on both the coach and his now former school.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

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