The Legal Implications of Maryland's Roundabout Firing of DJ Durkin
A day after reinstating embattled head football coach DJ Durkin, the University of Maryland abruptly fired the 40-year-old former assistant to Jim Harbaugh and Urban Meyer on Wednesday.
In August, Durkin was placed on administrative leave while university president Wallace Loh and the University System of Maryland Board of Regents commissioned two investigations. Findings from these investigations shed light on the degree to which Durkin adhered to his contractual obligations and on the ethical implications of Durkin’s actions as coach. Athletic training expert Dr. Rod Walters, who studied this summer's heatstroke-related death of offensive lineman Jordan McNair, led one investigation. The other investigation was directed by a team of eight legal and medical experts (commissioners) who were charged with examining the culture of the Terrapins’ football program.
• Why Did Maryland Reinstate DJ Durkin to Begin With?
Armed with the reports’ conclusions, some members of the board vocally supported the reinstatement of Durkin. While Durkin goes unmentioned in Walters’s report, he is depicted in the commissioners’ report as overly-tolerant of bullying and degradation by trainers on his staff. Along those lines, Durkin is at times portrayed as callous and indifferent to the physical and emotional well-being of the players with whom he was entrusted.
Unlike the board, Loh and some members of the faculty and student government firmly opposed Durkin’s reinstatement. Loh, who had ultimate decision-making authority on whether to retain or oust Durkin, publicly accepted the board's recommendation to keep Durkin on Tuesday but reacted to the decision as if his hand was being forced by the body that controls his job. Such trepidation apparently made Loh, who announced he would retire at the end of the academic year, more willing to go along with Durkin’s reinstatement—albeit for less than a day.
This tumultuous 24-hour period poses many implications for Durkin and the Maryland program as the fallout from McNair's death after collapsing during an offseason workout continues.
Durkin's options should he try to sue Maryland
Maryland has fired Durkin without cause. This method of firing has two major significances: 1) the school has voluntarily severed its contract to employ Durkin and 2) the school declines to claim that Durkin’s actions and omissions betrayed his contractual responsibilities. A coach being fired without cause is the typical approach used by schools who decide that someone else should coach the team. The alternative approach would have been for Maryland to fire Durkin with cause, in which case the school would have insisted that Durkin breached his employment contract and should not be paid going forward.
By firing Durkin without cause, the termination provision of Durkin’s contract kicks in. It obligates Maryland to pay Durkin liquidated damages equal to 65% of the remainder of his contract. Durkin was scheduled to be paid $7.8 million from 2019 to ’21 and is also owed compensation for the last two months of ’18. Applying these data points, the university will pay Durkin about $5.1 million.
Given that he has been fired without cause, Durkin cannot persuasively sue Maryland for breach of contract. So long as Maryland pays Durkin according to the terms of the termination provision, Maryland will meet its contractual obligations.
Durkin, however, is likely upset or enraged by his firing, particularly after being reinstated a day earlier. These feelings could motivate Durkin to sue the school. Before turning to Durkin’s potential claims against Maryland, it’s important to note that Durkin and Maryland do not appear to have signed a severance agreement, a non-disclosure agreement or a non-disparagement agreement. If they had signed such an agreement as part of his termination, Maryland would likely have agreed to pay Durkin some amount of money in exchange for him relinquishing possible legal claims against the school and its leaders. Such an agreement would also obligate Durkin to not disparage the school or its leaders.
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Instead, it seems that Maryland simply—and abruptly—fired Durkin. Assuming that sequence of events is correct, Durkin might sue the school for a number of claims. Unlike the employment contracts of some D-I coaches, Durkin’s contract does not obligate him to mediate or arbitrate any grievances before filing a lawsuit. In other words, he can proceed directly to court. Also, even if Durkin’s odds of winning a lawsuit are low, he might still sue the school in hopes that the controversy surrounding a lawsuit and the prospect of pretrial discovery would lead Maryland to offer him lucrative settlement terms.
As a general defense to a lawsuit brought by Durkin, Maryland would invoke the state’s sovereign immunity law. It instructs that lawsuits against public entities (including public universities like the University of Maryland) are barred unless the defendant agrees to be sued. In practice, sovereign immunity has a number of limitations including if the plaintiff can prove the defendant acted with gross negligence. As described below, Maryland would also offer additional defenses unique to each of Durkin’s claims:
1. Defamation
In a defamation claim, Durkin would stress that the university is responsible for claims made about him in the two reports. While the Walters report does not reference Durkin, the commissioners’ report repeatedly refers to Durkin. The commissioners’ report offers a mixed account on Durkin, with the general takeaway as follows: Durkin deserves some of the blame for the insensitive environment experienced by players, but Durkin’s fault mainly rests in his inability to deter and correct alleged bullying and abuse by fired strength conditioning coach Rick Court. To the extent Durkin believes there are untrue, factual-sounding and reputation-damaging statements about him within the commissioners’ report, Durkin would have plausible claims for defamation against the school and the report’s authors.
However, Durkin might struggle to find actionable statements in the report. The report mainly cites other persons’ subjective opinions about Durkin and Durkin’s own statements to investigators. Take the statement, “Although Mr. Durkin created a Leadership Council to, in part, serve as a pipeline to the head coach, players rarely felt comfortable sharing concerns with him.” Durkin might object to the depiction of his players as “rarely feeling comfortable” about sharing concerns with him. Yet so long as the commissioners heard players express that view, then it would not be defamation.
A defamation claim would also be difficult for Durkin given that he would likely be classified as a public figure in any defamation lawsuit. A public figure must prove that the defendant had actual malice. For Durkin, he would need to show that the report’s authors—who include highly-respected members of the legal community—either knowingly stated false and defaming information about him or had reckless disregard for the information’s truth or falsity. In addition, Maryland might argue that statements contained in the report are exempt from defamation claims. To that point, the school could insist that the report was made with the anticipation of litigation. Indeed, McNair’s family plans to sue the school for wrongful death and survival action. Under the so-called “litigation privilege”, statements and claims made as part of the legal process are normally exempt from defamation.
2. False Light
A claim for false light might provide a slightly better vehicle for Durkin. False light refers to a statement that is not literally false but is articulated in such a misleading manner that it causes harm to the plaintiff’s reputation. Durkin might assert that the commissioners’ report is structured in such a way that it would lead a typical reader to falsely believe he has encouraged elements of an unhealthy program culture when—as athletic director Damon Evans opined in the same report—Durkin arguably “operates within the norm of big programs in big schools.” Stated differently, Durkin is very tough on his players in arguably similar manners that other Big Ten conference head coaches are very tough on their players.
A false light claim is also unlikely to work for Durkin. For one, the report includes a cadre of exculpating statements about Durkin, including the aforementioned one by Evans but also favorable ones by students and parents. The totality of the report is critical of Durkin but also leaves the reader with the impression that many people connected to the program respected and admired him. Second, a false light claim requires convincing proof that the defendant (here Maryland) published the statements in question with reckless disregard for whether those statements would cause offense. In their careful choice of wording, the commissioners seemed quite mindful of avoiding exaggerative and inflammatory language.
3. Tortious Interference
With defamation and false light claims unlikely to aid Durkin, he might consider a tortious interference claim. In a tortious interference claim, Durkin would charge that Maryland has knowingly dragged Durkin’s name through the mud and by doing so made it much more difficult for him to land another head coaching position at a major DI program. Durkin would insist that school leaders, including Loh and Evans, as well as various training and medical staff deserve far more of the blame for McNair’s death and the dysfunction and chaos that overtook the athletic department. Durkin, in other words, would depict himself as a scapegoat for others. Durkin would also contend that Maryland’s handling of the situation was clearly botched and that such errors will soon interfere with his prospective contractual relationships with other schools.
A tortious interference claim would be challenging for Durkin. For starters, tortious interference is mere conjecture at this point. There is no evidence (yet) that Durkin has been harmed as he has not been considered for other jobs. Also, Durkin’s contract contains a limitation of remedies clause that is designed to prevent Durkin from arguing that he lost business opportunities through his employment with Maryland. Perhaps most importantly, the damage to Durkin’s reputation largely reflects his own actions and inactions, particularly regarding Court. If other schools are no longer interested in Durkin’s coaching services, he would need to prove to them that he deserves another chance. His failure to do so would seemingly be his own fault.
4. Intentional Infliction of Emotional Distress
In a lawsuit, Durkin might emphasize the adverse impact of the tumultuous decision-making by Maryland officials on his psyche and well-being. To that end, Durkin could claim that university leadership intentionally inflicted emotional distress on Durkin by using extreme and outrageous conduct. Durkin might point out the akward disconnect between Board chairman James Brady professing on Tuesday that “Coach Durkin has been unfairly blamed for the dysfunction in the athletic department” with Loh on Wednesday firing Durkin while citing “serious concerns” allegedly expressed by numerous persons. Durkin would also detail the humiliation of being able to meet with his players for the first time in more than two months only to be abruptly barred from meeting with them again less than 24 hours later.
While Durkin can rightfully point out the fumbled approach by university leadership, it’s not clear that such an approach violates the law. It seems that the Board and Loh simply disagreed and that Loh, for now, has won the power struggle. We know that the Board wanted to keep Durkin and Loh wanted him out. While Loh on Tuesday agreed to—or, perhaps more accurately stated, acquiesced to—Durkin’s reinstatement, Loh over the course of the next day sought to obtain the requisite institutional support to oust Durkin over the Board’s recommendation.
To be sure, this was an unusually dramatic and high-profile sequence for university administrators. Yet is also the kind of narrative that can play out in a university context, albeit typically without such intense media coverage. Durkin, who has been employed by six universities (Bowling Green, Notre Dame, Stanford, Florida, Michigan and Maryland), has been around long enough to realize the possibility of public disagreements between the Board and the university president.
5. Lack of due process
Durkin’s legal rights are in some ways enhanced by virtue of his employment at a state university. State universities are public institutions and thus must adhere to requirements found in the U.S. Constitution and relevant state constitutions.
With that in mind, Durkin might assert that he was denied due process. Durkin could argue that while he was afforded an opportunity to explain himself to investigators and while the Board listened to his responses, Loh—the ultimate decision-maker—had already decided to fire him long before the process played out. Whether evidence supports such an inference about Loh is unknown.
Durkin might also advance a due process claim by insisting the two investigations were biased and designed to place a disproportionate amount of blame on him. Durkin would also note that the university commissioned both investigations, meaning while investigators depicted themselves as “independent” they were paid by the same university that would eventually fire Durkin. In addition, as private citizens, the investigators lacked subpoena powers to compel a complete record of facts and testimony. In addition, the investigators interviewed witnesses who were not under oath and thus not obliged to tell them truth.
Furthermore, Durkin might aver the school prejudiced his chances to fairly make his case by placing him on administrative leave. Such a status is functionally a paid suspension while an employer investigates an employee. Durkin could argue that the moment the university placed him on leave the media assumed he was guilty and reported on his situation in that light.
Maryland would be well-positioned to rebut these types of arguments. The school would insist that Loh had not made up his mind on whether to fire or retain Durkin until after both investigations had played out. The school, moreover, would stress that neither report directed the bulk of blame on Durkin. If anything, most of the blame is directed onto other Maryland employees, especially Court. Also, the school would highlight that it could have suspended Durkin without pay or even fired him following McNair’s death. Instead, the school selected a more cautious and restrained response by placing Durkin on administrative leave. This move ensured that Durkin would receive a fair chance to explain himself before any definitive conclusions were made.
Durkin could become a problematic figure for the school in its defense of McNair’s death
As I noted in Monday’s SI article explaining Maryland’s (fleeting) decision to reinstate Durkin, Maryland may have been inclined to keep Durkin until pending litigation with McNair’s family is resolved.
McNair’s family is poised in to sue the school for wrongful death and survival action, though the two sides might avert litigation by reaching a financial settlement. As an employee, Durkin would likely be much more cooperative with protecting the school’s interests in a litigation. This would prove especially true if Durkin and Maryland are named as co-defendants in a lawsuit brought by McNair’s family. In that setting, Maryland would want to align its legal strategies with those of Durkin—a desire that would be more obtainable if Durkin still worked at the school and had a reason to coordinate with his employer. In contrast, as a fired and perhaps disgruntled ex-employee, Durkin could have an axe to grind against those who he believes wronged him. He likely possesses relevant emails, texts and other evidence that could reflect poorly on university leaders and training and medical staff. Durkin may now be more willing to share those materials with attorneys for McNair’s family and with journalists with whom Durkin enjoys positive and trusted relationships.
• DJ Durkin Firing Shows Influence of Court of Public Opinion
Loh might not be long for his job
University presidents who go against their Boards tend to have short shelf lives. By firing Durkin, Loh directly contravenes the wishes of his bosses—Board members—and disregards the publicly-aired preference of James Brady, the Board’s chairman.
At this point, the 72-year-old educator might not be terribly alarmed by the prospect of his own firing. He is likely more concerned about doing what he believes is right and taking actions that could help to rehabilitate his tarnished reputation and legacy.
Mismanaged timing
Imagine if Maryland had fired Durkin on Tuesday instead of reinstating him? The school would be able to more persuasively claim to have done the right thing. Terence High, a sports law attorney based in Ridgeland, Mississippi, agrees. “By initially choosing to retain Coach Durkin on Tuesday,” High tells SI, “Maryland was stating that Coach Durkin had no culpability in the death of Jordan McNair. Maryland’s decision on Wednesday to now fire Coach Durkin only further complicates their contractual obligations to Coach Durkin.”
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
