NCAA Legal Issues

FAMU Fires Mike Gillespie

Ed Matisik — Thu, 16 Aug 2007 10:29:06 -0400

Florida A&M University announced on Tuesday, August 14th that men’s head basketball coach Mike Gillespie was immediately relieved of his duties. Gillespie had been placed on paid administrative leave by Florida A&M in May after his arrest for misdemeanor stalking of a former girlfriend. Gillespie was arrested on May 25th after he was observed driving past his former girlfriend’s house after having received repeated warnings from the Tallahassee Police Department for making several unwanted visits to her home and workplace. Gillespie, who is married, has been on paid administrative leave since his arrest.

University president James Ammons said in a statement released by Florida A&M on Tuesday that “This employment action is in the best interest of the Men’s Basketball Program and the University.” While Gillespie’s termination is effectively immediately, the University indicated that he will remain on paid administrative leave through November 2nd. Athletic Director Nelson Townsend stated that Florida A&M will immediately form a committee to hire a new coach “early in the fall.” The school did not indicate what would happen to Gillespie’s assistant coaches, including his son Mike Gillespie, Jr., who served as his father’s top assistant.

Florida state prosecutor Gina Cappleman has stated that she intends to offer Gillespie probation with certain currently unspecified conditions at a case management hearing scheduled to be heard on August 29th. Gillespie has been wearing an ankle monitoring bracelet as a condition of his release from custody in May.

During his six seasons with the school, Florida A&M compiled a record of 60-64, won two Mid-Eastern Athletic Conference Championships, and made two NCAA tournament appearances in 2004 and 2007. This past season he led the Rattlers to their first 20-win season since 1989-1990. Prior to his tenure at Florida A&M, Gillespie was the head coach of a community college in Tallahassee and Division II power St. Leo’s College (Fla.).

Camp time for college football, and my thoughts on the text message ban

Raphielle Johnson — Fri, 03 Aug 2007 00:59:09 -0400

To quote Rakim, "It's been a long time", but with the beginning of fall camp for many of the nation's college football programs I'm back. By the end of the weekend players should be arriving, beginning preparations for a season slated to begin August 30 for some. Not sure how many of you like to sit down and watch footage from conference media days, but you usually end up hearing something quite interesting. From the one journalist who seemed to have one purpose for attending SEC Media Days (to ask each coach how the text messaging ban would affect them), to new Stanford head coach Jim Harbaugh stating that this year's USC team may be the "best team in the history of college football" (this didn't make Coach Carroll too happy...and the UCLA contingent was quite chapped as well, given they beat the Trojans last year), the opening show for college football doesn't seem to disappoint. With four bonafide Heisman candidates and a bowl record last season of 5-0, Big East members and their fans rightfully beamed with pride at their media event in Newport, RI. But of course, honeymoons can be short-lived, as seen in the rumors of a Big East program being the 12th member of the Big Ten. Of course, Big Ten commissioner Jim Delany was sure to call Mike Tranghese to make sure that he knew the Big Ten wasn't the cause of this speculation. I don't see the Big Ten adding a new member any time soon, and wouldn't Notre Dame make more sense that Rutgers from a geographical perspective, as well as rivalries (ND already plays Michigan, Michigan State, Purdue and Penn State)? The ACC was almost in damage control mode, and the media didn't make the same mistake in picking Wake Forest to finish last this time around. The defending champions are predicted to finish fourth in the ACC Atlantic. Many like Florida State to win that division, due to another year under the belts of quarterbacks Drew Weatherford and Xavier Lee along with five new additions to the coaching staff (most importantly offensive coordinator Jimbo Fisher and offensive line coach Rick Trickett). I don't agree with that pick, but you'll have to wait a bit to see who I like to take that division. But I like Virginia Tech to win the league, and if they can pull off a win at LSU, maybe even make a run to the national championship game. In the Big Ten, the pundits like Michigan to finish ahead of Wisconsin, and I'm thinking that the quarterback position has a lot to do with that. Michigan has the experienced Chad Henne to call the signals while the Badgers counter with the young Tyler Donovan. But don't sell Wisconsin short, because with the "Wisconsin Winnebago" P.J. Hill in the backfield, they can pound opponents into submission. Team to watch in this league: Illinois. There's a lot of talent in Champaign now thanks to the recruiting efforts of Ron Zook, including sophomore QB Juice Williams. Can they make a bowl? Who knows, but things may be looking up for the Illini program. If you're looking for quarterbacks that can crash the national scene this year, check out the Big 12. Everyone knows Colt McCoy, and you'll probably remember Nebraska's Sam Keller from his days at Arizona State, but how about Missouri's Chase Daniel and Iowa State's Bret Meyer? Texas A&M's Stephen McGee and Texas Tech's Graham Harrell? Kansas State's Josh Freeman and Oklahoma State's Bobby Reid? This league has quite a few talented signal-callers, and I like Daniel to make a national splash this season. But don't be surprised to see any of the other players listed above making noise this season either. The Pac-10 is being hailed by many as "USC and those other guys", but don't sell this league short, as it could be the best league in America right behind the SEC. While it would be a stretch to say that nine teams have a chance to win the league, it wouldn't be crazy to say that nine have a shot at bowling this year. I only leave out Stanford, and they may have earned themselves a 50-plus point beating when they visit USC on October 6th with the aforementioned comment. But this league has some real power, not the sarcastically mentioned "juggernauts" by LSU head coach Les Miles a short time ago. My player to watch: Cal RB Justin Forsett, who becomes the Bears' feature back with the departure of Marshawn Lynch. Of the BCS conferences, this leaves the vaunted SEC, which welcomes back Nick Saban. Coach Saban will in fact be the new head coach at Alabama, making the Bayou Bengals' trip to Tuscaloosa all the more interesting this season. I only wish it was the other way around, just to see how the LSU fans welcomed back their former coach. Guess we'll just have to wait until 2008. While LSU is the prohibitive favorite to win the West (and the SEC itself), good luck picking the winner of the East. Florida, even with heavy losses on the defensive side of the ball, has plenty of weapons on offense to defend their crown. Georgia also has a lot returning on offense, but they have some holes to fill in the secondary (especially with Paul Oliver going into the NFL's supplemental draft due to his academic ineligibility). Tennessee should also be improved, looking to end the eight year drought between SEC titles. South Carolina and Kentucky are also expecting big things this season, and Vanderbilt has a shot to be bowl eligible this season. I don't think it would be a stretch to call the SEC East one of the toughest divisions in sports, let alone college football. That's all for now, but fans of non-BCS leagues do not fret; I haven't forgotten about you and your programs. Expect more on leagues like the Mountain West, MAC, WAC, Conference USA and Sun Belt (Independents too) in the coming days, but my early pick for one of the top ten games of the year in all of college football this season: TCU at BYU on November 8th. Not only could the Mountain West be on the line, but a possible BCS bid could end up in the hands of the winner with an undefeated season. But both have intriguing non-conference matchups with Texas (TCU) and Arizona (BYU) respectively to navigate. BYU's solid stable of wideouts battling Arizona's talented secondary will be a duel to watch on the season's opening Saturday. Until next time, take care. And look for more content to be added to chnfootball.com in the coming weeks. Almost forgot...my thoughts on the text messaging ban throughout college athletics that went into effect on August 1st. Some changes will need to be made when the committee gets together August 9th to discuss this rule. I originally thought that the rule was made specifically for college football, making it all the more surprising that the Ivy League set this legislation into motion. Hard-working recruiters such as Ron Zook (Illinois) and Urban Meyer (Florida) will have to find another way to get in contact with recruits for the time being. The NCAA may mean well (save kids from having to pay astronomical cell phone bills), but many providers allow you to pay a small amount to receive and send unlimited text messages. For example, AT&T allows customers to pay up to $24.99 for 1500 messages per month, or you can go for a smaller message addition and just pay another $5 to have unlimited texting (from other AT&T customers of course). I, for one, don't think that text messages will break youngsters' piggy banks (especially when many plans only charge you for sending messages), and it makes it much easier to not talk to someone when you choose not to. It's prety rude to hang up on someone, so being able to simply delete their message makes things a lot easier. In the end, I see a text messaging "dead period" put in place, similar to what the NCAA does with phone calls now. This would make the most sense. You can't postpone the future, so you may as well do your best to embrace it. Or at least live with it. Good night.

Court of Justice: FAMU Coach Arrested

Ed Matisik — Mon, 28 May 2007 20:22:13 -0400

Florida A&M men’s head basketball coach Mike Gillespie, Sr. was arrested Friday, May 25th on a misdemeanor stalking charge by officers of the Tallahassee (Fla.) Police Department.

In the arrest report issued by the Tallahassee Police Department (TPD), the arresting officers stated that an unnamed woman had complained several times to the TPD since early 2005 about Gillespie’s alleged stalking behavior. She called the TPD again on May 15, 2007, and stated that Gillespie had made unwanted “advances” toward her, but she refused to file formal charges in the hope that Gillespie would stop contacting her. Gillespie had been contacted by the TPD on several occasions over the past two years regarding the women’s allegations and he was warned to stop his behavior.

Police arrested Gillespie Friday morning after the woman called the TPD and stated that Gillespie had tried to contact her at work on Thursday and, again, at home early on Friday. David McCranie, a spokesman for the TPD, stated that the police decided to arrest Gillespie on Friday after he refused to “tell his side of the story.” Gillespie was released by the TPD late Friday afternoon on a $1,000 bond after a judge ordered him not to attempt to contact the woman and required him to wear a GPS-monitored ankle bracelet.

Tim Jansen, Gillespie’s attorney, denied the woman’s charges, stating that, “It didn’t happen.” Jansen claimed that the TPD had acted prematurely by failing to contact and question prior to the arrest. McCranie denied Jansen’s allegations, and stated that Gillespie simply refused to speak with them and that, “This was a clear case of stalking.”

The relationship, if any, between the woman and Gillespie is presently unknown. Gillespie, 56, is married and has two adult children, one of whom, Mike Gillespie, Jr., serves as his top assistant coach.

Florida A&M University (FAMU) released a statement over the weekend in which it stated that the university’s general counsel and president would meet with Gillespie and review the charges against him.

The FAMU men’s basketball team finished the 2006-2007 season with a 21-14 record. The Rattlers finished second in the Mid-Eastern Athletic Conference regular season standings and won the MEAC tournament, but lost to Niagara University in the opening round of the 2007 NCAA tournament.

Gillespie, who just completed his sixth season at FAMU, has had a measure of success in turning around the FAMU men’s basketball program. Gillespie has a overall record of 90-94 at the school, but he has led the team to two MEAC championships and two NCAA tournament appearances. In addition to their appearance in this year’s NCAA tournament, the Rattlers defeated Lehigh in the opening round of the 2004 NCAA tournament before losing to #1 Kentucky, 96-76.

Court of Law: Legality of Coaches Using Physical Force

Ed Matisik — Thu, 22 Feb 2007 13:35:32 -0500

IS A COACH PERMITTED TO USE PHYSICAL FORCE AS PART OF HIS COACHING STYLE?

WERE BOBBY KNIGHT’S ACTIONS AGAINST MICHAEL PRINCE PROHIBITED?

During a stoppage in play in Texas Tech’s win over Gardner-Webb on November 13, 2006, Tech’s men’s basketball coach Bobby Knight called sophomore forward Michael Prince over to the sideline to talk to him. Knight was seen hitting Prince’s chin with his hand while speaking to him. The incident received immediate national attention because the network ESPNU was broadcasting the game and Knight has built a reputation of often being crude, out-of-control, and having a propensity to use violence and foul language against student-athletes, referees, reporters, fans, university administrators, and members of the general public.

During his forty-year coaching career, Knight has thrown an LSU fan into a garbage can, fired a starter’s pistol at a member of the press, been convicted of assaulting a Puerto Rican police officer then evaded an extradition order issued by the Puerto Rican government, made a joke about sexual violence to reporter Connie Chung, kicked his son—and then Indiana University Assistant Coach Patrick Knight—during a game, been fined $30,000 by the NCAA for verbally abusing a media relations volunteer for having made a mistake related to his attendance at a press conference, been cited for hunting without a license after having shot a hunting partner in the back, “motivated” student-athletes with used toilet paper, assaulted an IU student who did not use the title “coach” when addressing him, and been involved in numerous other incidents of violence and intimidation against others. But Knight is also clearly one of the greatest basketball coaches of all time: he has won more games than any other Division I coach in NCAA history, won three national championships and eleven Big Ten championships while at Indiana, and coached his teams to almost 30 NCAA tournament appearances.

Knight was fired from his head coaching position at IU, after almost 30 years at the school, for “a pattern of unacceptable behavior”, but was hired by Texas Tech as its men’s basketball coach in 2001. Knight had not been involved in any controversies at Tech until the incident with Michael Prince in November of last year.

Knight’s critics immediately jumped at the opportunity to blast his coaching style again, seeing Knight’s actions as an “assault” of Prince and just one more example of his self-admitted temper problems. But the furor was not as intense and prolonged as it had been in the past, perhaps because many members of the media, the Texas Tech administration, and even Michael Prince and his family, simply saw a coach use relatively harmless physical contact—which some characterized as nothing more than a physical gesture—in disciplining one of his student-athletes.

But the question remains: How far may a coach go in using physical force to discipline or motivate student-athletes? What rules or laws restrain a coach’s actions against his or her own players?

NCAA and Conference Rules

Surprisingly, neither the rules of the NCAA nor the Big XII Conference address this matter in great detail.

A spokesperson for the NCAA stated that the NCAA does not have any rule, regulation, or by-law which address the use of physical force in disciplining student-athletes during practices—that the disciplining of players during practices is a matter left entirely up to member institutions. The spokesperson stated that the conference would have authority, if it chose to exercise it, over the disciplining of a coach for using physical force against one of his own players during regular season games. However, the spokesperson stated that in NCAA championship tournaments, a referee has the authority and discretion to assess fouls or expel any coach who uses physical force against a player—including one of his or her own student-athletes—and the NCAA could issue, at most, a letter of reprimand to that coach.

A spokesperson for the Big XII Conference stated that the Conference has chosen not to address a coach’s authority over student-athletes, and considers the matter to be entirely controlled by a member institutions rules and policies.

It seems that almost all conferences follow the Big XII Conference’s policy. Only one other conference seems to have addressed a coach’s use of physical force during a game, although not during practice time. One of the major conferences in NCAA Division I men’s and women’s ice hockey is Hockey East. Article XII, Section 11 of the Hockey East Code of Conduct defines “unsportsmanlike conduct” during an intercollegiate athletic event as including, among other things, “Any coach [who] acting in an official capacity strikes or physically abuses...student-athletes.” The penalty for violating this rule is “penalties as deemed appropriate by the Commissioner” of Hockey East. It must be noted that the rule does not define “strike” or “abuses”, and that it applies to all “student-athletes”, not just those on the opposing team.

However, the Hockey East rule would generally not seem to include the low-level of contact used by Bobby Knight against Michel Prince. Then, again, it would also not be unreasonable to interpret Knight’s “touching” of Prince’s chin a “strike” if the Hockey East’s rule were applied to the incident quite literally. The Knight/Prince incident would, therefore, probably not be considered a violation of the Hockey East rule since Knight’s action was not clearly violent and was even ambiguous as a disciplinary measure. However, it is clear that a physical action taken by a coach against one of his or her own student-athletes which exceeds that used by Knight could result in disciplinary action taken against the coach by the conference—at least in Hockey East.

Institutional Rules

The NCAA and the Big XII Conference—like most conferences—do not take a stance on the use of physical force by a coach in disciplining student-athletes, and take the stance that the matter is up to the individual academic institutions. But what do institutional disciplinary codes and rules say about coaches disciplining student-athletes?

Texas Tech University System Board Rule 03.02 states:

Colleges and universities that are tax-supported must function in accordance with

the public trust and the actions of faculty, staff and students within them must be

consistent with the execution of that trust. A breach of trust includes, but will not

be limited to…the use of force or violence…[and] physical abuse of any person on

TTU system-owned or controlled-property or at TTU system-sponsored or supervised

functions or conduct which threatens or endangers the health or safety of any such person.

Another section of the rules states that any person who violates Rule 03.02 may, as determined by TTU, be subject to punishments ranging from a letter of reprimand to “separation from the TTU system.”

Again, the Knight/Prince incident would not appear to rise to the level of physical contact prohibited by Rule 03.02. While it is apparent Knight used some level of physical “force,” it would not appear to rise to the level of “violence” nor does “physical abuse” appear to be involved, and the action clearly did not “threaten[ ] or endanger[ ] the health or safety” of Prince.

However, the TTU rule could prove troublesome for coaches who use physical force in practices or games to discipline student-athletes. If his or her use of the physical force constituted physical abuse of a student-athlete or if the coach’s use of force caused injury—or had the potential to cause injury—to a student-athlete, the coach’s actions would most likely violate Rule 03.02 and could subject that coach to discipline by TTU.

State Laws Prohibiting Assault

Beyond the disciplinary codes of educational institutions, we must then turn to the general laws of the states to determine whether a coach may use physical force to discipline a student-athlete.

Texas Penal Code Sec. 22.01 defines misdemeanor assault as occurring when a person:

- intentionally, knowingly or recklessly causes bodily harm to another…; or,

- intentionally or knowingly threatens another with imminent bodily injury…; or,

- intentionally or knowingly causes bodily contact with another when the person knows or should reasonably believe that the other person will regard the contact as offensive or provocative.

The Texas Penal Code, which is typical of most state laws on assault, raises a particular assault to the level of a felony if the victim is a public servant, a private security officer, a vulnerable victim, such as the elderly, or if the victim is a member of the alleged assailant’s family. The Penal Code also provides for increased punishment of the assailant, as a misdemeanor, if the assault was committed by a person not involved in a sporting event against a participant in a sporting event during that sporting event, or later if the assault was based on the participant’s performance during the sporting event; this section, however, would not apply to the Knight/Prince incident because both Knight and Prince were participants in the Texas Tech/Gardner Webb game.

Again, it would appear that Knight did not violate Texas law: Knight did not cause bodily harm to Prince, he did not threaten Prince with bodily harm, and Prince has stated that he did not regard Knight’s “bodily contact” with him as “offensive or provocative.” However, coaches should be aware that if they cause bodily harm to a student-athlete during practice or a game—and the code does not require that extensive bodily harm occur—or even threaten it, they could commit criminal assault under their state’s laws. Further, even if the physical contact or force used by the coach against a particular student-athlete is minimal, coaches should be aware that simple “bodily contact” could be considered assault if the student-athlete regards that contact as “offensive or provocative.”

State Anti-Hazing Laws

All of the states have also passed laws specific to academic settings, including laws prohibiting the use of violence to maintain order and discipline in on campus student groups. While these laws, known generally as “anti-hazing laws,” are generally aimed at eliminating the hazing activities conducted by fraternities and sororities, they can, and have been, construed to cover situations in which coaches or student-athletes use some sort of physical force against a student-athlete. The Texas anti-hazing statute, Texas Public Education Code Sec. 37.151, which is typical of most state statutes, defines “hazing” as:

any intentional, knowing, or reckless act, occurring on or off the campus of an educational institution, by one person alone or acting with others, directed against a student, that endangers the mental or physical health or safety of a student for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization. The term includes:

(A) any type of physical brutality, such as whipping, beating, striking, branding, electronic shocking, placing of a harmful substance on the body, or similar activity;

            (B) any type of physical activity, such as sleep deprivation, exposure to the elements, confinement in a small space, calisthenics, or other activity that subjects the student to an unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;

            (C) any activity involving consumption of a food, liquid, alcoholic beverage, liquor, drug, or other substance that subjects the student to an unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;

            (D) any activity that intimidates or threatens the student with ostracism, that subjects the student to extreme mental stress, shame, or humiliation, that adversely affects the mental health or dignity of the student or discourages the student from entering or remaining registered in an educational institution, or that may reasonably be expected to cause a student to leave the organization or the institution rather than submit to acts described in this subdivision; and

            (E) any activity that induces, causes, or requires the student to perform a duty or task that involves a violation of the Penal Code.

The Texas anti-hazing statute is made applicable to colleges and universities in the state under Texas Education Code Sec. 51.936.

Under Texas law, hazing is a misdemeanor if it does not result in serious bodily injury, is a misdemeanor with enhanced punishment if the hazing results in serious bodily injury, and is a felony if it results in the death of the victim. Texas Education Code Sec. 37.154 prohibits any real or purported consent by the victim from being used as a defense by the alleged perpetrator.

The first question to be addressed is whether an anti-hazing statute, like that of Texas, is applicable to the coach of a varsity athletic team when disciplining a student-athlete. The statute’s very terms state that it applies to a “person” who directs his or her actions against a “student” for the purpose of allowing the student to maintain membership in an organization. As a coach is a person directing his or her actions against a student-athlete and, if the student fails to acquiesce to the coach’s actions he or she could lose a spot on the team’s roster, it would appear that the hazing statute does, in fact, apply to coaches in their disciplining of student-athletes.

The question, therefore, becomes whether the coach’s actions constitute activities that could constitute “hazing” under the statute. It is obvious that the anti-hazing statute’s range of prohibited activity is broader than that of the assault statute or even institutional and conference rules: the statute does not simply require that physical force be used or threatened against a person, but includes “any activity” that threatens the victim with “ostracism...mental stress, shame, or humiliation” or “adversely affects the mental health or dignity of the student.” Failure to comply with such hazing activities may be “reasonably expected to cause a student to leave the organization.”

It does, therefore, seem quite plausible for a coach to be prosecuted under an anti-hazing statute if he or she simply engages in disciplinary actions against a particular student-athlete that cause “mental stress, shame, or humiliation” and those disciplinary actions could reasonably be “expected to cause a student to leave” the team—or lose a scholarship. It would also appear that a coach would not have a defense available to him or her that the student had consented to such disciplinary actions because the student understood, in advance, that such disciplinary actions may be used by a coach or student-athletes during practices or games as all “consent” defenses are prohibited by statute.

Did Bobby Knight’s actions against Michael Prince constitute a violation of the Texas anti-hazing statute? While Knight, as coach of a varsity athletic team—a recognized Texas Tech student group—could be subjected to the jurisdiction of the statute, it would seemingly be a great stretch to find that his light “punch” of Prince on the chin was calculated by Knight to subject Prince to “mental stress, shame, or humiliation” that could reasonably be expected to cause Prince to quite the team.

If, however, a coach committed an act like Knight’s “punch” of Prince as part of a larger, regular pattern of activity calculated to induce “mental stress, shame, or humiliation” in a student-athlete such that he or she would comply rather than risk losing a scholarship or a roster spot, then such an action, or actions, could probably be prosecuted under a state anti-hazing statute. In other words, anti-hazing statutes may well be the greatest challenge to a coach’s disciplinary authority over student-athletes for those coaches who use a more physical or “in-your-face” disciplinary style.

Cases

Reported examples of coaches being punished for disciplining student-athletes are very limited. A search of the state and federal court case databases of the United States found no cases in which a college-level coach was prosecuted under an anti-hazing statute. Further, most disciplinary proceedings of coaches, as university employees, are generally not publicly available. However, the following state and federal court cases were found involving a coach’s use of force in disciplining student-athletes:

In Neal v. Fulton County Board of Education, 229 F.3d 1069 (11^th Cir. 2000), Durante Neal, a high school freshman and member of the Tri-Cities (Ga.) High School varsity football team, was slapped in the face by another member of the team, Royonte Griffin, during practice. Tommy Ector, the head coach of the football team, told Neal that “you need to learn how to handle your own business.” Neal took this to mean that he should defend himself against Griffin’s slap. Neal obtained a weight lock, put it into his gym bag, and struck Griffin with it. Neal and Griffin immediately began to fight. Ector, and Tri-Cities High School principal Herschel Robinson, both of whom were in the immediate area, initially watched the fight the did not intervene. After a few minutes, Ector went over to the fight, dumped the contents of Neal’s gym bag on the ground and shouted repeatedly, “What did you hit him with? If you hit him with it, I am going to hit you with it.” Ector then picked up the weight lock and struck Neal in the left eye. Neal’s eye was knocked completely out of its socket, “leaving it destroyed and dismembered” and he was in severe pain. Ector still failed to intervene in the fight. Neal eventually received medical treatment, but he was permanently blinded in his left eye.

Neal sued Ector and the local school district for excessive use of corporal punishment, alleging that Ector’s actions were “so excessive as to shock the conscience” and violate his rights to be free of excessive corporal punishment under the 14^th Amendment to the United States Constitution. Ector and the school district asked the federal court in Atlanta to dismiss Neal’s suit, claiming that Ector’s actions did not constitute the use of corporal punishment. The court, however, found that Ector’s actions did constitute corporal punishment and may have violated Neal’s rights under the 14^th Amendment. Apparently, the case was settled prior to trial.

People v. Nelson, 58 Cal. App.4^th 193, 67 Cal. Rptr.2d 899 (Cal. App. 1997), was a criminal prosecution of a coach of a junior college women’s basketball team who allegedly punched one of his players in the mouth during a practice session. During a practice session of the Harbor Community College (HCC) of California women’s basketball team during early 1995, Lewis Nelson, the head coach, became upset when on of his players, Tammy Miles, did not “push the ball up the court” as he had ordered. In punishment for this failure, Nelson ordered the entire team to “run suicides,” that is, sprint from the basketball court’s baseline to the center court line numerous times. Lameisha Pittman, another HCC player, was allowed to sit down because she suffered from sore feet. After practice resumed, angry words were exchanged between Miles and Pittman and they began to fight. Nelson stopped the practice and allowed his team and coaches to watch the fight for, witnesses estimated, two to six minutes. Miles, bleeding, returned to the locker room and practice resumed. However, Latrice Polk, another HCC player, refused to return to practice and walked away from the court. Nelson ordered her to return to practice, but Polk said that Nelson let the fight continue too long and that he should have stopped it. Nelson shouted to Polk, “Get your ass back on the court!” and “You’re just a big baby!” Polk shouted “You’re the baby!” back to Nelson, then sat down on some bleachers in order to remove her shoes. Nelson walked over to Polk and, according to varying witness accounts, either punched her in the head several times or grabbed her “to calm her down.” The incident ended with Polk suffering from “a black eye, a cut lip, a bloodied ear, a lump on the back of her head, and numerous scratches. Several witnesses stated that Polk suffered the injuries due to Nelson’s punches, while other stated she suffered the injuries when she fell down the bleachers some time after Nelson released her.

Nelson was prosecuted for battery with serious bodily injury and battery on school property. The Los Angeles County jury found sufficient evidence to convict Nelson of the battery on school property charge, but found him not guilty on the battery with serious bodily injury charge. Nelson was sentenced to one year’s probation and ordered to pay a $500.00 fine.

Conclusion

Did Bobby Knight violate any rule or law by lightly “punching” Michael Prince during Texas Tech’s game against Gardner Webb? No—despite the claims of his critics to the contrary. But, generally, coaches could be punished or even prosecuted if their disciplining of players crosses over a vaguely-defined line that seems to separate more excessive discipline from that which many coaches engage in every day. However, coaches, players, and schools should be aware that the anti-hazing statutes of the various states may be used against coaches who engage in physical—or even psychological—punishment of student-athletes.

Court of Law: Legality of Coaches Using Physical Force

Ed Matisik — Thu, 22 Feb 2007 03:00:00 -0500

IS A COACH PERMITTED TO USE PHYSICAL FORCE

AS PART OF HIS COACHING STYLE? WERE BOBBY KNIGHT’S ACTIONS

AGAINST MICHAEL PRINCE PROHIBITED?

But the question remains: How far may a coach go in using physical force to discipline or motivate student-athletes? What rules or laws restrain a coach’s actions against his or her own players?

NCAA and Conference Rules

Surprisingly, neither the rules of the NCAA nor the Big XII Conference address this matter in great detail.

Institutional Rules

Texas Tech University System Board Rule 03.02 states:

Colleges and universities that are tax-supported must function in accordance with

the public trust and the actions of faculty, staff and students within them must be

consistent with the execution of that trust. A breach of trust includes, but will not

be limited to…the use of force or violence…[and] physical abuse of any person on

TTU system-owned or controlled-property or at TTU system-sponsored or supervised

functions or conduct which threatens or endangers the health or safety of any such

person.

State Laws Prohibiting Assault

Beyond the disciplinary codes of educational institutions, we must then turn to the general laws of the states to determine whether a coach may use physical force to discipline a student-athlete.

Texas Penal Code Sec. 22.01 defines misdemeanor assault as occurring when a person:

n intentionally, knowingly or recklessly causes bodily harm to another…; or,

n intentionally or knowingly threatens another with imminent bodily injury…; or,

n intentionally or knowingly causes bodily contact with another when the person knows or should reasonably believe that the other person will regard the contact as offensive or provocative.

State Anti-Hazing Laws

any intentional, knowing, or reckless act, occurring on or off the campus of an

educational institution, by one person alone or acting with others, directed against a

student, that endangers the mental or physical health or safety of a student for the

purpose of pledging, being initiated into, affiliating with, holding office in, or

maintaining membership in an organization. The term includes:

(A) any type of physical brutality, such as whipping, beating, striking, branding,

electronic shocking, placing of a harmful substance on the body, or similar activity;

(B) any type of physical activity, such as sleep deprivation, exposure to the

elements, confinement in a small space, calisthenics, or other activity that subjects

the student to an unreasonable risk of harm or that adversely affects the mental or

physical health or safety of the student;

(C) any activity involving consumption of a food, liquid, alcoholic beverage, liquor,

drug, or other substance that subjects the student to an unreasonable risk of harm or that

adversely affects the mental or physical health or safety of the student;

(D) any activity that intimidates or threatens the student with ostracism, that subjects

the student to extreme mental stress, shame, or humiliation, that adversely affects the

mental health or dignity of the student or discourages the student from entering or

remaining registered in an educational institution, or that may reasonably be

expected to cause a student to leave the organization or the institution rather than

submit to acts described in this subdivision; and

(E) any activity that induces, causes, or requires the student to perform a duty or task that

involves a violation of the Penal Code.

The Texas anti-hazing statute is made applicable to colleges and universities in the state under Texas Education Code Sec. 51.936.

Cases

Conclusion

Did Bobby Knight violate any rule or law by lightly “punching” Michael Prince during Texas Tech’s game against Gardner Webb? No—despite the claims of his critics to the contrary. But, generally, coaches could be punished or even prosecuted if their disciplining of players crosses over a vaguely-defined line that seems to separate more excessive discipline from that which may coaches engage in every day. However, coaches, players, and schools should be aware that the anti-hazing statutes of the various states may be used against coaches who engage in physical—or even psychological—punishment of student-athletes.

Merry Christmas to all...

Raphielle Johnson — Tue, 26 Dec 2006 22:47:43 -0500

Saturday signaled the beginning of the Christmas break for college basketball, with everyone pretty much taking off the following three days for time with family and friends. One result from Saturday that surprised me was Kansas 84, Boston College 66. The result wasn't a surprise, but the margin was, as the Jayhawks took over from the start. But the biggest loss for the Eagles may have been the services of star forward Jared Dudley, who aggravated a lingering left foot injury in the loss. Dudley may sit out BC's next two games, Duquesne and Northeastern, in order to regain his health in time for then ACC schedule. Add this injury to those of John Oates and Akida McLain, and you have a frontcourt that's paper-thin behind Sean Williams and Shomari Spears. Also, the injury bug puts even more emphasis what I think is the key to the Eagles' success this season: the shot selection of guard Tyrese Rice. Is it too early to ask if the Colonial is a two-bid league? The team responsible for this question is Drexel, and when you look at the Dragons' schedule you know why. Drexel owns road wins over St. Joseph's, Villanova, Temple and Syracuse to this point in the season, giving them a ranking of seven in Ken Pomeroy's most recent RPI ranking. While some of the teams in the Colonial are ranked low enough to do some damage to that ranking, there are enough quality wins within the league to put Drexel in a good position come Selection Sunday. The comeback of the weekend? Rider over Fairleigh Dickinson 74-72. The Broncs trailed FDU 56-35 with thirteen minutes remaining, but came back thanks to a 25-7 run that tied the score at 70 with 1:26 to go. Harris Mansell provided the heroics, nailing a three to give Rider a 73-72 lead with 33 seconds to go. Most people ignored this result, but it should be seen as a good road win for a Rider team that isn't expected to do much in the MAAC (Blue Ribbon picked the Broncs to finish 9th in a ten-team league). One question: with forward Greg Washington sitting out at Hofstra (they can definitely use this 6-10 freshman's size right now) and Rhode Island forward Delroy James doing the same, can the NCAA Clearinghouse find a way to speed up the process in determining whether or not players not yet cleared can play? I'm sure that there are other cases, but at what point do the coaching staffs say "we won't have this player available this year"? And the players can practice all they want, but at some point the longevity of the process gets to them as well. I know that there are a lot of new athletes to check before the season begins, but there has to be a better way to go about this. Providence will be without the services of guard Sharaud Curry for their non-conference tilt with Florida State due to a violation of team rules. The interesting thing about this development is the life that this news took on various fan sites, something that the Providence Journal-Bulletin compared to that of chats on SEC football fan pages. Some posters put up that Curry and forward Geoff McDermott would be out 7-10 games each, but that was inaccurate to say the least. McDermott is OK, and head coach Tim Welsh hasn't decided how long Curry will be out. With or without Curry, this is a game to keep an eye on because both teams could use a win over a team from a marquee conference before they head into league play. In America East, keep an eye on Binghamton. Yes, Albany is the league favorite and Vermont won at Boston College, but the Bearcats are 6-4 after going 2-0 in the State of Florida. North Florida is North Florida (no disrespect) and Miami has been disappointing so far this year (is it me or have Dennis Clemente and Anthony Harris regressed this season? Or was Robert Hite that good?), but those are two good wins on the road for Binghamton. Next up for the Bearcats is an appearance in the Comcast Lobo Invitational in Albuquerque, opening up with Pepperdine. The other matchup is between host New Mexico and Alcorn State. Hope you all enjoyed your holiday, and Happy New Year.

Colleges Win Suit Against T-Shirt Manufacturer

Ed Matisik — Thu, 09 Nov 2006 20:27:24 -0500

FEDERAL COURT HOLDS THAT SCHOOL COLORS ARE PROTECTED UNDER TRADEMARK ACT

Smack Apparel Company (Smack), a manufacturer of printed shirts, produced several types of shirts related to the 2004 Sugar Bowl and the national football championships won by Southern Cal and Ohio State. The specific shirts Smack produced were:

+ A purple and gold color shirt with "Beat Oklahoma!" on the front, and, on the back, "Bring It Back to the Bayou!" and "National Champions."
+ A purple and gold color shirt with the words "2003 College Football National Champions" on the front and "Sweet As Sugar" on the back.
+ A crimson and crème color shirt and the words "BOUrbon Street or Bust" on the front and "Show Us YOUr Beads" and "Sweet As Sugar" on the back.
+ A crimson and crème color shirt with "Let's Make It Eight!" on the front, and "Beat Socal!" on the back
+ A scarlet and gray shirt that read on the front "Got Seven?" and, on the back, "We Do! 7 Time National Champions!" with a map of the state of Ohio with a star indicating the city of Columbus.
+ A cardinal and gold shirt that read on the front "Got Eight?" and, on the back, "We Do! 8 Time National Champions!" with a map of California and a star indicating "SoCal".

Louisiana State University (LSU), the University of Oklahoma (OU), Ohio State University (OSU), the University of Southern California (USC), and the Collegiate Licensing Company (CLC)--the official sports licensing arm for member institutions of the NCAA--became aware of the shirts through their marketing by vendors near campus on game days and in New Orleans immediately prior to the 2004 Sugar Bowl.

LSU joined with the three other schools and the CLC to sue Smack, claiming that the shirts violated the respective schools' trademarks because Smack never obtained a license from CLC to manufacture and market the shirts. The universities alleged that even though the shirts did not specifically and explicitly mention the universities or their mascots--the Tigers, the Sooners, the Buckeyes, or the Trojans--the shirts utilized the schools' official colors to give consumers the false impression that they were shirts that were officially sanctioned by those schools and to capitalize on the time, effort, and money that the universities spent on developing a well-known color scheme.

The federal Lanham Act governs the use of trademarks in the United States. A trademark, which can take the form of words or symbols, grants the trademark's owner the exclusive right to use such words or symbols to designate a particular good or service. A trademark, in short, is an adjective which designates the origin or source of a good or service.

The Lanham Act prohibits the use of "any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading depiction of fact, or false or misleading representation of fact" which is "likely to cause confusion, or cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities." In other words, a trademark violation occurs when a provider of a good or service to consumers uses some sort of symbol or word that is similar to a trademark so that consumers falsely believe that the good or service was provided by, or in some way affiliated with, the owner of the trademark.

The federal court in New Orleans noted that it is long-standing federal law that a color scheme can serve as a trademark "if it identifies and distinguishes a particular brand" by presenting a "secondary meaning." Under federal law, a particular good or service acquires a "secondary meaning" when "in the minds of the public, the primary significance of a trademark is to identify the source of the product and not the product itself." In this case, for example, a purple and gold color scheme on the shirt has a "secondary meaning" if it identifies that a shirt is produced or authorized by LSU and not merely that it is a shirt.

The federal courts have established a seven-factor test to determine whether something, such as a color scheme, has acquired "secondary meaning" and thereby become a trademark: The seven factors which comprise the "secondary meaning" test are: (1) length and manner of use of the mark, (2) volume of sales, (3) amount and manner of advertising, (4) nature of use of the mark in newspapers and magazines, (5) consumer survey evidence, (6) direct consumer testimony, and (7) an infringer's intent in copying the mark.

The court first noted that the four universities established their official color schemes over a century ago--LSU in 1893, OU in 1895, OSU in 1878, and USC in 1895--and that each of these universities sells dozens, if not hundreds, of items which bear the university's color scheme and that sales reach into the tens of millions of dollars each year. OSU's Assistant Director of Trademarks and Licensing stated to the court that officially-licensed OSU items bearing its scarlet and gray color scheme account for over $50 million per year in gross revenue. The court continued its analysis by finding that the four universities "advertise items with their school colors in almost every conceivable manner," and that newspapers and magazines often simply use the school colors in reference to a certain school. In particular, the court noted that LSU, and both national and local media, refer to the university itself, as well as its athletic teams, as the "Purple and Gold." Finally, the court took notice of the fact that Smack readily admitted to the court that it chose those particular colors for the shirts "in order to refer to the universities," although, Smack claimed, it did not intend to confuse consumers into thinking that the four universities had manufactured or authorized the shirts. Accordingly, the court concluded that the color schemes had acquired "secondary meaning" and were, therefore, protected as trademarks.

In order to determine whether the Lanham Act had been violated, the court then had to determine whether Smack's actions in using the color schemes caused "likelihood of confusion" between those goods produced by Smack and those officially produced or licensed by the respective universities. In order to make this analysis, the federal courts must analyze the "seven digits of confusion." These "digits"--or factors--are (1) the type of mark allegedly infringed, (2) the similarity between the legitimate and the infringing marks, (3) the similarity of the products and services offered by the mark owner and the alleged infringer, (4) the identity of retail outlets and purchasers, (5) the identity of advertising media used, (6) the alleged infringer's intent, and (7) any evidence of actual confusion among consumers. The "digits" are "a flexible and nonexhaustive list. They do not apply mechanically to every case, and can serve only as guides, not as an exact calculus."

Applying the "seven digit" analysis, the court determined (1) that the universities' marks "are extremely strong marks that have been used for decades," (2) the actual and infringing marks, i.e., the color schemes used by the universities and by Smack, are virtually identical, (3) Smack and the universities sell very similar types of apparel, and (4) Smack's shirts are sold in a similar manner to those that are officially licensed by the universities and are bought by the same consumers, (5) Smack advertised and made its goods available in locations similar to those utilized by the universities, and (6) Smack admitted that it chose the specific color scheme for the shirts in order to take advantage of those color schemes as identifiers of the four universities. The court therefore concluded that Smack had infringed on the four universities' trademarks pursuant to the Lanham Act.

The court entered judgment in favor of the four universities and the CLC.

The case is Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College v. Smack Apparel Company, 438 F. Supp.2d 653 (E.D. La. 2006).

Gael Storm: Assistant's Suit Against Iona

Ed Matisik — Mon, 23 Oct 2006 00:10:46 -0400

Craig Holcomb was hired as an assistant men’s basketball coach by Iona College in 1995. Holcomb, who had coached at Spartanburg Methodist Junior College in South Carolina, was hired by former Iona head coach Tim Welsh. Welsh’s hiring of Holcomb was approved by Iona’s Director of Athletics, Richard Petriccione. Holcomb’s specific duties were overseeing practices, maintaining team discipline and training, and recruiting players from local high schools and junior colleges.

In 1998, Welsh left Iona to become head men’s basketball coach at Providence College, and another Iona assistant coach, Jeff Ruland, was promoted to head coach. Ruland and Petriccione immediately promoted Holcomb to the position of “Associate Head Coach,” but left his responsibilities largely unchanged.

Iona’s first three years under Ruland were highly successful. Iona won the Metro Atlantic Athletic Conference (MAAC) tournament in 2000 and 2001—thereby earning berths in the NCAA tournament—and won the MAAC regular season title in 2001. During Ruland’s first three years at Iona, the Gaels achieved an overall record of 59 wins and 35 losses (0.620).

In 2001, Petriccione was promoted from Director of Athletics to Vice President of Advancement and External Affairs for the College. Shawn Brennan, a former Gaels coach, took over the Director of Athletics position. Later that year, Ruland signed a new eight-year contract with Iona which paid him over $300,000 per year—making him the highest paid employee of Iona—and imposed significant financial costs on the College if it chose to fire him. Craig Holcomb was given a raise of approximately $25,000 per year.

The Iona men’s basketball program suffered a number of setbacks, both on and off the court, during the next three years.

Iona had a record of 41-47 from 2001-2004, and failed to earn a spot in either the NCAA or NIT tournaments. The Gaels were the subject to intense criticism by the local media for “lacking discipline and drive.”

In late 2001, several Iona players were accused of misusing vouchers for course books by re-selling them for cash. Brennan ordered the players to make restitution to the College, but he did not report the incident to the NCAA nor did he keep a written record of the investigation. Two starters were expelled after the 2002-2003 season, and two more suspended during the 2003-2004 season for failing to meet academic requirements or violating team rules. One of the suspended players, DeShaun Williams, had been recruited for the program by Holcomb. In October of 2003, the NCAA informed Iona that it was beginning an investigation into the possible violation of various rules by Gaels coaches and players. As part of this investigation, Ruland and another assistant coach Rob O’Driscoll, were interviewed, but Holcomb was not. It was not known whether Iona’s third assistant men’s basketball coach, Tony Chiles, was interviewed during the investigation.

The Iona administration decided that it had to do something to “shake up the program” in early 2004. Iona President Bro. James Liguori had stated to the press that the men’s basketball team was not meeting his expectations and that he was “not a happy camper.” Two months later, Liguori and the Iona Board of Trustees ordered Brennan to undertake a written evaluation of the men’s basketball program and make recommendations for its reform.

Brennan made his preliminary report to Petriccione, Sister Marie Thornton, Iona’s Vice President of Finance, and Dr. Warren Rosenberg, College Provost, several weeks later, shortly followed by a revised preliminary report. In the preliminary reports, Brennan suggested four possible courses of action: (1) fire the entire coaching staff, including Ruland, (2) fire all of the assistant coaches, but retain Ruland, (3) make no changes to the coaching staff, or (4) putting the entire coaching staff “on notice” and requiring the implementation of a 25-point plan to rehabilitate the team. Brennan supported the fourth option, but stated that he believed Ruland was responsible for the team’s lack of discipline. Brennan felt that firing Ruland was not possible due to the financial penalties that were written into his contract with the College, and that firing Ruland’s assistant coaches without firing him would be “detrimental to the program.”

However, all three assistant coaches, Holcomb, Chiles, and O’Driscoll, were the subjects of heavy criticism both in the report and by certain members of the Iona community during Brennan’s investigative process. Brennan learned that it was believed that Holcomb’s recruiting was substandard. Brennan stated that the coaching staff—both assistants and Ruland—could not get along, paid no attention to details, and that they “lacked a fundamental understanding of how college basketball works.”

Brennan presented his final report to Liguori, Petriccione, Thornton, and Rosenberg, and recommended that his suggested “fourth option” be taken. Petriccione supported Brennan’s recommendation, but Liguori, Thornton, and Rosenberg refused to consider the fourth option, insisting that some sort of change had to be made to the coaching staff. After a series of conference calls involving Brennan, Liguori, Thornton, Petriccione, and several members of the Board of Trustees, the decision was made to retain Ruland and O’Driscoll, but that Holcomb and Chiles would be terminated.

Brennan then met with Ruland to inform him about the decision, stating to Ruland that it was believed that the assistants were not giving him the support he needed as head coach. Ruland—who apparently had no idea that the administration was considering terminating his assistant coaches—said that he would “go to the wall” to retain Holcomb. However, there was nothing to indicate that Ruland did, in fact, take any action to retain Holcomb.

Both Holcomb and Chiles were asked to resign in May, 2004. Chiles agreed to resign, but Holcomb refused to do so. He was fired several days later. O’Driscoll was informed that Liguori had ordered the firings of Holcomb and Chiles, but that his job was secure. However, unbeknownst to Brennan and Ruland, O’Discroll had applied for several coaching jobs during the spring of 2004. Less than a week after the termination of Holcomb, O’Driscoll accepted the position of first assistant men’s basketball coach at Marist College.

In June 2004, the NCAA issued a report on the alleged violations at Iona. The NCAA stated that it found several “secondary violations” and stated that one of the violations was traceable to O’Driscoll. The NCAA found that it had been a violation of NCAA rules for O’Driscoll to help one of the members of the men’s basketball to move his belongings from his dormitory to a garage.

Brennan left Iona in July 2004 to accept a position with AdPro, a sports apparel company.

Shortly after leaving Iona, Holcomb filed suit against the College for racial discrimination in federal district court in Manhattan. Holcomb, who is white, alleged that Iona fired him out of racial animus because his wife is an African-American.

Holcomb based his claim of discrimination on two factors which, he believed, indicated a work environment that was racially intolerant: (1) Iona’s decision to restrict attendance by coaches’ spouses at functions sponsored by the Goal Club, an alumni fundraising organization associated with the Gaels’ athletic department, and (2) a history of “racist and racially insensitive conduct” by Petriccione.

From 1997 through 2003, the Iona athletic department invited members of high school basketball teams—including potential recruits—to attend Goal Club post-game receptions with players and coaches. Most members of the Goal Club were white alumni and donors of the College.

Jamie Fogarty, Iona’s Assistant Athletic Director of Compliance, noticed Dexter Gray, a highly-recruited local high school player at a post-game reception after Iona’s 92-83 loss to George Mason on November 29, 2003. Fogarty immediately called the NCAA’s compliance office to determine whether Gray’s attendance at the reception was in violation of NCAA rules limiting a recruit’s contact with an institution to certain staff members. The NCAA responded that Gray’s attendance at the Goal Club event—as well as the attendance of other high school players and potential recruits at other Goal Club events—did, in fact, constitute a violation of NCAA rules. Brennan immediately banned all high school students from future Goal Club events. Many of the high school athletes who had been invited to attend Goal Club events were African-Americans.

Holcomb met with Brennan to discuss the new policy. Holcomb was upset because he believed that permitting high school students to attend Goal Club events was “within a grey area of NCAA rules” and that the new policy would hurt recruiting. Brennan did not offer to change the policy, but also informed Brennan that his wife, as well as other spouses, girlfriends, and boyfriends of athletic department staff, would no longer be permitted to attend Goal Club events because they were neither alumni nor donors.

Holcomb “concluded that Iona was attempting to limit minority presence at its fundraising events.” He noted that Ruland and three other Gaels coaches or assistant coaches were married to spouses of a different race or were involved in interracial relationships.

Holcomb claimed that Petriccione often used racially offensive language. Holcomb claimed that in 1995 or 1996 he heard Petriccione say, “Everybody at Fordham thinks they have these good black kids and Iona has niggers.” Holcomb also claimed that when the College discovered that several men’s basketball players had sold their College-issued long-distance telephone access codes to other students, Petriccione said to him that the men’s basketball coaches should “keep [their] niggers in line.” Holcomb also alleged that he ran into Petriccione at a bar on February 4, 2000, after Iona had defeated Canisius 66 to 56, and Petriccione stated that he learned that Holcomb had recently become engaged and asked him if was going to marry an “Aunt Jemima.” Holcomb also claimed that Petriccione also called him a “nigger lover” at the bar. Petriccione later stated that he did not recall these conversations.

Several other Iona employees also claimed that Petriccione made racially insensitive remarks in everyday speech. Bonnie Sirower, Iona’s Director of Annual Giving, stated that Petriccione regularly referred to Italian-Americans as “guineas,” to Sirower herself as “his favorite Jew,” and to a member of his office who was a native of Nigeria as “a jungle bunny” and “an African princess.” Sirower also stated that when the Nigerian-American applied for a promotion, he said, “Who does she think she is coming from hut in Africa and thinking she could apply for this job?” Sirower stated that Petriccione regularly said “things that really were not becoming or suitable for a person, especially a vice president.”

Iona asked the federal court for summary judgment, alleging that Holcomb failed to sufficiently allege a case of employment discrimination, based on his status as spouse of a minority, in his initial pleadings. The court noted that in order to survive a motion for summary judgment in a case of employment discrimination, a plaintiff must show that he or she may have been discriminated against and the employer must be able to show that it did not have a “facially non-discriminatory reason” for the negative employment action taken against the employee.

The court found that the evidence presented by Holcomb related to the Goal Club’s exclusion of high school players and athletic department spouses and the comments allegedly made by Petriccione may have indicated that he was discriminated against because of his wife’s race. However, the court found that Holcomb was unable to link the events related to the Goal Club and the comments made by Petriccione to the College’s evaluation of the men’s basketball team and its decision to terminate two of the assistant coaches. Further, the court noted that there was significant evidence to indicate that non-whites attended Goal Club events in significant numbers after the ban on coaches’ spouses and high school athletes—those minorities who attended were just not coaches’ spouses or high school athletes. Additionally, the court noted that there was not only no evidence indicating that Petriccione wanted to fire Holcomb, but that Petriccione had, in fact, suggested retaining Holcomb during his discussions with Iona administrators and Board of Trustee members. The court found that Holcomb was simply unable to link any of the alleged racist behaviors with Brennan’s evaluation of the men’s basketball team and Iona’s decision to fire him.

Accordingly, the court entered judgment in favor of Iona.

The case is Holcomb v. Iona College, No. 05-CIV 0848 (S.D.N.Y. 2006).