For All Solve Worker

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Thirst and Goal

althoughstadium management at Heinz Field denied it, spectators at the AFC Champi- onship held in Pittsburgh got a taste of what life will be like now that a closely watched alcohol manage- ment case has gone to the plaintiffs.

Beer was not sold to Pittsburgh fans during the second half of the Jan. 23 game. Coincidence? Maybe. But it was just four days earlier that Ara- mark Corp. (the Heinz Field conces- sionaire) was hit with $75 million in punitive damages stemming from a 1999 car accident that left a 2-year- old girl permanently paralyzed from the neck down. That followed, by a day, a jury award of $60 million in compensatory damages assessed equally against Aramark and Daniel Lanzaro of Cresskill, N.J. It was Lan- zaro’s car that struck the car in which the 2-year-old was riding as he drove home drunk from a New York Giants game. He was found to have a blood-alcohol level more than twice the legal limit at the time of the crash, and is now serving a five-year prison term for vehicular assault.

The family of the girl charged that Aramark vendors sold beers to Lan- zaro at Giants Stadium even though he was clearly intoxicated, and that Lanzaro was able to circumvent a stadium rule limiting fans to purchas- ing two beers at a time by tipping a vendor $10.

We Shall See Dept.

u.S. Attorney Terrell Harris, whoseoffice got a conviction in a Uni- versity of Alabama recruiting scan- dal, wasted no time in declaring that, as the wire services headlined the story, “Conviction Sends a Mes- sage.” Logan Young, a Memphis, Tenn., millionaire and former Alabama booster, was convicted by a Memphis jury of paying $150,000 to former high school coach Lynn Lang to get a highly touted player to sign with Alabama in 2000. “Anyone who thinks about engaging in that practice,” Harris said after the ver- dict, “ought to think twice about doing it.”

The charges carry a maximum punishment of 15 years in prison and heavy fines, but we won’t know until Young’s May 5 sentencing whether the message sent by the conviction will be strong or weak.

— ANDREW COHEN

JOB STORY Restructured out of his tenured position, an athletic director sues — and loses.

BY JOHN T. WOLOHAN

son, who was superintendent of schools at the time, took a direct role in mediating the relationship between Cioffi and Earl. In par- ticular, Johnson changed Earl’s teaching assignment from the high school to the

middle school so he would have less con- tact with Cioffi, and at the same time directed Cioffi to treat Earl fairly.

During the summer of 2000, Cioffi’s criti- cism of Earl became public, and he recom- mended that Earl not be reappointed head football coach. However, the school board rejected his recommendation, and Earl was reappointed.

In the fall of 2000, it was discovered that Cioffi lacked the required certification to hold the position of director of physical education. When he was asked to obtain the certification by Johnson, Cioffi claimed that he was unable to do so because of lin- gering physical effects from an electric shock he had received the previous year. The school board, therefore, was forced to make special arrangements in order for Cioffi to remain in the full-time administra- tive position of athletic director.

A year later, it became known that a haz- ing incident involving the football team had occurred in the high school locker room, after which Cioffi sent a letter to Johnson and the school board claiming no personal responsibility for the hazing. In addition, in a move that angered Johnson and other members of the board, Cioffi alleged in the letter that the board was covering up the incident to protect Earl.

Finally, in 2002, the school board decided to reorganize some administrative positions in order to save money, despite the fact that there was no real fiscal crisis. As part of

t is not at all uncommon for individuals without coaching certificates, physical education

degrees or other similar qualifications to become athletic directors or coaches within their local school districts. This is especially true in districts where these positions are consid- ered to be outside the regular phys- ical education teacher’s job duties. As such, the positions come with extra money, and other individuals teaching in the school district who are looking to supplement their incomes are usually willing to accept the added responsibilities.

It is also not unusual, in any cir- cumstance, for disputes to arise between coaches, athletic directors and their local school boards. However, situa- tions in which part-time staff members are involved can be more delicate. An example is Cioffi v. Averill Park Central School District [2004 U.S. Dist. LEXIS 19620]. Louis Cioffi started his career with the Averill Park, N.Y., school district as a part-time social studies teacher and part-time athletic director. In June 1999, the school district promoted Cioffi to a full-time, tenured administrative position, athletic director and director of physical education.

During the time Cioffi worked in the dis- trict, Kevin Earl was employed there as the high school’s physical education teacher and head varsity football coach. The rela- tionship between Cioffi and Earl was acri- monious from the beginning, with Cioffi continuously complaining about how Earl ran the football program, saying that the program was out of control. Michael John-

III

S P O R T S L A W R E P O R T S H O R T S

SAVING FACE: Personnel conflicts are inevitable, but successful lawsuits aren’t.

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CIOFFI CLAIMED THAT HE WAS UNFAIRLY FORCED OUT BECAUSE OF

HIS COMMENTS REGARDING THE

HEAD FOOTBALL COACH AND HIS

CRITICISM OF THE SCHOOL BOARD’S HANDLING OF A HAZING INCIDENT.

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20 ATHLETIC BUSINESS April 2005

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22 ATHLETIC BUSINESS April 2005 athleticbusiness.com

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the reorganization, it was decided to abol- ish the athletic director position effective June 2002 and create a combined director of physical education/assistant principal position. Since Cioffi did not have the required physical education certificate, he was unable to apply for this new position.

As a result of the restructuring, Cioffisued the school district, claiming that he was unfairly forced out because of

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S P O R T S L A W R E P O R T

his comments regarding Earl and his criti- cism of the school board’s handling of the hazing incident. Cioffi alleged three causes of action: that the school board’s action was a violation of his rights under the First Amendment’s guarantee of freedom of speech; that absent a hearing, the school board’s action was a violation of his due- process rights; and that the board’s actions amounted to a conspiracy to violate his civil rights.

In reviewing Cioffi’s first claim, the court held that there were three elements of a First Amendment retaliation claim. Cioffi would have to show that 1) the speech was constitutionally protected; 2) that there was an adverse employment decision; and 3) that there was a causal connection between the speech and the adverse employment decision.

Was Cioffi’s speech constitutionally pro- tected? For the speech of a public employee to be protected under the First Amend- ment, the court reasoned, it must involve a matter of public concern. In reviewing the facts, the court found that other than gen- eral complaints he made about Earl over the years, Cioffi alleged only two specific incidents of protected speech. With regard to Cioffi’s general complaints about Earl, the court found that these were employment matters between a supervisor and his sub- ordinate. Such personal workplace griev- ances, the court held, are not protected. Even if such speech were considered a mat- ter of public concern, the court held that there was no causal connection estab- lished between Cioffi’s complaints, which

occurred over nearly a decade, and the eventual abolition of the plaintiff’s position. This lack of a causal connection is particu- larly apparent in light of Cioffi’s promotion to a full-time tenured administrative posi- tion in 1999 and his retention of that posi- tion in the fall of 2000, despite lacking the required physical education certificate.

As for the two specific incidents of speech Cioffi claims were protected, the court found that both, likewise, were employment matters and therefore not protected. For example, since Cioffi was the athletic director at the time of the hazing, the court found that supervision of the action or inaction of athletic coaches (as suggested by his letter to the school board) would be part of his employment

THE COURT HELD THAT THERE WAS NO CAUSAL CONNECTION

ESTABLISHED BETWEEN

CIOFFI’S COMPLAINTS, WHICH OCCURRED OVER NEARLY A

DECADE, AND THE EVENTUAL ABOLITION OF THE

PLAINTIFF’S POSITION.

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24 ATHLETIC BUSINESS April 2005 athleticbusiness.com

duties. With regard to the second incident — the press conference called by Cioffi in response to hearing that the school board intended to abolish his position — the court found this to be simply a last-ditch effort to save his job, and clearly an employment matter.

(The other two elements of the First Amendment test were settled more swiftly. There was an adverse employment deci- sion — Cioffi lost his job — and the court

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S P O R T S L A W R E P O R T

held that even if both incidents were con- sidered to be matters of public concern, there was no evidence of a causal connec- tion between the speech and the adverse employment decision.)

Cioffi’s due-process and conspiracy claims were similarly unsuccessful. The school district followed the correct proce- dures, the court held, under New York law. While the court noted the possibility of a due-process violation occurring in such cir-

cumstances, in this case Cioffi was not qualified for the new position of director of physical education/assistant principal even if it was considered similar to the athletic director position, since he did not have the proper certification. With regard to the conspiracy claim, the court held that there could be no conspiracy between the school district and its officers, employees and board of education members because they are considered a single entity. In addi- tion, the court held that since the position was eliminated as part of the budgetary process (a legislative activity), members of the school board were entitled to absolute legislative immunity. Since there was no indication that the individual school board members were acting in anything other than their legislative capacities, the court held that the conspiracy claim must be dis- missed.

Although the court concluded thatCioffi’s speech did not rise to the level of protected speech, the case is still important for a couple of reasons. First, even in the best situation, personal con- flicts involving the duties and responsibili- ties of coaches and athletic director are common. Therefore, in order to reduce

some of these conflicts, it is essential that each position have a clearly written job description defining the duties and respon- sibilities of each position. Next, since con- flicts are inevitable, it is also essential for school districts to establish and follow pro- cedures for disciplining and removing coaches and/or administrators. Without such procedures, school districts are exposing themselves to liability for wrong- ful termination or other employment claims. ■

Attorney John T. Wolohan (jwolohan@ ithaca.edu) is an associate professor of sports law in the Department of Sport Man- agement & Media at Ithaca College.

SINCE CONFLICTS ARE INEVITABLE, IT IS ESSENTIAL

FOR SCHOOL DISTRICTS TO

ESTABLISH AND FOLLOW

PROCEDURES FOR DISCIPLINING

AND REMOVING COACHES

AND/OR ADMINISTRATORS.

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