By Gregg E. Clifton & Bernard G. Dennis III, of Jackson Lewis
After a nearly four-year battle, delayed by COVID-19 and the untimely death of the initial arbitrator assigned to the case, former University of Connecticut men’s basketball head coach Kevin Ollie has been determined to have been improperly terminated and was awarded slightly more than $11.1 million. Replacement arbitrator Mark Irvings concluded that even though Ollie had a separate employment agreement, the University violated the terms of the collective bargaining agreement that covered Ollie’s employment.
The University of Connecticut Chapter of the American Association of University Professors (AAUP), the organization that represents coaches at the University, filed a grievance on Ollie’s behalf. The collective bargaining agreement contained certain relevant provisions in addition to the terms of Ollie’s individual employment agreement with the University.
While serving as the head coach, Ollie led his team to a 127-79 record over six years, including winning the national championship in 2014. However, Ollie lost credit for two seasons of his team’s victories after the NCAA determined he had violated a series of NCAA Bylaws by failing to promote compliance within his basketball program. The NCAA issued a three-year show cause order against Ollie, essentially prohibiting him from occupying the sidelines as a coach for this period.
In March 2018, based on the NCAA allegations but more than a year before the NCAA’s final determination that Bylaw violations had occurred, the University terminated Ollie “with cause” based upon the terms of his employment agreement.
The University believed it did not have to pay the remaining money owed on Ollie’s contract.
Arbitrator Irvings concluded the University could not limit its interpretation of Ollie’s alleged NCAA violations with regard to his employment agreement but the decision to terminate also had to satisfy the specific protections in the collective bargaining agreement that Ollie was also subject to in his coaching role for the University.
Although he was not a professor, the terms of Ollie’s employment contract guaranteed him the same personnel benefits as the unionized faculty members of AAUP.
In addition, Irvings challenged the University’s finding of alleged NCAA violations as a basis of just cause for the termination. Irvings stated, “UConn could not have based its discipline against Ollie on the NCAA findings because on March 10, 2018 (the date of Ollie’s termination), the NCAA proceeding was still in its investigatory stage.” He continued, “The NCAA did not proffer its Notice of Allegations until September 2018 and its decision was not issued until July 2019, about 16 months after the measuring date for the validity of UConn’s decision.”
The decision also stated that the NCAA proceedings are not relevant because the organization’s enforcement staff does not take testimony under oath and there is no cross-examination. “Cross-examination has long been recognized as an essential element of due process because it has the salutary effect of incentivizing witnesses to not make unsubstantiated or exaggerated claims.” Irvings further stated, “UConn’s dismissal of Kevin Ollie was predicated on an incomplete investigation, inadequate process, and ultimately a collection of unproven or minor, isolated infractions for which termination was far too severe a sanction.”
In response, the University stated that “it vigorously disagrees with the decision of the arbitrator and maintains without reservation that the decision to terminate Kevin Ollie when it did was the correct and appropriate decision.”
The University further stated it “could not continue to employ a head coach with the knowledge that he had violated NCAA rules that put student athletes, as well as the entire UConn athletics program, in jeopardy.”
The decision can be challenged by the University in federal court. However, the arbitration process is not constructed to encourage appeals of arbitrator decisions. Under federal law and most state laws, there are only a few, limited ways an arbitrator’s award can be challenged. Methods of challenge include a showing the award was a result of corruption or fraud or the arbitrator exhibited evident partiality or refused to consider evidence or otherwise displayed a complete disregard of the law.
