Athlete’s First Amendment Claim Survives To Argue Another Day

Mar 22, 2024

By Jeff Birren, Senior Writer

A college baseball player sued his former head coach alleging that the coach took retaliatory actions after he exercised First Amendment rights to complain to the athletic director about the coach’s behavior. The defendant-coach filed a motion to dismiss, asserting that there was no violation as pled. The District Court disagreed (Peyton v. Kuhn, W. D. Va., No. 7:23-cv-209(12-4-2023)).

Undeniable Facts

Radford University is a public school in Radford, Virginia. Radford has a student acceptance rate of 93%. It fields sixteen athletic teams. In 2020, Radford hired Karl Kuhn as its baseball coach. His record there was 47-64. Kuhn is currently the pitching coach for Charleston Southern. Plaintiff Jordan Peyton attended Radford during the 2020-2021 academic year. He is African-American. Peyton played only once for Radford. On April 23, 2021, he played the last six innings of the year’s final game. After the season he transferred to another college.

Peyton filed his eleven-page Complaint as “John Doe” on April 4, 2023. He sued Kuhn and athletic director Robert Lineburg. It asserted a single cause of action under 42 U.S.C. Section 1983 for deprivation of rights secured by the Constitution via the Fourteenth Amendment. Peyton claims to have exercised his right of free speech at a public institution and Kuhn retaliated against him for doing so.

The Alleged Facts

The Complaint alleges that Kuhn acted “in retaliation for leading a group of players to complain about his season-long verbal abuse, indifference to players’ mental and physical health and racial animus” to “Doe and his teammates.” A prior coach at Radford offered “Doe an athletic scholarship to pay 50% of his tuition at Radford University in exchange for joining the baseball team.”  Doe accepted and enrolled at Radford in 2020. Kuhn assigned the lockers and “minority players were grouped together.” “Doe”, an “African-American”, was “assigned next to four other black or biracial players” and this “was evident”. Kuhn “told all minority players” that they would need to get their haircut prior to team pictures. None of the “white players were told to get haircuts.” The players were not allowed to “attend a racial justice rally on campus.” Kuhn helped white players find summer jobs but “declined to assist Doe.”

            Kuhn later told Doe to get off acne medication and said if “you like cutting off your head with a pair of scissors, let me know.” Doe reported the incident. As a result, Kuhn called “Doe into his office to begin grilling him about whether he made a complaint to the [U]niversity.” In the middle of a game, Kuhn told Doe, “Do you see why I am a dick to you.” This led Doe’s parents to complain.  Kuhn told his parents to “disenroll him” from the school, and he “was too short to play major league baseball anyways.” 

            Doe’s parents complained again. During a game, Kuhn “screamed these parents want me fired.” Four days later, Kuhn told Doe that he was not on the active roster. Doe and his parents next met with an assistant athletic director, who “assured” them “that there would be no retaliation for raising their concerns.”  Two days later Doe “was not permitted to get live at-bat practice” and was not allowed to travel with the team. In early April, an assistant athletic director met with Doe and his parents to discuss allowing Doe to sit out the year in order to preserve a year of eligibility.

            Thirteen players subsequently took their complaints to Lineburg on April 21, 2021. The players were told the meeting would be kept in confidence. Two days later Lineburg told the players that the school supported Kuhn and there would be no investigation. That same day, Kuhn told Doe “You thought you were going to get me fired, but I’m not going anywhere.” That same day, Kuhn ordered Doe to play the last six innings of the season’s final game, depriving him of the ability to save a year of eligibility. He then cut Doe, who consequently lost his scholarship. He also cut another African-American player.

            Doe transferred but did not secure a scholarship. This cost him “approximately $100,000” in order “to complete his education elsewhere.” Kuhn retaliated when Doe sought help “from the University to intervene and uphold the policies it promised.”

            The single cause of action states that Doe’s conduct was protected by the First Amendment, and both Kuhn and Lineburg retaliated against him for exercising these rights “under color of state law.” The Complaint seeks compensatory damages, punitive damages, nominal damages, reasonable costs and expenses, declaratory relief that Kuhn and Lineburg violated the First and Fourteenth Amendment, a permanent injunction ordering them to undergo training, to cooperate with Doe in his petition to the NCAA to regain the lost year of eligibility, and to take no adverse action against him “based on any exercise of his First Amendment”, plus “any other relief Doe is entitled to.” 

Procedural History

For such a relatively young case, it has had twists and turns. The day the case was filed, “Doe” filed a motion to proceed “Under A Pseudonym by John Doe.” On May 8, 2023 “Doe” filed a motion of voluntary dismissal as to Lineburg. The same day Kuhn filed a first motion to dismiss, and the next day filed a corrected motion.

On June 26, 2023 the Court heard both Kuhn’s motion to dismiss and “Doe’s” motion to proceed under a pseudonym. Kuhn argued that he was already aware of Doe’s identity, and it would be grossly unfair to have “Doe” level these allegations “while Plaintiff walks away anonymously.”  The Court agreed: the requisite legal test “factors weigh against permitting Doe to proceed under a pseudonym” (Doe v. Kuhn, 2023 U.S. Dist. LEXIS 126300 ((7-20-2023)).

“John Doe” filed an amended complaint with his “True Name.” Consequently, the Court denied as moot the motion to dismiss based on the use of a pseudonym. Peyton’s counsel made an oral motion to terminate the representation. That was granted and Peyton was ordered to retain counsel or to proceed pro se. New counsel appeared. According to the Roanoke Times, Kuhn resigned from Radford in 2022, after it reported that he was being investigated by the Human Resources Department and Office of Institutional Equity (“Former Radford U. Baseball Player Sues Coach, AD Over ‘Retaliation’”, Paul Steinbach, Roanoke Times (4-14-2023)). That led to an order concerning the handling of Kuhn’s separation agreement during discovery. Kuhn then filed a new motion to dismiss. After it was fully briefed, Chief Judge Michael Urbanski ruled without oral argument.

The Ruling

The Court recited many of the factual allegations described above as it had in the prior ruling concerning Peyton’s attempt to proceed anonymously. When considering a motion to dismiss, a court must accept as true all of the complaint’s factual allegations. Such a motion tests “the sufficiency of the complaint,” but not the merits of the claim “or the applicability of defenses.” It does not decide if the plaintiff will prevail, “but whether the claimant is entitled to offer evidence to support its claims.”

            The First Amendment “prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” In the prior ruling, the Court stated that “the action is against an individual in his capacity as a state actor” and thus there was no argument that the First Amendment bar against retaliation did not apply.

            Peyton faced a three-part test. First, he had to allege facts supporting a reasonable inference that he had engaged in protected First Amendment activity. Second, that Kuhn took some act that adversely affected Peyton’s First Amendment rights, and finally that there was a causal relationship between the protected activity and Kuhn’s conduct. Kuhn argued that Peyton “failed to meet the second and third prongs” of the test.

Adverse Action

The Court cut to the chase: “Peyton has alleged facts sufficient to support a reasonable inference that Kuhn’s actions adversely affected Peyton’s [F]irst [A]mendment rights.” The test was whether the “challenged conduct” would likely deter a “person of ordinary firmness from the exercise of those rights.”  Kuhn argued that inserting Peyton into the last six innings of the season, thereby causing him to lose a year of eligibility, did not meet the test. “Even if this is true, Peyton also alleges that Kuhn cut him from the team and caused him to lose his scholarship.”

The Court quoted a case wherein amember of Virginia Tech’s soccer team refused to kneel during the reading of a pre-game unity statement. The coach publicly chastised her, removed her from the starting lineup and reduced her playing time. This “would tend to chill a person of reasonable firmness from exercising First Amendment rights” and “‘would certainly have an effect on college athletes generally, especially those who rely on scholarships to offset (or cover) their academic expenses’” (Hening v. Adair, 644 F. Supp. 3d 203, 206 (W.D. Va. 2022). Kuhn’s action “is a more severe adverse action than the deeds in Hening.”Consequently, “Peyton has alleged sufficient facts to meet the adverse action prong.”

Causal Relationship

“[T]his element is difficult to satisfy.” A plaintiff must show that the adverse action would not have been taken “absent the retaliatory motive.” Kuhn asserted that the Complaint did not plead that he was aware of the April 21, 2021, meeting or that Peyton was a participant in the meeting. “This argument fails for two reasons.” The pled facts “permit the reasonable inference that he was aware of the meeting” and it “also alleges a series of complaints by Peyton followed by negative effects. Each time Peyton lodged a complaint, he was questioned by Kuhn and singled out for apparently punitive action.” After one such meeting, “Kuhn called Peyton into his office to begin grilling him whether he had made a complaint to the [U]niversity.” 

The Court referenced several other instances pled in the Complaint. “Taken together, the cadences and temporal proximity of these events suggests—at least for the motion to dismiss stage—that Peyton’s multiple complaints about Kuhn caused Kuhn to cut him for the team.” It quoted two cases based on adverse action taken shortly after learning of the protected activity, Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017), and Flanagan v. Scearce, No. 7:19-CV-00413, 2021 U.S. Dist. LEXIS 180353 (W.D. Va. Sept. 22, 2021)).


Discovery will include all of Radford’s records related to any of the alleged meetings or complaints by other players against Kuhn, the team’s playing, practice, and travel records, Kuhn’s separation agreement, and the HR Department’s investigation file. Lineburg, the HR department, Peyton’s parents, and all of the players that participated in the meetings will be deposed if they are conveniently located. Kuhn will undoubtedly file a summary judgment motion. Trial is currently scheduled to begin on April 29, 2025.

Until then, Lineburg will be under the judicial microscope. Did he discuss the complaints with to Kuhn?  Those conversations seemingly led to retaliation. Why did he state on April 23 that there would be no investigation?  Did Lineburg inform HR about the complaints? If not, why not, and if he did, when, and where was the HR Department? If the allegations are true, Kuhn’s description of his behavior is understated.

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