By Gary Chester, Senior Writer
In the October 6, 2023 issue of the Sports Litigation Alert, we reported that former University of Arizona assistant football coach Theron Aych had sued the university, its athletic director, and other defendants for improperly terminating him. Aych alleged that the athletic director or others distributed the team’s playbook to opposing teams in order to destroy the tenure of head coach Kevin Sumlin, who is black. Sumlin was fired just five games into the 2020 season and his staff was fired when the season ended.
Aych, who is also black, alleged that the university had distributed the team’s playbook to UCLA, Cal, and other opposing teams “to compromise the credibility” of its coaches and make them “look bad during games.” The motivation of the athletic director, Dave Heeke, was to have good cause to fire Sumlin and hire his friend, Jedd Fisch. Aych alleged that the NCAA and the Pac-12 Conference permitted unfair competition amongst schools in order to diminish the reputation of Aych and other black coaches in violation of 42 U.S.C. § 1981. He also alleged that Heeke and others violated the Racketeer Influenced and Corrupt Organizations Act (RICO – 18 U.S.C. §§ 1961-1968) by engaging in a common scheme to transfer Sumlin’s playbook for unlawful purposes.
The unprecedented lawsuit came to an end, however, on July 5, 2024 when U.S. District Judge Otis D. Wright, II, granted the defendants’ motion to dismiss. Aych v. University of Arizona, et al., No. 2:23-cv-07282 (C.D. Cal., July 5, 2024).
The Hand-Off
After AD Heeke hired Fisch as head coach, Fisch promptly hired Jimmie Dougherty as his lead assistant. Fisch and Dougherty had previously coached together at UCLA and Michigan. On Dougherty’s first day on the job in Tucson, he handed a thumb drive to a staff member with instructions to update the file’s drives with the Arizona Wildcats logo. The staffer found Sumlin’s playbook and other University of Arizona documents in Dougherty’s files.
Aych alleged that the presence of the Arizona playbook in the files of one who was an assistant coach at UCLA was no accident. In addition to citing RICO and the Sherman Antitrust Act (unfair competition), Aych pleaded negligent interference with economic advantage, common law fraud, and defamation. Aych claimed that the defendants’ conduct harmed his reputation “by putting his character, work ethic and ability to successfully coach into question …” He claimed that Arizona terminated the coaching staff under the pretense of ineffective coaching so it could hide the actual, improper motives.
The Jurisdictional Grounds for Dismissal
The defendants based their motions to dismiss the complaint on Federal Rules of Civil Procedure 8, 9, 12(b)(1), 12(b)(2), and 12(b)(6). First, the court dismissed the claims against UCLA and the Pac-12 Conference without prejudice because Aych failed to serve the defendants with the complaint and a summons within the required 90 days. Although Aych filed a late, incomplete response to the motions, Judge Wright fully considered all of the legal issues.
The court observed that the Eleventh Amendment bars suits which seek relief against a state, including its public universities and their employees acting in their official capacities. The Eleventh Amendment does not, however, bar suits seeking damages against public university employees in their individual capacities. Judge Wright found that the proper defendant was the Arizona Board of Regents, rather than the university. He held that both entities were entitled to immunity under the Eleventh Amendment.
Since Aych sued the individual defendants in their individual capacities, sovereign immunity did not apply to them. The jurisdictional issue pertaining to the individuals was whether they were subject to personal jurisdiction in California; they argued that they are not domiciled in California and have not availed themselves of the benefits of conducting business in the state, and that RICO does not establish personal jurisdiction over them.
The court found that California has no personal jurisdiction over the individual defendants because they are not domiciled in or have continuous contacts with the state. Nor did they conduct business in the state, since the individual who allegedly distributed the playbook to UCLA and Cal was not necessarily in California. In addition, the alleged harmful effects of distributing the playbook―the termination of Arizona’s coaches―took place in Arizona.
The court also held that RICO did not establish personal jurisdiction over the defendants in California. Judge Wright rejected the argument that because the individuals were allegedly part of a nationwide conspiracy (the playbook was allegedly sent to opponents throughout the Pac-12), they should be subject to personal jurisdiction in California under 18 U.S.C. § 1965(a), which provides: “(a) Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.”
The court further noted that “there is another district in which the court would have personal jurisdiction over all of the alleged co-conspirators―Arizona.” The complaint was dismissed with prejudice as to the university and its board of regents, and without prejudice as to the individual defendants. Judge Wright indicated that he would issue a separate opinion on the NCAA’s motion to dismiss.
As Matters Stand…
Regardless of the questionable circumstances surrounding his hiring, Fisch returned Arizona football to respectability, leading the Wildcats to a 10-3 season in 2023. Fisch then left with two years remaining on his contract, signing as head coach at Washington with a higher annual salary of $7.75 million.
Assistant coach Jimmie Dougherty left with Fisch for Washington, where he is the quarterbacks coach.
AD Heeke was fired shortly after Fisch’s departure, reportedly for “financial and operational mismanagement” and the mishandling of Fisch’s proposed contract extension. On February 19, 2024, Arizona named Desireé Reed-Francois as athletic director. Reed-Francois is the first woman to hold the full-time position at Arizona.
Aych has been a wide receivers coach at UTEP since February 2021. Regardless of whether Aych were to re-file the complaint in Arizona, an NCAA or other independent investigation into his allegations of misconduct would seem appropriate.
