Coach’s argument that Athletic Programs Lack Immunity Fails

Nov 18, 2005

A federal judge in the Eastern District of Kentucky has granted the University of
Hawaii’s motion to dismiss in a case where a former coach sued the university for breach of contract.
Specifically, plaintiff Wallace G. English claimed that the university wasn’t protected by immunity since the lawsuit stemmed from the operation of the school’s football program, which is “a commercial activity . . . [and] big business.”
In February 1997, University of Hawaii head football coach Fred Von Appen offered English a job as an assistant football coach. After reaching an oral agreement, the two parties signed a written contract for a one-year term of employment lasting from April 1, 1997 to March 31, 1998. The plaintiff coached for a year at Hawaii, and in February of 1998, he was notified that his employment would be terminated at the end of his written contract.
English alleged that the contract was really for a two-year term. Thus, the Kentucky native sued in federal court, alleging jurisdiction based on diversity of citizenship. The plaintiff sought $ 90,000 in damages for lost salary and reimbursement for other costs incurred on the job in Hawaii.
On August 22, 2005, the university moved to dismiss the claim, arguing that under the Eleventh Amendment, the court lacks subject matter jurisdiction. The plaintiff countered that the protection of the Eleventh Amendment does not extend to suits arising out of a college football program.
In its analysis, the court wrote that “although immunity for state-funded universities depends on the facts of each case, they generally are considered arms of the state, protected from suit in federal court by the Eleventh Amendment. See, e.g., Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-31 (1997); Robinson v. Univ. of Akron Sch. of Law, 307 F.3d 409, 412-13 (6th Cir. 2002). In the only recent case considering the University of Hawaii’s entitlement to Eleventh Amendment protection, the United States District Court for Hawaii examined the structure of the University and concluded that the University was an arm of the state for purposes of the Eleventh Amendment. See Mukaida v. Univ. of Haw., 159 F. Supp. 2d 1211, 1221-22 (D. Haw. 2001), aff’d, 85 Fed. App. 631 (9th Cir. 2004). Plaintiff does not dispute the findings in that case, nor does he contest that in general the University of Hawaii is covered.”
However, it pointed out, the plaintiff’s argument, “is that the protection of the Eleventh Amendment should not extend to civil actions arising out of the operation of the school’s football program. In contrast to the University generally, whose purpose is governmental, Plaintiff asserts that the football program is ‘a commercial activity . . . [and] big business.’ Id.
“Plaintiff cites no case law supporting a distinction between suing a state college or university over its educational activities and suing it over its athletic program. In fact, a search of the case law reveals many cases in which courts have held that the Eleventh Amendment bars suits against state-funded universities arising out of athletic programs. For example, in Graham v. NCAA, 804 F.2d 953 (6th Cir. 1986), two former University of Louisville football players brought a § 1983 action against the school, the football coach, and the athletic director, alleging that they had been improperly dismissed from the team, and that the athletic department had not properly processed their paperwork when they tried to transfer to other schools. The Sixth Circuit held that their claims against the university, the coach, and the athletic director were barred by the Eleventh Amendment. See id. at 959-60.”
“Many other courts have held the same. See, e.g., Karmanos v. Baker, 816 F.2d 258, 259 n.2 (6th Cir. 1987) (dismissing § 1983 action against university athletic director brought by hockey player declared ineligible to play); Smith v. Plati, 258 F.3d 1167, 1171 (10th Cir. 2001) (affirming dismissal of free speech suit brought against university and assistant athletic director by fan-website operator); Davis v. Kent State Univ., 928 F. Supp. 729, 732 (N.D. Ohio 1996) (dismissing race discrimination suit brought by former college gymnast against university and gymnastics coach); Adams v. Kansas State Univ., 27 F. Supp. 2d 469, 471-72 (S.D.N.Y. 1998) (dismissing breach of contract claims against university and coaches by track athlete who lost scholarship after being declared academically ineligible); Braswell v. Bd. of Regents, 369 F. Supp. 2d 1371, 1375-76 (N.D. Ga. 2005) (dismissing religious discrimination suit brought by former cheerleading coach against athletic director and other university officials).”
The court concluded that it could find “no contrary authority. Therefore, Plaintiff’s argument that suits arising out of athletic programs should be treated differently than other suits against state-funded universities is unpersuasive.”
Wallace G. English v. University Of Hawaii; E.D.Ky.; Civil Action No. 3:04-7-JMH
Attorneys of Record: (for Plaintiff) George R. Carter, Louisville, KY. (for Defendant)
Quang D. Nguyen of Boehl, Stopher & Graves in Louisville KY and Richard W. Edwards of, Boehl, Stopher & Graves in Louisville, KY.


Articles in Current Issue