A federal judge has granted summary judgment to the University of Vermont (UVM) in a case in which the school was sued by a student athlete for breach of contract and Constitutional violations after he was kicked off the men’s ice hockey team.
The court found that the NCAA rule prohibiting multi-year contracts effectively undermined the breach of contract claim, while the plaintiff’s failure to avail himself of the appellate process crippled his due process claim.
Plaintiff Gervais Milo enrolled at UVM in the fall of 2007 after transferring from Cornell University, where he played one season each for the varsity men’s ice hockey and baseball programs.
Because of NCAA transfer rules, Milo was required to “redshirt” his first hockey season at UVM (2007-08), and only practiced with the team. “Milo received a generally favorable player evaluation, although his coaches noted a tendency to react in frustration,” wrote the court. In the spring of 2008 Milo played baseball for UVM. In the fall of 2008, Milo was permitted to dress for games as a member of the men’s ice hockey team.
In the 2008-09 season, Milo was named an All-Tournament honoree in UVM’s Catamount Cup tournament, the men’s ice hockey team reached the NCAA Frozen Four Tournament, and Milo was the team’s third leading scorer. Milo also played baseball for UVM that spring.
Twice during the 2008-09 season Milo’s father, Michael Milo, requested scholarship money for his son for the 2009-10 season. Coach Kevin Sneddon responded that he intended to reserve scholarship money for Milo for the 2009-10 and 2010-11 seasons, although he wouldn’t know the exact amount until later in 2009. On May 30, 2009, Coach Sneddon wrote in a letter to the Milos: “I am honored to be in a position to offer you an athletic scholarship for the next two years.” The letter stated further that the scholarship would provide 40% of tuition/room/board/books/fees for the 2009-10 season and a full athletic scholarship for the 2010-11 season. Coach Sneddon also referred the Milos to NCAA Bylaw 15.3.3, which provides that scholarships may not be awarded for a period greater than one year.
They also received a letter from the director of student financial services, which stated that to receive the money, Milos must carry a minimum of 12 credit hours per semester and that “the award was made for the year specified and that renewal was not automatic,” according to the court.
While the plaintiff continued his stellar play on the ice, the relationship with Coach Sneddon soured, leading the coach, ultimately, to dismiss Milos from the team.
On February 18, 2010, Michael Milo emailed Assistant Coach John Micheletto a purported chronology of events regarding the dismissal, and sought confirmation of his facts. He added “I presume Justin’s scholarship for 2010-11 will be honored. If that is not your intention, please let me know that too.”
Milo graduated from UVM in May 2010. Between the time of his dismissal from the team and his graduation he took no steps to secure a 12-credit course load for fall 2010. During the summer he did not contact UVM about possible enrollment in any graduate programs for the 2010-11 academic year, nor did he contact the UVM coaches about returning to the team for a final year. Nevertheless, on August 2, 2010, Michael Milo emailed Dr. Corran that he presumed Justin Milo’s scholarship for the 2010-2011 academic year would be honored.
In response to the email, UVM sent Justin Milo written notification of the nonrenewal of his athletic-based financial aid on August 4, 2010.
Milo would ultimately sue, claiming that UVM “(1) breached his contract for an athletic-based financial aid scholarship for the 2010-2011 academic year; (2) by its conduct breached an implied covenant of good faith and fair dealing; and (3) deprived him of a liberty interest and due process when it dismissed him from the team.” In addition, he alleged that UVM failed to properly supervise … Sneddon, and that Sneddon defamed him.”
UVM moved for summary judgment.
On the breach of contract claim related to the student-athlete code of conduct, the court found for the school, noting that the code “accords an appeal right.”
Specifically, “Milo was on notice that he could appeal a dismissal from the team and did not attempt to do so. He argues now that attempting to appeal the decision would have been futile, but his speculation does not form the basis for a complaint that UVM breached contractual requirements.”
The court next turned to the breach of contract claim, based on the nonrenewal of the athletic scholarship. Standing in the way of the plaintiff’s argument was the NCAA rule prohibiting multi-year scholarships.
“(Milo) has not explained why the rule against multiple year awards should not apply to him, nor has he argued that he was unaware of the rule,” wrote the court.
Next, the court considered Milo’s allegation “that UVM breached the covenant of good faith and fair dealing implied in all contracts when Coach Sneddon dismissed Milo from the men’s ice hockey team and UVM did not renew his athletic scholarship.”
The court, in granting summary judgment to UVM on this claim, noted that Milo “has not pointed to any specific conduct from which a reasonable jury could conclude that UVM undermined or destroyed his rights under a contract. Milo was shocked by his dismissal from the team, and believes that the decision lacked justification, but he does not supply facts that could support a finding of bad faith or wrongdoing.”
The court then reviewed Milo’s claim, pursuant to § 1983, that his “dismissal from the UVM hockey team without notice or hearing deprived him of due process rights secured by the Fourteenth Amendment of the United States Constitution.”
The court continued: “Assuming for the sake of argument that he had a constitutionally protected property interest in playing on the hockey team, Milo’s procedural due process claim founders because Milo failed to avail himself of the process provided for challenging a dismissal from the team.
“ … Milo, on notice of his appeal rights, failed to attempt to appeal his dismissal. Although Milo has produced some evidence that school officials did not believe he was entitled to due process protection in connection with his dismissal from the team, he has pointed to no evidence indicating that this belief was communicated to him within the time frame provided for the appeal, or that he was otherwise prevented or discouraged from appealing. On these undisputed facts, Milo cannot show that he was denied due process.”
Justin Gervais Milo v. University of Vermont and Kevin Sneddon; D. Vt.; Case No. 2:12-cv-124, 2013 U.S. Dist. LEXIS 123682; 8/29/13
Attorneys of Record: (for plaintiff) Pietro J. Lynn , Esq., Lynn, Lynn & blackman, P.C., Burlington, VT. (for defendant) Jeffrey J. Nolan , Esq., William A. MacIlwaine , Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT; Thomas D. Mercurio , Esq., UVM, General Counsel Office, Burlington, VT.
