By Dr. Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
On November 14, 2022, former University of Albany men’s basketball player, Luke Fizulich, filed a federal lawsuit in the U.S. District Court, Northern District of New York, against the school’s head men’s basketball coach, Dwayne Killings, the University, and its athletic director, Mark Benson. Per his four-count complaint, Fizulich alleges the civil causes of action of Assault and Battery and Tortious Interference with Contract against Coach Killings, and that the University’s acts amounted to both a Breach of Contract and a violation of his rights as guaranteed under Title VI of the Civil Rights Act.[1]
The gravamen of Fizulich’s lawsuit centers around Coach Killings’ actions before an away game against Eastern Illinois University on November 24, 2021. At such time, Fizulich claims that the head men’s basketball coach, upon entering the team’s locker room, singled him out and without warning or provocation, grabbed him and threw him against a locker before striking him in the face.[2] Fizulich asserts that the contact was forceful enough that it “drew blood and caused one of the stitches in his lip to bust open.”[3]
Coach Killings, who by all accounts acknowledged the incident, purportedly engaged in such an aggressive manner because he wanted his team to “play angry”.[4] The actions of Coach Killings were witnessed by other coaches, players, and staff members, none of whom reported the incident to the school’s administration, an omission Fizulich asserts constitutes a violation of SUNY’s zero tolerance Violence Prevention Program.[5] Interestingly, Fizulich himself did not report the assault until three months later, February 27, 2022, because he was fearful of both the “locker room culture” and “of losing a promised athletic scholarship for the next two years.”[6]
Despite finally receiving notice of the assault in late February 2022, the University’s administration did not begin to investigate, allowing Coach Killings to coach the final two games, until after the season ended on March 9, 2022. Upon the completion of its inquiry, Fizulich contends that the University found that Coach Killings committed a “violent assault on Fizulich” and that he also breached the school’s and SUNY’s anti-violence policy by “failing to timely report the assault.”[7] As a result of its findings, Fizulich claims that the athletic director, Mark Benson, was authorized by the school’s administration to terminate Coach Killings employment with the University as of March 27, 2022.[8] However, the decision to dismiss Coach Killings was reversed on April 1, 2022, and in lieu of such, a five-game suspension and a $25,000 fine was imposed instead. Fizulich alleges that the University changed its position because “racial pressure” was applied by local business and civil rights leaders that were “rallied up by the public relations firm Killings hired to help him fight the termination.”[9]
Of the four causes of action raised by Fizulich in his civil lawsuit, the violation of Title VI of the Civil Rights Act may be the most noteworthy, if not the most controversial. Title VI provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[10] To successfully prove a Title VI claim, Fizulich will have to show that the University discriminated on a prohibited basis, that the discrimination was intentional, and that the discrimination was a substantial or motivating factor for the University’s actions.[11]
Stuart Bernstein, an attorney retained to represent Fizulich, outlined how he will prove the federal claim in a statement he made after filing the lawsuit: “Once SUNY Albany reversed their decision to terminate Coach Killings, they placed the victim of the assault at great risk of harm and retaliation by the coach and others. As a result, Mr. Fizulich, the victim, was blacklisted at other schools and has been unsuccessful in his endeavor to find another school with a basketball program that would allow him on their team.”[12]
In other words, Fizulich’s attorney claims that the University, upon reversing its decision to terminate Coach Killings, failed to protect his client, the victim of a violent assault, and instead showed preferential treatment to the assaulter on the bases of the assaulter’s race. In addition, his client has been denied the benefit of participating in college basketball because upon seeking to transfer to another institution, due to media attention surrounding the incident and the allegation that Coach Killings has “blacklisted” him, all opportunities pursued by Fizulich to showcase his talents elsewhere have been unsuccessful.
In the end, any assault by a coach upon an athlete is unacceptable and in no way can be tolerated by a school’s administration. Any incident involving violence inflicted upon a young player must be immediately reported to the administration and the administration needs to take the appropriate action to safeguard the athlete first, and the reputation of the coach and athletic department second. If not, that University may find itself in a situation where a student-athlete, like in this case, may attempt to collect both compensatory and punitive damages related to that athlete’s “emotional and psychological well-being, damages to reputation, loss of educational and athletic opportunities, future economic losses and loss of future career prospects.”[13]
[1] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22.
[2] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 2.
[3] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 8.
[4] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 2.
[5] Id, and the State University of New York (SUNY) is the largest comprehensive university system in the United States consisting of 64 institutions – which the University of Albany is a part of.
[6] https://marquettewire.org/4088061/sports/former-mens-basketball-assistant-coach-dwayne-killing-being-sued-by-former-marquette-player/
[7] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 2.
[8] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 9.
[9] https://marquettewire.org/4088061/sports/former-mens-basketball-assistant-coach-dwayne-killing-being-sued-by-former-marquette-player/
[10] 42 U.S.C 2000d.
[11] Bibliotechnical Athenaeum vs. American University of Beirut, 527 F. Supp. 3d 625.
[12] https://marquettewire.org/4088061/sports/former-mens-basketball-assistant-coach-dwayne-killing-being-sued-by-former-marquette-player/
[13] Case 1:22-cv-01190 DNH-DJS Document 1 Filed 11/14/22, page 18.
