By Robert J. Romano, JD LLM, Sports Law Professor at St. John’s University
In May of 2021, former University of Cincinnati Men’s Basketball Coach John Brannen, filed a lawsuit against the University, Director of Athletics John Cunningham, and President Neville Pinto, in Federal District Court, Southern District of Ohio. As per his complaint, Coach Brannen claims the defendants deprived him of his constitutionally protected procedural and substantive due process rights by terminating him “for cause” without properly notifying him or allowing a hearing on the issues involved, which, he alleges, is a violation of 42 U.S.C. § 1983, together with the Fifth and Fourteenth Amendments to the United States Constitution.
Specifically, Coach Brannen contends that his suspension and subsequent release by the University were the “result of a sham ‘investigation’ that was unfair, unreliable, and inherently flawed and nothing more than a smokescreen to avoid triggering a contractual buyout clause that would have cost the University millions of dollars.” In addition, Brannen claims the “defendants not only intentionally failed and refused to provide Coach Brannen adequate notice of the allegations against him, but also denied (him) a meaningful opportunity to rebut those charges, formally respond to any allegations, and otherwise clear his name before the results of the incomplete ‘investigation’ were published and his employment was terminated ‘for cause’ via a letter purporting to summarize the findings of such ‘investigation.’” It is important to note here that Coach Brannen’s liquidated damage buyout is estimated to be worth more than $5 million.
Per his lawsuit, the former coach is requesting that the court award him compensatory and punitive damages, attorneys’ fees, and interestingly, to compel the University to give him the opportunity to publicly clear his name during a broadcasted press event.
On August 27, 2021, the defendants, per both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), filed a motion to dismiss the Coach’s complaint in its entirety. The defendants assert that the lawsuit should be dismissed per Federal Rule 12(b)(6) since the University of Cincinnati is not a ‘person’ as defined under Section 1983. It is the defendants’ argument that under Section 1983, an individual who suffers a constitutional deprivation can only sue a ‘person’ who caused it, not either the state or a state entity. Therefore, since the University of Cincinnati is a public institution, it is therefore a state entity and not a ‘person’ as defined under § 1983, and as a result, “a claim against it under this section cannot be asserted for money damages.”
In addition, the University of Cincinnati and its two co-defendants contend that Federal Rule 12(b)(1) requires the court to dismiss Coach Brannen’s complaint since subject matter jurisdiction is missing in this case, because, as a governmental entity (state university), it enjoys the benefits of immunity as guaranteed under the Eleventh Amendment.
The doctrine of sovereign immunity shields the government and government officials sued in their individual capacity from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The doctrine balances two important interests – “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”A defendant is entitled to immunity from suit unless a plaintiff can establish two elements: (1) that the defendant violated a constitutional right; and (2) that the right at issue was “clearly established” at the time of the defendant’s alleged misconduct.”
It is the defendants’ contention that Coach Brannan’s lawsuit fails to establish either, and therefore, since his suit is premised on harassment and distractions, and not solely on liability, he failed to satisfy his burden to show that governmental immunity is not appropriate in this matter and its motion to dismiss under Federal Rule 12(b)(1) is appropriate.
University of Cincinnati Athletic, Director Cunningham, recently stated that the decision to terminate Coach Brannen was a “decision to move in a new direction” and that the University “is acting in the best interests of its student athletes . . .”. But let’s be real here, this case is in no way about the University moving forward or the best interest of its student-athletes, it’s all about money. Specifically, the liquidated damage amount of $5 million.
And that’s a lot of bearcats.
 Case: 1:21-cv-00347-MWM.
 Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002).
 Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000). “Lack of subject matter jurisdiction is a non-waivable, fatal defect.” Coley v. State of Ohio Dep’t of Rehab., No. 2:16-CV-258, 2016 WL 5122559, at *2 (S.D. Ohio Sept. 21, 2016).
 See Harlow v. Fitzgerald,457 U.S. 800, 818 (1982); accord Bishop v. Hackel, 636 F.3d 757, 765(6th Cir. 2011).
 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
 Bailey v. City of Port Huron, 507 F.3d 364, 366 (6th Cir. 2007).