By Gary Chester, Senior Writer
Fans of college sports recognize that the relationship between a head coach and a school’s boosters can resemble a rocky marriage. When the team succeeds, the relationship seems blissful. When the team fails and the boosters want a new coach, it can resemble a bitter divorce.
A New Jersey case involving a frustrated high school baseball coach and a difficult booster club illustrates just how messy the split between coaches and high school boosters can be. In Illiano v. Wayne Hills Board of Education, 2024 U.S. Dist. LEXIS 28389 (D. N.J. February 20, 2024), the marriage between the coach and the boosters was on the rocks after just two months.
The Facts
The Wayne Hills High School (WHHS) baseball team was a program in flux, having employed five different managers from 2011 to 2017. Coming off an 11-16 season, WHHS hired an experienced New Jersey baseball coach, Scott Illiano, in November 2017. Illiano took the job even though he had learned that the team faced several issues, such as a miniscule budget of about $3,500 and a lack of assistant coaches—the team had two paid assistants while five “were required for proper supervision” of the student-athletes.
To address these concerns, Richard Portfido, the athletic director, and Superintendent Mark Toback told Illiano that he could fundraise. Portfido suggested that the coach coordinate with the booster club to raise funds for additional assistants and the purchase of essential equipment. Two months after Illiano was hired, he met with the booster club to pitch a 12-month plan to rejuvenate the baseball program.
Almost immediately after the meeting, Illiano experienced problems with the equipment-purchasing process and the booster club’s failure to follow its own by-laws and state law. The boosters allegedly undermined Illiano’s authority. The second amended complaint alleges that the booster club violated Wayne Board of Education (BOE) policies, executive orders issued by Governor Phil Murphy, and regulations promulgated by the New Jersey State Interscholastic Athletic Association. Alleged violations include: serving alcohol at a team banquet; delaying the purchase of equipment; rigging booster club elections; giving $100 gift cards to WHHS players; ignoring requests to pay assistant coaches; and holding mass gatherings during the COVID-19 pandemic.
The booster club was suspended in 2019 and again in 2020 after Illiano complained to Portfido. Each suspension was short-lived however, because the BOE lifted them. Thereafter, the boosters and members of the BOE allegedly retaliated against the coach by: (1) claiming he took monetary kickbacks, (2) accusing him of trying to improperly influence booster club elections, and (3) misrepresenting the contents of a book he wrote in 2011.
On January 19, 2021, WHHS terminated Illiano’s employment. Eleven months later, he filed a complaint in state court asserting these eight counts: (1) violation of 42 U.S.C. §1983; (2) violation of the New Jersey Conscientious Employee Protection Act (CEPA); (3) wrongful termination; (4) First Amendment Retaliation; (5) civil conspiracy; (6) tortious interference with economic advantage; (7) portraying the plaintiff in a false light; and (8) defamation. The named defendants were the BOE, the Wayne Hills Booster Club, BOE member Michael Bubba, three booster club officers, and three school officials or employees.
The Motion to Dismiss
On January 10, 2022, the defendants removed the action to U.S. District Court in Newark, where motions to dismiss the complaint were heard by Judge Susan Wigenton. The court dismissed the claims brought against one individual defendant and then considered the CEPA claim against the BOE and others. The defendants argued that because Illiano failed to report the alleged misconduct to his employer, he did not allege a prima facie CEPA claim.
To state a claim under the CEPA, a plaintiff must allege that: (1) he reasonably believed defendants were violating a law, rule, or public policy; (2) he performed a whistleblowing activity as defined by N.J. Stat. Ann. § 34:19-3; (3) an adverse employment action was taken against him; and (4) a causal relationship exists between the whistleblowing activity and the adverse employment action. The statute defines “employer” as: “[A]ny individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent…”
The court denied the motion because Illiano adequately pleaded that the Club and some of its members acted as agents for the BOE and retaliated against him.
The BOE’s motion to dismiss the third count (wrongful termination) was denied because the BOE allegedly failed to comply with its own policies governing boosters and “its own decision to terminate Plaintiff for blowing the whistle on that alleged dereliction of duty, is undoubtedly a violation of a clear mandate of public policy.”
The court denied the motion filed by the school’s principal and assistant principal on the fourth count (First Amendment retaliation). The plaintiff sufficiently alleged that they terminated him in part due to his complaints of misconduct and a book he wrote in 2011—both of which are protected speech.
To state a claim for tortious interference with prospective economic advantage against a member of the BOE and two other individuals in count six, Illiano needed to allege that: (1) he had reasonable economic expectations; (2) there was intentional interference by the defendants; (3) he probably would have realized the economic advantages absent the interference; and (4) the interference caused the damage. Though acts committed within the scope of employment with the BOE are protected, the court denied the motion because the alleged facts suggest that the acts were outside the scope of employment.
The court dismissed the seventh count (false light) as to the named board member because the one-year statute of limitations had expired. Dismissal was granted to three booster club defendants as to their comments regarding the plaintiff’s book because they were not made public; however, the defendants’ motion was denied as to their alleged intentional and offensive statements that Illiano had received kickbacks and interfered in the Club’s election. Judge Wigenton denied the defendants’ motions to dismiss the defamation claim on similar grounds.
Finally, the court ruled that the fifth count (civil conspiracy) could proceed against four individual boosters. To state a claim for conspiracy under New Jersey law, a plaintiff must plead these elements: (1) a combination of two or more persons; (2) a real agreement or confederation with a common design; (3) the existence of an unlawful purpose, and (4) proof of special damages. The plaintiff has adequately alleged that defendant Michael Bubba, while acting outside his employment with the BOE, conspired with three other defendants to tortiously interfere with Illiano’s employment.
The Epilogue
Illiano turned his team’s fortunes around, leading Wayne Hills to winning seasons in 2018, 2019, and 2020. He was replaced by Rob Carcich, who reportedly moved on after three seasons. Ironically, Illiano is reportedly working with a business that organizes fundraisers for interscholastic sports teams. Needless to say, the Wayne Hills High School baseball team is not listed on the business’ website as a client.
