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Cohane v. National Collegiate Athletic Association

United States District Court, W.D. New York

March 27, 2014

TIMOTHY M. COHANE, Plaintiffs,
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, TOM HOSTY, STEPHANIE HANNAH and JACK FRIEDENTHAL, WILLIAM M. GREINER, President of the State University of New York at Buffalo, DENNIS BLACK, Vice President for Student Affairs, ROBERT ARKEILPANE, Athletic Director, WILLIAM MAHER, Compliance Director, ERIC EISENBERG, MID AMERICAN CONFERENCE, by its Commissioner, Richard Chryst, and ROBERT FOURNIER, Esq., Defendants.


WILLIAM M. SKRETNY, Chief District Judge.


In this consolidated action, Plaintiff, a former basketball coach at the State University of New York at Buffalo, seeks relief pursuant to 42 U.S.C. § 1983 for Defendants' alleged violations of his procedural and substantive due process rights. Plaintiff also asserts a claim under New York state law for tortious interference with contract. Presently before this Court are the objections of Plaintiff and Defendants Mid-American Conference and Robert Fournier (the "MAC Defendants") to the Honorable H. Kenneth Schroeder, Jr.'s August 8, 2013 Report, Recommendation and Order recommending that Defendants' summary judgment motions be granted and the complaints be dismissed.


Plaintiff commenced the initial action against the MAC Defendants and officials of the State University of New York at Buffalo on January 17, 2003 in the Eastern District of New York. (Docket No. 55-1 in 1:04-cv-943 ("SUNY Docket").) The matter was transferred to this Court in November 2004. Plaintiff filed a second action against the National Collegiate Athletic Association ("NCAA") and several NCAA employees in this Court on March 19, 2004. (Docket No. 1 in 1:04-cv-181 ("NCAA Docket").) In both actions, Plaintiff similarly accuses the MAC and NCAA Defendants of acting under the color of state law by jointly engaging with SUNY officials to violate Plaintiff's substantive and procedural due process rights as guaranteed by the Fourteenth Amendment. The MAC Defendants are further alleged to have tortiously interfered with Plaintiff's SUNY Buffalo employment contract and his subsequent resignation agreement.

These actions stem from investigations into Plaintiff's alleged violations of MAC and/or NCAA rules governing off-season practice, observation of practices or scrimmages with prospective student athletes, and scouting. MAC is a NCAA Division I-A athletic conference. (SUNY Docket No. 198 ¶¶ 9, 11.) SUNY Buffalo is a member of both MAC and the NCAA. (Id. ¶ 12; SUNY Docket No. 199-1 ¶¶ 8, 14.) MAC's Committee on Infractions ("MAC COI") is responsible for determining whether specific violations of NCAA and/or MAC rules have occurred with respect to both member institutions and individuals. (SUNY Docket No. 199-1 at 38.) The MAC COI does not have any direct authority to assess penalties against an individual staff member of a member institution; however, the committee does recommend appropriate disciplinary action. (SUNY Docket No. 198 ¶ 20.)

In 1999, SUNY Buffalo self-reported' alleged violations of NCAA rules by its men's basketball program to MAC. (SUNY Docket Nos. 198 ¶ 28; 210 ¶ 28.) As a result, Defendant Robert Fournier, MAC's Senior Associate Commissioner of Compliance at the time, conducted an on-campus investigation of the allegations that fall. (SUNY Docket Nos. 198 ¶¶ 25, 29-30; 210 ¶¶ 25, 29.) Defendants argue that Fournier conducted the investigation with mere administrative support provided by SUNY Buffalo. (SUNY Docket Nos. 198 ¶ 30; 255 ¶¶ 6-7.) In contrast, Plaintiff argues that Fournier conducted a joint investigation with SUNY, complete with SUNY officials participating in interviews and procuring inculpatory affidavits, with the goal of removing Plaintiff from his position as head coach. (SUNY Docket Nos. 210 ¶ 30; 261 at 87.)

On November 16, 1999, Defendant Fournier presented to SUNY Buffalo a report detailing 18 allegations of misconduct against the men's basketball program (the "MAC 18" report). (SUNY Docket No. 229-11 at 13-23.) Each allegation was followed by a description of the supporting evidence. SUNY Buffalo was afforded the opportunity to consider the allegations and either concur, offer modifications, or refute the allegations. (Id. at 13.)

On November 29, 1999, SUNY Buffalo informed Plaintiff that it was considering suspending him in connection with the alleged improprieties and conducted a hearing at which Plaintiff was represented by counsel and presented with a copy of the MAC 18 report. (SUNY Docket No. 196-5 at 2-3, 11-12.) During that hearing, Plaintiff was questioned regarding an allegation that was not included in the MAC 18 report, specifically that Mitch Gillam, a prospective assistant coach whom Plaintiff was precluded from hiring, was seen improperly scouting at a basketball game at another school. (Id. at 107-116.) Plaintiff denied that Gillam was acting on his behalf or ever provided him with scouting information. (Id. at 115-116.)

SUNY Buffalo accepted the findings in the MAC 18 report on December 1, 1999 and suspended Plaintiff that same day. (SUNY Docket Nos. 189-1 ¶ 91; 211 ¶ 91; 234-4 at 2; 261 at 58.) On December 3, 1999, Plaintiff and SUNY Buffalo entered into an agreement by which Plaintiff would resign and SUNY would pay him the remainder of his contract, the sum of $265, 000. (SUNY Docket No. 194 at 5-7.) The parties acknowledged in the agreement that Plaintiff retained the opportunity to provide a written response to MAC regarding the allegations in the MAC 18 report. (SUNY Docket No. 194 at 5-6.) A mutual general release was executed at that time in which Plaintiff waived all claims against SUNY Buffalo "existing as of or prior to the execution of this Memorandum of Understanding." (Id. at 8.) Plaintiff submitted a 30-page response to the MAC 18 report in a letter dated December 22, 1999. (SUNY Docket No. 196-6.) Plaintiff argued therein that much of the testimony relied upon came from student witnesses recruited by another coach, and he therefore offered affidavits from additional students in support of his objections. (See e.g. id. at 16, 18, )

In a December 22, 1999 letter, Fournier informed SUNY Buffalo of MAC's recommended corrective measures in light of the found infractions. (Docket No. 190 at 71-73.) Fournier identified SUNY's decision to accept Plaintiff's resignation and the additional staffing changes made by SUNY as important corrective measures, and further recommended 12 additional corrective measures, including the placement of the men's basketball program on probation. (Id.) SUNY Buffalo accepted these recommendations in their entirety. (SUNY Docket No. 238 at 12.)

SUNY Buffalo self-reported an additional allegation on January 3, 2000, specifically that "an individual closely associated with [the] men's basketball program[, Mitch Gillam, ] engaged in scouting activities with two future opponents." (Docket No. 241 at 41-42.) Sometime between receipt of the self-report and January 16, 2000, Fournier revised the MAC 18 report to including the scouting allegation and one other allegation not relevant to the current action (the "MAC 20" report). (SUNY Docket No. 227 at 15-25.) The MAC 20 nonetheless remained dated November 16, 1999. (Id.) Fournier avers that he "inadvertently failed to change the date on the report." (Docket No. 255 ¶ 17.) He also added three additional student athlete affidavits submitted by SUNY Buffalo "and removed these student-athletes' prior affidavits so that the [MAC] Committee had the most current statements from these student athletes and what I believed to be the statements that best reflected their intended true positions and recollections since they were the most recent statements." (Docket No. 255 ¶ 18.) Plaintiff asserts that he never saw the MAC 20 report until discovery in 2007. (SUNY Docket No. 220 ¶ 42.)

The MAC Committee on Infractions ("MAC COI") held a hearing on January 16, 2000 at which Plaintiff appeared. (SUNY Docket Nos. 220 ¶ 46; 255 ¶ 24.) Fournier asserts that he presented the additional allegation of scouting, and that Plaintiff was present when Fournier played a video in support of that allegation and had an opportunity to respond. (SUNY Docket No. 255 ¶ 24.) Plaintiff similarly testified at his deposition that he was present for Fournier's presentation, he himself also made a presentation, and then he was asked to leave. (SUNY Docket No. 196-3 at 43-45.)

The MAC COI, by letter dated January 18, 2000, adopted the findings in the MAC 20 and the recommended correction measures. (SUNY Docket No. 238 at 13-14.) The Committee also voted to make three additional recommendations, including "issuing a formal Letter of Reprimand to [Plaintiff] for his acknowledgment of wrongdoing before the Committee in some of the infractions and his possible involvement in others as noted in the report." (Id.) The case was then forwarded to the NCAA enforcement staff for review and "final adjudication." (Id. at 14.)

A preliminary inquiry by the NCAA then commenced. NCAA Enforcement staff Kevin Pearson conducted interviews of student athletes and administrators in Buffalo, including Plaintiff, in March and May 2000. (SUNY Docket Nos. 196-4 at 9; 196-24 at 3-4.) The NCAA determined that Fournier and MAC should not be a part of the NCAA interviews, in part "to test the credibility of the witnesses" previously interviewed by Fournier (SUNY Docket No. 261 at 77) in light of "statements of alleged intimidation." (NCAA Docket No. 123-8 at 4.) As a result of his investigation, Pearson believed the matter was a "secondary" case that should not proceed to a letter of official inquiry, and he informed the NCAA Enforcement Director, Defendant Tom Hosty, of his concern. (SUNY Docket Nos. 235-9 at 2; 235-10 at 2-3; NCAA Docket No. 119-16 at 47; see SUNY Docket No. 196-22 at 6 (discussing distinction between secondary and major infractions).) Pearson believed that "there were clearly issues with credibility with some witnesses, and [he] had a hard time because of that in making it a major case." (SUNY Docket No. 235-10 at 2-3.)

The investigation nonetheless continued, and upon Pearson's departure from the NCAA, Hosty assigned Defendant Stephanie Hannah to complete the interview process. (NCAA Docket No. 119-16 at 46.) By letters dated November 20, 2000, the NCAA informed Plaintiff and SUNY Buffalo that an official inquiry was warranted. (SUNY Docket Nos. 196-10; 196-11; 236-13.) The letter to Plaintiff informed him of his ability to "participate in consideration of these allegations" and the opportunity to submit a written response to the NCAA Committee on Infractions ("NCAA COI"). (SUNY Docket No. 196-11.)

Following notification of the official inquiry, the NCAA staff created a custodial file containing information collected during the investigation. (SUNY Docket No. 196-22 at 5.) The file was initially maintained by a custodian in New York City and then transferred to one in Pittsfield, Massachusetts, both locations requested by Plaintiff. (SUNY Docket Nos. 258-3 at 2-3; 258-4 at 3-4; 258-5 at 5-6.) In December 2000, SUNY Buffalo provided the NCAA with copies of taped interviews conducted during the MAC investigation that were requested by Plaintiff, but these tapes were not received by the custodian until January 2, 2001, the day after Plaintiff's response to the NCAA inquiry was due. (SUNY Docket Nos. 192 at 91; 196-22 at 17.) Hosty testified that he informed Plaintiff's counsel that a request for additional time could be made. (SUNY Docket No. 196-22 at 17.)

The NCAA enforcement staff met with Plaintiff and his counsel on January 8, 2001. (SUNY Docket No. 196-22 at 10, 18.) This was originally scheduled to be a prehearing conference following receipt of Plaintiff's written response. (Id. at 18.) Although the response was not filed on the January 2, 2001 date, the meeting nonetheless went forward to allow Plaintiff the opportunity to walk the enforcement staff "through their case, their defense, because [Hosty] believe[d] that they were trying to persuade us to drop the allegations." (Id. at 18-19; NCAA Docket No. 119-20 at 33-35.)

Plaintiff filed a written response to the NCAA official inquiry on January 11, 2001, wherein he detailed the use of intimidation in the interview process and the changing testimony from witnesses. (SUNY Docket No. 196-8.) This response also addresses the MAC interview tapes and the Mitch Gillam scouting allegation. (Id. at 17-18, 62-67.) A formal prehearing conference was held on January 17, 2001. (SUNY Docket No. 196-22 at 19.)

The NCAA COI conducted a hearing on February 9, 2001, at which Plaintiff appeared with counsel. (SUNY Docket Nos. 196-12, 196-13; NCAA Docket No. 124-5 at 6.) Defendant Jack Friedenthal was the presiding chairman. (SUNY Docket Nos. 196-12 at 3.) Plaintiff challenged the propriety of the MAC investigation at that time, arguing that "[u]nlike during the NCAA process, where the enforcement staff has provided materials to the custodian, the MAC never provided affidavits, interview tapes, nothing that would in any way have enabled [Plaintiff] to properly address the individual allegations made by witnesses against him." (SUNY Docket No. 196-12 at 9, 11.) The Committee questioned the enforcement staff on, among other things, the fact that many of the affidavits supporting the allegations had handwritten notations taking "a little bit of the sting out" of the prepared statement. (SUNY Docket No. 196-12 at 21.) Because this raised questions whether "people [were] being driven to some position that may not be theirs, " the staff was further questioned on the procurement of these affidavits. (Id. at 21-28.) The allegations of intimidation and the questionable veracity of the witnesses were also addressed at length. (See e.g. SUNY Docket Nos. 196-13 at 3, 17-18.)

At the conclusion of the NCAA COI hearing, Chairman Friedenthal advised Plaintiff that he would have "fifteen days from the date the [COI's] report is released to accept or appeal the decision. If you accept the decision, then any penalties will be in effect from that day. If you exercise your option to appeal... [a]ll appealed penalties will be stayed until the adjudication of your appeal." (SUNY Docket Nos. 196-13 at 28; NCAA Docket No. 112-5 at 70.)

The NCAA COI issued a written determination in a report made public on March 21, 2001. (SUNY Docket No. 196-15.) The Committee noted that it had been "required to weigh the credibility of a large number of affidavits that were submitted by both the university and counsel for [Plaintiff]..., some of which were from the same individuals, yet contained conflicting information." (Id. at 4.) Many of the affidavits submitted by Plaintiff were found to be less credible because "they were drafted by counsel a few days prior to the hearing, sent out for signature and returned immediately without any alterations." (Id.) Further, "the evidence submitted by the university, the conference and the enforcement staff (some of which involved affidavits) was more objective in that it did not contain the rote, canned' language found in the affidavits submitted on behalf of [Plaintiff]." (Id. at 17.) "Lastly, and perhaps most importantly, the committee had the opportunity to question [Plaintiff] in person during the hearing. The committee found him to be evasive, deceptive and simply not credible." (Id. at 17.)

The NCAA COI found four infractions substantiated, including a finding that Plaintiff engaged in unethical conduct, and two secondary violations. (Id.) With respect to Plaintiff, the Committee determined that the appropriate penalty would be as follows:

The former head men's basketball coach [Plaintiff] will be informed in writing by the NCAA that, due to his involvement in certain violations of NCAA legislation found in this case, if he seeks employment or affiliation in an athletically related position at an NCAA member institution during the period of time commencing with the date this report was released[, ] March 21, 2001, and concluding on December 2, 2002 (three years subsequent to his release from the employ of the University at Buffalo)[, ] he and the involved institution shall be requested to appear before the Division I Committee on Infractions to consider whether the member institution should be subject to the showcause procedures of Bylaw, which could limit the coach's athletically related duties at the new institution for a designated period.

(SUNY Docket No. 196-15 at 19-20.) Plaintiff was provided with a copy of the NCAA Infractions Report and informed of his opportunity to appeal to the NCAA Infractions Appeals Committee by submitting a Notice of Appeal form prior to April 4, 2001. (SUNY Docket No. 196-15 at 1.) The letter further informed Plaintiff that "[i]f there is no appeal, the committee's findings of violations and penalties are effective when the 15-day appeal period has expired or the date of April 4, 2001." (Id. at 2.) Plaintiff timely filed a Notice of Appeal on April 3, 2001. (SUNY Docket Nos. 196-19 at 3; 196-29 at 2; NCAA Docket No. 112-31 at 3.)

A written appeal by Plaintiff followed in which he challenged, among other things, the penalty imposed as excessive. (SUNY Docket Nos.196-19 at 6-7; NCAA Docket No. 112-31 at 6-7.) The NCAA COI responded and Plaintiff filed a rebuttal. (SUNY Docket No. 196-19 at 3; NCAA Docket No. 112-31 at 3.) A hearing before the NCAA Division I Infractions Appeals Committee was held on August 22, 2001. (SUNY Docket No. 196-17 (transcript); NCAA Docket No. 112-31 at 7.) Plaintiff appeared without counsel and was permitted to make a presentation, during which time he again emphasized the allegedly improper manner of the investigations and the credibility of the evidence against him. (See e.g. SUNY Docket No. 196-17 at 7, 17-18, 30-43, 50-51, 53-56.) He also discussed his statements to Mitch Gillam prior to the alleged scouting incident. (Id. at 46-47.) Plaintiff additionally argued that, even if he was found to have committed the infractions alleged, the punishment recommended by the NCAA COI was disproportionate to that imposed for similar violations. (Id. at 11-12, 30-31, 43-44, 52.) Plaintiff was also permitted a rebuttal to the NCAA COI's response presentation. (Id. at 95-109.)

On October 12, 2001, the Appeals Committee issued a report on the issues raised by Plaintiff in his appeal, including the argument that "a procedural error affected the reliability of the information that was utilized to support the [infraction] committee's findings." (SUNY Docket Nos. 196-19 at 6-7; NCAA Docket No. 112-31 at 6-7.) The Appeals Committee acknowledged that "there was much conflicting evidence in the case, " and the "investigators did not interview all persons who... [the Appeal Committee] believes[] had relevant information." (SUNY Docket No. 196-19 at 8; NCAA Docket No. 112-31 at 8.) The Appeals Committee therefore believed "that there was additional information that would have been helpful in resolving the case." (Id.)

As a result of the limited interviews, this case evolved into a battle of affidavits - some asserting facts giving rise to a violation and others denying facts that would give rise to a violation. This Committee does not believe this is the most effective way to resolve factual disputes. It is far more helpful for the NCAA enforcement staff to interview witnesses having relevant information so that they can be asked all relevant questions about the circumstances involved. Notwithstanding these concerns about the investigation of this case, we conclude that the findings are not clearly contrary to the evidence.
Certain language in the report of the Committee on Infractions regarding the ethical conduct violation was also troublesome to us. The Committee on Infractions' rationale suggests that the conduct of [Plaintiff] during the hearing and in connection with affidavits submitted on ...

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