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A Question of 'Cause'

April 8, 2013

Rutgers University President Robert Barchi says it took one night to fire his now-former men’s basketball coach, Mike Rice, after seeing a 30-minute video of Rice physically and verbally abusing athletes, repeatedly, over the course of three years.

It was a decision that Tim Pernetti, the former athletics director whose (already widely reported) resignation was announced by Barchi at a news conference Friday, apparently couldn’t bring himself to make when he first saw the video back in December. Despite an initial gut instinct to fire Rice, Pernetti said in his resignation letter, he deferred to institutional procedure: a two-week-long investigation by Rutgers lawyers and outside counsel who Pernetti said ultimately decided that to fire Rice would violate institutional policy (and open the university to legal challenge by the coach). Pernetti says he accepted that advice and took it to Barchi.

The president -- not having watched the video and believing, based on what he knew of its content, that Rice’s behavior was both less extreme and less frequent – signed off on it.

“This was a failure of process,” Barchi said Friday. “I regret that I did not ask to see the video when Tim first told me of its existence, because I am certain this situation would have had a different outcome had I done so.”

But the report that emerged from the investigation, obtained by ESPN, says that Rutgers had more latitude than its officials suggested. "In sum, we believe there is sufficient evidence to find that certain actions of Coach Rice did 'cross the line' of permissible conduct and that such actions constituted harassment or intimidation within Rutgers' Policy, Section 60.1.13," it says. The report also says that Pernetti knew of Rice's behavior months earlier than he has said.

Barchi held firm Friday on his stance that the university didn’t have (and doesn’t have) “cause” to fire Rice. (Employees who are fired for cause typically lose most of their contractual rights, while employers who fire workers without cause must usually buy out their contracts, among other things.) But clauses in Rice’s contract -- including the one referenced above -- suggest Barchi or Pernetti could have at least made a case for termination for cause.

First is the university’s work place violence policy, which states: "student employees, faculty, and staff are expected to behave in a fashion that promotes a community free from violence, threats of violence, harassment, intimidation, and disruptive behavior of a violent or intimidating nature." Violation of this policy can result in "disciplinary and/or personnel action up to, and including, termination and/or criminal prosecution."

And under the “Discipline and Termination for Cause” subsection, the contract says firing may occur for “conduct tending to bring shame or disgrace to the university as determined in good faith by the Director of Intercollegiate Athletics,” as well as acts of moral turpitude.

The latter clause awards much discretion to the athletics director had he chosen to fire Rice, said Edward Stoner, a former president of the National Association of College and University Attorneys who co-wrote a model university coaches contract. Had Rice chosen to countersue, he would have had to prove that his actions did not "tend" to bring shame or disgrace and that Pernetti did not act in good faith.

"A clause covering a wide range of possible behaviors, like the clause used by Rutgers, is really standard because you cannot list the variety of things that people might do that are inappropriate. Thus, you must use broad language, as Rutgers did," Stoner said. "The AD could rightly, in my view, have judged that not only did the coach do something that tended to bring shame and disgrace to his university, but also that he did it during his job, while he was interacting with students and over a long period of time (not an isolated or one time event)."

Another general statement on bullying at Rutgers, where freshman Tyler Clementi killed himself after being bullied about his sexual orientation in 2010, says, "Intolerance, bigotry, and bullying are antithetical to the values of the university, and unacceptable within the Rutgers community."

"People act strangely when they get involved in sports and law. People stop using their normal common sense and start being football fans or basketball fans in order to excuse behavior that is inexcusable," Stoner said. "Lawyers, HR professionals, and outside consultants must advise on the consequences of proposed courses of action within their area of expertise, but they must take care not to become the decision maker. This is especially true where, as here, the contract specifically leaves that determination to the AD."

Pernetti’s job is the fourth casualty in the wake of Rice’s abuse: also resigned or fired were Rice himself, an assistant coach who worked under Rice, and the interim general counsel who apparently advised against firing Rice after the university’s investigation of the coach.

However, The New York Times reported Sunday that many Rutgers officials, including Barchi, knew of Rice's abuse long before last week, and that the review of Rice was focused more on potential litigation issues than his behavior and how he should have been disciplined. Up until his firing, the only punishment Rice had received was a three-game suspension and a $50,000 fine. Rice will receive a salary for the remainder of his five-year contract (this was his fourth season), and received a $100,000 bonus for finishing this past season.

Barchi’s news conference began as an (already widely reported) announcement of Pernetti’s “mutually agreed”-upon resignation, but it didn’t take long for the focus to shift to the president himself, who very early in his remarks apologized for “the negative impact that this situation has had on Rutgers.”

Afterward, Barchi responded to several questions about his own job and whether he still deserves it, but Barchi repeatedly deflected to the Board of Governors, whose chair, Ralph Izzo, also participated in the news conference.

“I consider resigning every single day when I wake up because – let’s be honest – I don’t have a contract here,” Barchi, who is six months into his presidential tenure at Rutgers, said. “Every day I serve at the discretion of the board.”

Izzo chimed in with a vote of confidence in Barchi.

"I think he’s the right person to run this place for many years to come," Izzo said, adding that he agreed Barchi should fire Rice, but still hasn't seen the full 30-minute video, just the two-minute clip aired by ESPN Tuesday.

Barchi denied that Pernetti was made into a scapegoat.

“I would say that we all bear responsibility for our decisions, and that the consequences have to be shared by all who make them,” Barchi said. “In this particular case, the decision was made in the athletic department, by the athletic director. He was certainly counseled and received that counsel; it was his prerogative to make a forceful case with me if he felt differently.”

Also on Friday, the former director of player development who leaked the now-infamous video of Rice abusing players, Eric Murdock, sued Rutgers in state court for wrongful termination. Murdock says he was fired because he complained about Rice’s treatment of players. He first gave the video to university officials in November, he says, but told Pernetti about the behavior last summer. However, the FBI is reportedly investigating whether Murdock attempted to extort Rutgers by demanding $950,000 shortly after his firing, before ultimately leaking the video.

 

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