The Termination of Rick Neuheisel-- Is it just?

"If the university wants to fire him, that's OK. It's their choice. But it should honor his contract and pay him what he is entitled to under his contract. The parting should be much more honorable than this. So this is a question of right and wrong to Rick, and he will pursue this."—Bob Sulkin, attorney for Rick Neuheisel. July 2.

"This is about right and wrong…Standing up for what's right."—Rick Neuheisel on ESPN SportsCenter, June 29.

My emotional involvement as a Washington fan is not limited to my desire for the Huskies to whip Ohio State on August 30th. I also desire for the University of Washington to operate with integrity, including honoring its contracts with all parties.

To label the University of Washington dishonorable is every bit and more as offensive as an opposing fullback ripping through the middle of the Husky defense for a fifty yard touchdown.

Rick Neuheisel's contract has separate provisions for "Termination Without Cause" and "Termination With Cause". Accordingly, $3.6 million is either rightfully owed Neuheisel or rightfully retained by Washington.

If Neuheisel's actions are not grounds for termination under the "With Cause" section of his contract, then the University should quietly pay the man his money. If, however, his actions are grounds for termination with cause, then Neuheisel's attorneys should cease with the honor talk and Neuheisel should stay off national television asserting that the University of Washington has welshed on its obligations.

So yes, it is about right and wrong.

So then, the $3.6 million question: Is Rick Neuheisel's conduct grounds for termination with cause?

Since the controversy arose in early June, Neuheisel and his attorneys have steered the public discussion of the dispute primarily to Neuheisel's defense of the gambling violations. They have presented compelling evidence that on June 4, the first day of questioning by the NCAA about Neuheisel's gambling, Neuheisel knew of the March 13, 2003 Dana Richardson memo which authorized participation in neighborhood gambling pools.

I am willing to give Neuheisel the benefit of the doubt that he relied on that memo to participate in the 2003 gambling pool. I am willing to give Neuheisel the benefit of the doubt that he relied on a similar memo from 1999 to participate in the 2002 gambling pool. I am also willing to agree with Neuheisel's contention that it is reasonable for him to rely on a compliance department memo to avoid violating NCAA rules. I think lawyers call that a stipulation.

In the interest of brevity, I'll ignore the question of how Neuheisel's high-stakes gambling, one month after 49'ergate, reflects upon his judgment, and I'll stipulate that if Neuheisel violated any NCAA rules prohibiting gambling, he should not be held at fault.

Such a stipulation does not seem entirely inconsistent with the following statement made by Barbara Hedges in her June 11 termination letter addressed to Neuheisel: "If it is determined that your gambling violated NCAA rules, I would regard that as further grounds for termination under section 8(d) [of your contract]. However, I have determined that just cause exists for your termination regardless of the ultimate conclusion on that issue."

If the question of how the money was bet, how much was bet, when the bet was made, where the bet was made, and who authorized the bet is not essential, what are the grounds for Neuheisel's termination with cause?

Again, from the June 11 termination letter, Hedges addressing Neuheisel, "Your initial false and misleading answers to the NCAA investigator violated Article 10.1(d) of the NCAA bylaws, and are grounds for termination under Section 8(d) of your contract."

Hmmm. This shouldn't be too difficult. Consider Neuheisel's answers to the questions. Then check his answers with the NCAA rule. Then check that with his contract (see below).


NCAA Division 1 Manual
10.1 UNETHICAL CONDUCT. …Unethical conduct may include:
(d)"Knowingly furnishing the NCAA or the individual's institution false or misleading information concerning the individual's involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation."

***

Neuheisel Employment Contract:
Section 8. Termination By University With Cause: …"just cause" [for termination] shall include: d. A serious or intentional violation of any law, rule, regulation, constitutional provision, by-law, or interpretation of the University, the state of Washington, the PAC-10, or the NCAA, which violation may, in the sole discretion of the University, reflect adversely upon the University or its athletic program in a material way.


When I simplify this I see two pertinent questions. Did Neuheisel lie to the NCAA? If he did lie, does the lie reflect adversely upon the University of Washington in a material way? If the answer to those questions is yes, then Washington has just cause for termination, and Neuheisel has his stated wish: the triumph of right over wrong.

So then, did Neuheisel give false and misleading answers to the NCAA?

This is the part where it would be helpful to hear a recording of the interview. Or read a transcript of the interview. Those, however, are not available. I would think that if this were a criminal court, and Neuheisel were accused of lying, the absence of a tape would be to his benefit. The absence of a tape may still be to his benefit if he wouldn't like what was on the tape.

There certainly is an inclination to withhold judgment on this issue until the facts are available. Yet given the scope and bitterness of the controversy, and given that Washington does not have a football coach a month prior to fall camp, how can we not as fans form some preliminary opinion on the matter? Aside from vague charges and denials, is there any available evidence that would be persuasive upon reasonable inspection?

Hedges summarizes the University's position in her June 11 letter to Neuheisel: "You have admitted participation in high-stakes betting pools" and "you initially denied such participation except as an ‘observer'. You recanted only after the NCAA investigator told you that the NCAA had witnesses who had identified you as a participant in the pools."

Neuheisel's response can be summarized by comments made on last Sunday's ESPN SportsCenter.

Shelly Smith asked Neuheisel, "Why did Barbara Hedges feel you weren't as forthcoming as you should have been?"

Neuheisel: "Well that's interesting. Let me see if I can tell you how this went. We had been asked to go to, uh, to talk to the NCAA about a recruit. And the next thing I know they've got me thinking I've been involved in organized gambling, that there was criminal activity. And I was nervous. I've got my compliance person here [points to his right], my athletic director here [points to his left], and I'm like ‘what is going on here?' And I'm answering questions very carefully, very carefully. We had a break, and the university attorney came over. I told him everything. I told him everything that had happened. I then, we then, went back in and told the NCAA everything."

I'm no attorney, but if I were on a jury in the court of public opinion, there's an important point that I would focus on if I were trying to find the truth.

Look again at the above summary by Hedges from the termination letter. The word ‘observer' is in full quotations and represents the only quote attributed to Neuheisel in the letter. The use of quotations provides a greater level of detail and thus a greater level of credibility to her version of Neuheisel's testimony. If the word observer were not in quotations it would be uncertain whether Neuheisel described himself as an observer or whether that was Hedges' word to describe Neuheisel's responses.

So if Neuheisel is granted his assertion that he was confused by the questions (and by a photo of someone he didn't recognize), why did he describe himself as an "observer"? What was he claiming that he only observed? Wasn't the confusion removed by the time he described himself as an "observer"? Keep in mind, Neuheisel said that he was answering questions "very carefully, very carefully."

At the moment Neuheisel described himself as merely an "observer", his state of understanding could be described in one of three ways. 1) He was sure he was being asked about organized gambling /criminal activity. 2) He was unsure of what was being asked of him. 3) He was sure he was being asked about a gambling pool.

If his state of mind could be described by either of the first two, it's not plausible that he would reply that he was an "observer".

To illustrate the point, allow me the following digression. I know this would clear it up for Mike Price.

To keep this light, let's suppose you're an unmarried man. Let's further suppose that a couple months ago you went to a bachelor party at your buddy's house. While at that party you received a lap dance from the woman brought in to entertain. Except she wasn't really a professional stripper, just a former Duck cheerleader that likes to dance, and gets a rush when doing so while naked in a room full of men (come on, work with me. I'm trying to line up an analogy).

Now let's say your girlfriend blindsides you. She starts asking if you've had a lap dance in the past few months. She shows you a picture of a woman you don't recognize. You're confused. You're thinking about strip clubs and lap dances from real, bonafide strippers. You don't go to strip clubs so you're still confused. And then you blurt out that you were just an "observer", not a participant. In other words, you saw others receive lap dances but you never had one.

Your girlfriend tells you she's not upset if you merely "observed" at the bachelor party, but that she's talked to people that claim you received a lap dance. At that point you come clean. Yes, you say, you received a lap dance.

"Why did you lie?" she asks you.

"I didn't lie", you retort. "I just admitted that yes, I received a lap dance."

Your girlfriend, of course, replies, "You only admitted after I told you there were witnesses that countered your story."

"But I was confused", you plead. "I thought you were talking about established strip clubs with real strippers!"

And your girlfriend asks, "When you said you only "observed" others getting lap dances, and didn't participate, what were you confused about? What, in your mind, were you admitting that you observed?"

You have no answer.

But she does. "I warned you a few weeks ago after you claimed you were in Sun Valley with the guys, when in fact you were in San Francisco having lunch with another woman, that I wouldn't stand for one more lie.

"This," she says, "was your last lie." And then she walks away.

I believe both Rick Neuheisel and Barbara Hedges on this issue.

I believe Neuheisel was confused. Initially. I believe he thought they were asking about organized gambling.

I believe he had no idea who was in the photo they showed him.

I believe he was nervous; he had good reason to be.

I believe that he said he was only an "observer" to the gambling pool.

I believe that when he used the word "observer", he knew that he was being asked about the gambling pool.

I believe that he recanted only when he was told there were witnesses that claimed he was a participant, just as he recanted his denial of the 49er interview only after a reporter exposed him.

I believe, therefore, that he did give false and misleading answers to the NCAA investigator.

Neuheisel and his lawyers make one additional point to dispute his alleged false statements to the NCAA. According to Neuheisel and his lawyers, when Neuheisel was notified of his pending termination, he "bristled" at the inclusion of NCAA rule 10.1 (providing false information) as grounds for termination.

When he voiced his objection to Hedges, according to Neuheisel on SportsCenter, Hedges had the following reply, "'Hey, I didn't want to put that in there, but our attorney [Karin Nyrop] insisted.'"

I believe Neuheisel's claim that Hedges made that reply. I also attach no significance to the reply. Perhaps if Hedges had the opportunity to elaborate on her reply it might have sounded something like this:

"You have done some terrific things while here at the University of Washington. I will just tell you this is extremely painful for me to have to make these kinds of decisions about someone I truly admire. But if an employee's actions are not in the best interests of the University, then there are decisions I have to make.

"With your legal background, I'm sure you understand this: If the decision is made to terminate you, and if just cause does exist as outlined in section 8 of your contract, I am obligated to terminate you ‘with cause' (For a number of reasons, not the least of which is $3.6 million). I recognize that it would be easier for you and your family to recover from a termination for gambling only. But we have this little problem of the Dana Richardson memo, which you have so adequately illuminated, and the outcome of the gambling matter is uncertain. Therefore, I need to include as grounds for termination your false denials to the NCAA investigators. I'm sorry it has to be this way. I didn't want ‘fired for lying' on your resume. For your sake, and for your family's sake, I didn't want to include the dishonesty."

There may be a number of reasons why Hedges would tell Neuheisel that she didn't want to include 10.1 as a reason for his termination. Perhaps she didn't want the University to have to admit it's football coach mislead the NCAA. Perhaps Hedges was inclined, on a personal level, to give some measure of credit to Neuheisel for recanting his false statements on the same day he made them. The conclusion cannot be drawn, as Neuheisel seems to imply, that Hedges' own opinion on the matter contradicts the position she put forth in the termination letter.

If it is concluded that Neuheisel did in fact provide false and misleading answers under questioning, thus violating Article 10 of the NCAA bylaws, the remaining question is: Does the violation, as outlined in Section 8 of Neuheisel's contract, "in the sole discretion of the University, reflect adversely upon the University or its athletic program in a material way?"

The word ‘material' in the language of the contract suggests that there could potentially be a violation that is immaterial, or not significant, in terms of its reflection upon the University. The inclusion of the word material therefore results in some protection for the employee (Neuheisel).

Imagine how the language would look without the word ‘material':

"Just cause for termination shall include: A serious or intentional violation of any law, rule, regulation, constitutional provision, by-law, or interpretation of the University, the state of Washington, the PAC-10, or the NCAA, which violation may, in the sole discretion of the University, reflect adversely upon the University or its athletic program."

Such language could lead to the following scenario: Football team goes 3-8. Coach gets jay-walking ticket. University fires coach "with cause". University argues coach intentionally violated a law of the state and thus any coach breaking any state law, in the sole discretion of the University, reflects adversely upon the University. University not obligated to pay coach.

While the language of the contract does protect the employee, it also protects the University from having to employ or pay a coach who is reckless in his disregard for the reputation of the University. In fact, Section 8 begins: "University shall have the right to terminate this agreement for just cause prior to its normal expiration."

Thus, when Neuheisel signed that contract, he granted the University of Washington the right to terminate him for just cause. He granted the University of Washington the right to determine, at the University's sole discretion, that having a head football coach that lies damages the credibility of the University of Washington and therefore reflects adversely upon the University in a serious and material way.

To the question of right and wrong, how could the University see it any other way?


Hugh Millen was an academic All-American at the University of Washington and a member of the 1985 Orange Bowl Champions. He played 11 seasons in the NFL, including being named MVP of the 1991 New England Patriots.

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