Whistleblowing in Intercollegiate Athletics
Left in the wake of Jerry Sandusky’s alleged crimes at Penn State University are a highly regarded university president, a legendary football coach, and two high-level administrators charged with perjury for lying to the grand jury. The only person left standing is former Penn State Wide Receivers Coach Mike McQueary. McQueary testified before the grand jury that he personally witnessed Sandusky in the shower with a young boy, engaging in acts so distasteful that they need not be recounted here. McQueary testified that he reported the incident to now-deceased Coach Joe Paterno and later reported it to the two high-level administrators.
Many asked why McQueary wasn’t fired along with former Coach Paterno and President Graham Spanier. Penn State has never publically addressed the issue, but many have speculated that McQueary’s employment status was protected because he was a whistleblower under Pennsylvania law. In other words, Penn State may have been apprehensive about firing McQueary because that would have left the school vulnerable to a lawsuit under state whistleblower laws, which protect employees like McQueary after reporting illegal activity at the workplace.
Before anyone dismisses McQueary as an isolated “whistleblower,” they should know about Glenn Hedden. Hedden was the former athletic director at Kean University (N.J.), until he was summarily fired after 22 years of service. Kean claims he was fired for allegedly “failing to fulfill his professional responsibilities as athletic director and as the key university official responsible for overseeing compliance.”
Hedden claimed the real reason he was fired was because he disclosed academic fraud and other rule violations to the National Collegiate Athletic Association (NCAA)—and he has now sued the school for wrongful termination. He
argues that by complying with his NCAA obligations and self-reporting Kean’s violations, he was acting as a whistleblower under the New Jersey’s Conscientious Employee Protection Act (CEPA).
Similar to Pennsylvania law, the New Jersey CEPA prohibits retaliation against an employee who “[d]iscloses or threatens to disclose to a supervisor ... [a] policy or practice of the employer ... that the employee reasonably believes is in violation of a law, rule or regulation.”
As set forth below, the case of Glenn Hedden v. Kean University, Case No. L 002278-11 (N.J. Super. Ct., complaint filed June 13, 2011) is a strong reminder that colleges and universities must implement policies and practices that create an ethical culture where reports of wrongdoing are encouraged and responded to in a prompt, thorough, and non-retaliatory manner. Further, officials must ensure that employees, and athletic departments in particular, receive training on these reporting and anti-retaliation policies.
Facts Underlying Hedden’s Termination
Kean is a Division III member of the NCAA. As an NCAA-member institution, Kean agrees and is obligated to comply with all NCAA rules and regulations.
According to the complaint, in Fall 2010, a Kean faculty member advised Hedden that she suspected a women’s basketball player may not be taking the NCAA-required 12-hour course load necessary to remain eligible for competition. Hedden discovered the student athlete, along with the other members of the women’s basketball program, had enrolled in a fall “History of Spain” course. The course was a so-called “travelearn” program related to the women’s basketball team’s previous basketball trip through Spain and France that summer.
The problem, according to Hedden, was that nobody consulted with him about the validity of the course, which was created well after the semester began and appeared to be “offered” as a way to bolster grade point averages of women’s basketball players. Hedden allegedly discovered that, among other things: the course did not go “live” until after the fall semester drop/add period had closed (preventing other students from registering); the student athletes had not paid the course registration fee; the manner in which the players financed participation in the class was suspect; and at least two of the players enrolled in the class had another class scheduled at the identical time. According to Hedden, the History of Spain course complied with neither NCAA regulations nor Kean University policy.
Hedden immediately notified the NCAA as well as Kean’s president, in compliance, Hedden argued, with Kean’s obligations as a NCAA-member institution. The NCAA confirmed there was likely a problem with the course and that potential violations had occurred.
In addition, Hedden allegedly discovered a member of the women’s basketball team had fallen below the required 2.0 GPA necessary for competition. He alleges the student athlete’s grade in “Introduction to Women’s Studies” was inexplicably changed from an “F” to an “incomplete,” which raised the player’s GPA to above the NCAA-required 2.0 necessary for competition. According to Hedden, the grade change was conducted unilaterally by Kean’s vice president of academic affairs without contacting the course instructor or going through the grade grievance process. Because of the grade change, the student athlete was eligible to play in Kean’s next game, where she led the team in minutes and scored 13 points.
Once he discovered the grade change, Hedden has said, the student athlete’s grade was returned to an “F” and the player was academically ineligible for the next two games. The player was reinstated the following week, when her History of Spain grade was changed by the instructor from C+ to B+. The grade change allegedly was authorized by Kean’s vice president of operations over Hedden’s objection.
Hedden voiced his concerns regarding potential rule violations and academic fraud to Kean administrators. Hedden claims he was told that his allegations were “malicious and absurd” and, if they were true, the violations were Hedden’s “fault” because he did not prevent them from occurring. Complying with his and Kean’s NCAA obligations, Hedden claimed, he submitted an “Academic Integrity Inquiry Follow-Up” report to the NCAA outlining what he believed to be academic fraud and other violations. The NCAA subsequently commenced an investigation into the allegations raised by Hedden and conducted on-campus interviews in April 2011. Approximately a week later, on May 2, 2011, Kean University fired Hedden because he failed to “fulfill his professional responsibilities as athletic director and as the key university official responsible for overseeing compliance.”
On March 1, 2012, Kean University appeared before the Committee on Infractions. It was good news for Hedden. Together with his lawyer, he was able to attend the hearing and observe Kean’s defense against the NCAA allegations and learn first-hand how the university intends to defend against his whistleblower complaint. While those proceedings are not part of the public record, Hedden will learn, for example, whether Kean takes the position that his termination was done as part of Kean’s self-imposed penalties or whether he was terminated in the ordinary course as part of his annual review process. Hedden’s whistleblower case is scheduled for mediation in the coming weeks and discovery is well underway.
The case of Glenn Hedden should serve as a warning for all intercollegiate athletic programs governed by both the NCAA and institutional guidelines. Concerns over possible NCAA rules violations and noncompliance with institutional policy must be taken seriously and addressed swiftly. Officials should review their policies and practices to ensure that employees are encouraged to report wrongdoing, and that reports are responded to in a prompt and non-retaliatory manner.
Nearly all states have some type of whistleblower protection similar to Pennsylvania and New Jersey. Moreover, if the university receives federal funding that can be connected to the alleged misconduct, a current or former employee could possibly fashion a federal whistleblower claim, or as the Seventh Circuit Court of Appeals recently found, a claim under the Racketeering Influence Corruptions Act. DeGuelle v. Camilli, 664 F.3d 192 (7th Cir. 2011). Institutional officials should also be conducting broad ethics and anti-retaliation training campuswide, as well as within the athletic department, to educate the staff on how to handle internal complaints by putative whistleblowers.
Hedden’s case presents a “perfect storm” scenario—blending an NCAA investigation, the threat of potential sanctions, and a civil whistleblower lawsuit all within the same fact pattern. Institutions elsewhere don’t want to find themselves in the same precarious position as Kean University, responding to the NCAA’s Notice of Allegations and appearing before the Committee on Infractions while simultaneously defending a whistleblower complaint. Appearing before the Committee of Infractions is difficult enough for an NCAA member institution. Having to respond fully and completely without undermining its defense in an ongoing civil whistleblower case may be impossible.
Scott James Preston is a shareholder in the Indianapolis office of Littler Mendelson P.C., the nation’s largest employment and labor law firm representing management. He has extensive experience representing employers, including universities, on a variety of workplace issues, employment disputes, and compliance with federal, state and local laws. Preston can be reached at (317) 287-3534 or firstname.lastname@example.org.