06-000720 Florida Agricultural And Mechanical University vs. Gregory V. Black Status: Closed Recommended Order on Monday, July 24, 2006.

Summary: The evidence did not show that Respondent committed or failed to report National Collegiate Athletic Association violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AGRICULTURAL AND )

MECHANICAL UNIVERSITY, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0720

)

GREGORY V. BLACK, )

)

Respondent. )

)

RECOMMENDED O RDER

Pursuant to notice, the above - referenced matter was heard

before the Division of Administrative Hearings by its duly -

designated Administrative Law Judge, Diane Cleavinger on May 2

a nd 3, 2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Antoneia L. Roe, Esquire

Florida A&M University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

Robert E. Larkin, III

Allen, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

For Respondent: H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent’s termination for alleged misconduct

should be upheld based on the reasons stated in the termination

lett er dated July 25, 2005.

PRELIMINARY STATEMENT

Respondent, Gregory V. Black, was an assistant football

coach for Petitioner’s, Florida A&M University (FAMU), football

program. After an investigation into alleged violations of

National Collegiate Athle tic Association ( NCAA ) rules, the

University determined the entire coaching staff, including

Respondent, was responsible for the alleged violations. By

letter dated July 25, 2005, Petitioner was terminated.

Respondent disputed the basis for his terminati on and filed a

Petition for Formal Hearing.

At the final hearing, the Petitioner presented the

testimony of three witnesses and offered into evidence

Petitioner’s Exhibits one through six. Respondent testified in

his own behalf and offered into evide nce Respondent’s Exhibits

one and two.

After the hearing, Petitioner filed a Proposed Recommended

Order on June 19, 2006. Likewise, Respondent filed a Proposed

Recommended Order on June 19, 2006.

FINDINGS OF FACT

1. Respondent, Gregory V. Bla ck was employed as an

assistant football coach at FAMU from July 1, 1998 to July 25,

2005. Head Football Coach William (Billie) Joe was Mr. Black’s

supervisor. During his employment, Coach Black received

excellent to superior evaluation ratings.

2. Coach Black was employed under an annual contract with

FAMU. Until his termination, Coach Black was paid his regular

salary and received the normal and customary retirement benefits

and perks for his position.

3. The last fully executed contract with the University

ran from January 1, 2004, to December 31, 2004. However, a

printout generated from the University’s personnel department

indicates a beginning date of August 8, 2004, and an ending date

of August 7, 2005. Additionally, there was a par tially executed

contract signed by the University’s interim p resident, Castell

Bryant. The term of the partially executed contract ran from

January 1, 2005 to June 30, 2005.

4. The contract incorporated NCAA regulation 11.2

regarding contractual ag reements between coaches and an NCAA

member institution. The incorporated provisions state, in

relevant part:

11.2.1 Stipulation That NCAA Enforcement Provisions

Apply.

Contractual agreements . . . shall include the

stipulation that a coach who is found in violation of

NCAA regulations shall be subject to disciplinary or

corrective action as set forth in the provisions of

the NCAA enforcement procedures.

11.2.1.1 Termination of Employment.

Contractual agreements . . . shall include the

stipulation that the coach may be suspended for a

period of time, without pay, or that the coach’s

employment may be terminated if the coach is found to

be involved in deliberate and serious violations of

the NCAA regulations.

5. FAMU is a member of the NCAA. Membe r institutions of

the NCAA are obligated to apply and enforce NCAA regulations and

are responsible for operating their intercollegiate athletics

program in compliance with the regulations of the NCAA. As part

of that responsibility, FAMU has adopted the N CAA By - Laws as

part of its rules and regulations governing the University.

6. Member institutions also are responsible for governing

staff members involved with athletics. Penalties for violations

of NCAA regulations generally apply to member instit utions and

their programs. Occasionally penalties can apply to individual

staff members who are directly involved in violations of NCAA

regulations.

7. In cases where an individual is the subject of an NCAA

investigation, the NCAA issues a Notice of Allegations. In this

case no Notice of Allegations was issued to Coach Black or any

other member of the football coaching staff.

8. In fact, the NCAA did not conclude or find that Coach

Black committed any NCAA rule violation and the NCAA report on ly

mentions his name in reference to being interviewed. There is

no mention of Coach Black in reference to being involved in or

knowing about any of the NCAA violations referenced in the

report. Indeed Coach Black has never been the subject of an

NCAA ru le violation.

9. Coach Black was primarily responsible for coaching and

developing the offensive line. He ran practices and monitored

the progress of his players. Coach Black did not generally

monitor his player’s academics, unless the athletic off ice

advised him of a problem. Likewise, Coach Black was not

generally responsible for ensuring various student eligibility

forms were completed and on file with the University. Nor was

he generally responsible for recruitment activities. He was

required to have general knowledge of NCAA regulations and

responsible for reporting any violations of those regulations

that he had knowledge of to the proper authorities at the

University. The evidence showed that Coach Black did have such

knowledge of the NCAA regulations and that he understood the

reporting requirements of those regulations.

10. It was Coach Black’s practice to be present when the

offensive line was practicing. Generally, if he was on the

field, the offensive line was out there with him .

11. At some point FAMU became aware that their were

allegations of NCAA violations at FAMU and that an NCAA

investigation might occur. In light of those allegations, FAMU

completed a Self - Report concerning violations of NCAA

regulations. The Self - Report identified multiple alleged

violations, of which the University’s football program allegedly

constituted the bulk of the violations. No one who was involved

with the Self - Report testified at the hearing. There was no

competent evidence introduced at the hearing corroborating the

allegations of the report. Uncorroborated hearsay statements

made in the report about alleged violations cannot be used to

prove that Coach Black violated NCAA regulations or knew about

such alleged violations and failed to report those violations.

12. In addition to the Self - Report, the NCAA conducted an

investigation and issued a report concerning such alleged

violations.

13. The NCAA investigated numerous violations of NCAA

regulations, including exceeding t he daily practice time

limitation, exceeding the weekly practice time limitation and

not observing the day - off requirement regarding its football

program. No NCAA official or investigator testified at the

hearing. No corroborating evidence was offered at the hearing.

As with the Self - Report, uncorroborated hearsay statements made

in the report about alleged violations cannot be used to prove

that Coach Black violated NCAA regulations or knew about such

alleged violations and failed to report those violat ions.

14. As a result of the NCAA conducting an investigation,

the University retained a consultant, Mr. Nelson Townsend, to

assist in interpreting exactly what the NCAA findings meant to

the University. Mr. Townsend generally recommended the

Univer sity make staff changes in the football program. There

was no evidence that Mr. Townsend considered The University’s

personnel rules in making his recommendation.

15. On July 25, 2006 , FAMU issued a letter of termination

to Coach Black terminating h is employment “contract” with FAMU.

The termination was based on alleged NCAA violations regarding

daily and weekly hours of practice, not permitting a day off to

the players and failure to report such violations. The letter

treated Coach Black as if he had a contract with FAMU and

provided him rights under FAMU’s personnel rules regarding just

cause and a right to a hearing. The letter, also, clearly had

the effect of stigmatizing Coach Black in his profession as an

assistant football coach. The allega tions and termination were

on the news. Indeed, Coach Black had difficulty finding

suitable employment equivalent to what he possessed at FAMU

after his termination.

16. However, FAMU, in this proceeding, has admitted that

Coach Black did not comm it any NCAA violations. Indeed, there

was no competent evidence that Coach Black was aware of or

should have been aware of any alleged violations. Given this

lack of evidence FAMU has failed to establish just cause for

terminating Coach Black , and he is entitled to be reinstated for

the remaining term of his contract, if any.

17. The University’s interim p resident decided to withhold

the employment contracts of all of the assistant football

coaches.

18. The evidence showed that there were many times that

Coach Black’s employment contracts were executed after the start

date of the contract period. However, t he employment contract

clearly states:

. . . Neither this employment contract nor

any action or commitment taken pursuant to

it, is final o r binding upon the parties

until, and unless, the signature of the

University President or President’s

designee, . . . and the signature of the

employee have been affixed and the

employment contract has been returned to the

appropriate authority . . . .

19. Irrespective of the language and term s of the

contract, FAMU treated this matter as one arising under

employment that can only be terminated for just cause. For

purposes of this action, FAMU is estopped from claiming that

Coach Black was an at - w ill employee. Additionally, the issue of

whether Coach Black had an employment contract with FAMU need

not be addressed since Coach Black was not terminated based on

the expiration or absence of his contract. It is the reasons

regarding NCAA violations s tated in the termination letter that

are at issue here. As noted, there was an absence of proof to

support those allegations. Therefore, Coach Black is entitled

to reinstatement and to have his name cleared of the stigma that

termination for those alleg ations have caused.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

21. Regardless of the contractual status of Coach Black,

he is nevertheless entitled at a minimum to a “name clearing

hearing” since this matter which had the effect of stigmatizing

him in his profession involves a public employer, FAMU. See

Buxton v. Plant City, 871 F.2d 1037 (11th Cir. 1989) and cases

cited therein.

22. In this case, FAMU did not present competent,

substantial evidence of any NCAA violations allegedly committed

by Mr. Black or that Mr. Black was aware of any such alleged

violations that he failed to report. The testimony F AMU

presented consisted of individuals who had no direct, first - hand

personal knowledge: ( 1) of any such alleged violations; or ( 2)

whether Coach Black himself was aware of any such alleged

violations and failed to report such. In light of FAMU’s

failure to produce witnesses with first - hand knowledge of what

is contended against Coach Black in its letter of termination

and its admission that Coach Black did not commit any violations

of NCAA rules, Coach Black is entitled to reinstatement and to

having his name cleared of those allegations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is , therefore ,

RECOMMENDED that a Final Order be entered by FAMU

reinstating Respondent and clearing his name from the

allegatio ns made in the termination letter.

DONE AND ENTERED this 2 4th of July , 2006, in Tallahassee,

Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 4th day of July, 2006 .

COPIES FURNISHED :

H. Richa rd Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32308

Antoneia L. Roe, Esquire

Florida A&M University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

Robert E. Larkin , III

Allen, Norton and Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Elizabeth T. McBride, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 - 3100

Dr. Castell V. Bryant, Interim Presi dent

Florida A & M University

400 Lee Hall

Tallahassee, Florida 32307 - 3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Reco mmended Order should be filed with the agency that

will issue the final order in this case.