Hennessey v. National Collegiate Athletic Ass'n
| Decision Date | 16 December 1977 |
| Docket Number | No. 76-3798,76-3798 |
| Citation | 564 F.2d 1136 |
| Parties | 1977-2 Trade Cases 61,770 Lawrence H. "Dude" HENNESSEY and Wendell Hudson, Plaintiffs-Appellants, Cross-Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, an Unincorporated Association, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George R. Stuart, III, Birmingham, Ala., James S. Ward, Asst. Atty. Gen., Montgomery, Ala., for plaintiffs-appellants.
Harold A. Bowron, Jr., Birmingham, Ala., George H. Gangwere, Kansas City, Mo., for defendant-appellee.
Appeals from the United States District Court for the Northern District of Alabama.
Before GODBOLD, HILL and FAY, Circuit Judges.
We affirm the judgment of the United States District Court for the Northern District of Alabama which was based upon the findings of fact and conclusions of law contained in the district court's Memorandum of Opinion which is reproduced here as an appendix.
AFFIRMED.
The NCAA is a non-profit association of some 800 public and private colleges, formed in part to adopt rules to govern the conduct of its member institutions in the administration of intercollegiate athletics. At a special convention in August 1975, the association adopted Bylaw 12-1 to limit, effective August 1, 1976, the maximum number of assistant football and basketball coaches certain 1 of the institutions could employ. Lest it possibly violate this bylaw and become subject to sanctions from the association, the University of Alabama 2, a voluntary member of the NCAA, made various adjustments in its employment relationships with several of its assistant coaches. As a part of these changes, Lawrence Hennessey, who had been an assistant football coach for sixteen years, and Wendell Hudson, who was in his second year as an assistant basketball coach, were reduced to the status of part-time coaches. 3
In this action against NCAA, Hennessey and Hudson seek a ruling that Bylaw 12-1 is invalid or inapplicable, a decision which would permit their resumption of employment as full-time coaches. The plaintiffs' contentions are denied, both legally and factually, by the NCAA. Trial on the merits was conducted on August 30-31, 1976, with each side having the opportunity to present all evidence thought relevant to the issues.
At the outset it must be determined whether Alabama, plaintiffs' employer, was unable to comply with the new limitations by reason of the number of coaches with "academic tenure, enforceable contracts or formal security of employment commitments in effect on August 15, 1975." If so, then the bylaw would by its terms be inapplicable until compliance should be possible through normal attrition. 4 The answer to this inquiry depends not merely on the employment status of the two plaintiffs, but also on that of the other assistant coaches.
When the bylaw was adopted, there were 14 assistant football coaches and 3 assistant basketball coaches employed on a full-time basis by Alabama, thus exceeding the number permitted under the bylaw of 8 and 2, respectively. Each of Alabama's assistant coaches had a written contract with the institution, most of them including those of Hennessey and Hudson being for a one year period of time. It was, however, customary that these contracts would be annually renewed during the tenure of the head football and basketball coaches. Indeed, during the periods of service of the present head coaches, 18 years and 8 years, respectively, not once until the present controversy did an interested assistant coach fail to have his contract renewed. This practice has been consistent with the verbal assurance given by the head coaches at the times of employing assistants.
The evidence presented to the court does not establish the existence of any enforceable contract on the part of the assistant coaches beyond the terms specified in their written agreements with the university. The assistants did not consider themselves or the university officials bound by any contractual undertaking except as specified in the written contracts. It was understood by all that the assurances of the head coaches were but personal pledges, not binding upon the university, which was willing to enter coaching contracts only for specific periods of time indicated by the written contracts.
The NCAA recommends to its members that a coach's contract "include the assignment of faculty rank, benefits of tenure and retirement and such other rights and privileges as are enjoyed by other members of the contracting institution's faculty." Alabama and this is apparently true for many other NCAA members has not chosen to confer formal tenure on its assistant coaches; nor can it be fairly said that the status of these assistants, while similar, is the equivalent of academic tenure. In reaching this conclusion, the court is mindful that there are great variations among and even within institutions in the granting and meaning of tenure. 5 Even so, one common characteristic stands out: that, with academic tenure, the institution is making a general commitment for employment which is normally expected to continue, with the individual's consent, until his death or retirement. 6 In the present case it is clear that any commitment to assistant coaches for continued employment would cease in the event of termination of employment of the head coach. This condition is in direct opposition to a fundamental feature of academic tenure, and precludes a finding that the Alabama assistants enjoyed even informal academic tenure under their arrangement with the institution.
The bylaw also speaks in terms of "formal security of employment commitments." That employment commitments were made by Alabama to its assistant coaches is clear. What is not so clear is the meaning of the words "formal security." The NCAA asserts that the commitment must have been in writing 7 and that the verbal understandings, such as those at Alabama between the head coaches and their assistants, are insufficient. This is not merely the interpretation of a party litigant. Rather, this is the official interpretation of the NCAA Council which, after its circulation to members in February, 1976, became binding upon the membership under the Association's Constitution. It is, moreover, an interpretation consistent with that given to the members at the Association's convention in January 1976, when votes were taken on amending Bylaw 12-1 in various respects. It would be inappropriate under the circumstances for the court to reject the association's interpretation of its own rule where that interpretation is certainly one of those reasonably suggested by the words of the bylaw.
In summary, the court finds and concludes that Alabama was not unable to comply with the requirements of Bylaw 12-1 by reason of the number of coaches with "academic tenure, enforceable contracts or formal security of employment commitments in effect on August 15, 1975."
Plaintiffs assert that the Bylaw, coupled with sanctions which could be imposed by the NCAA upon a non-complying member, amounts to a tortious interference with their contract rights. Ordinarily such a claim must be premised upon a valid contract, Volz v. Liberty Mutual Insurance Co., 498 F.2d 659 (CA5 1974), and in this case the only contracts which the plaintiffs had the written agreements for one year terms were not affected by the Bylaw.
When dealing with employment relationships, however, the laws of this state do recognize a cause of action in circumstances where the terminated employee was without contract rights enforceable against his employer. E. g., United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732 (1921). Indeed, the claim may be based upon interference with the securing of employment. See Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953).
Mere interference is not by itself sufficient. To be actionable, the interference must be depending upon the particular opinion one reads "wrongful", "malicious", "unlawful", or "unjustified". In the typical case, the defendant is charged with having pressured an employer into discharging its employee, the plaintiff, as a means by which the defendant sought to obtain something from the plaintiff (such as settlement of a claim) or as retaliation for some independent grievance which the defendant had against the plaintiff. And when the Court of Appeals holds that the interference must be accompanied by "fraud, force, or some form of coercion," 8 it should be understood that a third party's pressure upon an employer to discharge an employee does not suffice. Rather, the Fifth Circuit was referring to situations where the discharge was procured to force or coerce the employee to do some act. See, e. g., Evans v. Swaim, 245 Ala. 641, 18 So.2d 400 (1944); Hill Grocery Co. v. Carroll, 223 Ala. 376, 136 So. 789 (1931); United States Fidelity & Guaranty Co. v. Millonas, supra.
In the present case, the NCAA has no ill will or malice towards Hennessey or Hudson, nor does it seek anything from either of them. While it has exerted pressure, in the form of potential sanctions for noncompliance, 9 to force Alabama to reduce the total number of assistant coaches, it has done so simply as a matter of direct interest between itself and its member institutions. Its interference is not, under the circumstances, "tortious" as explicated in the decisions of this state.
The plaintiffs assert that, contrary to the Fourteenth Amendment and in turn 42 U.S.C. § 1983, they have been denied equal protection of the law and deprived of liberty or property without due process. An initial question here is whether the actions of the NCAA can be said to be "state action" or "action taken under the color of state law" so as to be within the ambit of these...
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