Monthly Archive: April 2013

Apr 12

Blowing the Whistle: An Employment Law Perspective on the Rutgers Basketball Situation, Part Two


Photo Credit: The Fayj

Photo Credit: The Fayj

In Part One of this two-part series on the Rutgers basketball situation, we explored potential employment law issues surrounding Mike Rice and his actions.  In part two, we will look at one of the other major players in the Rutgers basketball story – Eric Murdock.  It should be noted that Murdock has filed a lawsuit claiming, among other things, that he should be afforded protection as a whistle-blower[1].  Although this piece looks at the same statute, it is in no way meant to demonstrate whether or not Murdock has a claim or to comment on the merits of his claim.  Rather, the purpose of this piece is to provide an overview of the statute and relevant case law, and to explain what needs to be shown in order for a claim to be successful.

For those not familiar with the events that have transpired at Rutgers University, here is a brief overview of the facts that have been reported as they relate to Eric Murdock.  (A comprehensive discussion of the overall incident can be found in Part One.)  Eric Murdock is the former director of player development for the Rutgers men’s basketball team[2].  The accounts of the circumstances under which Murdock left the university vary.  Murdock claims he raised concerns with the university regarding the behavior exhibited by Coach Mike Rice during practices[3].  He further contends that the evidence he presented was ignored for as long as six months[4].  Murdock believes that he was later targeted for termination because he raised concerns[5].  Rice allegedly told Murdock he was let go because he was insubordinate[6].  The charge of insubordination arises from a disagreement between the two regarding Murdock attending another event rather than an event the basketball team was conducting[7].  Rutgers contends that Murdock was not, in fact, terminated, but rather that his contract was not renewed upon its expiration[8].  Murdock presented video evidence of Rice’s behavior during practices to Rutgers in November[9].  The Federal Bureau of Investigations (FBI) is now looking into whether, along with the video footage, Murdock presented the university with an ultimatum[10].  Murdock’s lawyer attempted to settle with the university for $950,000[11].  Murdock has now filed a lawsuit claiming he was wrongfully terminated from his position[12].

New Jersey is an employment at-will state[13].  This means employers are free to terminate employees for any reason or no reason[14].  There are, however, protections in place to prevent workers from being fired for certain reasons.  One such protection prevents employers from removing employees who qualify as whistle-blowers.  This class of employees is protected under the Conscientious Employee Protection Act (CEPA)[15].

Under CEPA, employers are prohibited from taking retaliatory action against an employee who reports activity undertaken by the employer if the employee “reasonably believes” the activity is contrary to “a law, or a rule or regulation promulgated pursuant to law[16].”  An employee is also protected if he or she “reasonably believes” the activity being reported is “fraudulent or criminal” in nature[17].  Similarly, if an employee is being asked to participate in activity that he or she “reasonably believes” is against the law, is “fraudulent or criminal” in nature, or which “is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment,” the employee is free to refrain from participation without retaliation[18].  After reporting activity or failing to participate in activity described, supra, an employee may not be terminated, suspended, or demoted, among other forms of adverse employment action, as a result of reporting or failing to participate[19].  An individual who thinks he or she has been the victim of retaliation and should have whistle-blower status can file a lawsuit against his or her former employer within one year of the adverse action[20].  The employee, if his or her claim is successful, may be eligible for various forms of relief, including, but not limited to, an injunction, reinstatement, and “compensation for all lost wages, benefits and other remuneration[21].”  The employer may also be fined up to $10,000 for a first violation and up to $20,000 for additional violations[22].

In Dzwonar v. McDevitt[23], the Supreme Court of New Jersey considered the application of CEPA in a case where the employee of a union believed she had been fired for raising concerns about the union curtailing the ability of its members to participate in union activities[24].  The court held that in order for an employee to prevail on a CEPA claim, he or she must show that “(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule or regulation promulgated pursuant to a law, or a clear mandate of public policy; (2) he or she performed a ‘whistle-blowing’ activity described [in the statute]; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action[25].”  The employee bringing the claim does not have to show that the law was actually broken, only that he or she reasonably believed that to be the case[26].  The trial court, however, must be able to make a connection between the conduct and a specific law or regulation[27].

Recently, the Appellate Division of the Superior Court revisited CEPA claims and reiterated the requirements that must be met[28].  The court also made clear that CEPA and its provisions are meant to secure “‘broad protections against employer retaliate[ion] for workers whose whistle-blowing activities benefit the health, safety and welfare of the public[29].’”

It is clear from the statue and case law that in order for Murdock to be successful on his CEPA claim against Rutgers University, he will have to demonstrate that he had provided information regarding behavior on the part of Mike Rice, which Murdock reasonably believed was contrary to a law or regulation, to the university.  But more than that, the court must be able to clearly and concretely draw a connection between Rice’s behavior and a law or regulation.  The next hurdle he will have to overcome is demonstrating that he was, in fact, terminated and not that the university simply failed to renew his contract, as is their contention.  In the alternative, he will have to show that the failure to renew his contract was an adverse employment action under the meaning of retaliatory action in CEPA.  Finally, if he is able to show he undertook whistle-blowing activity to bring to light a violation of the law or a regulation and that the university took retaliatory action against him, Murdock must then draw a direct link between the adverse action and his voicing of concerns regarding the coach’s behavior.

Although New Jersey is an at-will employment jurisdiction, there are still protections in place for certain classes of employees, including those who qualify for whistle-blower status under CEPA.  Now that Eric Murdock has filed a lawsuit claiming whistle-blower status for his role in the Rutgers basketball situation, it will be interesting to see how the case plays out.


[1] Christian Red and Michael O’Keeffe, Ex-Rutgers ass’t coach Eric Murdock files wrongful termination suit against University, New York Daily News, April 5, 2013, available at

[2] Associated Press, Mike Rice fired from Rutgers after abuse video goes public, Newsday, April 3, 2013, available at

[3] Red and O’Keeffe, supra at note 1.

[4] Id.

[5] Associated Press, Report: FBI eyes possible extortion at Rutgers, USA Today, April 7, 2013 available at

[6] Red and O’Keeffe, supra at note 1.

[7] Id.

[8] ESPN, Rutgers AD Time Pernetti resigns, ESPN, April 7, 2013, available at

[9] Red and O’Keeffe, supra at note 1.

[10] Associated Press, supra at note 5.

[11] Red and O’Keeffe, supra at note 1.

[12] Id.

[13] New Jersey State Department of Labor (NJDOL), Wage and Hour Compliance FAQs, accessed April 2013, available at

[14] Id.

[15] N.J. Stat. 34:19-1-8.

[16] N.J. Stat. 34:19-3(a)(1).

[17] N.J. Stat. 34:19-3(a)(2).

[18] N.J. Stat. 34:19-3(c).

[19] N.J. Stat. 34:19-2(e).

[20] N.J. Stat. 34:19-5.

[21] Id.

[22] Id.

[23] 177 N.J. 451 (2003).

[24] Id at 460.

[25] Id at 462 (brackets added), citing Kolb v. Burns, 320 N.J. Super. 467, 476, 727 A.2d 525, 530 (App. Div. 1999).

[26] Id at 462-63, citing Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522, 792 A.2d 494, 497-98 (App. Div.), certify. Denied, 174 N.J. 40, 803 A.2d 636 (2002).

[27] Id at 463.

[28] Racanelli v. County of Passaic, 417 N.J. Super. 52 (Sup. Ct. of N.J. 2010).

[29] Id at 56, quoting Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239, 901 A.2d 322 (2006) (citation and internal quotations omitted).

Apr 10

Foul Shot: An Employment Law Perspective on the Rutgers Basketball Situation, Part One


Photo Credit: slgckg

Photo Credit: slgckg

By now, most have heard about the series of events that transpired at Rutgers University involving the head coach of the men’s basketball team.  Many have seen the video that has caused public outcry.  The actions of Coach Mike Rice and the response of Athletic Director Tim Pernetti raise a number of legal questions, including whether Rutgers, as the employer, had the ability to discipline Rice twice for the same underlying infractions and whether any of the students who played for Rice have claims against the university for negligent hiring, supervision, and retention.

For those not familiar with the story, here is a summary of the facts.  At various times between 2010 and 2012, video recordings were made of basketball practices conducted by Rice[1].  The videos showed Rice undertaking various forms of abuse[2].  His conduct included hitting and kicking players, throwing basketballs at players, and using, among other forms of verbal abuse, gay slurs to address the players[3].  The footage was given to Pernetti in November by a former employee of the basketball program[4].  Pernetti then sought outside review of Rice’s conduct[5].  A report prepared by Connell Lacey LLP allegedly concludes that Rice could have been fired for the behavior captured in the video[6].  Rather than fire Rice, however, Pernetti suspended Rice for three days and levied fines that ended up costing Rice a total of $75,000[7].  No further action was taken until the tape was made public; subsequent to the tape being aired and the resulting public outcry, Rice was terminated[8].  The firing came approximately four months after Rice was suspended[9].  In its announcement of the firing, Rutgers stated that officials based their decision on “recently reviewed information” and a “review of previously discovered issues[10].”  Rice’s termination was followed shortly by Pernetti’s resignation[11].  At the time he resigned, Pernetti claimed he had advocated for terminating Rice last year rather than issue the suspension, but that his suggestion was rebuffed by those senior to him[12].  Earlier this week, Rutgers announced it would be undertaking a further review of the situation and the way in which university officials responded[13].

Before delving into a discussion of the potential employment law implications related to Mike Rice’s coaching style and his termination, it is important to highlight a few factors.  First, New Jersey, where Rutgers University is located, is an at-will employment state, which means there is no cause requirement for an employee’s termination[14].  Second, there is no indication that Mike Rice’s employment contract with Rutgers contained provisions for discipline or requiring just cause (or any cause) in order to terminate his contract.  Finally, there has been no indication that Rice was a member of any union or had the protection of any collective bargaining agreement.

The most immediate question raised by Rice’s termination following the public release of videos showing his behavior during team practices is whether Rutgers could level a second punishment against Rice for the same incident of misconduct.  Remember, Rice had been suspended in December for the conduct displayed in the video[15].  Now, without new publicly-known facts (although Rutgers referenced new information it had considered[16]), Rice was fired for the conduct shown in the video.  Does this constitute an impermissible application of a second punishment for the same offense similar to the criminal law doctrine of double jeopardy?  The New Jersey courts have not dealt with the idea of double jeopardy in employee discipline in any cases that can be analogized to the present case.  There were, however, two recent arbitration decisions that can be.

In In re Calumet Specialty Products and United Steelworkers International Union, Local 13-245[17], a union grieved on behalf of an employee who failed to report for a scheduled shift after shifts for all employees had been altered[18].  The employee was given a notice stating the discipline being applied to him and the reasoning for it; the following day, he received an amended notice of discipline[19].  The union argued, in part, that the receipt of two separate notices for the same incident was double jeopardy[20].  In reviewing the case to determine whether double jeopardy was a claim that could be raised, the arbitrator looked to how double jeopardy had been viewed in relation to discipline in the employment setting.  The arbitrator concluded, “Once discipline for a given offense is imposed and accepted, it cannot thereafter be increased, nor may another punishment be imposed, lest the employee be unfairly subjected to ‘double jeopardy[21].’”  The arbitrator then held that the employee in Calumet Specialty Products had been subjected to double jeopardy[22].

Later that same year an arbitrator reached the same conclusion in In re Chicago Transit Authority and Amalgamated Transit Union, Local 241[23], where a union had filed multiple grievances on behalf of an employee[24].  The grievances involved challenges to discipline “other than discharge[25].”  The arbitrator held that applying two different disciplinary actions to the same employee for the same incident constitutes double jeopardy[26].

Applying these two cases to the Mike Rice situation, it appears that the concept of double jeopardy would generally apply.  Rice was disciplined for the conduct he was shown to engage in during practices in December by way of suspension[27].  Thus far, no evidence has been made public to show that he continued to engage in the inappropriate conduct during practices or other interactions with players.  And yet, last week, his employment was terminated because of the conduct displayed in the video[28].  Therefore, two separate punishments were meted out for the same acts of misconduct.  As Calumet Specialty Products and Chicago Transit Authority clearly demonstrate, such action by an employer constitutes impermissible double jeopardy[29].  Had there been intervening occurrences of the same misconduct or other forms of misconduct, the termination would be more likely to be seen as escalating discipline.  Again, however, it should be noted that New Jersey is an employment at-will state, meaning Rutgers does not have to provide a reason for terminating Rice’s employment with the univeristy[30].  Further, both cases discussed, supra, involve unionized workers.  It is unclear whether the concept of double jeopardy would apply to workers outside the unionized workplace who are subject to at-will termination.  As such, Rice would likely not enjoy the protection afforded by the rule against double jeopardy.

Turning attention now to the individuals who were on the receiving end of the behavior shown in the video, the second question raised by this incident is whether the players on the men’s basketball team have a claim against Rutgers for negligent hiring, supervision, and retention of Rice.  Tim Pernetti has said that prior to Rice being hired as the head coach, Rice and Pernetti had a lengthy discussion about Rice’s reputation when it came to his coaching style[31].  After Pernetti was made aware of how Rice was conducting practices, he chose to merely suspend Rice because the coach appeared to demonstrate that he knew the behavior was wrong[32].  Does this give rise to a situation in which the players would have a claim for negligent hiring, supervision, and retention for the timeframe represented by the video?  If the conduct continued after Rice served his suspension, would the players have a claim for the subsequent timeframe?  The New Jersey courts have looked at the issue of negligent hiring, supervision, and retention in two recent cases.

In Jafar v. Elrac, Inc.[33], the court defined negligent hiring, supervision, and retention as “broader forms of liability than under the doctrine of respondeat superior[34].”  One year later, in D.T. v. Hunterdon Medical Center[35], the court again looked at the requirements for negligent hiring, supervision, and retention under New Jersey law.  The court provided two requirements necessary for a claim to be successful[36].  The first requirement is that the employer was aware of the possibility that the employee may cause harm to others[37].  The second requirement is that the employee’s actions proximately caused the injuries claimed to have been suffered and this causation would not have been possible absent the employee being hired by the employer[38].  The employer must have “[known] or had reason to know” about the possibility that the employee could harm others[39].  The opinion points out that “The Court has explicitly recognized ‘the tort of negligent hiring or retention of an incompetent, unfit or dangerous employee and h[e]ld that one may be liable for injuries to third persons proximately caused by such negligence[40].’”

It appears clear from public reports that, at the very least, Tim Pernetti was aware of Mike Rice’s reputation as a coach and felt the need to counsel him about his coaching style prior to bringing him on board at Rutgers[41].  There are also indications that after Rice’s hiring, at least one of the employees of the basketball program raised concerns about Rice’s coaching techniques with Pernetti[42].  And lest Pernetti be held out as the only party who knew of the behavior at the administrative level, it should be noted that the President of Rutgers University was made aware of the video footage at the time it was presented to Pernetti and declined to watch the footage[43].  Given that it appears Rutgers was aware of Rice’s behavior at the time he was hired, the players shown being subjected to abuse in the video would likely meet the first requirement for a claim of negligent hiring, supervision, and retention.  Further, since the university was made aware of the behavior displayed by Rice after being hired as the head coach, if the conduct continued after the school was made aware and disciplined the coach, those students harmed at that time would also likely meet the first requirement of knowledge on the part of the employer.  What may be harder for the students to demonstrate is the second requirement.  A student hoping to prevail on his claim will have to be able to demonstrate that he was injured in some way by Rice’s conduct and that the university’s hiring and subsequent retention of Rice was the proximate cause of that injury.

It will be interesting to see how this story plays out going forward.  So far, Mike Rice seems not to be challenging his removal as the head coach of the men’s basketball team, but that could always change down the road.  Were he to attempt to challenge his termination as a double jeopardy punishment, Rice would likely not succeed, as New Jersey is an employment at-will state and he was not a unionized worker.  It also seems as though there are no players coming forward at this time to claim they were directly injured as a result of Rice’s conduct.  If they were to come forward in the future and can demonstrate the injury and the connection between the injury and Rutgers’ hiring of Rice, it is likely the students would prevail on a claim of negligent hiring, supervision, and retention.

[1] Steve Eder, Rutgers Fires Coach Over Abuse and Slurs, New York Times, April 3, 2013, available at

[2] Associated Press, Mike Rice fired from Rutgers after abuse video goes public, Newsday, April 3, 2013, available at

[3] Eder, supra at note 1.

[4] Associated Press, supra at note 2.

[5] Id.

[6] ESPN, Rutgers AD Tim Pernetti resigns, ESPN, April 7, 2013, available at

[7] Associated Press, supra at note 2.

[8] Id.

[9] Eder, supra at note 1.

[10] Id.

[11] ESPN, supra at note 6.

[12] Id.

[13] Associated Press, Rutgers commissioning review of basketball scandal, USA Today, April 8, 2013, available at

[14] New Jersey State Department of Labor (NJDOL), Wage and Hour Compliance FAQs, accessed April 2013, available at

[15] Associated Press, supra at note 2.

[16] Eder, supra at note 1.

[17] 130 Lab. Arb. Rep. (BNA) 563 (June 27, 2012).

[18] Id at 564.

[19] Id.

[20] Id at 567.

[21] Id at 570, citing Elkouri & Elkouri, How Arbitration Works, 6th Edition, 1997, 2003.

[22] Id at 570.

[23] 130 Lab. Arb. Rep. (BNA) 1575 (November 7, 2012).

[24] Id at 1576.

[25] Id.

[26] Id at 1581.

[27] Associated Press, supra at note 2.

[28] Id.

[29] See discussion, supra.

[30] NJDOL, supra at note 14.

[31] Don Van Natta, Jr., The coach, the assistant and the AD, ESPN, April 5, 2013, available at

[32] Associated Press, supra at note 2.

[33] 2011 N.J. Super. Unpub. LEXIS 974 (Superior Court of New Jersey, Appellate Division 2011).

[34] Id at 20, citing DiCosala v. Kay, 91 N.J. 159, 174, 450 A.2d 508 (1982); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 29-30, 692 A.2d 61 (App. Div. 1997).

[35] 2012 N.J. Super. Unpub. LEXIS 2204 (Superior Court of New Jersey, Appellate Division 2012).

[36] Id at 30.

[37] Id.

[38] Id.

[39] Id.

[40] Id, citing DiCosala v. Kay, 91 N.J. 159, 174, 450 A.2d 508 (1982).

[41] Natta, supra at note 31.

[42] Keith Sargeant, Rutgers’ Big Ten move could have delayed Mike Rice firing, USA Today, April 7, 2013, available at

[43] Id.

Apr 01

The Roast of Professor Gregory: A Celebration of 30 Years of Teaching at St. John’s Law: April 5, 2013



On Friday, April 5, 2013, a group of alumni, faculty, students and friends joined to pay tribute to Professor Dave Gregory at a roast in his honor. As a member of the St. John’s Community for more than 30 years, Professor Gregory has been a integral part of the faculty, sharing his talents as a professor and advisor to the Labor and Employment Society. As the executive director of the Center for Labor and Employment he has served as a teacher, mentor and colleague to current students and alumni of St. John’s University School of Law.

The event took place at the St. John’s Campus in Manhattan, the room was filled by people who Professor Gregory has impacted, including Cardinal Egan, Dean Michael Simons, and many others. The Roast featured commentary from past students, colleagues and long-time friends, which celebrated Professor Gregory’s positive impact on everyone he meets.

Special thanks to all who sponsored the event and to those whose hard work made this event a success. Congratulations on 30 years of teaching to Professor Gregory!

*Check back soon for pictures and video clips from the event!*

Apr 01

Arbitration in Professional Sports Symposium

On April 19, 2013, the Center for Labor and Employment and the Labor Relations and Employment Society will host a spring symposium; presenting a full day of learning focusing on how arbitration has affected labor management relationships in sports. This symposium will bring together key players in the world of sports arbitration. This is a not-to-be missed opportunity to meet, hear, and, most important of all, learn from the people who have been responsible for that, and who know the most about it.

A luncheon address by Donald Fehr, the preeminent sports union leader in the country, and a “fireside chat” with George Nicolau and John Feerick, internationally renowned arbitrators, headline the event, but it also includes sessions in which today’s leading practitioners of both salary and grievance arbitration, on both sides of the labor and management aisle, wilhockeyl describe how those processes work, what interested students need to know about the demands of both, and how the arbitration process has affected labor management relations in their sports.

Please see the event page for a full list of participants. The Center for Labor and Employment Law and the Labor Relations and Employment Law Society are very grateful to all of the speakers. Special thanks to Gene Orza ’73, a cofounder of the St. John’s Labor Relations and Employment Law Society more than 40 years ago. Gene and his successor, Andrew Midgen ‘13, current co-President of the Labor Relations and Employment Law Society, are the driving forces of this symposium. Special thanks also to Jeff Zaino, Vice President of the American Arbitration Association, and Professor Sam Estreicher, Director of the Center for Labor and Employment Law at NYU Law, for collaborating with us on this extraordinary event. We also thank the symposium co-sponsors: The Hugh Carey Center for Dispute Resolution, the Dispute Resolution Society, and the Entertainment, Arts and Sports Law Society at St. John’s School of Law.

We would also like to extend special thanks to Frederick Braid ’71 and Ronald Russo ’73 for generously underwriting some of the costs of the symposium.

There is no fee to attend the symposium, but registration is required.  To RSVP please go to the “Contact Us” tab and send us a message with your contact information and the subject line “Arbitration in Professional Sports Event RSVP”. The full-day event qualifies attendee’s for 4 non-transitional CLE credits for a fee of $100. For payment and registration for CLE credit please register for the event at

We hope to see you there!