Whistleblowing in Intercollegiate Athletics: Why Warning Signs Are Missed and What Can Be Done about It

Article excerpt

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."

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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. Cc, 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. …