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Monday, April 8, 2013
Rutgers' tangled legal mess

By Lester Munson
ESPN.com

Eric Murdock says he was fired as a Rutgers University basketball staff member because he blew the whistle on the coaching abuses of Mike Rice, and he has filed a lawsuit demanding monetary damages. In the days since "Outside the Lines" interviewed Murdock and aired video clips of Rice hurling balls at, cursing at and grabbing and shoving players, Murdock has been labeled either as a hero for standing up for abused players or as a money-grubbing extortionist who held a damaging video over officials' heads in exchange for payment.

Rutgers fans believe they can see proof of the latter by pointing to ESPN reporter Brett McMurphy's story this past Thursday that stated an FBI agent had been on the Rutgers campus asking about Murdock, inquiring about his dismissal and would-be claims for damages. Others, though, see compelling evidence that Rice tried to fire Murdock over work not performed at Rice's personal basketball camp, and that the university wanted Murdock to go away because he'd complained about the coach's behavior previously.

The circumstances raise questions:

Q: In its initial reports, "Outside the Lines" reported that Murdock sought money from Rutgers after his dismissal and also prepared a damaging video for former athletic director Tim Pernetti to see, which ultimately became public. This is extortion, isn't it?

A: An FBI agent may be on the Rutgers campus asking questions, but there is virtually no possibility that Murdock will be charged with the crime of extortion.

As the university was off-loading Murdock, his attorneys wrote letters that were the first steps in a lawsuit for retaliatory discharge. In one of the letters, the attorneys demanded $950,000 in settlement, an easily ridiculed suggestion. But the letter is nothing more than a routine demand letter, a routine bit of correspondence in a society in which citizens enjoy the right to go to court to seek redress for what they view as wrongful conduct. It may not be apple pie, but there are few things more American than a lawyer's demand letter. Hundreds of similar letters are being prepared and will be sent this week across the nation. Each is a part of the process that resolves the disputes that are inevitable in a free economy. If a demand letter somehow became redefined as an extortion attempt, the staff of the FBI and the court system would have to be increased exponentially.

Q: OK, so the letter from the lawyers may be legal, but what if Murdock told Rutgers officials that he held a damaging video and that he would make the video disappear in return for a lump-sum settlement?

A: If Murdock made this suggestion, it would be a step closer to an extortion charge, but it would still be a long way to an arrest and a prosecution. The videos of Rice abusing his players have always been in the custody of the university. A basketball team manager made the videos at dozens of practices. Murdock obtained them under the terms of the New Jersey freedom of information law and had help painstakingly putting them together in a lowlights reel.

It is clearly impossible for Murdock to cause the video to disappear. Even if the university agreed to Murdock's supposed suggestion, the university would then be guilty of covering up what appear to be violations of New Jersey's anti-bullying laws. This situation will be resolved in Murdock's civil lawsuit and not in a criminal charge of extortion.

Q: Is Murdock's wrongful-termination lawsuit against Rutgers a worthy claim? Will he succeed in proving that his dismissal was retaliation for his complaints about Rice?

A: It will not be easy for Murdock, but he can succeed. His lawsuit is known among lawyers and judges as a claim for "retaliatory discharge," and these claims are always difficult for the fired employee.

To succeed in his claim, Murdock must persuade the court and the jury that he is truthful when he asserts that he was complaining about Rice's abusive coaching long before he was terminated on July 2, 2012, and that, specifically, Murdock complained to former athletic director Tim Pernetti in a telephone conversation on June 27, 2012, that Rice's mistreatment of players was causing them to transfer out of the program. That telephone conversation will be the turning point of Murdock's case against Rutgers. Murdock's complaint about Rice was followed by a letter from the university announcing that Murdock's expiring contract would not be renewed.

If Murdock's chronology is accurate, he has a valid claim against Rutgers. If, for example, Rutgers could show with phone records that there was no Murdock-Pernetti conversation on June 27, then Murdock's claim is doomed to failure.

Eric Murdock
Eric Murdock had a nine-year NBA career.

Q: How will Rutgers respond to Murdock's lawsuit?

A: Rutgers officials will try hard to sound righteous and indignant over Murdock's attack on the character and integrity of the school's leaders. University officials will suggest that Murdock was not fired for his reports on Rice, and that his contract was simply not renewed, partly because he'd been insubordinate when he attended a basketball camp Rice had told him not to.

They will claim that he is nothing more than a disgruntled former employee who is grubbing for money. They will emphasize that Murdock is seeking five different kinds of money damages in his lawsuit.

But while they are denying that they owe anything to Murdock, university officials will also be notifying their insurance carriers that Murdock has what may be a valid claim. The lawyers for the university and its insurance carriers will quickly file a motion to dismiss the case, hoping to bring it to an early conclusion. Yet Murdock and his attorneys have enough evidence from Murdock's early complaints about Rice and the phone conversation with Pernetti to prevail against the university's attempt at an early dismissal.

Q: Is there any chance that Murdock and Rutgers could settle the dispute?

A: Yes. There is a probability that the case will settle. Soon after the university fails in its attempt for an early dismissal, the usual process of litigation discovery will begin. It will include deposition from university officials including president Robert Barchi, former president Richard McCormick, former athletic director Pernetti and others. They will be required to answer a broad array of questions under oath. There also will be exchanges of documents.

It is a process that could easily produce details that will be embarrassing for Barchi and the university. To avoid the discovery and the possible embarrassment, there will be settlement discussions.

These discussions are likely to produce an agreement that will include payment of damages to Murdock, a confidentiality clause that prevents Murdock from disclosing the amount that Rutgers paid in settlement and a statement from Rutgers that its payment of damages is not an admission that Murdock was fired for reporting on Rice.