Was it Retaliation? Why New Jersey’s Whistleblower Statute May Pose More Problems for Rutgers University on the heels of the Mike Rice Scandal.

The Rutgers Basketball saga was early April’s big news. As most are aware, video recordings were made of basketball practices conducted by Head Basketball Coach Mike Rice which showed him using gay slurs toward his players and otherwise becoming physical toward them. The footage was given to Athletic Director Tim Pernetti in November 2012. Pernetti seemingly took the path of lesser resistance by suspending Rice for three days and levied a fine against him.  No further action was taken until the tape was made public this month; subsequent to the tape being aired and the resulting outrage, Rice was terminated.  This was followed by Pernetti’s resignation.  Rutgers subsequently announced it would be undertaking a further review of the situation.

University sports scandals seemingly beget other subplots and more litigation, and the Rutgers matter is no different. On the heels of the Rice firing came a lawsuit filed this month by Eric Murdock, the so-called “whistleblower” who leaked the damaging video to the media and who was the one-time director of player development for the basketball team.  Murdock claims he raised concerns with the University regarding Rice’s conduct early in 2012 and that the evidence he presented was ignored.  Murdock believes that he was later targeted for termination in July 2012 because he raised these concerns. Essentially, Murdock claims in his lawsuit that the University’s failure to retain him was a result of illegal retaliation for his disclosures about Coach Rice. Rutgers contends that Murdock’ contract was simply not renewed, a far cry from an outright and illegal “termination.”  A timeline of the Rutgers basketball scandal.

Under New Jersey’s Conscientious Employee Protection Act (“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 violates “a law, or a rule or regulation promulgated pursuant to law.”  Similarly, if an employee is 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 public policy, the employee is free to refrain without being subject to any retaliation.  After reporting activity or failing to participate in activity as outlined in CEPA, an employee may not be terminated, suspended, or demoted as a result of his reporting. An aggrieved employee is entitled to file a lawsuit within one year and seek compensation for all lost wages and benefits.  A civil fine not more than $10,000 may be imposed for the first violation.

So what does one make of Murdock’s claims? An option not to renew his contract versus an outright termination may be a technicality. It would appear at a minimum, based on the terms of CEPA, Murdock must prove he was not retained (in retaliation) solely because he raised attention about Rice. Certainly, one can extract from the policy set forth in CEPA that Murdock’s case hinges on whether he can show that he raised issues about Rice before his contract expired and before Rutgers chose not to renew his contract. (Soon after filing his suit, information surfaced that was potentially injurious to Murdock; he may have tried to extort Rutgers before the Rice tape was leaked. That claim is being investigated by the FBI).

Rutgers’ handling of the Rice fiasco was not defensible, but it may be in better footing as it relates to the Murdock lawsuit.  For example consider whether Rice’s conduct falls under CEPA i.e. a violation of a “law or regulation?” That is unclear. Certainly, Rutgers will argue that there was no adverse employment i.e. retaliatory action at issue in this case and that the University retains the right to terminate any employment “at will” even if it coincides with damaging information provided by the employee in question. And what leads further credence to Rutgers’ claim that is that in early 2012, Murdock skipped part of a basketball camp he was instructed to attend by Rice (see above timeline).  Certainly, Murdock’s work performance is at issue.

Protecting whistleblowers  is an essential part of maintaining an ethical and transparent work environment which Murdock will argue was his mission in speaking out about Rice in 2012.  Murdock will claim that he was seeking to foster a culture at Rutgers basketball in which superiors like Coach Rice are held accountable and especially as it related to the treatment of students.  It’s too early to speculate how these issues will play out especially when the quintessential “whistleblower” is not one that is being investigated for extortion and has violated company mandates. One thing is certain: the Murdock lawsuit is one of the many incarnations of the Rice scandal which will continue to haunt Rutgers in the foreseeable future.

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