Ex-Felons and College Coaching

I noted below that the EEOC is now attacking broadly worded employment policies that prohibit the hiring of convicted felons.  The Commission's enforcement guidance is, at least in my opinion, badly thought out and will make it impossible for employers to maintain control over their hiring standards by using and enforcing criminal background checks.


An example of how this silly policy is going to play out arose recently in the college athletics context.  Up until 2011, the NCAA allowed people with nonviolent felony convictions more than seven years old to coach at NCAA-sanctioned youth basketball tournaments. The rule changed, and the NCAA now bars all individuals with felony conviction from coaching in these tournaments.

The rule change had an immediate impact on several youth and high school coaches with nonviolent drug convictions in their pasts. In this latest case, a girls high school basketball coach is suing because the NCAA rule prohibits him from taking his high school teams to NCAA sanctioned tournaments. These tournaments are important because they are frequently the only way that college coaches can see high school kids playing during the summer, a prime scouting period for basketball.

I'm thinking that the NCAA will be able to at least articulate a reason why it does not want felons associating with junior athletes in its sanctioned programs.  The potential liability issue is all too obvious to those of us who have dealt with employers that hired people with felony convictions, only to have that come back and bite the company on a negligent hire or negligent supervision lawsuit. Although not employment cases, how these lawsuits play out may provide some important help for the rest of us struggling with the EEOC guidance.

A View of The U

The situation involving the University of Miami's athletic department continues to look bleaker and bleaker.  But no one should be surprised that a booster with lots of money could insert himself into an athletic program the way Nevin Shapiro did, with apparently the full knowledge and acquiescence of the school administration.
But never mind the potential game forfeitures and calls for the revision of college sports. From the perspective of an employment lawyer there are two fascinating lines of potential work that immediately jump out of this miserable situation.  The first involves current Missouri basketball coach Frank Haith, who was named by Shapiro as someone who knew about some shenanigans involving a basketball recruit while he was the coach at Miami. Coach Haith's contract with Missouri has a clause that allows the Tigers to terminate him for cause if, "in the sole judgment of the University" he is found to have engaged in any conduct during prior employment that violated NCAA regulations.  It seems this situation falls squarely within the scope of this particular clause. The question in my mind is why the coach agreed to this term, since the impending investigation at Miami has been known for at least a year.
The second employment issue involves the current Miami football coach, Al Golden. Golden, along with the Miami athletic director, is a brand-new hire who has absolutely no links to the burgeoning payola scandal. He must feel like he stumbled into a hurricane of uncertainty, especially since Miami failed to advise Golden about the investigation, even though school was well aware of it when it was recruiting him. He could certainly be forgiven for doing an about-face on his coaching contract, especially since he might not have a football team to coach for a few years. 
Breach of employment agreement / fraud in the inducement claims, anyone?