The University of Arizona Athletic Department has had its share of problems. In 2017, the University fired its head football coach, Rich Rodriguez, after a former administrative assistant accused him of sexual harassment. In 2019, a men’s basketball assistant coach pleaded guilty to bribery, and in 2021 the NCAA cited the program for academic misconduct. In June, the Ninth Circuit Court of Appeals held that the University unlawfully removed a track and field athlete from the team in retaliation for filing a Title IX complaint.
But the University’s biggest embarrassment might result from defending the explosive charges brought by a former coach in a racketeering (RICO) lawsuit filed on September 1, 2023. The allegations set forth in Aych v. University of Arizona, et al., No. 2:23-cv-07282 (C.D. Cal. 2023) read as if Robert Ludlum (The Bourne Identity) had taken an interest in college sports.
THE ALLEGED FACTS
The Wildcats replaced Rodriguez in 2018 with Kevin Sumlin, who had been successful at Houston and Texas A&M. But Sumlin’s brand of football never caught on in Tucson, and Athletic Director Dave Heeke fired him just five games into the 2020 season amidst a 12-game losing streak. “When we hired Kevin three years ago, we had very high hopes for our football program,” Heeke said in a statement. “Unfortunately, we simply have not seen the results…”
On the surface, it looked as if Arizona had simply fired an unsuccessful head football coach. But the Complaint filed by former assistant coach Theron Aych lays out an evil conspiracy in which Sumlin and his staff were destroyed from within.
Aych coached the Arizona wide receivers and tight ends from 2017 to 2020. Rodriguez hired Aych and Sumlin kept him on, but Arizona fired Sumlin’s staff after the 2020 season. The Complaint alleges that Heeke became disgruntled with Sumlin and sabotaged the program so he could justify firing Sumlin and installing his friend, Jedd Fisch.
The most damning allegation is set forth in Paragraphs 2 and 3 of the Complaint: “In an effort to terminate the entire coaching staff under the pretense of ineffective coaching, U of A purposely transferred and released Coach Sumlin’s private football playbook to opposing college football teams from other NCAA and Pac-12 institutions…U of A gave competitors access to Coach Sumlin’s private playbook in an effort to compromise the credibility [of] U of A coaches and/or make its coaches look bad during games.”
THE ALLEGED EVIDENCE OF AN UNLAWFUL SCHEME
Aych alleges that the following defendants participated actively or passively in Heeke’s plan to oust Sumlin and his staff: the University of Arizona, the Arizona Board of Regents, the NCAA, UCLA and the University of California Board of Regents, the NCAA, the Pac-12 Conference, Heeke, Fisch, and Jimmie Dougherty, an assistant hired by Fisch.
The Complaint states that:
- Arizona hired Fisch only 11 days after terminating the entire football staff, a surprisingly short time.
- Heeke hired Fisch even though Fisch never played college football and had no prior head coaching experience.
- Upon his hiring, Fisch immediately announced that Dougherty would be his lead assistant; Dougherty had been coaching with Fisch at UCLA and the two also coached together at the University of Michigan.
- In his first day on the job, Dougherty handed his thumb drive to an assistant, John Marinelli, and asked him to remove UCLA logos; the thumb drive contained the University of Arizona’s playbook and other documents that had been accessible only via the University’s confidential, secure server.
- Marinelli (currently an assistant at the University of Connecticut), shared his findings with others on the staff and provided an affidavit.
- Plays had been stolen internally, distributed to Pac-12 and NCAA rivals, and used against Head Coach Sumlin’s team “possibly from the inception of his tenure until he was terminated in 2020.”
- The NCAA “collusively” allowed the release of Sumlin’s playbook to the detriment of Aych’s professional reputation and credibility as a football coach.
LEGAL THEORIES
The Complaint contains seven causes of action. Count One alleges racial discrimination by the NCAA and the Pac-12 in violation of 42 U.S.C. § 1981, based on their permitting unfair competition amongst schools to diminish the professional reputation of Aych and other black football coaches. The Complaint notes that only 14 of the 129 Football Subdivision Schools have black head coaches.
Count Two alleges that Heeke, Fisch, and Dougherty violated Section 1962c of the Racketeer Influenced and Corrupt Organizations Act (RICO – 18 U.S.C. §§ 1961-1968) by engaging in a common scheme to release and transfer Coach Sumlin’s playbook for the unlawful purpose of “intentionally conspiring to defraud and misrepresent Coach Aych of his benefits and rights.”
Count Three alleges that Heeke, Fisch, and Dougherty conspired to create illegal restraints on competition in contravention of the Sherman Antitrust Act.
Count Four alleges that the conduct of the University, the Arizona Board of Regents, and the California Board of Regents amounted to intentional interference with economic advantage because the sharing of the team’s proprietary materials disrupted Aych’s ability to market himself as a highly valued football coach. Count Five pleads negligent interference with prospective economic advantage and Count Six alleges common law fraud against these same three defendants.
Count Seven alleges that the University and the Arizona Board of Regents defamed Aych through conduct, which is rarely a basis for defamation. Aych alleges that the defendants’ actions “negatively harmed Coach Aych’s reputation by putting his character, work ethic and ability to successfully coach into question…” and terminating him under the guise of a “poor season.”
WHAT’S NEXT?
If the factual allegations are accurate, then the case may prove a damning indictment of college football and the institutions that used Arizona’s playbook. The case could serve as a catalyst for an FBI investigation for several reasons, including that sports betting was legal when the games in question were played.
It would be fascinating to discover if Arizona’s playbook was sent to Dougherty before Arizona hired him away from UCLA and whether there is evidence showing that the playbook was distributed to other rivals.
Even if the basic facts are proven, some of the legal theories appear to rely on tenuous inferences. For instance, is there more substance to the racial discrimination claim than is set forth in the complaint? Is there evidence that the NCAA had knowledge of the stolen playbook? Also, blaming coaches for a “poor season” would appear to be an opinion that cannot serve as the basis for a defamation claim.
Finally, UCLA is a named defendant but is not identified as an applicable party in any of the seven counts in the Complaint. It is likely that UCLA and the other defendants will bring a motion to dismiss the Complaint for failure to state a claim upon which relief can be granted under Rule 12 (b) (6) of the Federal Rules of Civil Procedure.
The Complaint was filed by attorney Jonathan Weiss of Los Angeles and by anticipated pro hac vice counsel, Alfonso Kennard, Jr. and Eddie Hodges, Jr. of Houston.
WHERE ARE THEY NOW?
Sumlin landed at Maryland as the co-offensive coordinator, while Aych served as the offensive coordinator at UTEP before taking the same position at Tennessee State University in 2022. Fisch has Arizona off to a 3-1 start after finishing 1-11 in 2021 and 5-7 last year. Although Fisch had little or no head coaching experience, he was an all-state tennis player at Hanover Park (N.J.) High School who earned a master’s degree in sports management at the University of Florida where he served as a graduate assistant under Head Coach Steve Spurrier.
Fisch had assistant coaching stints with seven NFL clubs and six college teams before signing with Arizona for a reported $2.6 million per year over five years. His base pay in the first two years was higher than Sumlin’s had been with the Wildcats.
The allegations are remarkable but not unprecedented. In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the University of Georgia Athletic Director Wally Butts and the famed Alabama Coach Paul “Bear” Bryant sued the Saturday Evening Post for defamation after it reported that Butts gave Georgia’s game plan to Alabama prior to their 1962 contest. The story was that Butts was a beloved Georgia head coach who was pushed out of the job and wanted to torpedo his successor. Alabama won the game, 35-0, and Bryant won a $300,000 settlement from the Post’s parent company. Butts was awarded $3.06 million at trial, which was reduced to $460,000. The payments contributed to the demise of the Post two years later.
If the case proceeds beyond the likely motion to dismiss, full discovery of the facts should be intriguing. And extremely embarrassing either to college football or to Coach Aych.
[This article was originally published in the Sports Litigation Alert, where Gary serves as senior writer. It is reproduced with permission.]