Fired Cincinnati Coach Sues University, Claiming Due Process Breach

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Recently fired Cincinnati men’s basketball coach John Brannen sued the school on Friday, as well as athletic director John Cunningham and school president Neville Pinto. On behalf of Brannen, attorney Tom Mars and co-counsel filed a 66-page complaint in a Cincinnati federal district court. The complaint seeks monetary compensation for the firing, which the school designated “for cause”—a classification that denied Brannen a $5.25 million buyout.

Brannen charges that Cincinnati violated his due process and illegally concocted grounds for dismissal by exaggerating innocuous infractions during a hasty investigation.

“Coach Brannen’s suspension and termination,” the complaint bluntly insists, “were the result of a sham ‘investigation’ that was unfair, unreliable and inherently flawed and nothing more than a smokescreen to avoid triggering a contractual buyout clause that would have cost the University millions of dollars.”

The complaint reserves its harshest words for Cunningham, who is accused of engineering “bogus” reasons to fire Brannen with cause. It portrays Cunningham as using the team’s strength and conditioning coach, Tyler Stuart (who apparently argued with Brannen over workout protocols) to “build a case” against Brannen. Cunningham is also accused of failing to inform Brannen of the allegations that led to the investigation. Further, the AD is described as retaining a law firm to oversee what the complaint dismisses as a biased search. An attorney from the firm, the complaint contends, allegedly said he was trying to “nail down an NCAA violation” and needed a player’s help to prove it. Brannen also maintains he wasn’t provided with documents and interviews obtained in the investigation, and therefore couldn’t defend himself.

Crucial to the lawsuit is Cincinnati’s status as a public university. It means the school is an arm of the state and therefore must adhere to Constitutional requirements. The Fourteenth Amendment guarantees public employees safeguards before losing protected interests, most relevantly here the reasonable expectation of continued employment.

These safeguards are sometimes detailed in employment contracts, workplace handbooks, university policies, collective bargaining agreements and other materials. They typically include timely and written warnings, a credible opportunity to be heard, a meaningful chance to rebut and an evidence-based outcome. To that end, Brannen’s lawsuit invokes a federal law—Section 1983 of the U.S. Code—that supplies a right to enforce Constitutionally protected interests.

Brannen, 47, signed a six-year contract worth $9 million, plus incentives and bonuses, in 2019. The contract indicated he would be paid 75% of the remaining compensation if the school fired him without cause. By contrast, in the case of a firing with cause, the school wouldn’t owe him compensation beyond accrued benefits.

A “for cause” firing occurs when the school maintains the coach violated the contract in a profound way. Brannen’s contract specified circumstances that would constitute cause. They included a willful refusal to diligently perform duties, intentionally and substantially harming the welfare of a player or partaking in conduct that constitutes a major violation of a school, conference or NCAA rule. The contract also specifies what would not. “The university,” the contract expressed, “acknowledges and agrees that it does not intend for this Agreement to be terminable for cause in the event of a minor or otherwise immaterial violation of the terms and conditions.”

Brannen served as the Bearcats coach from 2019 to 2021. His team finished 12-11 in the most recent season but in March drew negative attention as six players, including four freshmen, entered the transfer portal. Soon thereafter, the school placed Brannen on administrative leave, during which he was paid but separated from the school and his team. Meanwhile, university officials conducted an internal investigation into Brannen’s conduct.

The school fired Brannen on April 9. “The decision to move in a new direction,” Cunningham explained at the time, “comes after a thorough review of our program, which included conversations with student-athletes, coaches and staff, as well as with coach Brannen.”

Cunningham’s dismissal letter, obtained by the Cincinnati Enquirer, was more explanatory. He told Brannen that he had “failed to promote an atmosphere of compliance within the Men’s Basketball Program with respect to rules, regulations and policies” and “further jeopardized and/or disregarded the well-being, health and safety of student-athletes.” The letter also referred to Cunningham issuing a written reprimand against Brannen last November after he allegedly held an “unauthorized conditioning workout,” which was “overly strenuous.”

The complaint forcefully rejects these characterizations, insisting that the practice was a “free throw shooting drill” where players who missed more than five of 22 free throws had to do shuttle runs. These players “wore heart monitors and were provided water breaks.” While one of the players required medical attention, “the fact that that a player receives medical attention during a practice session,” the complaint maintains, “does not establish that a given drill is overly strenuous.”

The Enquirer also reported that, last year, Brannen paid a total of $135 to help a player obtain mental health services. Such a payment might be construed as an NCAA rule violation, though it could also be regarded as a good deed. Brannen, the complaint asserts, admitted to making the payments and did so in part because the player “specifically asked to see a mental health professional who was not an Athletics Department insider.”

Mars, Brannen’s lawyer, told the Enquirer that Cunningham had created a procedurally unfair process for review of the payment, in that Cunningham, Mars said, played the role of witness, prosecutor and jury. The lawyer asserts that Cunningham discussed the payment with Brannen, with no witnesses present. There is a dispute over whether Brannen claimed that the school’s compliance officers had approved the payment or merely signed off on a protocol for mental health. Mars questions why Cunningham would allegedly wait three weeks after the conversation to clarify the matter with compliance staff—a week before Cincinnati fired him. This all goes to the fairness of the process.

In that same light, the complaint insists the investigation was rushed, slipshod and intended to reach a particular outcome, providing a pretext to fire Brannen and deprive him of $5.25 million. The school, the complaint asserts, is facing severe financial issues and saw an opportunity to save money. Last month, The News Record revealed the university directed $32.9 million in tuition and general fund money to cover an athletic department deficit of $25.2 million. The complaint stresses the contract expressly prohibited Cincinnati from “seizing on minor or immaterial violations as grounds to terminate him ‘for cause’ and avoid paying him is buyout compensation.”

The complaint expends considerable energy invoking another case that involved an Ohio college basketball coach, former Ohio State coach Jim O’Brien. In 2004, OSU fired O’Brien for cause amid findings that he breached NCAA rules by loaning thousands of dollars to a European recruit. O’Brien sued the school, arguing it lacked the requisite grounds to designate the firing for cause. He won. Ohio courts reasoned that while O’Brien erred, the mistake neither reflected a pattern of misconduct nor significantly tarnished the school’s reputation. The misconduct therefore didn’t establish cause. OSU not supplying O’Brien with an adequate chance to fix the problem was also held against the school. As Brannen sees it, the O’Brien case is on point: Like with O’Brien, Brannen sees any missteps as not warranting such a severe penalty as losing a job and the right to collect $5.25 million. He also believes Cincinnati, like OSU, failed to follow required procedures.

Like any complaint, Brannen’s isn’t a neutral narration, and it attempts to portray Brannen—and the facts concerning his dispute—in the most favorable light. Cincinnati will answer the complaint and offer its own chronicle. Expect the school to argue that Brannen was on notice of alleged misconduct through the written reprimand and other communications. The school will also contend Brannen engaged in conduct that could be viewed as egregious within the context of NCAA amateurism. Likewise, it will assert the investigation was fair and thorough. Evidence and witness testimony will determine which of the two narrations is more believable.

Yet Brannen doesn’t have to win the case to inflict reputational damage on the school and the Bearcats officials tied to the dispute. Litigation can lead to pretrial discovery, with records that a university deems confidential potentially subject to disclosure. The school might eventually become inclined to offer Brannen settlement terms to avoid potential fallout.

Brannen has also hired an attorney with a proven track record in taking on athletic departments. Mars, whom The Wall Street Journal profiled last year, recently negotiated a $3.53 million settlement on behalf of Illinois head coach Bret Bielema to resolve his litigation against the Razorback Foundation. Mars also successfully represented Houston Nutt in a defamation lawsuit against Ole Miss that, through disclosure of phone records, led Hugh Freeze to resign as head coach.

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