The firing Tuesday of Gophers football coach Tracy Claeys may be justifiable for public relations — and ticket selling — purposes, but it is of dubious legality or fiscal integrity.
Apart from whether the decision to can Claeys was wise or woeful, it sends an ominous message to employees at the university and elsewhere and may end up costing the school a lot more than the relatively paltry $500,000 buyout owed to Claeys under the remaining two years of his bargain-basement contract.
Discharging him because he expressed “support” for the short-lived boycott by his football squad to protest the suspension of 10 of their team members due to their involvement in an inappropriate sexual incident serves as a warning to other employees there and at other places that speaking out on issues of public importance can result in the loss of their jobs. This intimidating lesson undoubtedly will deter them from taking stances on matters of concern if those stances might be incompatible with those of management where they work.
Firing Claeys for publicly backing his players — even awkwardly, as Claeys himself acknowledges — also may violate the statutory and constitutional rights of the ousted coach. Punishing him for supporting a stance that some view as opposing racial bias against the 10 suspended players, all of whom are African-American, could run afoul of the provisions of federal civil rights law and its counterpart Minnesota Human Rights Act, which prohibit retaliation against those who oppose discriminatory practices or associate with others who do so.
The sanction also may infringe the rights of Claeys under the state whistleblower law. Although that measure is not an exact fit for what happened to Claeys, it does proscribe management from disciplining an employee who calls attention to actual or suspected violations of law, including the assertions of violations of due process articulated by the boycotting players.
The termination also may transgress the First Amendment right of freedom of speech, which applies to public sector employees like Claeys. While the right of free expression does not immunize insubordinate behavior, the supposed reason for the discharge, the rubric of insubordination cannot be used to sanction constitutionally protected expression that is not disruptive or malicious.
Armed with these potent legal claims, Claeys may be able to obtain a much larger amount from the “U” than the half-million it owes him under his current contract. Added to the costs of paying off his assistant coaches, who also will probably be leaving, and then hiring a new, higher-salaried coach and assistants, the university could end up spending into eight figures, in excess of $10 million.
That’s a high price to pay to suppress freedom of speech.
Marshall H. Tanick is a Minneapolis employment and labor law attorney.