Posted September 30th, 2016.
By Mark Ziegler
Maybe it was an innocent slip, maybe the words escaped Elliot Hirshman’s lips before his brain could vet them, maybe he was just trying to be the smartest guy in the courtroom. But it certainly seemed like it was premeditated, like he wanted to say it.
Like he couldn’t wait to say it.
San Diego State’s president was on the witness stand in San Diego Superior Court in the wrongful termination trial of former women’s basketball coach Beth Burns, being cross-examined, and he kept trying to add something to yes or no questions. Ed Chapin, Burns’ attorney, kept cutting him off, explaining he wanted responses only to his questions and “that’s the way we do it” in trial testimony.
Chapin finished, and questioning returned to David Noonan, the lead attorney representing the California State University system. “I want to hear what you want to say,” Noonan told Hirshman. The jury chuckled. Hirshman thanked him and smugly proceeded to utter the two words that might have swayed a four-week trial.
On Wednesday, a five-woman, seven-man jury awarded Burns a $3.35 million judgment for whistleblower retaliation, finding that her multiple complaints about gender equity issues were a contributing factor to her sudden 2013 termination a month after a 27-win season and nine months after her contract was extended. Jurors later said Hirshman’s comments equating Burns to notorious men’s basketball coach Bobby Knight were a contributing factor to their decision.
“It was shocking,” one juror said, speaking on the condition of anonymity. “For that to come from the president of a university, it was really off-putting. It was offsides … It almost was like they were making her out to be a villain.”
Hirshman was describing the delicate balance between the intensity of intercollegiate sports and the educational values of a university. “If I say the name Bobby Knight,” he reasoned, “you know he was a great coach and you know that he also threw a chair across a basketball court.”
Hirshman, perhaps unwittingly, also illuminated what this case was really about: That Burns, winning as much as she did, would never have been fired if she coached football or men’s basketball or any other Division I “revenue” sport.
Knight, Hirshman may or may not remember, chucked a red plastic chair across the court during a game at Assembly Hall in 1985. That didn’t get him fired, though. In fact, he continued coaching another 15 years despite numerous other indiscretions, until video surfaced of him putting his hand on a player’s throat.
Even that might not have been the real reason. A program that won two NCAA championships in the 1980s hadn’t been past the second round of the NCAA Tournament in six years. Hadn’t won a Big Ten title in eight years.
Burns won big. She just won in the wrong sport, one with sparse crowds and negligible TV ratings, and that wasn’t enough to offset chronic complaining and allegations of poor treatment of subordinates. Former SDSU Athletic Director Jim Sterk admitted as much a year earlier in an email, giving his blessing for a contract extension for Burns “if we have ways to separate if she has issues rising to that level (like driving us crazy w complaining).”
This just in: College football coaches aren’t exactly Boy Scouts. They want to get their way. They lose their temper. They scream at people, even at their athletic director in the hallway underneath stadiums after games. They do because they can. They coach football. They win, and ADs and presidents look the other way.
Burns? She got fired after winning a school-record 27 games, despite glowing performance reviews for the two previous years and a beaming letter from Hirshman a month earlier lauding “your leadership and hard work.”
The tragedy is that this was preventable, without the mess, without the millions.
Call her in immediately after the season, when head coaching jobs are open. Explain that you don’t think she’s a good fit here any longer, that you want to go in the proverbial different direction. Yes, she has four years left on a contract paying her $220,000 per season (why it was extended if you wanted her gone is another issue). Explain that she is at the height of her marketability, winning 17 straight games, winning a Mountain West title, winning conference coach of the year.
You can fire her without cause and pay the remaining $880,000 of her contract, but she might have a hard time finding another job with the taint of termination. Or offer to split the difference, cut her a check for $440,000, let her quietly pursue another job, wish her well in future endeavors.
Instead, no one wins.
Burns gets a $3.35 million judgment but endures a month of withering testimony about uncouth behavior that might scare off anyone from hiring her as a head coach.
SDSU’s athletic department is subjected to one embarrassing revelation after another in a public forum, whether it was a clause in Burns’ contract about a bonus for season-ticket sales when you couldn’t buy season tickets for women’s basketball, or the athletic department’s Twitter feed trumpeting the fifth set of uniforms for the men’s team while the women’s team had yet to get travel sweats months after being ordered (and it was getting ready for a trip into the frigid Rockies with several players suffering from the flu).
Taxpayers – you and me – lose, too. Where do you think that $3.35 million (plus attorney fees) comes from at a state university?
SDSU issued a statement saying it is reviewing its legal options, which is a polite way of saying it might appeal or at the very least file post-trial motions aimed at reducing the award.
Regardless how the legal maneuverings play out, important lessons can be culled from a $3.35 million judgment from what by all accounts was an educated and engaged jury following a month — a month — of testimony. SDSU would be wise to heed them instead of doing like Sterk did with journalists in Missouri last week and proclaiming, “I’d do it again.” Instead of getting petty and, say, downgrading the prospects of the eminently qualified Don Oberhelman, a former interim athletic director at SDSU whose testimony in the trial was largely favorable for Burns, in its current AD search.
There are lessons about gender equity compliance. SDSU’s Title IX record looks clean from 30,000 feet, but this was less about scholarship or participation numbers on a national report than the more nuanced areas of intent and urgency, of genuinely equal treatment for women’s sports, of the spirit instead of the letter of the law. Of not complying because you have to, but because you want to.
There are lessons for the human relations department, which is supposed to be the voice of reason in rash terminations. And which, at SDSU, has had a half-dozen athletic department personnel win settlements or lawsuits over the last couple decades totaling $8 million. This is the second big payout in a whistleblower case, the second in a Title IX case, the third involving the head coach of a non-revenue sport.
“There’s another message here, too,” Chapin, Burns’ veteran attorney, was saying outside Judge John Meyer’s courtroom after the verdict Wednesday evening.
“And that’s if you’re the president of the university and you’re going to testify, don’t try to be cute and come up with some off-handed comment like Bobby Knight and assassinate the character of somebody who doesn’t deserve it.”
The biggest miscalculation, though, came on a regular basis at Viejas Arena, where Burns’ teams played. If anyone in the upper administration or human resources had bothered to watch them, if they had paid attention to how the Aztecs won so much, they would have seen a team in the image of its coach — tough, scrappy, plucky, relentless, resilient.
And they would have realized that the girl from New Jersey wasn’t going to melt into the background when they called her into a meeting for an annual performance review and fired her, that she wasn’t going down without a fight.
That it just wasn’t in her DNA.