Posted April 5th, 2018.
By Mark Zeigler
San Diego State fired women’s basketball coach Beth Burns in April 2013 with four years and $880,000 remaining on her contract, claiming it had cause and owed her nothing.
This week, the university reached a legal settlement that will pay Burns and her attorneys $4 million.
In addition, there is an estimated $1 million in fees to an outside law firm to litigate the case over the past five years, plus a $250,000 settlement the university paid to assistant coach Adam Barrett, who allegedly was elbowed by Burns on the bench during a game.
The total bill to the California State University system — and, by extension, taxpayers — likely will be between $5.5 million and $6 million.
“There’s a lesson in this,” Ed Chapin, Burns’ San Diego-based attorney, said. “And that is: Make sure you have your ducks in line and don’t create a pretext for firing someone, because you can get caught and when you do the consequences can be severe, as they were here.”
An exchange of settlement offers in the months after Burns was terminated, obtained by the Union-Tribune last year, show the former coach wanted the $880,000 left on her contract plus $25,000 in attorney’s fees. SDSU countered with $165,000 plus $15,000 in attorney’s fees.
The sides reached an impasse and Burns instead filed a civil suit in San Diego Superior Court in 2014, claiming wrongful termination and whistleblower retaliation for complaining about potential Title IX violations. CSU alleged she was fired for mistreating subordinates and hitting one. The case went to trial in the summer of 2016 and resulted in a $3.35 million judgment in Burns’ favor by a 12-person jury.
CSU appealed, and another round of mediation began in December — this one successful.
Said Catherine Barrad, CSU’s general counsel for SDSU: “This is a situation where, although we are very confident of our chances on appeal, we decided to reach a settlement and move on. … It’s a compromise. It’s something where clearly Coach Burns is ready to put this behind her and we’re ready to move forward as well.”
Before the settlement, SDSU was on the hook for the $3.35 million judgment plus $1.9 million in attorney fees and expenses awarded by Judge John Meyer in March 2017. In addition, the meter was running on what SDSU would owe from the original judgment; at 7 percent annually, that meant nearly $235,000 per year.
“Any time you can get a resolution as opposed to dealing with the uncertainty of going forward, it’s better to try to get a certain outcome,” Chapin said. “There’s a risk when a case is on appeal that a Court of Appeal is going to see the case differently than you see it or the judge saw it. If you can get certainty, then do it. If you can tolerate the price, do it.
“Beth took a reduction in her recovery, and we took a reduction in our fees in this settlement. I think it was the right thing to do, although I’m disappointed that we didn’t get 100 cents on the dollar.”
The settlement agreement, obtained by the Union-Tribune through a public records request, stipulates that $1.55 million of the total payment goes to Burns. The remainder of the money goes to Chapin’s law firm ($1.75 million) and fellow attorney Allison Goddard ($700,000).
The agreement precludes Burns from applying for future employment within the CSU system and its 23 campuses, and it includes a motion to vacate the judgment in Superior Court.
It also says: “CSU disputes the claims raised by Burns and denies, and continues to deny, that it has any liability to Burns. Burns disputes the defenses raised by CSU and maintains, and continues to maintain, that CSU is liable to her in an amount at least equal to that awarded by the Superior Court.”
Burns, the winningest women’s basketball coach in SDSU history, had just completed a season in which the Aztecs won a school-record 27 games when she was summoned for what she thought was an annual review. Instead, Athletic Director Jim Sterk and human resources personnel gave her three options: resign, retire or be terminated.
The trial lasted nearly a month, involving tens of thousands of documents and dozens of witnesses, among them current Athletic Director John David Wicker, former men’s basketball coach Steve Fisher and former university President Elliot Hirshman.
The trial’s most dramatic moment came during Hirshman’s testimony, when he compared Burns’ actions — elbowing an assistant coach on the bench — to former Indiana men’s coach Bobby Knight, who once hurled a chair across the court during a game and cracked a bullwhip near an African-American player. Knight was ultimately fired after video surfaced of him grabbing a player by the throat at practice.
One juror called Hirshman’s comment “really off-putting” and a factor in their verdict. And Meyer, in subsequent comments from a transcript of a post-trial hearing, said: “She was compared to Bobby Knight, and that might not have been a good thing.”
Meyer, the Superior Court judge, also told the attorneys: “There are some cases once in a while, and it’s not that often, where at the end of the trial when the verdict is announced, somebody says: ‘Wow, where did they come up with that?’ That’s not the case … I’m just saying that it’s not difficult to determine how and why the jury came up with the numbers they came up with.
“She had built the program. She ended up with a 27-7 record. She was getting kudos and accolades … And it was like San Diego State, for a pretextual reason, just tossed her out like a squeezed lemon.”
Burns has not been hired as a head coach since. She was an assistant at USC for two years. This past season, she was an assistant at Louisville, which reached the Final Four of the NCAA women’s tournament.
Burns declined comment, but Chapin, her attorney, said: “There’s been significant collateral damage. I haven’t confirmed this, but I have it on rumor. She was a candidate for two head coaching jobs at Division I schools, and she was being recommended highly by people below the level of athletic director. The athletic directors both said they didn’t want someone running the program who had brought a Title IX action. So she’s been kind of blackballed.”
Burns’ settlement is at least the fourth CSU has paid involving coaches or other athletic department employees, totaling nearly $10 million.
Men’s volleyball coach Rudy Suwara received a $376,000 settlement in 1994 when he sued after not being retained. Former swimming coach Deena Deardurff Schmidt got a $1.45 million settlement in 2005 after filing a Title IX discrimination lawsuit. And a whistleblower protection lawsuit by former strength coach Dave Ohton resulted in a $2.7 million settlement in 2008, plus $1 million in legal fees.
“I think athletic departments that are traditionally run by men, former athletes in many instances, aren’t sensitive to Title IX issues,” Chapin said. “It’s a challenge because women’s sports generally don’t generate a lot of revenue. I think there’s an attitude that these sports and the support of them are forced upon them by Title IX, and there’s some resistance to that.
“And when a coach is a winner, the coach obviously has leverage and can get more (resources) for herself and her program. There’s tension there. Schools need to be prepared to address that and not put their head in the sand.”
Barrad defended SDSU’s record of “providing equal opportunities to all students and student-athletes,” adding: “I want to make it very clear that the evidence did not establish any type of Title IX violation by San Diego State.”