The Issue Whether Respondent’s termination for alleged misconduct should be upheld based on the reasons stated in the termination letter dated July 25, 2005.
Findings Of Fact Respondent, Gregory V. Black was employed as an assistant football coach at FAMU from July 1, 1998 to July 25, 2005. Head Football Coach William (Billie) Joe was Mr. Black’s supervisor. During his employment, Coach Black received excellent to superior evaluation ratings. Coach Black was employed under an annual contract with FAMU. Until his termination, Coach Black was paid his regular salary and received the normal and customary retirement benefits and perks for his position. The last fully executed contract with the University ran from January 1, 2004, to December 31, 2004. However, a printout generated from the University’s personnel department indicates a beginning date of August 8, 2004, and an ending date of August 7, 2005. Additionally, there was a partially executed contract signed by the University’s interim president, Castell Bryant. The term of the partially executed contract ran from January 1, 2005 to June 30, 2005. The contract incorporated NCAA regulation 11.2 regarding contractual agreements between coaches and an NCAA member institution. The incorporated provisions state, in relevant part: Stipulation That NCAA Enforcement Provisions Apply. Contractual agreements . . . shall include the stipulation that a coach who is found in violation of NCAA regulations shall be subject to disciplinary or corrective action as set forth in the provisions of the NCAA enforcement procedures. Termination of Employment. Contractual agreements . . . shall include the stipulation that the coach may be suspended for a period of time, without pay, or that the coach’s employment may be terminated if the coach is found to be involved in deliberate and serious violations of the NCAA regulations. FAMU is a member of the NCAA. Member institutions of the NCAA are obligated to apply and enforce NCAA regulations and are responsible for operating their intercollegiate athletics program in compliance with the regulations of the NCAA. As part of that responsibility, FAMU has adopted the NCAA By-Laws as part of its rules and regulations governing the University. Member institutions also are responsible for governing staff members involved with athletics. Penalties for violations of NCAA regulations generally apply to member institutions and their programs. Occasionally penalties can apply to individual staff members who are directly involved in violations of NCAA regulations. In cases where an individual is the subject of an NCAA investigation, the NCAA issues a Notice of Allegations. In this case no Notice of Allegations was issued to Coach Black or any other member of the football coaching staff. In fact, the NCAA did not conclude or find that Coach Black committed any NCAA rule violation and the NCAA report only mentions his name in reference to being interviewed. There is no mention of Coach Black in reference to being involved in or knowing about any of the NCAA violations referenced in the report. Indeed Coach Black has never been the subject of an NCAA rule violation. Coach Black was primarily responsible for coaching and developing the offensive line. He ran practices and monitored the progress of his players. Coach Black did not generally monitor his player’s academics, unless the athletic office advised him of a problem. Likewise, Coach Black was not generally responsible for ensuring various student eligibility forms were completed and on file with the University. Nor was he generally responsible for recruitment activities. He was required to have general knowledge of NCAA regulations and responsible for reporting any violations of those regulations that he had knowledge of to the proper authorities at the University. The evidence showed that Coach Black did have such knowledge of the NCAA regulations and that he understood the reporting requirements of those regulations. It was Coach Black’s practice to be present when the offensive line was practicing. Generally, if he was on the field, the offensive line was out there with him. At some point FAMU became aware that their were allegations of NCAA violations at FAMU and that an NCAA investigation might occur. In light of those allegations, FAMU completed a Self-Report concerning violations of NCAA regulations. The Self-Report identified multiple alleged violations, of which the University’s football program allegedly constituted the bulk of the violations. No one who was involved with the Self-Report testified at the hearing. There was no competent evidence introduced at the hearing corroborating the allegations of the report. Uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. In addition to the Self-Report, the NCAA conducted an investigation and issued a report concerning such alleged violations. The NCAA investigated numerous violations of NCAA regulations, including exceeding the daily practice time limitation, exceeding the weekly practice time limitation and not observing the day-off requirement regarding its football program. No NCAA official or investigator testified at the hearing. No corroborating evidence was offered at the hearing. As with the Self-Report, uncorroborated hearsay statements made in the report about alleged violations cannot be used to prove that Coach Black violated NCAA regulations or knew about such alleged violations and failed to report those violations. As a result of the NCAA conducting an investigation, the University retained a consultant, Mr. Nelson Townsend, to assist in interpreting exactly what the NCAA findings meant to the University. Mr. Townsend generally recommended the University make staff changes in the football program. There was no evidence that Mr. Townsend considered The University’s personnel rules in making his recommendation. On July 25, 2006, FAMU issued a letter of termination to Coach Black terminating his employment “contract” with FAMU. The termination was based on alleged NCAA violations regarding daily and weekly hours of practice, not permitting a day off to the players and failure to report such violations. The letter treated Coach Black as if he had a contract with FAMU and provided him rights under FAMU’s personnel rules regarding just cause and a right to a hearing. The letter, also, clearly had the effect of stigmatizing Coach Black in his profession as an assistant football coach. The allegations and termination were on the news. Indeed, Coach Black had difficulty finding suitable employment equivalent to what he possessed at FAMU after his termination. However, FAMU, in this proceeding, has admitted that Coach Black did not commit any NCAA violations. Indeed, there was no competent evidence that Coach Black was aware of or should have been aware of any alleged violations. Given this lack of evidence FAMU has failed to establish just cause for terminating Coach Black, and he is entitled to be reinstated for the remaining term of his contract, if any. The University’s interim president decided to withhold the employment contracts of all of the assistant football coaches. The evidence showed that there were many times that Coach Black’s employment contracts were executed after the start date of the contract period. However, the employment contract clearly states: . . . Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President or President’s designee, . . . and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority . . . . Irrespective of the language and terms of the contract, FAMU treated this matter as one arising under employment that can only be terminated for just cause. For purposes of this action, FAMU is estopped from claiming that Coach Black was an at-will employee. Additionally, the issue of whether Coach Black had an employment contract with FAMU need not be addressed since Coach Black was not terminated based on the expiration or absence of his contract. It is the reasons regarding NCAA violations stated in the termination letter that are at issue here. As noted, there was an absence of proof to support those allegations. Therefore, Coach Black is entitled to reinstatement and to have his name cleared of the stigma that termination for those allegations have caused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered by FAMU reinstating Respondent and clearing his name from the allegations made in the termination letter. DONE AND ENTERED this 24th of July, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2006. COPIES FURNISHED: H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Antoneia L. Roe, Esquire Florida A&M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Robert E. Larkin, III Allen, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Castell V. Bryant, Interim President Florida A & M University 400 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issues for determination are: (1) Whether Respondent, as Director of the Florida State Athletic Commission ("Athletic Commission") violated Subsection 112.313(2), Florida Statutes, by soliciting a $100,000 donation from Don King and/or Don King Productions, Inc., on behalf of the Florida State Boxing Foundation ("Foundation") which was established in part by Respondent; (2) Whether Respondent violated Subsection 112.313(4), Florida Statutes, by (a) accepting the $100,000 donation from Don King or Don King Productions, Inc., on behalf of the Foundation, when he knew or should have known that the donation may have been given to influence his official actions relative to his advocating for the acceptance of long-term promotional contracts in Florida by the Athletic Commission and/or the licensing of Don King and/or Don King Productions, Inc., as a promoter despite the existence of a pending indictment in violation of the Athletic Commission rules; (b) soliciting boxing officials for political contributions and donations to the Foundation, and soliciting a boxing official for a loan to Ms. Cathy Reed and travel expenses for Ms. Reed; (3) Whether Respondent violated Subsection 112.313(6), Florida Statutes, by (a) soliciting funds for the Foundation from persons or entities regulated by the Athletic Commission; (b) soliciting political contributions from persons regulated by the Athletic Commission; (c) signing a letter prepared by boxing promoter Don King's attorney on Athletic Commission stationery, which indicated the Athletic Commission's interpretation of Section 548.056, Florida Statutes, as stated in letters written by the former Executive Secretary, was the former Executive Secretary's personal opinion rather than the opinion or policy of the Athletic Commission, in order to benefit Don King or Don King Productions, Inc; (d) preparing and reading a position paper opposed to the position taken by the former Executive Secretary of the Athletic Commission relative to the interpretation of Section 548.056, Florida Statutes, and denying that the earlier position was, in fact, the position of the Athletic Commission in order to strengthen the arguments of Don King or Don King Productions, Inc., for the use of exclusive long-term promotional contracts in Florida, when he knew the contrary to be true, or as a reward for the $100,000 contribution to the Foundation; (e) lying to the members of the Athletic Commission who relied on his representations at its November 5, 1998, meeting regarding the preparation of the position paper he read to the commission at its August 13, 1998, meeting; (f) soliciting tickets or complimentary admissions to boxing matches for his or other Athletic Commission members' guests from promoters; (g) soliciting a loan and travel expense payments from Boxing Judge Peter Trematerra; (h) rewarding Mr. Trematerra with an assignment to judge a World Title fight for telling the Athletic Commission what Respondent wanted him to say, despite Mr. Trematerra's allegedly not having the requisite experience to warrant such an assignment; (i) not giving Boxing Judge Paul Herman boxing assignments that his experience may have warranted after he refused to appear and testify as to what Respondent wanted him to say before the Athletic Commission; (j) making judging assignments based on personal considerations of perceived loyalty or disloyalty to Respondent, rather than on the experience levels of judges; directing Athletic Commission staff to remove Mr. Trematerra's and Mr. Herman's names from fight assignments after they provided affidavits concerning Respondent's misconduct to Department of Business and Professional Regulation's Inspector General; (l) representing falsely to the Salvation Army and the public on Athletic Commission stationery that David Walker had completed 16 hours of his obligatory community service; and (4) Whether Respondent violated Subsections 112.3148(3) and (4), Florida Statutes, by soliciting and accepting tickets and free admissions from promoters, and, if Respondent is guilty of any of these alleged offenses, what penalty is appropriate.
Findings Of Fact Respondent, Morris Michael "Mike" Scionti, was Executive Director of the Athletic Commission from May 6, 1996 through March 11, 1999. During his pre-employment interview with Commissioners of the Athletic Commission, Respondent advanced his vision to establish a foundation to assist boxers in obtaining job training, education, and other benefits. The Athletic Commission, through its Commissioners, gave conceptual approval to the creation of a foundation but did not want the Athletic Commission or Respondent to be directly involved with the foundation. Respondent initiated the formal creation of the Florida State Boxing Foundation, Inc. ("Foundation"), in June 1997. The Foundation obtained 501(c)(3) tax-exempt status in December 1997. Respondent was never an employee, officer or trustee of the Foundation. After the formation of the Foundation, there is no evidence of formal involvement of either Respondent or the Athletic Commission in its affairs. Respondent advocated the Foundation to individuals interested in boxing and advised the Athletic Commission of the status of the Foundation at Athletic Commission meetings. Early in 1997, at the request of Don King ("King"), a successful and controversial boxing promoter, he and Respondent met at King's office in South Florida. Prior to this meeting the parties had not known each other. During the discussion of their common interest, boxing, King advised that he was moving his entire boxing operation to Florida. In the discussion, Respondent mentioned his vision of a foundation to assist boxers. King indicated that he thought the foundation was a wonderful idea and offered to donate $100,000 to get the foundation started. The evidence presented clearly demonstrates that Respondent did not solicit the donation from King. Knowing that the Athletic Commission had instructed him to "stay at arms length from the Foundation," Respondent did not initially accept King's offer; he reported the offer at the next Athletic Commission meeting where a cautious, tacit approval was received. Respondent testified that he would have refused the donation had the Athletic Commission voiced disapproval. It was not inappropriate for Respondent, as Executive Director of the Athletic Commission, to advocate and publicly support a foundation chartered to provide job training, education and other benefits to boxers. On January 12, 1998, shortly after the Foundation received 501(c)(3) status, Don King Productions, Inc., tendered a $100,000 check to the Florida State Boxing Foundation, Inc. No evidence was presented indicating that Respondent directly or indirectly benefited from King's $100,000 donation to the Foundation or that the donation was made based upon any understanding that Respondent's judgement or any official action would be influenced by the donation. Nor is there any evidence that Respondent should have known that the donation was given to influence any official action by Respondent. Boxing promoters, who do business in Florida, must apply for an annual license. Don King and/or Don King Productions, Inc., had been licensed in Florida in 1993, 1994, 1995, 1996, and 1997. The license application dated January 13, 1998, fails to reveal a Federal indictment for insurance fraud in March 1997, although it improperly lists a license suspension for wire fraud in New Jersey. Relying on the 1998 license application (which did not reveal the March 1997 insurance fraud indictment), the Athletic Commission staff in the Tallahassee office issued Don King Productions, Inc., a 1998 promoter's license. In August 1998, after the discrepancy was discovered, the Athletic Commission issued King a Rule to Show Cause as to why his 1998 license should not be suspended or revoked for failure to report the 1997 insurance fraud indictment. The 1998 license renewal was handled through the Athletic Commission's Tallahassee office. Respondent's office was in Tampa; he was not directly involved in issuing the 1998 license. At the Rule to Show Cause hearing, Respondent blamed the Tallahassee office staff for not finding King's omission. "Exclusive" or "long-term" promotional contracts between boxers and promoters, although a standard in the boxing industry and widely accepted, have been a source of controversy in Florida. Apparently, there was a division of opinion among Commissioners of the Athletic Commission as to the appropriateness of such contracts. Although the Athletic Commission had not taken a formal position on the subject, Respondent's predecessor, who was personally opposed to such contracts, authored several letters indicating that such contracts were not enforceable under Florida law. Respondent did not share his predecessor's negative opinion of "exclusive" or "long-term" promotional contracts, to the contrary, he believed such contracts to be beneficial to boxing. Respondent sought the advice of individuals involved in boxing, including employees of King, on the subject. Don King Productions, Inc., and other promoters would benefit if "exclusive" or "long-term" promotional contracts were recognized and enforceable in Florida. On June 19, 1998, Respondent sent a letter on official state stationery to Charles Lomax, attorney for Don King Productions, Inc., advising him that the prohibition on "exclusive" or "long-term" promotional contracts in Florida was merely his predecessor's personal opinion. He stated he would keep Mr. Lomax updated on the progress of this matter. During the August 8, 1998, meeting of the Athletic Commission, Respondent presented a memo which advocated promotional contracts, clearly indicated his disagreement with the position taken by his predecessor on the subject and recommended that the Athletic Commission permit such contracts subject to reasonable regulation. Subsequent to the meeting, Commissioner Terry James had occasion to examine the Athletic Commission's file on promotional contracts. When Commissioner James reviewed the file, he noticed the computer tags on the documents in the file were the same as the tags he had seen on Sonny Holtzman's documents. Mr. Holtzman represented King on matters before the Commission. Although Don King Productions, Inc., and other promoters benefited from Respondent's support of "exclusive" or "long-term" promotional contracts, no evidence was presented that demonstrated that Respondent's support was a result of King's donation to the Foundation. The advocate presented three witnesses, Peter Tremetera, Paul Herman, and Shelly Bradshaw, who through their actions during Respondent's tenure as Executive Director of the Athletic Commission and their demeanor while giving testimony at the final hearing, demonstrated such a negative bias toward Respondent that much of their testimony is not credible. The solicitation and acceptance of free tickets and misuse of "pass lists" to boxing events by Commissioners and staff of the Athletic Commission has historically been a problem. This is evidenced by a 1991 Ethics Commission case involving a former chairman of the Athletic Commission [In re: James Resnick, 14 F.L.A.R. 1001 (1991)], a March 26, 1997, inquiry response from a Ethics Commission staff attorney on the subject, and specific direction on the subject from the Athletic Commission staff attorney. It is clearly appropriate for Commissioners and staff who have a legitimate function associated with a boxing event to be admitted to the event without paying an admission fee. It is similarly clear that it is inappropriate for relatives, friends, political associates, and other individuals who have no legitimate Athletic Commission function to gain free admission to a boxing event as a result of an association with the Athletic Commission. Respondent gave Peter Trematerra free tickets to several boxing events. Respondent placed an attorney who had no Athletic Commission involvement on the pass list "all the time." Respondent solicited free tickets from a promoter in the Lou Duva organization. Respondent signed a receipt for twenty 75-dollar tickets and thirty 50-dollar tickets for a January 31, 1998, boxing event at the Ice Palace in Tampa. During his tenure as Executive Director, Respondent solicited and accepted free tickets to boxing events from event promoters, or caused the names of individuals who had no legitimate function related to the Athletic Commission to be placed on "pass lists" which allowed free admissions to boxing events. Evidence was presented that indicated that not only Respondent but others associated with the Athletic Commission solicited and accepted tickets or passes for individuals who had no legitimate function with particular boxing events. In September 1997, David Walker performed 16 hours of community service at the Tampa office of the Athletic Commission Two documents were signed by Respondent, one, a letter dated September 21, 1997, indicating that David Walker had performed 16 hours of community service; the second, a memo indicating that David walker had completed the 16 hours of community service on two Saturdays, September 6 and 13, 1997. David walker testified that he had completed the community service on weekdays.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Morris Michael "Mike" Scionti, violated Subsection 112.313(6), Florida Statutes, to the extent that Respondent solicited and accepted tickets or complimentary admissions to boxing matches as represented in the Order Finding Probable Cause; imposing a civil penalty of $1,000; and issuing a public censure and reprimand; and that the remainder of the violations alleged in the Order Finding Probable Cause be dismissed. DONE AND ENTERED this 4th day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2002. COPIES FURNISHED: Joseph Donnelly, Esquire Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julie A. Reynolds, Esquire 4612 North 56th Street Tampa, Florida 33610 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues are whether Respondent violated section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact The Division is the agency of the State of Florida charged with regulating pari-mutuel wagering pursuant to chapter 550, Florida Statutes. At all times relevant to this proceeding, Respondent held a pari-mutuel wagering thoroughbred trainer license, number 260970-1021, issued by the Division in 2001. On August 29, 2008, and at all times material hereto, Respondent was the trainer of record for "Cardiac Output," a thoroughbred racehorse. On August 29, 2008, Cardiac Output was entered, and finished second, in the fifth race at Calder Race Course. Approximately thirty minutes after the conclusion of the race, and in accordance with established procedures, a Division employee collected urine and blood samples from Cardiac Output. The blood and urine samples were assigned numbers 421716B and 421716U, respectively. Cardiac Output's race day specimens were analyzed by the University of Florida Racing Laboratory (the lab), which is retained by the Division to test urine and blood samples from animals racing at pari-mutuel facilities in Florida. The Lab, following applicable procedures, found that the blood and urine specimens contained caffeine, which acts as a central nervous system stimulant and is categorized as a Class Two drug pursuant to the Uniform Classification Guidelines for Foreign Substances.1 In addition, the Lab detected oxilofrine, a cardiac stimulant, in the urine sample. Although oxilofrine is a non-classified drug, it has the potential to cause injury to racehorses, particularly when administered in combination with caffeine. Subsequently, pursuant to section 550.2415(5)(a), the Division split Cardiac Output's race day specimens into primary samples and secondary ("split") samples. The split samples were then forwarded to the Louisiana State University (LSU) School of Veterinary Medicine for confirmatory testing. On July 15, 2009, LSU submitted a report confirming the presence of caffeine and oxilofrine. During the final hearing, Respondent testified that he did not knowingly administer any prohibited substances to Cardiac Output. The undersigned finds Respondent's testimony to be credible. Nevertheless, the "absolute insurer rule," which is described in detail below, requires the undersigned to find as a matter of ultimate fact that Respondent violated section 550.2415(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding that Respondent violated section 550.2415(1)(a), as described in this Recommended Order; suspending Respondent's license for a period of 30 days from the date of the final order; and imposing a fine of $500. DONE AND ENTERED this 11th day of January, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2011.
