juarezbear said:

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DiabloWags said:

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BearSD said:

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Paragraph 12 of McKeever's contract allows the university to terminate with no cause by making the payments specified in that paragraph. Paragraph 6 applies only if the university chooses to terminate for cause and pay the coach nothing.

We can all read this ourselves:

"... there is also reserved to the University the right to terminate this Contract without cause at any time by giving written notice to Coach of such decision."

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No need for a 6 month "investigation" with a high priced law firm.
No need to make certain that any allegations or claims made against McKeever can stand the test of a Court of Law or some sort of HR "policy". McKeever's contract is extremely clear. Cal can terminate McKeever at any time without cause.

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I'm not a lawyer, but I would think that terminating her without cause due to allegations that could (however unlikely) be disproven might leave the school open to a lawsuit.

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Her contract clearly states that she can be fired without cause with the unIversity just paying her contract specified buyout. Just like when other coaches are fired (usually for not winning "enough").

BearGoggles said:

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Show me in Reid's initial 7 articles where it says he contacted Knowlton/Cal to ask: (i) for their version of events; (ii) the details how the investigative process might work; and (iii) what Cal's plans was for the interim in terms of training, etc. All of those where gripes he parroted from parents/former swimmers. A reporter with true integrity would at least offer the countervailing facts (Reid didn't initially in his stories), consider explanations alternate to his narrative, and seek comment from the parties - this should have occurred IN HIS PRIOR ARTICLES and certainly in the immediately prior article where he reported that certain anonymous parents were upset after the call. For the most part, he didn't. And reporting on the statement after the fact (your link above) doesn't change the fact that Reid should have been less biased in his earlier articles.

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Yawn.

You dont think that Reid didnt reach out to Jim Knowlton for an interview to ask questions?

I know for a FACT that he did.
Knowlton declined.

DiabloWags said:

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BearGoggles said:

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Show me in Reid's initial 7 articles where it says he contacted Knowlton/Cal to ask: (i) for their version of events; (ii) the details how the investigative process might work; and (iii) what Cal's plans was for the interim in terms of training, etc. All of those where gripes he parroted from parents/former swimmers. A reporter with true integrity would at least offer the countervailing facts (Reid didn't initially in his stories), consider explanations alternate to his narrative, and seek comment from the parties - this should have occurred IN HIS PRIOR ARTICLES and certainly in the immediately prior article where he reported that certain anonymous parents were upset after the call. For the most part, he didn't. And reporting on the statement after the fact (your link above) doesn't change the fact that Reid should have been less biased in his earlier articles.

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Yawn.

You dont think that Reid didnt reach out to Jim Knowlton for an interview to ask questions?

I know for a FACT that he did.
Knowlton declined.

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Lol it was literally in the first article posted in this thread.

Quote:

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SCNG contacted the Cal athletic department last Wednesday, May 19, to request an interview with or comment from McKeever. A Cal spokesman was informed of the allegations contained in this report. Cal was provided a noon Friday deadline by SCNG. That deadline was later extended at Cal's request to the end of business Friday. That deadline passed without any response from McKeever. On Monday morning, McKeever, through a Cal spokesman, declined to comment on this report.

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BearGoggles said:

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Show me in Reid's initial 7 articles where it says he contacted Knowlton/Cal to ask: (i) for their version of events; (ii) the details how the investigative process might work; and (iii) what Cal's plans was for the interim in terms of training, etc.

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I wasn't sure if this was a serious question, but here you go, from the very first article.

BearGoggles said:

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Unit2Sucks said:

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DiabloWags said:

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BearGoggles said:

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Show me in Reid's initial 7 articles where it says he contacted Knowlton/Cal to ask: (i) for their version of events; (ii) the details how the investigative process might work; and (iii) what Cal's plans was for the interim in terms of training, etc. All of those where gripes he parroted from parents/former swimmers. A reporter with true integrity would at least offer the countervailing facts (Reid didn't initially in his stories), consider explanations alternate to his narrative, and seek comment from the parties - this should have occurred IN HIS PRIOR ARTICLES and certainly in the immediately prior article where he reported that certain anonymous parents were upset after the call. For the most part, he didn't. And reporting on the statement after the fact (your link above) doesn't change the fact that Reid should have been less biased in his earlier articles.

---

Yawn.

You dont think that Reid didnt reach out to Jim Knowlton for an interview to ask questions?

I know for a FACT that he did.
Knowlton declined.

---

Lol it was literally in the first article posted in this thread.

Quote:

---

SCNG contacted the Cal athletic department last Wednesday, May 19, to request an interview with or comment from McKeever. A Cal spokesman was informed of the allegations contained in this report. Cal was provided a noon Friday deadline by SCNG. That deadline was later extended at Cal's request to the end of business Friday. That deadline passed without any response from McKeever. On Monday morning, McKeever, through a Cal spokesman, declined to comment on this report.

---

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Again - I was referring to reaching out after the zoom call when new allegations were made by the parents/swimmers and the 6 month issue was raised. So pointing to the first article from a week before is irrelevant.

How about asking Knowlton/Cal - why does this take 6 months? Or maybe asking a "legal expert" in the field how long these investigations typically take, rather than simply parenting the parent's "outrage" that 6 months is too long. Reid may no effort to do any of those things, because he has no desire to present context outside his clickbait narrative.

And now for the third time, why don't we know the details of the "racial epithets"? Please provide a good faith explanation for why Reid hasn't provided any details on that.

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I'm not defending Reid but your narrative is odd. Obviously the university has declined to go on record and won't respond to anything. Look at what GMP posted above with additional information. We aren't going to get anything until the "investigation" is complete. I have no idea why he's chosen not to explain what the racial epithet purportedly is, but this seems like quite a small nit to pick given the totality of what has been reported.

Regarding the "racial epithet(s)", I can imagine many that might be classified as such, but which would be much more trivial than the first things that might come to mind when the term is bandied about. On the other hand, it could be a career-killer. This is why the article needs to be viewed with a skeptical eye.

BearSD said:

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If that is so, then Cal needs to hire better lawyers to write their contracts with coaches.

If the contract forces the university to spend over a million dollars on a long drawn-out investigation of a coach instead of just spending $200,000 to buy out the coach's contract, then bad lawyering has cost the university more than $800,000.

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And a lost season or two, plus drawn-out bad press.

So is this sequence possible, given all you have discussed above?

1. Investigation continues for, say, one month, and:
A. Contradictions appear, unsubstantiated rumors, and the allegations were overblown. *or*
B. Significant, job-ending behavior

2. If "B", the campus cuts its losses, let's the coach go without cause, and pays the full buyout.

3. The investigation continues for 4-5 months to ascertain if ICA administrators dropped the ball, or CYA. Several people could then face employment actions or termination of contract.

Unit2Sucks said:

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You are right, it's not just nitpicking. You are also mischaracterizing what work Reid did by pretending he didn't give the university opportunity to comment. Seems like Reid isn't the only one with an agenda.

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BearGoggles sounds very emotional.

Almost as though he has a personal connection to McKeever. He continues to ignore that Reid reached out to Knowlton.

It's almost like listening to someone mischaracterizing the Jan. 6th insurrection as a peaceful protest.

Will the coach make a public statement in the coming days?

The 'insurrection' where guards moved gates, no one was harmed, and protestors were waived in?

BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

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???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

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Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

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You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

---

Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

---

Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

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???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

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Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

---

You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

---

Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

---

Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

---

My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

BearGoggles said:

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To be honest, I don't know or care about McKeever other than the potentially negative impacts on Cal. I really don't care if she stays or goes - whatever is best for the program. That's in contrast to one person here who seems to have strong emotional ties to the program - and likes to claim that he has inside information, without ever sharing any details or sources and without any clear explanation of his thinking. I can see why that person likes Scott Reid who suffers from the same afflictions.

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More mischaracterization.

I've never claimed to have "inside information".
And even if I did, I certainly wouldnt be dumb enough to post it here or on any social media.
You continue to promote a very flawed narrative.

BearGoggles said:

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Unit2Sucks said:

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BearGoggles said:

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Unit2Sucks said:

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BearGoggles said:

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Unit2Sucks said:

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DiabloWags said:

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BearGoggles said:

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Show me in Reid's initial 7 articles where it says he contacted Knowlton/Cal to ask: (i) for their version of events; (ii) the details how the investigative process might work; and (iii) what Cal's plans was for the interim in terms of training, etc. All of those where gripes he parroted from parents/former swimmers. A reporter with true integrity would at least offer the countervailing facts (Reid didn't initially in his stories), consider explanations alternate to his narrative, and seek comment from the parties - this should have occurred IN HIS PRIOR ARTICLES and certainly in the immediately prior article where he reported that certain anonymous parents were upset after the call. For the most part, he didn't. And reporting on the statement after the fact (your link above) doesn't change the fact that Reid should have been less biased in his earlier articles.

---

Yawn.

You dont think that Reid didnt reach out to Jim Knowlton for an interview to ask questions?

I know for a FACT that he did.
Knowlton declined.

---

Lol it was literally in the first article posted in this thread.

Quote:

---

SCNG contacted the Cal athletic department last Wednesday, May 19, to request an interview with or comment from McKeever. A Cal spokesman was informed of the allegations contained in this report. Cal was provided a noon Friday deadline by SCNG. That deadline was later extended at Cal's request to the end of business Friday. That deadline passed without any response from McKeever. On Monday morning, McKeever, through a Cal spokesman, declined to comment on this report.

---

---

Again - I was referring to reaching out after the zoom call when new allegations were made by the parents/swimmers and the 6 month issue was raised. So pointing to the first article from a week before is irrelevant.

How about asking Knowlton/Cal - why does this take 6 months? Or maybe asking a "legal expert" in the field how long these investigations typically take, rather than simply parenting the parent's "outrage" that 6 months is too long. Reid may no effort to do any of those things, because he has no desire to present context outside his clickbait narrative.

And now for the third time, why don't we know the details of the "racial epithets"? Please provide a good faith explanation for why Reid hasn't provided any details on that.

---

I'm not defending Reid but your narrative is odd. Obviously the university has declined to go on record and won't respond to anything. Look at what GMP posted above with additional information. We aren't going to get anything until the "investigation" is complete. I have no idea why he's chosen not to explain what the racial epithet purportedly is, but this seems like quite a small nit to pick given the totality of what has been reported.

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If you're not defending Reid, then I don't know why your commenting on my post, which is entirely about Reid's lack of objectivity, poor journalistic ethics, and desire to drive a narrative.

Maybe, as you suggest, Cal wouldn't have commented after the zoom meeting. Though they did release a vanilla statement initially (which I criticized) and then a better statement the day after the zoom meeting. So perhaps they would have commented to Reid after the zoom meeting? It doesn't change the fact that Reid is obliged to ask for comment and explore the substance of the parents claims (e.g., whether 6 months is (un)realistic).

Too often, Reid is an unthinking mouthpiece for his preferred narrative and shows no desire to present both sides or, for that matter, analysis/context. An honest journalist wouldn't just print the parents allegations - he would provide some information as to what basis there was for the claims AND what is typical in these situations. If Cal won't comment directly, probably a 1000 legal experts or former UC admins would.

We went down this rabbit hole because many (Diablo included) are willing to adopt Reid's claims without much if any skepticism. I'm very skeptical of Reid, for the reasons I've outlined. It is not just nitpicking over one issue, though the "racial epithet" reporting (or lack thereof) is pretty egregious.

One more data point - why hasn't Reid reported on Catherine Breed's Instagram post from May 26th supportive of McKeever - a post that was "liked" by several other Cal swimmers? It does seem that there are some swimmers and donors supportive of McKeever, yet they are no where to be found in any of Reid's articles.

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You are right, it's not just nitpicking. You are also mischaracterizing what work Reid did by pretending he didn't give the university opportunity to comment. Seems like Reid isn't the only one with an agenda.

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And I didn't mischaracterize his work.

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You've stated multiple times that Reid didn't give the university an opportunity to comment. Even after acknowledging that he did contact the university and was told that they wouldn't comment publicly until after the investigation was complete, you claimed that he still should have done so after the zoom meeting. Confusingly, in your post at the beginning of this comment chain (see above), you talk about his "initial 7 articles" and "IN HIS PRIOR ARTICLES" where it's quite clear he claims to have reached out to the university.

GMP and I both pointed out places where Reid says he contacted the university and rather than acknowledge that your claims were off, you've moved the goalposts completely.

BearGoggles said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

---

???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

---

Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

---

You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

---

Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

---

Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

---

My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

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Because the policies that have to be compiled with under Section 6 lay out separate rules for an investigation and termination, and overrule specific provisions in all Cal contracts, including Section 12 in Terry's contract. There seems to be some sort of dental here that Cal isn't going to compete the investigation and then make a decision on Terry based on the investigation, while everyone here plays lawyer.

wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

---

???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

---

Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

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You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

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Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

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Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

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My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

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Because the policies that have to be compiled with under Section 6 lay out separate rules for an investigation and termination, and overrule specific provisions in all Cal contracts, including Section 12 in Terry's contract. There seems to be some sort of dental here that Cal isn't going to compete the investigation and then make a decision on Terry based on the investigation, while everyone here plays lawyer.

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Just to be clear, even the lawyers are playing lawyer since none of us our involved. You've made a number of statements that I don't think are true and are not supported by the contract - for example when you claimed she has a constructive termination right.

Where I do agree with you is that the university will not stop the investigation and terminate her without cause. The university appears to have placed her under investigatory leave under PPSM 63 (which is referenced in her contract). The investigation is happening and Munger will get paid. I don't think hiring Munger was necessary to address the McKeever allegations and believe that they were hired for a different reason.

I would also note for posterity, that if we look at the cause definition (sec. 9) it doesn't take very much of what has been alleged for her to be in breach and for the university to have grounds to terminate her without any buyout. Clauses d (failure to properly represent Cal in private and public forums, bringing CAl into scandal, etc.), e. (violation of any policy), and h. (failure to follow the high moral and ethical standards commonly expected). There may be others implicated but these ones are pretty broad and would give Cal grounds to terminate per the contract if even one of the allegations made is true. Just because they have cause under the agreement doesn't mean they will do so and it doesn't mean they won't have to fight about it in court.

I'm also unconvinced by your argument that they couldn't invoke sec 12 and pay her out now if they wanted to. I don't think they do want to but that's different from entitlement. You seem to think the liquidated damages provision wouldn't be upheld and that sec 12 doesn't mean what it says it means (pertintently "in addition to and exclusive of" and "in lieu of all other legal remedies or equitable relief").

But everything above is focused on contractual rights. My assumption, based on decades as a Cal fan, is that the AD will screw this up. The Munger investigation will be comprehensive and costly and the resolution will be unsatisfactory. I don't think McKeever will ever coach again at Cal whether she is cleared of wrongdoing or not. If she's cleared, she will leave for another opportunity and claim the AD didn't have her back. She may sue on her way out. If the investigation does find that she was in breach and she's terminated, she may still sue on her way out (or agree to some sort of negotiated deal).

What I feel most confident in is that regardless of the outcome, Cal will be worse off than it was before and will be asking donors to make up for all of the money that they just spirited out the door. And that whatever course of action is taken won't actually be fixing any problems within the administration.

Unit2Sucks said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

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???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

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Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

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You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

---

Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

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Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

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My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

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Because the policies that have to be compiled with under Section 6 lay out separate rules for an investigation and termination, and overrule specific provisions in all Cal contracts, including Section 12 in Terry's contract. There seems to be some sort of dental here that Cal isn't going to compete the investigation and then make a decision on Terry based on the investigation, while everyone here plays lawyer.

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Just to be clear, even the lawyers are playing lawyer since none of us our involved. You've made a number of statements that I don't think are true and are not supported by the contract - for example when you claimed she has a constructive termination right.

Where I do agree with you is that the university will not stop the investigation and terminate her without cause. The university appears to have placed her under investigatory leave under PPSM 63 (which is referenced in her contract). The investigation is happening and Munger will get paid. I don't think hiring Munger was necessary to address the McKeever allegations and believe that they were hired for a different reason.

I would also note for posterity, that if we look at the cause definition (sec. 9) it doesn't take very much of what has been alleged for her to be in breach and for the university to have grounds to terminate her without any buyout. Clauses d (failure to properly represent Cal in private and public forums, bringing CAl into scandal, etc.), e. (violation of any policy), and h. (failure to follow the high moral and ethical standards commonly expected). There may be others implicated but these ones are pretty broad and would give Cal grounds to terminate per the contract if even one of the allegations made is true. Just because they have cause under the agreement doesn't mean they will do so and it doesn't mean they won't have to fight about it in court.

I'm also unconvinced by your argument that they couldn't invoke sec 12 and pay her out now if they wanted to. I don't think they do want to but that's different from entitlement. You seem to think the liquidated damages provision wouldn't be upheld and that sec 12 doesn't mean what it says it means (pertintently "in addition to and exclusive of" and "in lieu of all other legal remedies or equitable relief").

But everything above is focused on contractual rights. My assumption, based on decades as a Cal fan, is that the AD will screw this up. The Munger investigation will be comprehensive and costly and the resolution will be unsatisfactory. I don't think McKeever will ever coach again at Cal whether she is cleared of wrongdoing or not. If she's cleared, she will leave for another opportunity and claim the AD didn't have her back. She may sue on her way out. If the investigation does find that she was in breach and she's terminated, she may still sue on her way out (or agree to some sort of negotiated deal).

What I feel most confident in is that regardless of the outcome, Cal will be worse off than it was before and will be asking donors to make up for all of the money that they just spirited out the door. And that whatever course of action is taken won't actually be fixing any problems within the administration.

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Cal is forced to hold an investigation before termination where harassment claims like this is alleged under the CA FEH and Federal consent decree, and those requirements have been inserted into the policies and that they clearly control Cal's actions. Even without the incorporation of policies into the contact, FEH and the consent decree they would control over any contract, and an investigation is required. Cal could ignore the policies and law, but do so at their risk.

wifeisafurd said:

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Unit2Sucks said:

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wifeisafurd said:

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Unit2Sucks said:

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BearGoggles said:

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Unit2Sucks said:

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Don't believe anyone has posted McKeever's most recent contract but here it is: https://swimswam.com/wp-content/uploads/2020/01/McKeever-T-30Apr2024.pdf

Looks like a termination without cause would only entitle her to a buyout of around $180k (50% of this year's $240k salary, 25% of next year's), which is certainly less than they will spend "investigating" the alleged wrongdoing. The contract includes some interesting terms like a waiver of a Skelly hearing as well as a very broad definition of cause.

I'm sure the University will figure out a way to screw all this up however and that it will cost the university far more than anticipated.

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Thank you for posting that. I wonder what the internal politics are within the aquatics donor community? It could be that McKeever has her supporters and the larger concern is losing donor support?

And given that the allegations relate to others, including Knowlton, I assume an investigation would be required in any event.

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Yeah no idea what the donor politics or historical practices are but this is a very university favorable contract. I didn't see constructive termination (which WIAF mentioned) and the cause definition is extremely broad and includes performance (which is atypical) as well as a number of elements which are implicated by the allegations.

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Why would any contract ever mention constructive termination? It is a legal concept where at least in California law is a situation where an employer intentionally creates or knowingly permits such intolerable working conditions the employee can't do therijob. For example, giving their job to another person would be per se constructive termination.

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I can't tell if you are serious or not but as pointed out earlier, the notion of constructive termination (or "good reason") is quite common in executive level contracts. I've had several employment agreements with this feature. Maybe there is something different with public employees, I genuinely have no idea, but if I were McKeever, I wouldn't want to rely on nebulous public policy or case law when an express provision is so common.

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Let's start off with there is no constructive termination provision in her contract. The vast majority of cases for wrongful termination in California involve constructive termination, and I'm at a loss when plaintiff employment law firms advertise for these cases or have extensive discussions of the concept on the lead pages of their website why you think this is "nebulous public policy or case law" The law is well established in California through numerous State Supreme Court decision, as the numbers of cases will attest. You suggest that McKeever's attorney's would not want to rely on what is a standard claim by these employment lawyers. Also are you suggesting replacing the employee job with a permeant replacement is not a constructive termination under CA law, as nebulous as you seem to think it is despite being standard practice?

This is rather academic discussion since the contract doesn't have this type of provision, but only small percentage on employment contracts, usually for senior management (which a swim coach is not,) have constructive termination provisions and they are for the benefit to the employer to limit damages and employee options in the event the employer does something that is deemed under common law to be a constructive termination. I don't know why you are suggesting they are common. They certainly are not in public employee contracts, collective bargaining agreements, and not in UC contracts for "Manager and Senior Personnel" (you google the contact form) positions. Wilcox doesn't have one, Christ doesn't have one. The President of UC doesn't have one.

Finally this is a harassment case and the CA FEH and Federal law will supersede contract provisions.

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It's not just that there "is no constructive termination provision". She has a fully negotiated employment agreement with an express termination without cause provision. She had an opportunity to negotiate for constructive termination and typically courts defer to negotiated agreements like this. We aren't talking about a rank and file employee without representation. I think you will agree that the vast majority of the constructive termination lawsuits you are talking about do not involve people who were represented by counsel in the negotiation of a comprehensive employment agreement, like McKeever's.

Unit2Sucks said:

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wifeisafurd said:

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Unit2Sucks said:

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wifeisafurd said:

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Unit2Sucks said:

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BearGoggles said:

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Unit2Sucks said:

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Don't believe anyone has posted McKeever's most recent contract but here it is: https://swimswam.com/wp-content/uploads/2020/01/McKeever-T-30Apr2024.pdf

Looks like a termination without cause would only entitle her to a buyout of around $180k (50% of this year's $240k salary, 25% of next year's), which is certainly less than they will spend "investigating" the alleged wrongdoing. The contract includes some interesting terms like a waiver of a Skelly hearing as well as a very broad definition of cause.

I'm sure the University will figure out a way to screw all this up however and that it will cost the university far more than anticipated.

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Thank you for posting that. I wonder what the internal politics are within the aquatics donor community? It could be that McKeever has her supporters and the larger concern is losing donor support?

And given that the allegations relate to others, including Knowlton, I assume an investigation would be required in any event.

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Yeah no idea what the donor politics or historical practices are but this is a very university favorable contract. I didn't see constructive termination (which WIAF mentioned) and the cause definition is extremely broad and includes performance (which is atypical) as well as a number of elements which are implicated by the allegations.

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Why would any contract ever mention constructive termination? It is a legal concept where at least in California law is a situation where an employer intentionally creates or knowingly permits such intolerable working conditions the employee can't do therijob. For example, giving their job to another person would be per se constructive termination.

---

I can't tell if you are serious or not but as pointed out earlier, the notion of constructive termination (or "good reason") is quite common in executive level contracts. I've had several employment agreements with this feature. Maybe there is something different with public employees, I genuinely have no idea, but if I were McKeever, I wouldn't want to rely on nebulous public policy or case law when an express provision is so common.

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Let's start off with there is no constructive termination provision in her contract. The vast majority of cases for wrongful termination in California involve constructive termination, and I'm at a loss when plaintiff employment law firms advertise for these cases or have extensive discussions of the concept on the lead pages of their website why you think this is "nebulous public policy or case law" The law is well established in California through numerous State Supreme Court decision, as the numbers of cases will attest. You suggest that McKeever's attorney's would not want to rely on what is a standard claim by these employment lawyers. Also are you suggesting replacing the employee job with a permeant replacement is not a constructive termination under CA law, as nebulous as you seem to think it is despite being standard practice?

This is rather academic discussion since the contract doesn't have this type of provision, but only small percentage on employment contracts, usually for senior management (which a swim coach is not,) have constructive termination provisions and they are for the benefit to the employer to limit damages and employee options in the event the employer does something that is deemed under common law to be a constructive termination. I don't know why you are suggesting they are common. They certainly are not in public employee contracts, collective bargaining agreements, and not in UC contracts for "Manager and Senior Personnel" (you google the contact form) positions. Wilcox doesn't have one, Christ doesn't have one. The President of UC doesn't have one.

Finally this is a harassment case and the CA FEH and Federal law will supersede contract provisions.

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It's not just that there "is no constructive termination provision". She has a fully negotiated employment agreement with an express termination without cause provision. She had an opportunity to negotiate for constructive termination and typically courts defer to negotiated agreements like this. We aren't talking about a rank and file employee without representation. I think you will agree that the vast majority of the constructive termination lawsuits you are talking about do not involve people who were represented by counsel in the negotiation of a comprehensive employment agreement, like McKeever's.

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Could firing her now before the report is finished have a negative impact on UC in regard to potential lawsuits from athletes though? That would save a few $$ in terms of paying out McKeever, but add to the perception that she did something wrong, and maybe that higher ups are covering their own arses.

A six month investigation window seems rather problematic for the program - team would likely need an interim coach? And will recruiting suffer drastically.

If McKeever is reinstated and performance drops because no one wants swim for her, I'd think the option to terminate and pay her out still exists. But it's too soon now.

Also, while the $$$ are a all compared to FB and MBB, I'm wondering if the 2024 contract date became 2025 when Knowlton extended all coaches.


On a bigger picture level - while the abuse sounds bad, I'm wondering if the coaching tactics allegedly used here ever really worked especially with previous generations. Or did McKeever succeed despite of them. She was also the US Women's Olympic coach, so if her tactics were well known by the swimming community, it's not just the Cal administration that signed off on them. Even if these kind of tactics were condoned 20 years ago, that doesn't mean it's not time for a change now.

Correct

Maybe the alleged anger came after the stars were gone the past few years? Ms. Breed and a few others supported her thoughtful Jnstagram post.

Regarding the alleged racial epithet or epithets, if the writer is playing fast and loose, with today's Woke culture, if the Coach said "Shut that junk (or cr*p) off", I can see that offending some students, but it's not a racial epithet. Is the writer saving these alleged statements for another article?

calumnus said:

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juarezbear said:

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DiabloWags said:

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BearSD said:

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Paragraph 12 of McKeever's contract allows the university to terminate with no cause by making the payments specified in that paragraph. Paragraph 6 applies only if the university chooses to terminate for cause and pay the coach nothing.

We can all read this ourselves:

"... there is also reserved to the University the right to terminate this Contract without cause at any time by giving written notice to Coach of such decision."

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No need for a 6 month "investigation" with a high priced law firm.
No need to make certain that any allegations or claims made against McKeever can stand the test of a Court of Law or some sort of HR "policy". McKeever's contract is extremely clear. Cal can terminate McKeever at any time without cause.

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I'm not a lawyer, but I would think that terminating her without cause due to allegations that could (however unlikely) be disproven might leave the school open to a lawsuit.

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Her contract clearly states that she can be fired without cause with the unIversity just paying her contract specified buyout. Just like when other coaches are fired (usually for not winning "enough").

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Once upon a time not so long ago, there was a coach name Richard Corso He was notified by the Cal AD that he was going to be terminated, and would receive his severance payment per his contract buy-out provision. The eventual pleadings of both parties also stipulate that the Cal AD said he did not like the direction the program was heading. The coach, who is in the Hall of Fame for his sport, alleged in his complaint that he was asked to remain as head coach until the department was able to hire a "younger, female coach." He further alleged the AD said that "women should coach women". Cal denies the AD or administrators said anything to the coach about staying, female or any other type of replacement coach, or anything to suggest that they prefer one gender over another as coaches.

Following the conversation with the AD, the coach expedituously filed an age and sex discrimination grievance. The pleadings acknowledge that Cal agreed that their polices took priority over contractual termination provisions, and Corso was provided with a full investigation while he remained coach. This cast a shadow over the 2016 women's varsity water polo season. The investigation found no basis for Corso's charges, and also recommended that he be fired for a NCAA secondary violation. Corso then resigned claiming he had been constructively terminated. He sued for $1.38 million is salary, and millions in damages for all sorts of things such as sex and age discriminaton. His lawyer claimed that: "The NCAA investigation was contrived and part of the mechanism to attack Coach Corso's credibility, through humiliation, so that no reasonable person with his credentials would remain.


Cal hired Sonoma State's Coralie Simmons as Corso's replacement.. She is currently the only woman coaching one of the seven schools that comprise the Mountain Pacific Sports Federation. Cal asserted in its pleadings that they considered both male and female candidates before selecting Simmons. The water polo program has been doing well under Simmons.

Unit2Sucks said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

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???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

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Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

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You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

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Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

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Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

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My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

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Because the policies that have to be compiled with under Section 6 lay out separate rules for an investigation and termination, and overrule specific provisions in all Cal contracts, including Section 12 in Terry's contract. There seems to be some sort of dental here that Cal isn't going to compete the investigation and then make a decision on Terry based on the investigation, while everyone here plays lawyer.

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Just to be clear, even the lawyers are playing lawyer since none of us our involved. You've made a number of statements that I don't think are true and are not supported by the contract - for example when you claimed she has a constructive termination right.

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I have stated several time already that she has a constructive termination right by both statue and case law. The contract is silent as to anything that would limit these rights. if you don't believe me, ask the counsels of various contractual employees that have sued UC.

wifeisafurd said:

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calumnus said:

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juarezbear said:

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DiabloWags said:

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BearSD said:

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Paragraph 12 of McKeever's contract allows the university to terminate with no cause by making the payments specified in that paragraph. Paragraph 6 applies only if the university chooses to terminate for cause and pay the coach nothing.

We can all read this ourselves:

"... there is also reserved to the University the right to terminate this Contract without cause at any time by giving written notice to Coach of such decision."

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No need for a 6 month "investigation" with a high priced law firm.
No need to make certain that any allegations or claims made against McKeever can stand the test of a Court of Law or some sort of HR "policy". McKeever's contract is extremely clear. Cal can terminate McKeever at any time without cause.

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I'm not a lawyer, but I would think that terminating her without cause due to allegations that could (however unlikely) be disproven might leave the school open to a lawsuit.

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Her contract clearly states that she can be fired without cause with the unIversity just paying her contract specified buyout. Just like when other coaches are fired (usually for not winning "enough").

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Once upon a time not so long ago, there was a coach name Richard Corso He was notified by the Cal AD that he was going to be terminated, and would receive his severance payment per his contract buy-out provision. The eventual pleadings of both parties also stipulate that the Cal AD said he did not like the direction the program was heading. The coach, who is in the Hall of Fame for his sport, alleged in his complaint that he was asked to remain as head coach until the department was able to hire a "younger, female coach." He further alleged the AD said that "women should coach women". Cal denies the AD or administrators said anything to the coach about staying, female or any other type of replacement coach, or anything to suggest that they prefer one gender over another as coaches.

Following the conversation with the AD, the coach expedituously filed an age and sex discrimination grievance. The pleadings acknowledge that Cal agreed that their polices took priority over contractual termination provisions, and Corso was provided with a full investigation while he remained coach. This cast a shadow over the 2016 women's varsity water polo season. The investigation found no basis for Corso's charges, and also recommended that he be fired for a NCAA secondary violation. Corso then resigned claiming he had been constructively terminated. He sued for $1.38 million is salary, and millions in damages for all sorts of things such as sex and age discriminaton. His lawyer claimed that: "The NCAA investigation was contrived and part of the mechanism to attack Coach Corso's credibility, through humiliation, so that no reasonable person with his credentials would remain.

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Why don't you tell us how Corso's lawsuit went? It's been 5 years so surely it's been resolved.

Are you aware of any coach at Cal winning a constructive termination lawsuit? Any other coach in California?

BearSD said:

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There's a bunch of hogwash in this thread trying to justify a long, drawn-out, six-month investigation.

Even if the university wanted to launch an investigation to mollify some wealthy booster who is a big supporter of McKeever, or for other political reasons, the only reason it could possibly take six months is if whomever is calling the shots wants to drag it out in the hope that outrage will dissipate and they can just keep McKeever.

When the provost at the University of Michigan was accused of sexual harassment a couple of years ago, UM placed him on leave and started an investigation that took less than two months before the provost was fired. Less than two months to investigate allegations of harassment over a period of 20 years. And yes, they also hired an insanely expensive law firm for their investigation. It still took less than two months.

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I have been involved as a witness to two investigations in the work world. They were both sexual harassment cases, far les complicated, and involved far less people and time periods than the McKeever situations. And yet the investigations took about 3 months to play out, which is similar to the Michigan case you cite. Since the people involved both times where physically near my office, I was interviewed twice both times, a preliminary interview and then a follow-up after other people were interviewed. So expect a lot of people to get multiple interviews. Let's look at the distinctions in the situations:

1) Knowing the allegations. In my case that was no brainer, and in the Michigan case. . Here you have allegations, a lot of them quite general, from a newspaper article(s). The investigators need to get a written (or verbal which is less preferable) complaint that is a summary of concerns, which will need to be explored further with the complainants to draw out the specific detail needed to draft a procedurally fair set of allegations. For an allegation to be considered procedurally fair it should contain as a minimum, who was allegedly involved, what is alleged to have occurred and when. This will take some time given the number of people and time frames involved. This means that many complaints will need to be interviewed more than once to address likely conflicts in asserted facts.

2) Lawyers. None in my case. The Miciigan case I suspect the accused had reprentation. Every participant has the right to have a person they are comfortable with present while they participate in an investigative process (typically the interview). Under the Title 9 and Cal rules, the support person is there to offer only moral support to the person. They are not there to advocate or speak on behalf of the participant. This is SOP. Interference from a support person can be very disruptive and can be remedied by ensuring that the support person understands their role before they participate. Non-employes don't necessary have to follow those rules, which means negotiating with lawyers. For example, there was an accusation by a former Olympics coach that Terry fired. She will likely not be willing to come for the interview without her own counsel and different rules, since she could face a suit from Terry at some point. Something will have to be negotiated. There is no guarantee that non-employees will agree to cooperate, but the investigators have to take the time to give it a shot. And then there is getting Terry's cooperation, and no doubt she will be lawyered-up.


3) Number of people involved and time period covered and breath of allegations. Mine involved a limited number of employees. I suspend the Michigan case is the same way. Not even close in this case. Tte law firm has to make arrangements and interview much of the present team, many graduates, employees, former employees, parents, various doctors, a good portion of the AD staff (or even former staff) given that the investigation will look at they conduct in handling accusations, members to men's swim team, members of Olympics teams, and others as the investigation develops. And again, they may have to request multiple interviews. Given that every complaint has the potential to become a lawsuit, the investigators need to investigate every accusation in a manner in which it can be presented to a court of law, if necessary. So every potential witness needs to be considered.


4) Cooperation issues. Employees are required to be witnesses and provide information under policies at the convenience of the employer, which made my investigation go rather efficiently. The law firm doing the investigation will have no such power over most of the witnesses. They probably will have to wait for non-employee scheduling and decide which of the interviews need to be done live, which likely involves someone traveling. I suspect there will need to be negotiations with the attorneys for McKeever and some accusers.

5) Qualified investigators don't grow on trees. Even the largest law firms don't have that many employment attorneys qualified to do investigations and guess what, they have other clients who also have important investigations, that may be even much more high profile than a college swim team coach.

6) There is a lot more information involved. In my situations or the Michigan case, there was information to be managed, prep by the investigator, time for analysis and drafting of findings. Thus, 2 or 3 months. There is going to be mountain more of information here. Thousands of pages of clear and detailed records of the investigation are going to have to be developed to support investigation findings. A complete investigation needs to develop a witness list, sources for information and evidence, interview questions targeted to elicit crucial information and details, and a process for retention of documentation and other technical aspects that take time.

7) Developing Evidence. Not much in the cases I was in. Basically he said, she said, and a lot of asking people what they saw. Here there are allegations that involve health issues, so there is a ton of medical evidence to evaluate when it comes to the overtraining complaint. There is the argument that the D1 swimmer contemplating suicide had other issues than just the coach. So that is very broad look at the complaint's medical history and phycological profile. There may be that some complainant's won't be willing to provide all the requested medical data, but the investigator has to take the time to try to get the information.

Those suggesting about how little time this investigation should really have no understanding of the scope of work involves in this situation.

wifeisafurd said:

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Unit2Sucks said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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BearGoggles said:

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wifeisafurd said:

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calumnus said:

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BearSD said:

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Quote:

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Cal can do whatever it wants, it simply is a matter of much liability it wants to take on. If it terminates McKeever now without an investigation, it simply breached her contract and faces potentially large damages (and probably huge push back from donors, the media, members of the Cal swimming community, etc). It is Cal's money and they clearly are not replacing McKeever until the investigation is over. Hiring a new coach (w/o an interim title) is a constructive termination for McKeever's contract.

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???

If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract.

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Exactly my point all along. I don't know why WIAF is being so insulting in this discussion, it is uncharacteristic of him.

The investigation would of course continue, but should focus as much on Knowlton's actions/inactions as McKeever.

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You ned to stop making stuff-up about the contract, and instead read it.

Section 6 expressly incorporates the policies that require an investigation of these allegations before an employee can be terminated. Not only does it reference the specific policy, it also restates that any changes to policies regarding discrimination, harassment, etc. can be changed and those changes are incorporated into the contract.

I actually read the contract before commenting, so this is now my third telling you this.

You stated:

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." NO, the incorporated policies control

"It would have been far better if it had not gotten to this point. However, If the determination is made (relatively quickly) to go in a new direction, McKeever can be offered an administrative role, or retirement with the honor her accomplishments deserve." There is absolutely no right under the contact for Cal to be able to do this.


"if in meetings with the student athletes, you gauge strong support for McKeever and believe the accusations of bullying and other abuse are baseless, then reassure the team and give them a plan going forward. If the vast majority of the team supports her then by all means, wait until she is cleared by the investigation. However, the determination of desired direction should not have to wait. NO, the contract doesn't provide for any of this. Many of the accusations are alleged to occur for period before many if not all of these swimmers even were on the team . It also overrides the right of the employer to separate the accused from the accusers, which beside being employment 101, is part of the incorporated policies.

"The determination needs to be made quickly whether Teri McKeever is the right person to lead Cal swimming going forward. That should be done primarily by interviewing the current Cal swimmers individually. Determining what is best for them and for the program (future swimmers) going forward." No, when allegations are made the policies control and you don't get to make-up procedures. This is an automatic vote for McKeever by swimmers who want continuity (and the fact the complainants are a small number of the current swimmers). There is no authority to do this under applicable policies, and Cal should suspect automatic lawsuits from the complainants and to crucified in the media. The path forward once you allegations that trigger these policies is these policies, and the contract doesn't say otherwise, no less what you are proposing.

"If the contract allows the university to simply pay a buyout and let the coach go, it's not a breach of the contract." No, unless you want to delete Section 6 of the contact.

"Their contract determines their employment, not university HR policies. No, the contract is littered with incorpoations of "HR policies."

This is why Cal uses actual lawyers to read and interpret contracts and advise the Chancellor, and she has taken the action she has.

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Wife - what is the relevance of the policies if the University wants to invoke the termination without cause provisions and agrees to pay McKeever's buyout? Do the policies even matter at that point? And if they do, how could McKeever claim damages in excess of the buyout amount?

In essence, could Cal simply say this is messy, disruptive and unseemly and, regardless of fault, we thinks its best for all parties to move on?

Not advocating for Cal firing her immediately (with or without cause), but it seems to me that even if the policies apply, her claim for damages can't exceed the buyout amount.

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Good questions. Ignoring the backlash from donors and swim stakeholders for the moment, once the accusations are made and the policy is triggered the employee can only be terminated for cause. The fact that the allegations trigged the mess, disruption, etc. is the cause of termination, not no cause.

The next question is that is the limit of damages the buy out? I don't thing so. The buy out is for termination without cause. Once the policies are triggered the accused employe is entitled to investigation and due process under the incorporated policies in Section 6. The damages for that breach of being deprived of those rights are whatever a jury decides. The liquidated damages provision (the buy-out) only applies to termination without cause, by its term. I'm willing to look at any authority that says the liquidated damages provision applies, but I coudn't find any.

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My question is, in part, can't the university just forego the investigation (putting aside the other reasons it needs to do an investigation) and say "Teri - we're parting ways and firing you WITHOUT cause. Here's your buyout" How is that any different than completing the investigation, exonerating Teri, and then firing her without cause in any event?

I'm reading the contract as saying the university can fire her at any time without cause (and for any reason) and simply pay the buyout. Full stop. I'm not understanding how the fact that the allegations of wrongdoing change that UC right - but I claim no expertise in this field and certainly have no idea what the policies say.

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Because the policies that have to be compiled with under Section 6 lay out separate rules for an investigation and termination, and overrule specific provisions in all Cal contracts, including Section 12 in Terry's contract. There seems to be some sort of dental here that Cal isn't going to compete the investigation and then make a decision on Terry based on the investigation, while everyone here plays lawyer.

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Just to be clear, even the lawyers are playing lawyer since none of us our involved. You've made a number of statements that I don't think are true and are not supported by the contract - for example when you claimed she has a constructive termination right.

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I have stated several time already that she has a constructive termination right by both statue and case law. The contract is silent as to anything that would limit these rights. if you don't believe me, ask the counsels of various contractual employees that have sued UC.

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The contract is not "silent" in that regard. Paragraph 4 addresses it and she signed iaway her rights. You can only claim that statute supersedes that and the contract would not be upheld in court.

Paragraph 12 includes the provision that if she is offered the buyout, which the university can do at any time, and sues, she forfeits the buyout. So that presumes that she could still sue and possibly prevail.