Former WSU head football coach Nick Rolovich, fired Monday for not complying with the state’s vaccination mandate, intends to sue the university and “all parties responsible for” his termination, his lawyer announced in a press release on Wednesday, October 20, 2021 (read story here, the press release here).
It’s not surprising that Rolovich, who still had 3½ years to go on his $3.2 million-a-year contract, is taking legal action. That’s $10 million of salary he won’t collect.
What’s surprising is that a terminated employee suing a deep-pocketed employer for $10 million of lost compensation, plus damage to reputation and professional prospects, etc., isn’t being represented by a major law firm with a high-powered employment law department. That seems strange
Rolovich’s lawyer is Brian Fahling, a solo practitioner who apparently works out of his home in Kenmore. Stranger still is Fahling’s background: Much of his legal experience involves rightwing religious politics, and he has ties to what some liberals mockingly refer to as “the Christian Taliban.” After graduating from Regent University College of Law in Virginia, part of a Christian college founded by televangelist Pat Robertson, he worked for Snohomish County as a deputy prosecutor for a few years, the kind of job new lawyers take to get experience, then spent 13 years working for the American Family Council, which the Southern Poverty Law Center has designated (here) as a “hate group” for, among other things, its anti-gay activities.
The tie-up suggests Rolovich may be involved with the fundamentalist evangelical community, which typically is non-denominational.
But you wouldn’t think so from Fahling’s press release, which asserts that Rolovich was fired “merely for being devout in his Catholic faith.” Fahling further claims WSU’s athletic director decided last April to terminate Rolovich, before there was a vaccine mandate. If that’s what he bases Rolovich’s legal complaint on, he’d better be able to prove it; and that could be difficult: Prima facie, Rolovich was fired — along with several hundred other state employees, and on the same day — for not complying with a state-issued mandatory vaccination deadline. If the AD testifies in court that Rolovich would still be coach if he’d gotten vaccinated, that claim will be in trouble.
Even if he can show the AD plotted to remove him from his coaching job last spring, long before he announced in July that he wouldn’t get vaccinated, that’s immaterial unless it caused his termination, and he wouldn’t have been fired because of his vaccination status. That will be extremely difficult to do, especially given that four assistant coaches were fired at the same time for not being vaccinated.
I’m not questioning Fahling’s competence. Also, a press release isn’t a legal complaint or a pretrial brief, so we don’t know what he’ll argue in court. I can only say that if I were representing Rolovich, I’d likely pursue a breach of contract theory, focusing on whether the state unilaterally imposed a new condition of employment not in the original contract. There’s also an opportunity here to litigate the specific legality of the governor’s mandate, as well as the general issue of compelling an employee to get vaccinated against his will (although I think that’s a weak argument).
On the surface, Rolovich doesn’t appear to me to have a very good case. It’s hard to argue that WSU officials plotted his ouster when the university had no choice, given the mandate and his non-compliance. In a nutshell, WSU didn’t have a choice, whereas he did have a choice; and he wasn’t singled out, but was treated the same as other non-complying state employees.
His case is even weaker because Covid-19 is a genuine threat, the leader of his church (i.e., the Pope) has encouraged Catholics to get vaccinated, and among all NFL and major-college football coaches, Rolovich is the only one who hasn’t gotten vaccinated. WSU will argue why the nature of his job required it. It will be very hard to paint this as a vindictive, discriminatory, or pretextual firing.
Rolovich may just be fishing for a settlement. The KING 5 News story linked above says, “It is widely believed the university will not have to pay Rolovich any money from his buy-out because his firing is believed to be with cause,” without attribution. A statement like that, without explanation, is meaningless. Defendants often pay up to avoid the costs of litigation and the risk of a large judgment. Rolovich isn’t some guy who walked in the door claiming he slipped and fell on a banana peel in the street. He had a lucrative employment contract the college unilaterally terminated early. The rest is just details.
They’ll probably make some sort of a settlement offer down the road.
Update (8/8/22): Rolovich has filed a tort claim with the state claims office, preliminary to filing a lawsuit seeking $25 million damages (see story here).
The attorney is suggesting the university did not have to fire the coach. Rather than go along with the mandate the university could have declined to fire the coach claiming the state mandate is mute when it comes to university employees, and forced the state or governor to do the firing. Could a professor with tenure refused the shot and oddly the university could have granted a waiver? [Edited comment.]
The attorney can make his argument, but that doesn’t give it merit. You are mistaken; the governor’s mandate required WSU to fire Rolovich. WSU has no authority to grant “waivers,” nor does tenure shield academic staff from the mandate. State employees could request medical or religious exemptions, and Rolovich did, but even if approved — and WSU didn’t say his was denied — they’ll still lose their jobs if the employer entity can’t accommodate them. As WSU pointed out, a graphic designer working alone can be accommodated, but a football coach can’t be given his interactions with players, coaching staff, and public appearances. A professor with classroom duties can’t be, either, although a non-teaching researcher possibly could be.