Email Protected in Whistleblower Lawsuit

By: Caitlin Esposito

Glenn Hedden was the athletic director at Kean University, a small college in New Jersey, for twenty two years.[1]  In May of 2011, Hedden was fired when the National Collegiate Athletic Association (NCAA) began investigating academic fraud allegations at the University.[2]  One of Hedden’s responsibilities as athletic director was to ensure that the University was in compliance with NCAA regulations.[3]  Hedden was terminated by his employer since the University was not in compliance with NCAA’s regulations.[4]  However, he has sued Kean University for wrongful termination.[5]  Hedden believes the actual reason he was fired is because the University found out that he disclosed the violations to the NCAA, which he had an obligation to do.[6]  Hedden claims that he is protected by New Jersey’s Conscientious Employee Protection Act (CEPA) because he was acting as a whistleblower.[7]  The CEPA prohibits retaliation against an employee who “[d]iscloses or threatens to disclose to a supervisor . . . [a] policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation . . . .”[8]

In November of 2010, a math professor informed Hedden that she believed a member of the women’s basketball team was taking less than twelve credit hours.[9]  The NCAA requires athletics to take a minimum of twelve credit hours in order to maintain eligible to play.[10]  Hedden discovered that this player, as well as several others players from the team were enrolled in a course titled History of Spain.[11]  No one consulted with Hedden prior to enrolling the athletes in this course.[12]  The course did not comply with NCAA’s or the University’s requirements.[13]  The course was created after the semester’s add/drop period began so no other students could enroll in it.[14]  There were only nine students enrolled in the course, violating the University’s minimum class size.[15]  The athletes did not pay a registration fee for the course and some basketball players enrolled in the course had another class scheduled at the same time.[16]  Hedden notified the NCAA and the University of these alleged violations.[17]

In January of 2011, Hedden learned that a player’s failing grade was changed to an incomplete, in order to keep her grade point average above a 2.0, the minimum average required by the NCAA to remain eligible to play.[18]  This grade change allowed the athlete to play in a game against a high-ranked competitor.[19]  Hedden had the grade changed back to an “F” so the athlete was ineligible to play.[20]  However, this player was reinstated when her History of Spain grade was increase by one letter grade.[21]  This grade change was authorized by the Vice President of Operations.[22]  Hedden also reported this incident to the NCAA. Approximately a week later, Hedden was terminated.[23]

On Thursday, October 24, 2013, New Jersey Superior Court’s Appellate Division ruled that Keane University does not have to turn over a previous email because the contents are privileged.[24]  Hedden wanted to use the email as evidence to prove that he was fired for disclosing the violations to the NCAA.[25] As a result of this ruling, other whistleblowers may be apprehensive to report unlawful conduct because it could be difficult for them to prove their case.


[1] Scott James Preston, Whistleblowing in Intercollegiate Athletics, University Business, Apr. 2012, http://www.un

iversitybusiness.com/article/whistleblowing-intercollegiate-athletics.

[2] Dave O’Brien, NCAA Sanctions and a Whistleblower Lawsuit Rock Kean University, College Sports Business News, July 5, 2012, http://collegesportsbusinessnews.com/issue/august-2012/article/ncaa-sanctions-and-a-whistle

blower-lawsuit-rock-kean-university.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Preston, supra note 1.

[8] N.J. Stat. Ann. § 34:19-1 (West 2013).

[9] Preston, supra note 1.

[10] Id.

[11] O’Brien, supra note 2.

[12] Id.

[13] Id.

[14] Id.

[15] Preston, supra note 1.

[16] Id.

[17] O’Brien, supra note 2.

[18] Id.

[19] Preston, supra note 1.

[20] O’Brien, supra note 2.

[21] Id.

[22] Id.

[23] Id.

[24] Joshua Alston, NJ Court Says University Email Is Protected In Firing Suit, Law 360, Oct. 24, 2013, http://www.

law360.com/articles/483039/nj-court-says-university-email-is-protected-in-firing-suit.

[25] Id.

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