Washington State’s decision to fire head football coach Nick Rolovich and four staff members, reportedly with cause, for refusing to be vaccinated against COVID-19 is less likely to deliver a clear solution than prompt a legal fight. Rolovich, 42, had until Monday to meet a deadline, imposed by Gov. Jay Inslee, for state employees and private sector education and health care employees to either be fully vaccinated or receive an exemption.
In explaining Rolovich’s departure, Washington State said he “is no longer able” to fulfill contractual duties and has “initiated the separation process,” based on terms in the Rolovich’s contract. The school also dismissed four assistant coaches for non-compliance with the vaccine requirement. Defensive coordinator Jake Dickert will serve as acting head coach for the Cougars, who have a 4-3 record after winning their last three games and are in third place in the Pac-12 North, behind Oregon and Oregon State.
Washington State athletic director Pat Chun bemoaned Rolovich’s exit as capping “a disheartening day for our football program,” though he added, “Our priority has been and will continue to be the health and well-being of the young men on our team.” University president Kirk Schulz stressed that school officials “are immensely gratified that nearly 90% of WSU employees and 97% of our students are now vaccinated.”
Schulz’s gratification may be somewhat delayed until Rolovich’s termination is resolved. Based on procedures outlined in his employment contract, Rolovich can contest the dismissal with school administrators.
Rolovich, 42, was the state’s highest-paid employee, earning more than three times the president of his college and more than 15 times Inslee. In April 2020, Rolovich signed a five-year, $15.6 million contract that pays him about $3.2 million a year.
The university’s reported designation of Rolovich’s firing as “for just cause” is crucial. Pursuant to his contract, “all obligations” for the school to “make further payments” or to provide other benefits “shall cease.” Had Rolovich instead been fired “without just cause”—the ordinary method of firing a coach—his contract indicated he’d be owed 60% of the remaining “base salary,” which is $2 million per year. Over the last three years of his deal, 60% of his base salary is $3.6 million.
Rolovich’s firing stems from Inslee’s issuance of “Proclamation 21-14.1: COVID-19 Vaccination Requirements.” The proclamation, initially issued on Feb. 29, 2020, represents a comprehensive plan to mitigate the pandemic’s impact. It prohibits operators of educational services from allowing any worker to engage in work after Oct. 18, 2021, unless the worker is fully vaccinated or has obtained an exemption on account of an applicable disability or “sincerely held religious beliefs, practice, or observance.” According to The Athletic, Rolovich sought a religious-based exemption. He did not receive one by the deadline.
Inslee’s authority to proclaim a vaccine mandate is found in Chapter 43.06.220 of the state code. The chapter, titled, “State of emergency—Powers of governor pursuant to proclamation,” accords broad authority to the governor to undertake health- and safety-promoting actions. With the state government a large employer—including of college employees—Inslee has emphasized the need for safe workplaces.
A group of state troopers and other employees have challenged Inslee’s order in federal court, claiming it violates due process and other Constitutional safeguards. Judge Thomas Rice recently declined to issue an injunction that would have allowed those employees to work. Rolovich likely could have relied on such an injunction.
As school employees, Rolovich and the four assistants are uniquely situated in that they have employment contracts. Those contracts provide detailed procedures for termination and challenging a termination. While Rolovich lacks plausible grounds to contest the firing—a school enjoys broad discretion in hiring and firing of coaches—he might have a case to contest the “for just cause” designation.
Rolovich’s contract empowers the school to invoke “just cause” in a wide range of circumstances. They include Rolovich:
- Deliberately failing to meet the standards of the school or university policies;
- Deliberately failing to integrate the football program “into the whole spectrum of academic life to complement the University and its mission in the state and community;”
- Refusing to perform his job duties in good faith;
- Committing an “act of misconduct” which is defined to include “endangering others;”
- Engaging in actions that are “seriously prejudicial to the best interests of the University or its athletic program;”
- Partaking in a “prolonged absence from duty without consent” of a supervisor.
Washington State could arguably cite any of those circumstances. Rolovich is openly defying state and school policies, and by remaining unvaccinated, he could pose an elevated health risk to students and staff.
Designing a firing as for cause is not an automatic move nor can it be done swiftly. It will likely be weeks before the firing is formalized.
Rolovich’s contract instructs that the athletic director (Chun) must first determine, in good faith, if there is just cause. Any finding of just cause can’t be conclusory. Chun must provide a “statement of the factual basis” for his findings. Rolovich then has 15 days to respond in writing. If Chun is unpersuaded, he can then terminate Rolovich with just cause. Rolovich would then have 15 days to appeal Chun’s decision to the president (Schulz), who then has 30 days to decide.
To the extent Rolovich plans to challenge the school in court, he will first need to exhaust these internal appeals. If he sues before doing so, a judge will be inclined to dismiss the lawsuit as “not yet ripe.” Parties to a contract must first exhaust their internal appeal options before a court will consider a lawsuit timely.
Rolovich’s contract also contains an alternative dispute resolution provision. It compels the parties to negotiate in good-faith mediation if they cannot resolve a dispute on their own. Mediation is a process where the mediator hears arguments from both sides and then recommends a solution. A mediator’s recommendation only takes force if both sides agree.
If mediation fails, Rolovich could then sue the school for breach of contract. The contract contains a choice of law provision instructing that a lawsuit be brought in a superior court in Whitman County, Washington.
Rolovich could argue that none of the contractual terms “for just cause” ought to apply to his situation. Although Rolovich signed the contract in April 2020, about five weeks after Inslee issued his proclamation, Inslee didn’t announce the vaccine requirement until a couple of months ago. Rolovich could insist that a vaccine requirement was not foreseeable at the time he signed the contract and thus none of the terms for cause in the contract apply.
Likewise, Rolovich could insist that Inslee’s decree, and the university adhering to it, unliterally changes the contract. The contract does not mention anything about a vaccine. Normally a contract can’t be changed unless there is “consideration,” meaning each side gives up something to get something. Here, Rolovich could claim he received nothing for having to be vaccinated. In that same light, Rolovich could assert that a contract employee of the school is in a different position than one who is at-will or one whose employment is based on tenure or other academic security.
Rolovich might also contend that while he is employed by a university, he functions as a coach, not an educator. The proclamation clarifies that it does not define “health care settings” as those where “sports and spectator events or other gatherings are held.” Rolovich could point out that he interacts with elite athletes who are young, healthy and almost certainly vaccinated (based on school data) and thus he poses no meaningful risk.
Rolovich could further maintain that he should have received a religious exemption. His reasoning and justifications for a religious exemption are unknown but so are the university’s reasons for (apparently) not granting one.
These and other arguments would face an uphill climb. The state’s vaccination requirement has thus far overcome legal challenge. U.S. Supreme Court precedent also favors the authority of governments to adopt vaccine requirements. Rolovich is also, clearly, an employee of the school and subject to the requirement. The fact that he has an employment contract and coaches football players, the school would argue, are distinctions without a difference.
But Rolovich doesn’t need the most persuasive arguments to generate a lawsuit that would be heard by a local judge and potentially local jurors. It could gain traction and have the support of those opposing vaccine requirements. If the endgame is a more favorable settlement with the school, Rolovich might opt to litigate as a means of gaining bargaining leverage.