THIS WEEK IN TORTS

It's the last week of October, and all the traditional rites of fall seem to be in full swing. Pumpkins are making their way onto porches and leaves are [finally] starting to give up for the winter. And in the sports world, Major League Baseball is passing the baton of America's Seasonal Pastime (Non-CTE Division) to basketball. For millions of fans the true essence of basketball is not found in the NBA, where some teams intentionally lose. Instead, the heart of the game can be found in the 352 college campuses that make up the NCAA's top division. But as the season tips off, one of the most celebrated and decorated coaches in the college game's history will not be found on the sidelines. Instead, Rick Pitino, erstwhile head coach of the University of Louisville (and way before that, my beloved BU Terriers), has found himself the most prominent casualty of a bribery scandal sweeping college basketball.

The Federal complaint hides many identities, but among all the implicated colleges and coaches, none have caught the public's attention more than Louisville and Coach Pitino. The details of Pitino's alleged transgressions are still being uncovered, but at the very least the FBI has claimed that Louisville sponsor Adidas paid $100,000 to induce star recruit Brian Bowen to choose the Cardinals over fellow blueblood programs at Texas, Michigan State, UCLA, and others. There are disputes about the degree to which Pitino was directly involved in the bribery, but it doesn't look good. At the time Bowen surprised the basketball world by choosing his program, Pitino told the press "In my 40-some odd years of coaching, this is the luckiest I've ever been." A bold statement for somebody thought to be "Coach 2" in the FBI's complaint, a person alleged to have directed Adidas to pay Bowen. It's probably also worth noting that Adidas somewhat shadily pays Pitino millions of dollars a year.

This all seems like a great topic for This Week in Racketeering, but what does it have to do with torts? Well, following his dismissal, Coach Pitino filed a rather extraordinary federal civil complaint against Adidas in the Western District of Kentucky. The complaint alleges that Adidas did, in fact, funnel $100,000 to Bowen in order to secure his commitment to Louisville--but without Pitino's knowledge. In doing so, Pitino claims that "Adidas' outrageous and unlawful actions, and the public disclosure of those actions, have resulted in grave damage to Coach Pitino's public and private standing and reputation, causing him extreme embarrassment, humiliation, and emotional distress."

It practically goes without saying that this scandal has damaged Pitino's public standing and reputation. But it's still saying quite a lot, given that his program has recently been shown to provide recruits with prostitutes in order to secure their commitment. The more interesting component is the allegation of intentional infliction of emotional distress. The torts-nerds among you will know that, historically, there was a bar on recovery for emotional harm. Among other things, the theory was that emotional harm is difficult to prove and easy to feign. Still, the common law has adapted over the last 100 years to recognize that there are times when emotional harm is significant and should be compensable.

In our class, we focus on the negligent infliction of emotional distress (NEID), but here Pitino is claiming intentional infliction of emotional distress (IIED), or more specifically the slightly archaic variant, outrage. As he states in his complaint, "Kentucky recognizes the tort of outrage, which authorizes the recovery of damages from one who, by extreme and outrageous conduct, intentionally or recklessly causes emotional distress to another." Pitino states no other causes of action in his suit.

If that sounds like a potentially weak complaint to you, Pitino's lawyers anticipated that, going to great length to explain why outrage is his only option to right perceived wrongs:

"The tort of outrage is, of course, a gap-filler, meant to apply when no other traditional tort does. And no other traditional tort appears to apply here. Adidas could not have committed an employment-related tort, because it was not Coach Pitino's employer. It could not have committed a negligent tort, because its conduct, and that of its employees, was quite deliberate. It could not have engaged in tortious interference with a contract, because it had no desire to adversely affect Coach Pitino's contracts with his employer or others; on the contrary, Adidas' financial interests were best served by keeping its actions secret, and thus having no effect on Coach Pitino's contracts. It could not have defrauded Coach Pitino, because its fraudulent actions were directed at the University of Louisville, which provided a college scholarship to an ineligible recruit. And it could not be accused of unjust enrichment, because any enrichment it gained was not at Coach Pitino's expense." (Pitino Complaint)

That's basically an entire torts course in a paragraph, listing all the reasons Adidas could not be liable for a laundry list of torts. And so all that's left is outrage, "a gap-filler" whose vagueness is apparently a feature as well as a bug. Once upon a time, Lion of the Law™ William Prosser suggested (perhaps in jest) that Intentional Infliction of Emotional Distress/Outrage be instead called "orneriness." Given the facts of the Pitino case, including his past public dalliances with scandal and alleged role and financial interest in the underlying bribery, orneriness might indeed have been a better label for his suit. This Week in Torts wishes Coach Pitino the best of luck in his future endeavors.

-Ellis