Case 5:11-cv-00123-cr Document 27

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT

JAMES JAK KNELMAN,

Plaintiff,
v.
MIDDLEBURY COLLEGE and
BILL BEANEY,
Defendants.

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Docket No. 5:11-cv-123

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

NOW COME Defendants President and Fellows of Middlebury College (Middlebury
or the College) and William Beaney, by and through their attorneys, Dinse, Knapp &
McAndrew, P.C., and move pursuant to Fed. R. Civ. P. 56 for summary judgment on all claims
asserted by Plaintiff James Jak Knelman. In support of this Motion, Defendants submit the
attached Statement of Undisputed Material Facts (SUMF) and the following Memorandum of
Law.
MEMORANDUM OF LAW
I.

Background
James (Jak) Knelman, a student at the College, was dismissed from the mens ice

hockey team in late January 2011. (SUMF 1.) The circumstances leading to Knelmans
dismissal from the team came to a head after his unauthorized early departure from a major
celebratory alumni hockey banquet held on January 15, 2011. (Id.) Every player, including
Dinse,
Knapp & McAndrew, P.C.

Knelman, was made aware of the significance of the banquet, which was held to honor the 1960-

209 Battery Street

P.O. Box 988
Burlington, VT

1961 Middlebury College Mens Hockey Team, 50 years after the teams winning season. (Id.

05402-0988
(802) 864-5751

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2.) The hockey alumni weekend, including the banquet, had been planned since the early stages
of the season, and players were well aware that their attendance at the banquet was expected.
(Id. 3.) The players also knew that their family members were specifically invited to attend.
(Id.) According to Knelman, he attended the banquet for roughly two-and-a-half hours before
deciding to leave early to meet his father for dinner at a restaurant in Bristol. (Id. 4.) Knelman
got up and left without permission and without notice to his coaches or team captains, as the
honorees started the open mic portion of the banquet with reminiscences of their hockey
experiences at the College. (Id. 5.)
On the following Monday, January 17, 2011, during a team meeting, Coach Beaney
asked the players if any of them had left early from the banquet. (Id. 6.) Knelman (the only
player who did) responded that he had left early at which point Coach Beaney reacted, as many
hockey coaches no doubt would, by criticizing Knelman for what he deemed to be a selfish act
that reflected poorly on the team on such an important occasion.1 (Id.) Knelmana junior at the
time and one of the older players on the teamclaims that Coach Beaneys reaction and
treatment were bullying and humiliating. (Id. 7.) The next day, Knelman was informed by
his captains that he was suspended from practice for the week, including the two upcoming
weekend games. (Id. 9.)
Coach Beaney met with Knelman again on January 24, 2011, after consulting his
Assistant Coach and the team captains, and informed him of the decision to dismiss him from the
team for the remainder of the regular season. (Id. 10.) Knelmans dismissal resulted from a
culmination of what his coaches perceived to be an unwillingness to take ownership for his
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

1 Knelman claims that Coach Beaney berated him, but Knelmans friend and former teammate on the hockey
team, Thomas Clayton, testified that he had never observed Coach Beaney berate a player on the team nor did
he agree that the term was appropriate because every coach he ever had raised his voice . . . in anger and in
encouragement. (Id. 8.) Clayton also testified that he would not have left the banquet without permission and
that he would have expected consequences for such behavior. (Id.)
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action (in leaving early from the banquet without permission) and Knelmans prior challenges to
coaching decisions about his playing time and position.2 (Id. 11.) Coach Beaney stated his
belief that Knelman would be fine given that he chose the College mainly for its academics
specifically its Environmental Sciences programand because he had other extracurricular
activities to satisfy and fulfill him.3 (Id. 13.) Coach Beaney further invited Knelman to return
for tryouts with every other incoming or returning player the following season.4 (Id. 16.) The
decision to dismiss Knelman from the team was not taken lightly and was made only after
careful consideration. (Id. 17.)
Knelman pursued redress for his dismissal from the Director of Athletics, Erin Quinn,
who, along with the Vice President for Administration, Tim Spears, investigated the matter on
Knelmans behalf. (Id. 18.) Knelman also enlisted support from numerous members of the
faculty and administration, most of whom were initially supportive of himbased solely on his
version of eventsand even assisted him in preparing a written complaint to A.D. Quinn. (Id.
19.) Although Knelman was offered the opportunity to meet with Coach Beaney and A.D.
Quinn to discuss the situation and Knelmans future with the team, he refused after being
informed that the College would not agree to his precondition that Coach Beaney be suspended

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

2 Knelman made no secret of his belief that he should be playing on the teams power-play line, and persisted in
this request even after Coach Beaney explained to him that he could best serve the team by playing on the
defensive penalty-killing unit. (Id. 12.) Coach Beaney specifically told Knelman that he felt he could be a
leader of the unit and, as a result, see more playing time, but Knelman insisted he belonged on offense. (Id.)
Knelmans unauthorized departure from the banquet and lack of genuine understanding and remorse reinforced
Coach Beaneys view that Knelman was not a team player, and ultimately led to the dismissal. (Id.)
3 Knelman alleges that Coach Beaney told him he was being dismissed because he was placing undue emphasis on
academics rather than hockey. (Id. 43.) Knelman testified at deposition that when he first looked at the
College and met with Coach Beaney he informed him that environmental studies were important to him and
that Coach Beaney responded that the College offered a great environmental studies curriculum. (Id. 15.)
Although Knelman alleges that Coach Beaneys statements regarding environmental studies during the January
24th meeting were belittling [of] academics, Knelman conceded in deposition that Coach Beaney might have
intended his comments differently. (Id.)
4 All varsity sports teams at the College hold tryouts at the opening of each season. (Id. 16 n.1.) Freshmen and
upperclass student-athletes compete for spots on team rosters, and there is no guarantee, express or implied, that
players, including upperclass student-athletes, will make a given team based solely on past participation. (Id.)
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for the upcoming 2011-2012 season. (Id. 20.) Knelman stated that he would simply not play
for Coach Beaney. (Id.)
Knelman sued instead, alleging that his dismissal from the team was wrongful, and
asserting claims against the College for breach of contract, breach of the covenant of good faith
and fair dealing, breach of fiduciary duty, negligent supervision, and defamation, and also stating
direct claims against Coach Beaney for breach of fiduciary duty and defamation. (Id. 21.)
Knelman contends that his dismissal from the hockey team was both unfair and improper, and
has damaged his reputation and prospective employment opportunities, and in particular his
pursuit of a professional hockey career. (Id.)
Simply put, Knelmans dismissal was a coaching decision within Coach Beaneys sound
discretion. (Id. 22.) The College supports the authority of its coaches to make such decisions
regarding player conduct in the same way that coaches make decisions about playing time, or
which players make their teams in the first instance. (Id. 23.) Knelman, like all College
student-athletes, was not without redress, as evidenced by the fact that members from the
Department of Athletics and Administration conducted an investigation into the circumstances of
his dismissal. (Id. 25.)5
Coach Beaney is a widely respected and beloved coach and educator who has worked at
the College for over twenty years. (Id. 27.) As his playersboth current and formercan
attest, Coach Beaney sets very high standards, which extend to players conduct both on and off
the ice, and as students and citizens in general. (Id. 28.) Coach Beaney is well known for
placing the highest importance on academics and insists that his players focus on their studies at
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

5 Prior to Knelmans dismissal, the College had begun discussions about formalizing a policy that called for
coaches to advise the Athletic Director of their decisions to dismiss athletes from teams. (Id. 26.) This policy
would not have helped Knelman in this instance, however, because the Athletic Director, after a thorough
investigation, concluded that Coach Beaneys decision was reasoned and consistent with his educational
coaching philosophy and within his discretion. (Id.)
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the College. (Id. 29.) In fact, Coach Beaney has required players to take temporary leaves of
absence from the team so that they canand dodedicate additional time and effort to their
studies and academic responsibilities. (Id.) Knelman may not be satisfied with Coach Beaneys
decision or the outcome of his attempts to pursue redress through the College, but dissatisfaction
with a discretionary coaching decision does not amount to harm that a court can or should
redress.
II.

Discussion
A.

Summary Judgment Standard

A motion for summary judgment must be granted where there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of law. Harlen
Assocs. v. Inc. Village of Meneola, 273 F.3d 494, 498 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56
(c)). The court considering such a motion must determine whether there are genuine unresolved
issues of material fact to be tried. See, e.g., Patterson v. County of Oneida, 375 F.3d 206, 219
(2d Cir. 2004); Gibson v. Am. Broad. Co., Inc., 892 F.2d 1128, 1132 (2d Cir. 1989). Only
disputes over material facts which might affect the outcome of the suit under the governing law
preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Here, Plaintiff has failed to state claims that are legally cognizable or otherwise
supported by evidence necessary to withstand summary judgment.
B.

Knelman did not have a contractual right to play hockey at the

College.

Knelmans assertion that his dismissal from the hockey team and the alleged improper
Dinse,

treatment by Coach Beaney constituted a breach of his contract with Middlebury is without

Knapp & McAndrew, P.C.

209 Battery Street
P.O. Box 988

merit. Vermont recognizes that [b]etween a student and a college there is a relationship that is

Burlington, VT
05402-0988
(802) 864-5751

contractual in nature. Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 242 (D. Vt. 1994)
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(citing Merrow v. Goldberg, 672 F. Supp. 766, 774 (D. Vt. 1987)). The terms of such
contracts may be contained in the brochures, course offering bulletins, and other official
statements, policies, and publications of the institution. Id. Knelmans claim is predicated on
the assertion that the College promised him the opportunity to pursue an undergraduate degree
as well as participate in intercollegiate hockey, (SUMF 30), and that the College Handbook
and National Collegiate Athletic Association (NCAA) Division III Manual provide the
material terms of the parties agreement in that regard. (Id.) Knelman specifically alleges that
this contract was breached as a result of (a) his arbitrary dismissal from the team; (b) Coach
Beaneys alleged statement that Knelman failed to make hockey a priority; (c) Coach Beaneys
alleged hazing of and defamatory remarks towards Knelman; and (d) Middleburys failure to
ensure that Knelman received adequate due process. (Id.) As explained below, Coach Beaneys
decision was based on legitimate coaching factors, but in any event, no contract Knelman may
have had with the College guaranteed him a right to participate in the varsity hockey program.
1.

The provisions of the College Handbook and NCAA Division III

Manual relied on by Knelman do not create enforceable
contractual obligations.

While it may be that Knelman had a contract with the College to pursue an academic
education based on his acceptance of an offer of admission and payment of tuition, the scope of
that contract did not include the right to participate in intercollegiate hockey, (SUMF 30).
See Jackson v. Drake Univ., 778 F. Supp. 1490, 1493 (S.D. Iowa 1991) (rejecting claim that
financial aid agreement granted student, who was specifically recruited to play basketball at
Drakes Division I program, the right to play on the team). None of the documents cited in
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

Knelmans Complaint evidences promises by the College, whether express or implied,

P.O. Box 988

Burlington, VT

guaranteeing Knelman the right to participate in the varsity hockey program. See Vurimindi v.

05402-0988
(802) 864-5751

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Fuqua Sch. of Bus., 435 F. Appx 129, 133 (3d Cir. 2011) ([E]ven though guidelines and
policies can include specific promises on which to base a cause of action, Vurimindi did not
point to any specific and definite terms that were violated in his case.); Guiliani v. Duke Univ.,
1:08CV502, 2010 WL 1292321, at **5 n.4, 78, 8 n.7 (M.D.N.C. Mar. 30, 2010) (terms of
NCAA Division I Manual did not provide grounds for breach of contract claim against Duke and
golf head coach after suspension of plaintiffwho was, incidentally, Rudy Guilianis sonfrom
team); see also Fellheimer, 869 F. Supp. at 242 (Middlebury College only bound to provide
students with procedural safeguards it has promised).
Moreover, courts have held that even student-athletes who attend educational institutions
on athletic scholarship are not ensured a right to participate in sport. Id. at *6 (citing Jackson,
778 F. Supp. at 1493 ([F]inancial aid agreements [i.e., contractual athletic scholarships] do not
implicitly contain a right to play basketball.)). As a Division III member of the NCAA, the
College is not permitted to offer athletic scholarships to its students. (SUMF 31.) It is difficult
to imagine how Knelmans claimed right to participation in the hockey program is any greater
than that of scholarship athletes specifically recruited with direct financial incentives.
Courts in other jurisdictions have rejected similar claims brought against educational
institutions by student-athletes. For example, in Guiliani v. Duke University, the plaintiff
alleged, among other claims, that his contract with Duke was based on oral representations made
by the coach during recruiting, as well as the Duke University Student-Athlete Handbook, the
Duke University Athletic Department Policy Manual, the Duke University Student Bulletin, and
the 2007-2008 NCAA Division I Manual (Constitution and By-Laws). Id. at *5 n.4. The court
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT

dismissed the claim after determining that the plaintiff had failed to point to any contract
specifically incorporating Dukes handbooks and policy manuals, and explained that such

05402-0988
(802) 864-5751

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publications, to the extent they had any effect on the relationship between the plaintiff and Duke,
did not support his claims to enforceable rights. Id. at *8 n.7 (published Standards of Behavior
did not contain enforceable rights).
Knelmans reliance on the College Handbook and NCAA Manual is similarly insufficient
to support his claims. The notion that the Colleges endeavors to comply with NCAA rules and
regulations are enforceable by student-athletes appears to be central to his claim. (SUMF 32.)
Knelman relies, in this regard, on language in the Community Standards and General Policies
section of the Handbook, which states:
Middlebury College requires all its faculty, staff, and students to adhere to certain
policies and regulations. These regulations, which differ for different segments of
the College community, are all designed to further the educational goals of the
College.
(Id.) Nothing in that quoted language, however, expressly refers to or incorporates definite
provisions of the NCAA Manual. See Guiliani, 2010 WL 1292321, at **7, 8 n.7 (noting that
contract alleged by student golfer did not incorporate terms of NCAA Manual or Duke
statements and publications). Accordingly, there is no promise by the College in its Manual
that it will comply with NCAA rules and regulations. Nor do the NCAA rules or regulations
cited by Knelman promise any specific relief to student-athletes, or give rise to cognizable
claims. (See SUMF 33.) Similarly, Knelmans reliance on the Rules of Reappointment for
Physical Education Faculty section of the Handbook, (id. 34), as incorporating provisions of
the NCAA rules and regulations, is misplaced. That section sets out criteria by which the
College evaluates the performance of its physical education faculty, and determines whether and
Dinse,

on what terms to renew the contracts of individual coachesit does not create a right in

Knapp & McAndrew, P.C.

209 Battery Street
P.O. Box 988

individual student-athletes to enforce the Colleges coaching performance standards. See Gally,

Burlington, VT
05402-0988
(802) 864-5751

22 F. Supp. 2d at 208 (holding that statement in handbook that [a]ll students should receive fair
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and equal treatment was merely a general statement of adherence by school to existing antidiscrimination laws and did not create a separate and independent contractual obligation). The
same holds true for each of the other sections of the Handbook cited by Knelman, (SUMF 35),
none of which states an identifiable contractual promise by the College. See Park v. Indiana
Univ. Sch. of Dentistry, 781 F. Supp. 2d 783, 78687 (S.D. Ind. 2011) (universitys Student
Handbook, Student Code of Conduct, and Code of Professional Conduct did not contain specific
enforceable promise). In short, Knelman points to no contractual right guaranteeing his
participation in the Colleges varsity hockey program.
2.

Knelmans assertion that he was improperly dismissed from the

hockey team for failing to make hockey a priority is not legally
cognizable.

Not every dispute between a student and a university is amenable to a breach of contract
claim . . . . Gally v. Columbia Univ., 22 F. Supp. 2d 199, 206 (S.D.N.Y. 1998). [C]laims that
sound in tort and ask the Court to involve itself in the subjective professional judgments of
trained educators will not survive a motion to dismiss merely because the plaintiff couches her
claims in terms of breach of contract. Id. at 207 (citations omitted). If anything, Knelmans
claims sound in tortsomething along the lines of coaching malpracticebut courts have
rejected such claims where it is obvious the plaintiff is essentially alleging educational
malpractice. See id.; see, e.g., Jackson, 778 F. Supp. at 1494 (allegations by basketball player
that university a) urged him to enroll in easy courses to satisfy eligibility; b) scheduled practices
substantially interfering with his study and tutoring time; and c) required that he attend practices
under threats that his scholarship would be taken away if he did not comply, alleged educational
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

malpractice only, which was not a recognized cause of action).

P.O. Box 988

Burlington, VT
05402-0988
(802) 864-5751

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Even if Knelman had expressly pled a claim for educational or coaching malpractice, he
still would not be entitled to relief. See Gally, 22 F. Supp. 2d at 207; Jackson, 778 F. Supp. at
1494. [C]ourts consistently have rejected students claims of educational malpractice against
schools based on policy concerns, which include the lack of a satisfactory standard of care by
which to evaluate educators professional judgments and the patent undesirability of having
courts attempt to assess the efficacy of the operations of academic institutions. Ambrose v.
New England Assn of Sch. & Colleges, Inc., 252 F.3d 488, 499 (1st Cir. 2001) (citations
omitted). [T]o recognize a negligence claim based on the facts before the court could
reasonably be expected to result in an enormous amount of litigation involving college athletic
programs and force the courts blatantly to interfere with the internal operations and daily
workings of an educational institution. Jackson, 778 F. Supp. at 1494 (citation and quotations
omitted). [I]t has been recognized that academic freedom thrives on the autonomous decisionmaking of the academy itself and Knelmans claims effectively ask the court to pass judgment
on the manner in which [Middlebury] runs its mens [hockey] program, a program which does
have an academic component. Id.; (SUMF 36.) No matter how Knelman attempts to
characterize his claims, they do not entitle him to relief.
3.

Knelmans allegations of hazing and defamation by Coach Beaney

are not proper bases on which to assert his contract claim.

As part of his contract claim, Knelman argues that the College failed to take action
against Coach Beaney for his alleged defamatory remarks and hazing. (SUMF 37.) Knelman
argues that Coach Beaneys remarks to him during the January 17, 2011 team meeting, in which
Dinse,

Coach Beaney described Knelmans unauthorized early departure from the banquet as selfish,

Knapp & McAndrew, P.C.

209 Battery Street
P.O. Box 988

were bullying and humiliating. (Id. 38.) Leaving aside for the moment whether

Burlington, VT
05402-0988
(802) 864-5751

Knelmans allegations of hazing and defamation are even actionable based on his alleged
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facts, there is no contractual basis for this assertion.6 Indeed, the mere allegation of
mistreatment without the identification of a specific breached promise or obligation does not
state a claim on which relief can be granted, Gally, 22 F. Supp. 2d at 206, and [t]he application
of contract principles to the student-university relationship does not provide judicial recourse for
every disgruntled student, id. at 207.
Courts have, furthermore, routinely dismissed claims of mistreatment by coaches and
professors for allegedly disparaging statements and conduct towards students. In Gally, for
example, a dental student sought damages for breach of contract and constructive discharge. Id.
at 202. The student alleged, among other things, that she was subjected to animosity and
gratuitously demeaned and denigrated by one of her professors before the entire class. Id. at
203. She also alleged that her professors behavior and remarks were motivated by racial and
gender-related bigotry. Id. The student argued that the treatment she endured violated the
schools Code of Conduct, which provided that [a]ll students should receive fair and equal
treatment. Id. at 208. The court rejected the students claim, holding that the provision was
merely a general statement of adherence by [the school] to existing anti-discrimination
laws. . . . [and] d[id] not create a separate and independent contractual obligation. Id. (citation
omitted). The court explained further that even if the provision did provide a specific
enforceable promise, the student failed to allege sufficient facts to confirm that such promise had
been breached. Id. Specifically, the student made no allegations of disparate treatment among
other students in the class or that she somehow was specially disadvantaged by [the professors]
teaching style. Id. (noting that students own allegations showed that treatment of students by
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

professor was equal).

P.O. Box 988

Burlington, VT
05402-0988
(802) 864-5751

6 Knelman has pleaded a separate claim for Defamation in his Complaint. (SUMF 21.)
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Here, Knelmans assertions of mistreatment are similarly not actionable. The Handbook
provisions on which he relies do not contain specific, identifiable promisescertainly no more
so than the Code of Conduct provision in Gally. And even were such provisions contractually
enforceable, Knelman has failed to allege evidence of a breach. For example, Knelman does not
allege a pattern of being singled-out or otherwise treated differently from his teammates. Id.
While Knelman may have felt uncomfortable as a result of the stern criticism he received from
his veteran coach for leaving early from the banquet, the effect on his personal feelings is not
enough to form a basis for contractual relief. As the Gally court aptly explained:
[W]hile reasonable minds may differ as to the effectiveness of [the professors]
style, the fact that [he] may have been harsh or even belittling to plaintiff does not
create a valid cause of action. To hold otherwise would be to open the floodgates
to a slew of claims by students who found their professors techniques personally
offensive. Such claims are better left to the sound handling of school
administrators.
Id. It should be noted that Knelman is not simply alleging that his dismissal from the team was
arbitrary: he advances a broader argument that Coach Beaney should not have discretion to make
routine coaching decisions regarding player conduct or even playing time, as revealed by the
following exchange at his deposition:
Q.

Let me ask you, youre on the mens ice

hockey team at Middlebury College and Coach
Beaney decides that youre not showing enough
enthusiasm, enough commitment on the ice and
youre benched.
MS. KNOBLAUCH: And your hypothetical
is he didnt tell him, didnt give any
warning, didnt give any notice?

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

Q.

No; just says Jak, I dont like the way

Youve been playing, Im not putting you on the
ice until I'm good and ready and see a wholesale
change in your attitude?

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A.

So hes telling me that.

Q.

Yeah, telling you that.

A.

Hes warning me.

Q.

No, hes pulling you from the ice.

MS. KNOBLAUCH: So with no warning hes
pulling him from the ice.

Q.

Absolutely. And you think under the

Middlebury College Handbook or some community
standards you have a right to a hearing before
some body; is that right?

A.

Yes.

Q.

What body?

A.

Thats what I asked for.

(SUMF 40.) Knelman further testified that were he to be benched because, in Coach Beaneys
opinion, his performance and attitude were lacking in previous games, he would expect some
form of hearing or open investigation into Coach Beaneys decision because his judgment
may be wrong. (Id. 41.) Although the College Handbook does not require the form or level
of review Knelman demands, it is clear that the College took seriously his concerns and provided
him more than sufficient review in line with his requests. (Id. 1720.) Specifically, the A.D.
and Vice President of the College personally met with Knelman and investigated the
circumstances of his dismissal. (Id. 18.) Knelman may not be happy with the results of their
review, but that does no make his alleged contract claim actionable.
Dinse,

4.

Knapp & McAndrew, P.C.

209 Battery Street

Knelmans dismissal from the team did not violate notions of due
process nor was he otherwise treated unfairly.

P.O. Box 988

Burlington, VT
05402-0988
(802) 864-5751

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This Court previously examined provisions in the Middlebury College Handbook in

Fellheimer v. Middlebury College, and held that although the College was contractually bound
to provide students with the procedural safeguards that it has promised in connection with
disciplinary hearings, nothing in the Handbook promised to provide . . . procedural protections
equivalent to those required under the Federal and State constitutions. 869 F. Supp. at 24042.
Likewise, nothing in the Handbook guarantees due process protections to student-athletes
dismissed from sports teams.7
That is not to say that Knelman was treated unfairly or denied adequate opportunity to
address his concerns. (SUMF 120.) To the contrary, Knelmans concerns were promptly
addressed by the A.D. and Vice President, who performed an investigation into the
circumstances of his dismissal and ultimately satisfied themselves that Knelmans dismissal was
not in derogation of College policy and standards. (Id. 26.) Knelman was also given direct
support from numerous members of the faculty and administration (as identified in his
Complaint) with whom he met or corresponded about his concerns. (Id. 19.) He was offered
the opportunity to meet with Coach Beaney in a mediated setting to discuss his dismissal and
future with the team, but refused when he learned that Coach Beaney would not be suspended
from coaching for the 2011-2012 season. (Id. 20.) Knelman may disagree with the outcome of
the review, but [i]t is not the role of the federal courts to set aside decisions of school
administrators which the court may view as lacking a basis in wisdom or compassion. Havlik v.
Johnson & Wales Univ., 509 F.3d 25, 35 (1st Cir. 2007) (quoting Wood v. Strickland, 420 U.S.

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

7 The Fellheimer court ultimately held that the College failed to comply with a definite notice provision in its
Handbook, which required notice to the accused student of the specific charges against him. Id. 24547. In
holding that the College had breached this promise to the plaintiff, it simply remanded the case for rehearing
after proper notice was served. Id. at 247. In other words, the breach did not warrant monetary damages for the
plaintiff.

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308, 326 (1975)); cf. McFarlin v. Newport Special Sch. Dist., 784 F. Supp. 589, 593 (E.D. Ark.
1992) (If individuals are going to participate in sports, a club, or in a corporation, they must be
willing to submit themselves to the authority of another individual in the role of a coach, club
president, or chairman of the board. It is a virtual certainty that they will be subjected, on
occasion, to arbitrary and unjust treatment. Anyone who has ever operated under someone elses
supervision or authority has been frustrated at one time or another by some decision which
directly affected them, but over which they had no control whatsoever. Often the decisions are
simply wrong. For many of us, the first such experience came as part of our participation in high
school athletics. However, the mere fact that a coach may be wrong does not convert the matter
into a federal case.), vacated on other grounds, 980 F.2d 1208 (8th Cir. 1992).
C.

As Knelman did not have a contractual right to play hockey at

Middlebury, his claim for breach of the covenant of good faith and
fair dealing should be dismissed.

In Vermont [a] cause of action for breach of the covenant of good faith can arise only
upon a showing that there is an underlying contractual relationship between the parties.
Monahan v. GMAC Mortg. Corp., 2005 VT 110, 54 n.5, 179 Vt. 167, 187, 893 A.2d 298, 316.
Whether a party has acted in good faith is ordinarily a question of fact, although [s]ummary
judgment will be granted on a claim for breach of the implied covenant of good faith and fair
dealing where the nonmoving party cannot show how the other undermined or destroyed its
rights under the contract. Post v. Killington, Ltd., 5:07-CV-252, 2010 WL 3323659, at *14 (D.
Vt. May 17, 2010) ([T]o carry its burden for the good-faith-and-fair-dealing claim, [plaintiff]
must produce evidence that could lead a reasonable jury to conclude that [defendant] breached an
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT

implied-in-law promise not to do anything to undermine or destroy [plaintiff's] rights to receive

the benefit of the parties . . . agreement.), affd, 424 F. Appx 27 (2d Cir. 2011). Moreover, to

05402-0988
(802) 864-5751

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state a claim for breach of the implied covenant, it must be shown that the counts are based on
different conduct. Id. (quotation omitted). [A] breach of th[e] duty will be dismissed as
redundant where the conduct allegedly violating the implied covenant is also the predicate for a
claim for breach of covenant of an express provision of the underlying contract. In re
Houbigant Inc., 914 F. Supp. 964, 989 (S.D.N.Y. 1995), on reargument sub nom. In re
Houbigant, Inc., 914 F. Supp. 997 (S.D.N.Y. 1996).
Here, Knelmans claim for breach of the implied covenant fails because he does not state
a cognizable claim for breach of contract. Without a valid underlying contractual right to play
hockey, there can be no implied covenant. Post, 2010 WL 3323659, at *14. Furthermore,
Knelman does not allege that the conduct on which he bases this claim is any different from the
conduct offered in support of his contract claim, see id., and the Handbook provisions Knelman
relies on contain no definite terms or identifiable promises entitling him to relief, see id. (The
covenant of good faith and fair dealing does not obligate a [party] to take affirmative actions that
the [party] is clearly not required to take under [the contract].) (citation and internal quotations
omitted). Knelman fails to identify any conduct by Defendants that violates community
standards of decency, fairness or reasonableness, id. (citation omitted); see also Havlik, 509
F.3d at 35 (when examining such claim in the educational milieu, courts must accord a school
some measure of deference in matters of discipline), nor does he articulate grounds separate
from those on which his express contract claim is based. In re Houbigant Inc., 914 F. Supp. at
989. In sum, his claim for breach of the implied covenant should be dismissed.

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

D.

Defendants did not owe Knelman a fiduciary duty based on these facts
nor was such a duty otherwise breached.

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[A] fiduciary relationship exists when one party is dependent on the other, and reposed
trust and confidence in, [the other] in the conduct of its affairs. Doe v. Newbury Bible Church,
1:03-CV-211, 2005 WL 1862118, at *5 (D. Vt. July 20, 2005) (citing McGee v. Vermont
Federal Bank, 169 Vt. 529, 530, 726 A.2d 42, 44 (1999)), report and recommendation adopted,
103CV211, 2005 WL 1962260 (D. Vt. Aug. 15, 2005), affd, 509 F.3d 69 (2d Cir. 2007).
Vermont courts have held that the existence of a fiduciary relationship imposes a duty of mutual
good faith on the parties, and that the existence or non-existence of the relationship and
corresponding duties is a question of law for the court to decide. Id. at *6 (citations omitted).
[C]laims for breach of fiduciary duty generally involve fraud, bad-faith, self-dealing, conflict of
interest, or a failure to disclose information. Id. (citations omitted). Where those issues are not
at stake, claims for breach of fiduciary duty are not warranted. See, e.g., id. (citation omitted).
Vermont courts do not recognize the existence of a fiduciary relationship between student
and school, teacher, or coach, and this Court declined to find a fiduciary relationship between a
church school and its students even in a case of sexual abuse of a minor. Id.; see also Bass ex
rel. Bass v. Miss Porters Sch., 738 F. Supp. 2d 307, 330 (D. Conn. 2010) (discussing students
suspension from prestigious boarding school for cheating on exam, and holding that courts
research had not revealed a single case in any state or federal court within the Second Circuit
holding or even suggesting that a secondary schoolpublic or private, boarding or daysessionor its employees, owe a fiduciary duty to its students).
E.

Knelman has failed to allege facts sufficient to support a defamation

claim.

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

To prove defamation in Vermont, Knelman would have to show:

P.O. Box 988

Burlington, VT
05402-0988
(802) 864-5751

(1) a false and defamatory statement concerning another; (2) some negligence, or
greater fault, in publishing the statement; (3) publication to at least one third
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person; (4) lack of privilege in the publication; (5) special damages, unless
actionable per se; and (6) some actual harm so as to warrant compensatory
damages.
Raymond v. Intl Bus. Machines Corp., 954 F. Supp. 744, 75455 (D. Vt. 1997). Even assuming
Knelmans allegations about Coach Beaneys locker room and other comments are true, none of
the statements he relies on is defamatory.
A communication is considered defamatory only if it tends so to harm the reputation of
another as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him. Marcoux-Norton v. Kmart Corp., 907 F. Supp. 766, 778 (D.
Vt. 1993) (citing Weisburgh v. Mahady, 147 Vt. 70, 73, 511 A.2d 304, 306 (1986) (internal
quotation omitted)). According to Knelman, Coach Beaneys comments that he: acted selfishly;
had problems on the hockey team the year before with respect to his unwillingness to accept
his role as a defensive, rather than offensive, player; and failed to make hockey a priority are
defamatory and will likely harm his personal and professional reputation into the future. (SUMF
38.) The statements, however, if made, were expressions of opinion and therefore inadequate
to support a defamation claim.
Unlike false statements of fact, expressions of opinion, no matter how insulting, are
actionable only if they imply the existence of undisclosed defamatory facts on which the opinion
was based. Altschuler v. Univ. of Pa. Law Sch., 95 CIV. 249 (LLS), 1997 WL 129394, at *11
(S.D.N.Y. Mar. 21, 1997) (quotation omitted), affd sub nom. Altschuler v. Univ. of Pa. Sch. of
Law, 201 F.3d 430 (2d Cir. 1999). Here, none of the alleged statements implied undisclosed
defamatory facts because the reasons for the alleged statements were communicated and
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT

understood by Knelman. Id. (citing Kotlikoff v. Cmty. News, 89 N.J. 62, 67, 444 A.2d 1086,
1088 (N.J. 1982) (statements in letter to the editor of newspaper that the mayor was involved

05402-0988
(802) 864-5751

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in a coverup and conspiracy did not imply undisclosed defamatory facts because the letters
author disclosed the facts on which those statements of opinion were based). Knelman cannot
claim, for example, that the comment regarding his selfish behavior implied the existence of any
undisclosed facts as, according to him, he understood Coach Beaneys remarks were intended to
address his unauthorized departure from the banquet. (SUMF 42.) As to alleged comments
made during Knelmans private meeting with Coach Beaney, to the effect that hockey was not
his priority, Knelman has said that he believed the statement was meant to address his alleged
focus on academics to the detriment of hockey. (Id. 43.) While Defendants disagree with
Knelmans interpretation of that conversation with Coach Beaney, the alleged comments are
nevertheless statements of opinion and therefore not actionable.
It also can hardly be said that any of these statements were negligently published to third
parties. The only publication of Coach Beaneys remark about Knelmans selfish behavior at
the banquet was to Knelmans hockey teammates during the January 17, 2011 team meeting.
(SUMF 6.) Courts have held that coaches are clothed with a qualified privilege to make such
statements. E.g., Iacco v. Bohannon, 70 Mich. App. 463, 46768, 245 N.W.2d 791, 79293
(1976) (citations omitted) (As coach of the Clare team, defendant Bohannon had a duty to
criticize the actions of the players with respect to their performance as members of the team and
to act in a fashion which would promote the maximum team effort.); accord Restatement
(Second) of Torts 596 (1977) (The common interest of members of religious, fraternal,
charitable or other non-profit associations, whether incorporated or unincorporated, is recognized
as sufficient to support a privilege for communications among themselves concerning the
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

qualifications of the officers and members and their participation in the activities of the society.

P.O. Box 988

Burlington, VT

This is true whether the defamatory matter relates to alleged misconduct of some other member

05402-0988
(802) 864-5751

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that makes him undesirable for continued membership, or the conduct of a prospective
member.); Lent v. Huntoon, 143 Vt. 539, 54849, 470 A.2d 1162, 116970 (1983) (recognizing
Restatement-based conditional privileges). Where a qualified privilege attaches, liability for
defamation is warranted only when the statements are made with malice. Lent, 143 Vt. at 548
49, 470 A.2d at 116970.
Here, Coach Beaneys statements were conditionally privileged and there is no evidence
that he made them with the requisite bad motive, ill will, personal spite or hatred, reckless
disregard, [or] the like. Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc., 2010 VT 33, 18, 187
Vt. 541, 549, 996 A.2d 1167, 1173 (2010) (defining malice as element of a claim for
exemplary damages); see also Monahan, 2005 VT, 5556, 179 Vt. at 188, 893 A.2d at 316
(citations omitted). If every collegiate or professional coach who upbraided an athlete on the
bench or in the locker room were subject to dismissal or damages for defamation, there would be
long lines of unemployed and impoverished former coaches everywhere.
Knelmans assertion that he will be required to self-publish Coach Beaneys
defamatory remarks is completely undermined by the fact that he chose to make these
allegations public by filing this action rather than working with the College towards a mutually
agreeable resolution. (SUMF 1720.) And, Knelman has escalated publicity about the matter
by hiring a New York public relations firm to provide favorable media coverage of his suit
even going so far as to insinuate that the circumstances of this case compare in magnitude to the
scandal at Penn State. (Id. 44.) The firm, known as Banana Public Relations and Event
Management, LLC, issued a press release on December 1, 2011, two days after Knelmans
Dinse,
Knapp & McAndrew, P.C.
209 Battery Street

deposition, which concludes with Media Note: Jak Knelman is available for media interviews.

P.O. Box 988

Burlington, VT
05402-0988
(802) 864-5751

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(Id.) In short, even were Coach Beaneys remarks somehow considered defamatory, Knelman
is the one responsible for their publicity.
As to the fifth and sixth prerequisites for defamation claims, Knelman has shown no
special damages or actual harm. Vermont . . . require[s] defamation plaintiffs to demonstrate
some actual harm as a prerequisite to recovering general damages which include impairment
of reputation and standing in the community, personal humiliation, and mental anguish and
suffering and prove special damages for claims that do not constitute slander as a matter of
law. Lent, 143 Vt. at 546550, 470 A.2d at 116870. As to general damages, Knelman at most
asserts unsupported claims of insomnia and personal humiliati[on], but concedes that he has
not sought any medical or mental health treatment. (SUMF 39.) Nor can Knelman show any
lost professional or other financial opportunitiesapart from bald speculationto support a
special damages claim.8 (Id.) Because slander is generally not actionable [as a matter of
law] . . . special damages are not presumed and must be alleged and proven. Lent, 143 Vt. at
546, 470 A.2d at 1168. At most, Knelman alleges that his future as-yet-unknown professional
opportunities may be affected by his dismissal, (SUMF 39.
F.

Knelmans negligent supervision claim should be dismissed because

there was no underlying tortious conduct.

In Vermont, [a] person conducting an activity through servants or other agents is subject
to liability for harm resulting from his conduct if he is negligent or reckless . . . in the
employment of improper persons or instrumentalities in work involving risk of harm to others: in
the supervision of the activity; or . . . in permitting, or failing to prevent, negligent or other
Dinse,

tortious conduct by persons, whether or not his servants or agents, upon premises or with

Knapp & McAndrew, P.C.

209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

8 Knelman testified that when he graduates from the College in February 2012, he will spend several months at his
familys Kentucky horse farm to train for hockey before returning to Minnesota. (SUMF 39.) He admits that
he has no current plans to attend graduate school or apply for any jobs but hopes to pursue a playing career in
hockey. (Id.)
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instrumentalities under his control. Newbury Bible Church, 2005 WL 1862118, at **67
(citing Restatement (Second) of Agency 213). Liability for these causes of action will exist
only when all of the elements of a tort of negligence exist. Id. (citing Haverly v. Kaytech, Inc.,
169 Vt. 350, 357, 738 A.2d 86, 91 (1999)). In support of his negligent supervision claim,
Knelman asserts that Middlebury knew or had reason to know of Coach Beaneys propensity to
engage in tortious acts of breach of the fiduciary duty owing to his students and defamation.
(SUMF 45.) As explained above, however, his claims for breach of fiduciary duty and
defamation are not actionable, and, accordingly, his negligent supervision claim fails.
Knelman also cannot point to any evidence suggesting a propensity by Coach Beaney to
defame or breach alleged fiduciary duties to others.9 While Coach Beaney has no doubt cut,
suspended, and dismissed hockey players from the team in years past, some of whom may still
harbor resentment or discontent, there is nothing to suggest those coaching decisions were any
more defamatory than his alleged actions in this case. Moreover, there is no evidence that
Knelman suffered any actual harm as a result of Coach Beaneys alleged conduct. City of
Burlington v. Arthur J. Gallagher & Co., 173 Vt. 484, 487, 788 A.2d 18, 22 (2001) (citing Callan
v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000) (mem.) ([D]amages for negligent acts
continue to require proof of actual harm.); (SUMF 39). Knelmans negligent supervision
claim fails as a matter of law.

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

9 To the contrary, Coach Beaneys annual reviews and peer and player evaluations are consistently and
overwhelmingly positive. (SUMF 24.) The attached letter of May 13, 2011, Exhibit G, submitted by former
players to the President of the College in reaction to this lawsuit, typifies the strong support and feelings Coach
Beaney engenders from those whom he has taught. (Id. 27.)
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III.

Filed 12/13/11 Page 23 of 24

Conclusion
Accordingly, Defendants respectfully request that the Court find in favor of Defendants

on all counts in the Complaint as a matter of law, and grant their Motion for Summary Judgment.
Dated at Burlington, Vermont, this 12th day of December 2011.
DINSE, KNAPP & McANDREW, P.C.
/s/ Karen McAndrew
Karen McAndrew, Esq.
Wm. Andrew MacIlwaine, Esq.
Dinse, Knapp & McAndrew, P.C.
209 Battery Street, P. O. Box 988
Burlington, VT 05402-0988
802-864-5751
kmcandrew@dinse.com
amacilwaine@dinse.com

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

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Filed 12/13/11 Page 24 of 24

CERTIFICATE OF SERVICE

I, Karen McAndrew, Esq., certify that on December 12, 2011, I electronically filed the
foregoing document with the Clerk of Court using the CM/ECF system. The CM/ECF system
will provide service of such filing via Notice of Electronic Filing (NEF) to the following NEF
parties:
Robert F. ONeill, Esq.
Andrew D. Manitsky, Esq.
Joseph W. Anthony, Esq.
Mary L. Knoblauch, Esq.
A copy of the foregoing has also been served upon the following parties by mailing a copy
thereof via U.S. first class, postage prepaid mail, to counsel of record at:
None.
DINSE, KNAPP & McANDREW, P.C.
/s/ Karen McAndrew
Karen McAndrew, Esq.
Wm. Andrew MacIlwaine, Esq.
Dinse, Knapp & McAndrew, P.C.
209 Battery Street, P. O. Box 988
Burlington, VT 05402-0988
802-864-5751
kmcandrew@dinse.com
amacilwaine@dinse.com

Dinse,
Knapp & McAndrew, P.C.
209 Battery Street
P.O. Box 988
Burlington, VT
05402-0988
(802) 864-5751

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