INVESTIGATIVE REPORT BY INDEPENDENT COUNSEL INTO ALLEGATIONS OF BULLYING AND RETALIATION BY THE FOOTBALL DEFENSIVE COORDINATOR AND RUTGERS

RESPONSE THERETO January 26, 2014

WILLIAM F. MADERER, ESQ. DANALYNN T. COLAO, ESQ.

18 COLUMBIA TURNPIKE, SUITE 200 FLORHAM PARK, NEW JERSEY 07932

Introduction On November 22, 2013, Rutgers University (Rutgers or the University) retained Saiber LLC (Saiber) as independent counsel to investigate (i) allegations of bullying and retaliation by the then Rutgers Football Defensive Coordinator, David Cohen (Coach Cohen); and (ii) Rutgers response thereto. On November 15, 2013, N.J. Com posted a news story (the Article) stating that a former member of the Rutgers Football Team, Jevon Tyree (Jevon), was bullied by Coach Cohen. The Article specifically reported that during a study hall session in the spring, Coach Cohen got in Tyrees face, called him a pussy and a bitch and threatened to headbutt him. The Article further stated that following the study hall incident, Jevon was retaliated against by being excluded from team meetings and deprived of playing opportunities. Finally, the Article stated that Rutgers football coaches and the recently hired Athletic Director, Julie Hermann (AD Hermann), responded in an insufficient manner to those allegations. In response to the Article, on the evening of November 15, 2013, Rutgers issued a Press Statement (the Statement) explaining that the study hall incident involved the escalation of banter resulting in the use of inappropriate language by Coach Cohen, and was dealt with at that time. According to the Statement, Coach Cohen apologized for his conduct the following day, and Head Football Coach Kyle Flood (Coach Flood) immediately reprimanded Coach Cohen and addressed the situation with the entire coaching staff. The Statement also advised that Coach Cohens conduct was an isolated incident, and at no time was there any threat of physical violence. The Statement further disclosed that six months after the incident, Jevon Tyrees father, Mark Tyree, contacted AD Hermann to discuss Jevons role on the team and the study hall incident. The Statement explained that since the incident occurred prior to AD Hermanns appointment, AD Hermann immediately contacted Coach Flood, who apprised her of the situation and how it had been addressed. Finally, the Statement advised that Coach Flood had a meeting with Jevon and his parents, and thereafter, AD Hermann spoke to Mark Tyree who informed her that the matter had been resolved to his satisfaction. In response to the Statement, the Tyrees publicly denied ever speaking with AD Hermann. When questioned by the press the next day, AD Hermann reiterated her belief that she had spoken with Mark Tyree. Relevant University Policies The University retained us to independently investigate the allegations and determine whether Jevon was bullied by Coach Cohen and/or subject to retaliation in violation of any University policy. As part of the investigation, we were also asked to evaluate the Universitys response to the study hall incident in the spring of 2013 and to the allegations of retaliation raised by the Tyrees approximately six months later. To that end, we reviewed the Universitys Policy Against Verbal Assault, Harassment, Intimidation, Bullying and Defamation (the

Bullying Policy), the Universitys Policy Prohibiting Discrimination and Harassment (the Harassment Policy), and the Universitys Workplace Violence Policy (the Violence Policy). Although New Jerseys Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13, et seq., is not applicable to institutions of higher education, public institutions of higher education are required to adopt a policy prohibiting harassment, intimidation and bullying. See N.J.S.A. 18A:3B-68. In accordance with this statutory requirement, Rutgers has implemented a Bullying Policy which defines bullying, intimidation and harassment as follows: [A] person acts with the purpose to bully, intimidate, and harass another by: Making, or causing to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; or Subjecting another to striking, kicking, shoving, or other offensive touching, or threatening to do so; or Engaging in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person,

such that the behavior substantially disrupts or interferes with the orderly operation of the institution or the rights of [ ] students to participate in or benefit from the educational program. Rutgers Harassment Policy states in relevant part: Harassment is conduct directed toward an individual or group based on membership in one or more protected classes [race, religion ]. Such conduct must be sufficiently severe or pervasive to alter an individuals employment conditions, or a students educational opportunities which, in turn, creates an intimidating, offensive, or hostile environment for employment, education, or participation in university activities. The Harassment Policy also contains an anti-retaliation provision which states, in relevant part: The university prohibits retaliation against individuals who, in good faith, assert their rights to bring a complaint of discrimination or harassment as defined in this Policy, participate in a discrimination or harassment investigation, or protest the alleged discrimination, harassment or retaliation.

Rutgers Violence Policy states in relevant part: Workplace violence is defined as any actual or threatening behavior of a violent nature, as understood by a reasonable person, exhibited by faculty, staff, student employees, or others within the scope of this Policy. Examples of workplace violence include, but are not limited to: 1. Intentional physical contact for the purpose of causing harm (such as slapping, punching, striking, shoving, or otherwise physically attacking a person). 2. Menacing or threatening behavior (such as throwing objects, waving fists, damaging property, stalking, or otherwise acting in an aggressive manner; or, using oral or written statements specifically intended to frighten, coerce, or cause distress) where such behavior would be interpreted by a reasonable person as being evidence of intent to cause physical harm to individuals or property. For the reasons set forth herein, we have determined that although Coach Cohens conduct was inappropriate and unprofessional, it did not violate any of the above-enumerated University policies. We have further concluded that the University properly addressed the study hall incident in the spring of 2013 and appropriately responded to the issues raised by the Tyrees in the fall of 2013. The Investigation In December 2013 and January 2014, we conducted interviews of Jevon, Mark and Clarice Tyree (Jevons parents), Coach Cohen, Coach Flood, AD Hermann, and 31 other individuals with potentially relevant knowledge, including athletes who were in the study hall when the incident occurred, current and former academic advisors, assistant coaches and others associated with the Football Program and Rutgers Athletic Department, and senior members of the Universitys administration. Additionally, we reviewed relevant documents, including, but not limited to, available telephone records and emails. A. Allegations of Bullying and Retaliation

On March 7, 2013, Coach Cohen stopped by a study hall session attended by Jevon and other athletes. Witnesses, including Jevon and Coach Cohen, reported that the exchange began as friendly banter regarding a hair cut and then escalated. Jevon alleges that Coach Cohen got in his face and called him a pussy and a bitch and threatened to headbutt him. Jevon further alleges that Coach Cohen told him he was a Division 3 player with a Division 1 scholarship.

Coach Cohen admitted that he lost his patience and used the word bitch, but did not recall using the word pussy, nor did he recall saying that Jevon was a Division 3 player with a Division 1 scholarship. Coach Cohen denied getting in Jevons face or threatening to headbutt him. Although there are varying recollections of what was said, the athletes in the room consistently reported that they did not view the exchange as a remarkable event. A few witnesses recalled that Coach Cohen used the word bitch, and a single witness believed that Coach Cohen used the word pussy. One witness reported that Coach Cohen referred to Jevon as a Division 3 player with a Division 1 scholarship. With the exception of Jevons account of the incident, witnesses confirmed that there was never any threat of head-butting or other physical violence, and that Coach Cohen was not in Jevons face. It was estimated that the entire exchange lasted approximately five minutes. Jevon admitted that in the spring of 2013, he never complained of, or spoke about, the study hall incident with his parents, academic advisors or coaches, nor did he tell anyone he felt bullied, harassed or retaliated against. Each of the coaches, advisors and players we interviewed, including Jevon, stated that they were not aware of any other instances in which Coach Cohen used similar language towards Jevon or any other player. Coach Cohen was generally described as a passionate person who genuinely loved his job and cared about the well-being of the players, both as athletes and as people. Jevon alleges that after the study hall incident, he was retaliated against by not being invited to position meetings. Jevon claims that he was further retaliated against in the fall by not being afforded sufficient repetitions (reps) at practice or playing time in games. Coach Cohen denied retaliating against Jevon or treating Jevon differently than any other player. The players and the assistant coaches with whom we spoke universally corroborated the fact that Jevon was not treated differently than any other player by Coach Cohen or anyone else. Further, it was clear from our interviews that Jevon was not excluded from position meetings or other team meetings. On the contrary, we were advised that Jevon was given the same notifications and opportunities to attend group meetings for cornerbacks as the other similarly situated players from his class. Jevon acknowledged that he had very little interaction with Coach Cohen and that his position coach, Darrell Wilson (Coach Wilson), was primarily responsible for coaching his position at practice and deciding his place on the depth chart (and ultimately his playing opportunities). This was confirmed by other players and members of the coaching staff, although it was recognized that both Coach Cohen and Coach Flood also had input in such decisions. The consensus of the coaches and players we interviewed was that Jevons position on the depth chart was appropriate. The resounding message we repeatedly heard was that Jevon played sparingly because the best players play. We were informed that Coach Wilson and Coach Flood separately met with Jevon to discuss his role on the team in connection with his spring evaluation, and that Coach Wilson had similar discussions with Jevon throughout the spring and fall seasons.

B.

Rutgers Response to the Study Hall Incident

Our investigation revealed that within hours of the incident, Coach Cohen apologized to the tutor and athletes who were present in the study hall room, and self-reported the incident to members of the academic support staff and to Coach Flood. According to Coach Cohen and others, Coach Cohen attempted to contact Jevon to apologize that same evening. Jevon confirmed that Coach Cohen attempted to contact him that evening, and that he did not respond. Although Jevon disputes it, Coach Cohen recalled that he apologized to Jevon the next day and so advised Coach Flood. The witnesses with whom we spoke, including Jevon, universally stated that Jevon did not complain or report the incident to anyone on the football staff. Nevertheless, the next day, Coach Flood reprimanded Coach Cohen and specifically addressed the situation during a meeting with the entire coaching staff. Coach Flood believed the matter had been resolved. Approximately six months later, in late August 2013, Jevon told his parents he was unhappy because he did not get enough reps at training camp. Jevons father asked Jevon who the defensive coordinator was and if anything had happened between them. Jevon told his father about what occurred in the spring study hall session and Marks response was that the incident must be the reason Jevon was not getting many reps or playing opportunities. On August 25th, Jevons parents contacted Coach Cohen and raised concerns about Jevons role on the team and the study hall incident. Coach Cohen met with Mark and Clarice Tyree on August 26th and listened to their concerns. Shortly thereafter, Coach Cohen met with Jevon to apologize for any lingering feelings he had about the study hall incident and to offer him guidance on how to improve his status on the team. On September 14th, the football teams operations staff disciplined Jevon for being late to a pre-game meal by not permitting him to dress for the game that day. As a result, Mark Tyree contacted Coach Cohen and Coach Flood to discuss his ongoing concerns about Jevons role on the team. At Mark Tyrees request, Coach Flood scheduled a meeting with Jevon and his parents for September 16th. On September 15th, Mark and Clarice Tyree contacted a personal acquaintance to express concern about Jevons role on the team and the study hall incident. The acquaintance provided the Tyrees with a contact phone number for AD Hermann, suggested that they call her and spoke with AD Hermann later that evening. At or about this time, AD Hermann said she received a phone call on her office landline from someone she believed to be Mark Tyree, raising concerns about Coach Cohens alleged bullying and retaliation of Jevon. When interviewed, the Tyrees confirmed their prior statement to the press that they had no communication with AD Hermann at that time. We reviewed available cell and landline telephone records reflecting potential calls between Mark Tyree and AD Hermann. These records did not reflect that Mark Tyree called AD Hermann in August or September. We were unable, however, to determine the phone number of

the call that AD Hermann said she received because phone bills for landlines in the Athletics Department do not reflect incoming calls from external lines outside of Rutgers. Regardless of how AD Herman learned about the Tyrees concerns, upon hearing of them, she immediately contacted Coach Flood on September 16th to find out what happened in the spring study hall session (which occurred several months prior to her arrival in June 2013), and to ascertain whether there were any ongoing issues with Coach Cohens behavior toward Jevon or any other players. Our witness interviews as well as telephone records of Coach Flood and AD Hermann confirm they communicated on the morning of September 16th. Coach Flood informed AD Hermann that it was an isolated issue that had been addressed at the time. Coach Flood also advised AD Hermann that he was scheduled to meet with the Tyrees later that day. On the evening of September 16th, Coach Flood (and his administrative assistant) met with Mark, Clarice and Jevon Tyree for nearly two hours. After listening to the Tyrees concerns about the study hall incident and Jevons role on the team, Coach Flood explained the factors he believed were preventing Jevon from reaching his full potential on the team. Later that evening, Coach Flood left a detailed voicemail message on AD Hermanns cell phone advising her that the meeting with the Tyrees went well. The next day, September 17th, Jevon informed Coach Flood that he decided to stay on the team, and Coach Flood so informed AD Hermann. As of September 17th, AD Hermann believed the Tyrees concerns had been adequately addressed. Soon thereafter, AD Hermann said she received a second phone call on her office landline from someone she believed to be Mark Tyree, who advised that they had met with Coach Flood and the matter had been resolved. When the Tyrees were interviewed, they confirmed their prior statement to the press that they had no communication with AD Hermann at that time. Again, the available cell and landline telephone records did not reflect that Mark Tyree called AD Hermann in September. However, for the reasons stated above, we were unable to determine the phone number of the call that AD Hermann said she received on her office landline. In late October, Jevon moved up on the depth chart and had the potential to play in the Temple game on November 2nd. During a press interview on or about October 29th, Jevon was asked about moving up from the sixth position to two deep on the depth chart in the space of two weeks. Jevon said, It feels like it happened in two nights [s]tuff just started happening unexpectedly. * * *

[a]s players get injured or as players left, it kind of gave me more opportunity to get on the field in practice. It was kind of tough not being able to get reps and show, but now Im starting to get reps and the coaches are starting to trust me. * * *

I had a feeling this day would come [n]ot this soon. But I felt like probably sometime around spring. Definitely its a surprise.1 Jevon was not ultimately able to play in the Temple game because he became ill and missed practices the week before that game. Jevon remained on the travel squad, but an offensive wide receiver was asked to play cornerback in the Temple game. Although the decision was made collectively by the coaching staff and was supported by the players with whom we spoke, it was nevertheless very upsetting to Jevon and his parents. Without discussing the decision with his parents, Jevon met with Coach Flood and resigned from the team on November 6th. Upon learning of Jevons resignation, Mark Tyree attempted to contact AD Hermann to discuss the status of his sons football scholarship. Mark Tyrees cell phone records confirm that he called AD Hermanns office seven times between November 7th and November 9th. After AD Hermanns Assistant returned from vacation on Monday, November 11th, she retrieved two voicemail messages that Mark Tyree had left on Friday, November 8th. AD Hermanns Assistant prepared a telephone message slip and gave it to AD Herman which stated the callers name (Mark Tyree), phone number and the following message re: son football player; called twice. On November 14th, Mark Tyree called AD Hermanns office again from his cell phone.2 AD Hermanns Assistant answered the phone and advised that AD Hermann was in a meeting out of the office. Before AD Hermanns Assistant could give AD Hermann the message, Mark Tyree appeared unannounced and requested to meet with AD Hermann. By the time AD Hermann returned from her meeting, Mark Tyree had left the building. AD Hermanns Assistant prepared a telephone message slip stating that Mark Tyree Came in to see you. Please Call Him. AD Hermanns Assistant gave this message to AD Hermann at approximately 5 pm. Unfortunately, AD Hermann did not get back to Mark Tyree before the Article was published on November 15th. Thereafter, in an effort to address any misunderstandings and resolve any outstanding issues relating to Jevons experience as a student-athlete at Rutgers, AD Hermann and the Tyrees agreed to attend a meeting on November 20th arranged by Reverend Dr. DeForest B. Soaries, Jr., senior pastor of the First Baptist Church of Lincoln Gardens. At the conclusion of the meeting, it was confirmed, that Rutgers would continue Jevons scholarship and academic support through the spring of 2014, and would provide a full release for Jevon to play on another football team. The parties also agreed that the two phone calls AD Hermann said she received in or about September were not, in fact, from Mark Tyree. Further, AD Hermann expressed regret for not having connected with Mark Tyree the prior week.

When we interviewed Jevon, he confirmed that the quotes from his press interview were accurate. 2 This call was contained in the memory of AD Hermanns Assistants phone, which stores the last 100 incoming calls. 8

Conclusion A. Allegations of Bullying and Retaliation

We find that Coach Cohens conduct did not violate Rutgers Bullying Policy. In order to constitute bullying, intimidation or harassment under Rutgers Bullying Policy, the conduct at issue must substantially disrupt[] or interfere[] with the rights of [ ] students to participate in or benefit from the educational program. Although the Tyrees believe that Jevon did not receive a sufficient amount of playing time in the fall as a result of the study hall incident approximately six months earlier, there is no evidence to support such a finding. On the contrary, Jevons teammates and the coaching staff agreed that his position on the depth chart was appropriate. In short, there is no evidence that Jevons participation as a player on the football team was in any way limited as a result of the study hall incident. Although we find that Coach Cohens conduct in the March 7th study hall was inappropriate and unprofessional, it did not violate Rutgers Harassment Policy because there is no evidence that Coach Cohens comments were based on a protected category. Moreover, the complained-of conduct was not sufficiently severe or pervasive to alter Jevons educational opportunities because there was only a single isolated event and there is no evidence linking this isolated event to Jevons role on the team. Similarly, we have found no evidence of retaliation in violation of the Harassment Policy. Our investigation revealed no evidence to suggest that Jevons role on the team and/or amount of playing time was in any way influenced by the study hall incident in March, or the Tyrees complaints about such incident in August and/or September 2013. We likewise find that Coach Cohens conduct did not violate Rutgers Violence Policy. There is no allegation of intentional physical contact, nor is there credible evidence of menacing or threatening behavior. Notwithstanding Jevons account of the incident, the witnesses with whom we spoke confirmed that Coach Cohen never threatened to head-butt Jevon, nor was Coach Cohen in close proximity to Jevon during the exchange. B. Rutgers Response to the Study Hall Incident

Based on the information revealed during our investigation, the study hall incident was properly addressed immediately following the incident in March. Coach Cohen apologized for his behavior and was admonished by Coach Flood, who also addressed the matter with the entire coaching staff the next day. Jevon did not report or complain of the incident in the spring, and Coach Flood reasonably believed that the matter was resolved at that time. When the Tyrees raised the study hall incident in late August and September, Coach Cohen and Coach Flood each met with the Tyrees on a timely basis and addressed their concerns. Similarly, when AD Hermann was made aware of the study hall incident and the Tyrees other concerns about Coach Cohens behavior toward Jevon, she immediately took appropriate measures to address the matter. Specifically, AD Hermann contacted Coach Flood to discuss the study hall incident (which had occurred before her appointment as AD), Coach

Cohens overall conduct and Jevons role on the football team. Additionally, AD Hermann directed Coach Flood to work with the Tyrees to resolve the issues, which Coach Flood was already scheduled to do. Immediately after his meeting with the Tyrees, Coach Flood communicated with AD Hermann. The next day, Coach Flood advised AD Hermann that Jevon intended to remain on the team. Coach Flood and AD Hermann reasonably believed the matter was resolved. We were unable to resolve the confusion regarding the telephone communications AD Hermann had with a man who she understood to be Mark Tyree. Although AD Hermann initially believed that she had spoken to Mark Tyree twice in September, she ultimately understood at the November 20th meeting with Mark, Clarice and Rev. Soaries that the calls she received were not, in fact, from Mark Tyree. We conclude, however, that whatever the source of the information, the evidence shows that upon learning of the issues, AD Hermann reacted in a timely and appropriate manner by contacting Coach Flood and ensuring that the issues were addressed.

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