ALBANY — Former University at Albany men’s basketball player Luke Fizulich has filed a lawsuit in federal court against Great Danes head coach Dwayne Killings, athletic director Mark Benson and the university, stemming from a pre-game incident involving the player and coach in November 2021.
Filed earlier this week, the lawsuit alleges that, under pressure from local business and civil rights leaders who were “rallied up” by a public relations firm that Killings associated himself with, Benson and the university succumbed “to the pressure of the protest” and reversed its initial decision to terminate Killings, who is Black, and did not discuss the change with Fizulich, who is white.
“Defendant SUNY Albany and Defendant Benson, instead of protecting Fizulich as the victim of the assault, showed preference to the assaulter because of his race,” the lawsuit states.
According to the lawsuit, the reversal of termination breached UAlbany’s Campus and Workplace Violence Prevention Policy and Program.
The suit was filed in U.S. District Court in the Northern District of New York on Monday, the same day Killings served the fifth and final game of his suspension brought on by UAlbany’s investigation into the incident.
Killings is being sued for both assault and battery and “tortious interference with contract,” while the university is being sued for a violation of Title VI of the Civil Rights Act, and Benson is being sued for breach of contract.
Title VI prohibits discrimination on the ground of race, color or national origin under any program or activity receiving federal financial assistance.
According to the lawsuit, “Fizulich demands judgment from all Defendants in the form of compensatory and punitive damages to be determined at trial, including, without limitation, damages to emotional and psychological well-being, damages to reputation, loss of educational and athletic opportunities, future economic losses, and loss of future career prospects.
“Fizulich further seeks prejudgment interest, attorneys’ fees, expenses, costs and disbursements against Defendant SUNY Albany for violations of Title VI, and all other just and appropriate relief.”
The lawsuit alleges that before a Nov. 24, 2021, game against Eastern Illinois in Richmond, Kentucky — the fifth game of Killings’ first season at UAlbany — Killings “violently and viciously grabbed [Fizulich], threw him up against a locker and struck him in the face, drawing blood.”
Prior to the lawsuit being filed, the identity of the player involved in the incident had been reported by media outlets to be Fizulich, but had not been publicly disclosed.
Through text message, Fizulich declined Wednesday to comment. Killings and Benson did not respond to requests for comment, and UAlbany deputy athletic director Vic Cegles, who oversees the men’s basketball program, referred a request for comment to a university spokesperson.
In a statement provided to The Daily Gazette, a university spokesperson wrote: “The University at Albany is committed to providing a safe and supportive environment for all students and fully and impartially investigates all allegations of misconduct against University employees. As the University has previously stated, it immediately began its investigation into this matter and took timely and appropriate action at each stage as new information became available. The University previously disclosed the resolution of that investigation on April 2, 2022.The University cannot comment further on pending litigation.”
In an email to the Daily Gazette, Fizulich’s attorney, Stuart Bernstein of Nesenoff and Miltenberg, LLP, wrote, “I believe our strong Complaint speaks for itself.”
In March 2021, Killings signed a five-year contract to replace Will Brown as head coach, after Brown was dismissed following a tenure of two decades that included five trips to the NCAA tournament. Killings’ most recent rate of pay, according to the database at www.seethroughny.net, is $372,300.
According to the lawsuit, while the incident was witnessed by every assistant coach and player on the team, neither Killings nor any assistant coach reported it to the UAlbany administration.
During his lone season at UAlbany, Fizulich was a walk-on player. The filing states that, “Fizulich did not initially talk about the assault because he was humiliated, because of ‘locker room culture,’ and because of fear of losing a promised athletic scholarship offer for the next two years. The environment was such that it was not safe for him to raise this issue and did not allow him to come forward and report Defendant Killings without repercussion.”
The incident took such a toll on Fizulich, the lawsuit states, “that towards the end of the season, Fizulich had a breakdown.” According to the filing, on Feb. 26 of this year, Fizulich contacted his long-time trainer and former coach and told him of the incident. The coach traveled to meet with Fizulich in person and convinced Fizulich to tell his parents and report the incident to UAlbany administration.
The complaint against Killings with the university was filed Feb. 27, a day after Fizulich played six minutes in a loss at Stony Brook. After that game, Fizulich was not with the men’s basketball team for its final two games and entered into the NCAA transfer portal after the season ended.
Not long after the season ended, it became public that the school was investigating Killings and he was away from the program. That part of the situation was resolved in early April when the school released a statement outlining a sequence of events that included the Feb. 27 complaint, an investigation while Killings was on leave as head coach and substantiation of “inappropriate physical contact between Coach Killings and a student-athlete” prior to the team’s Nov. 24, 2021 game.
As part of the school’s conclusion to its investigation, Killings was ordered to serve a five-game suspension during the 2022-23 season and pay a $25,000 fine in the form of donations to local not-for-profit organizations. Killings served the final game of his suspension this past Monday, while the university announced last month that Killings’ fine was split between South End Children’s Cafe, Unity House of Troy, The Melodies Center (Albany Medical Center), Girls on the Run Capital Region and The Refugee Welcome Center.
Also in early April, the university shared a letter from Killings to UAlbany president Havidan Rodriguez in which Killings apologized to Rodriguez, “the student-athlete, his family, the UAlbany community, the Capital Region community, our student-athletes, my staff, and all those who I humbly represent.” The letter also referred to the Nov. 24, 2021 incident, and Killings wrote that “I realize that the physical contact I had with the student-athlete during the pre-game hype circle was inappropriate, and not communicating it to the UAlbany administration was a mistake.”
Prior to UAlbany’s final decision, a group of city leaders and activists held a press conference in Albany to voice their support for Killings and what he represented as a Black man serving as a head coach of a Division I men’s basketball team.
“The community’s really concerned about what’s going on here with this particular issue,” Alice Green, executive director of The Center for Law and Justice, said back in late March. “It’s very important, also, for our community to have among us very positive Black men who can be models and can guide our young people. They’ve found someone at the university to do that, and that’s coach Killings. It’s part of our community, not separate, so what goes on there affects all of us. We want to make sure that we see [that] this process, that so far has not really been communicated to the community, [is fair]. We can no longer continue to decide who should be a part of our community without due process. So we will be following this. We will be speaking out about it.”
In the aftermath of UAlbany’s decision, Fizulich entered into the NCAA’s transfer portal to seek opportunities at another school.
According to the suit, in interviews with several schools, Fizulich “was advised by those schools that they did not want him because he was ‘messy,’ meaning that because his name was associated with the reported assault and publicized, no school would accept him on their basketball team.
“It was also learned from individuals associated with the collegiate basketball community that Defendant Killings put a negative word out to other schools about Fizulich which caused him to be blacklisted.
“It did not matter that Fizulich was the victim, and that Defendant Killings committed the vicious and violent act, no school would accept Fizulich into their basketball program.”
Fizulich transferred to UAlbany from Marquette, where Killings was an assistant coach before coming to UAlbany. Fizulich has yet to transfer to another school.
Killings completed his suspension with Monday’s game against Union. He served the first four games before returning to the bench this past Saturday to coach against Siena in the Albany Cup. Killings’ suspension was served during two exhibition games, two regular-season games against Division III opponents and just one game against a Division I team.
UAlbany, which is 2-2 on the season, plays Thursday in Philadelphia against Saint Joseph’s.