UAlbany basketball coach Killings pleads not guilty in alleged assault of player

Men's coach is accused of fourth-degree assault in a November 2021 locker room confrontation that is already the subject of a UAlbany investigation and a lawsuit from the athlete

Abigail Rubel

Updated: Jan. 23, 2023 3:28 p.m.

University at Albany men's basketball coach Dwayne Killings entered a not guilty plea to an assault charge in Kentucky court Monday morning.
Will Waldron/Times Union

University at Albany men's basketball coach Dwayne Killings pleaded not guilty Monday morning to an assault charge that accuses him of pushing a player, Luke Fizulich, against a locker and slapping him across the face with an open hand before a November 2021 game in Kentucky.

Killings arraignment was held over video conference with the coach appearing from Albany. One of his attorneys, Chris Spedding, asked the court in Madison County to schedule Killings' next appearance for 1:30 p.m., March 20, after the team's regular season will have concluded.

The misdemeanor charge, assault in the fourth degree with no visible injury, stems from a November 2021 incident that has already led to a university investigation last spring and a lawsuit from the player involved, who alleges Killings threw him against a locker and struck him in the face before a game at Eastern Kentucky University in Richmond, Ky.

The criminal complaint filed in the Kentucky court states that an Eastern Kentucky University police officer received a phone call from Fizulich on Nov. 1, 2022, with the complaint.

A person is guilty of assault in the fourth degree when they "intentionally or wantonly" cause "physical injury to another person" or "with recklessness" cause "physical injury to another person by means of a deadly weapon or dangerous instrument," according to Kentucky law. The maximum punishment for the charge is a $500 fine and 12-month prison sentence.

In its investigation, UAlbany found that Killings made "inappropriate physical contact" with a student in a pre-game "hype circle" before a game against Eastern Illinois University held Nov. 24, 2021 at Eastern Kentucky. Killings was assessed a $25,000 fine and given five-game suspension by UAlbany.

In November, Luke Fizulich, the player involved, filed a lawsuit against Killings, athletic director Mark Benson and UAlbany alleging that Killings "violently and viciously grabbed (Fizulich), threw him up against a locker and struck him in the face, drawing blood."

The suit also alleges that Benson and UAlbany "instead of protecting Fizulich as a victim of the assault, showed preference to the assaulter because of his race," violating Title VI of the Civil Rights Act. Benson is also accused of breach of contract for failing to uphold UAlbany's Violence Prevention Policy.

Additionally, a filing was made over the weekend in Fizulich's lawsuit by New York State Assistant Attorney General Mark G. Mitchell, seeking to dismiss the Title VI and breach of contract charges against Benson and UAlbany.

On the Title VI count, "plaintiff offers no facts supporting a plausible inference that the university's non-termination of defendant Killings as a head coach was 'motivated by discriminatory animus' against plaintiff for being white," beyond that "business and civil rights leaders … rallied behind defendant Killings" and "demanded more transparency of the investigation," the filing states. It also seeks to dismiss the claim based on lack of notice, saying that Fizulich did not complain about racial discrimination to the school.

For the breach of contract charge against Benson, which claims that he did not uphold UAlbany's Violence Prevention Policy, the filing argues that the 11th Amendment, which limits federal courts from taking cases brought by a private party against a state agency or state officials, therefore prevents Fizulich from bringing charges against Benson in federal court.

The filing also seeks to dismiss the claim because Fizulich "fails to identify a specific contractual promise or obligation that was breached by defendant Benson." Specifically, "there is nothing in the policy that promises plaintiff a specific outcome to a complaint about workplace violence."

The policy states that "the university will not tolerate any act or threat of violence made on university property, or while in work status at a workplace" including "the use of force with the intent to cause harm, e.g. physical attacks, any unwanted contact such as hitting, fighting, pushing or throwing objects" and "acts or threats which are intended to intimidate, harass, threaten, bully, coerce, or cause fear of harm whether directly or indirectly."

The policy does not lay out any consequences for violating the policy beyond "an investigation, and resolution" when complaints are made, except in cases of retaliatory action: "Those found responsible for retaliatory action will be subject to discipline up to and including termination."

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