A Black Sheep at the U

Robert Marve’s departure from the University of Miami has seen its share of controversy as the above news story illustrates. But it’s not going to earn Marve the Hurricane Black Sheep Award - which is still firmly in the grasp of Miami’s most infamous player ever. In a program that has seen its reputation dragged through the mud on more than one occasion, what did this player do to deserve this ignominious distinction of being labeled as the equivalent of the “Black Ibis?” Did it involve sex, drugs and roll ‘n roll? No, the Playmaker won’t be discussed in this article. How about lawyers, guns and money? Okay, we’re getting warmer, but no guns in this story either. Not that many college football programs in the country can boast of a genuine gun battle between college teammates, but that doesn’t qualify here either. On HurricaneWarriors.com, we believe what happens in Coral Gables stays in Coral Gables.

So, what act of infamy would raise the ire of virtually every Hurricane player ever mentioned on this site? Think of the fabled loyalty of former Miami players to the program, and then think of a Robert Marve situation cubed. This former Miami QB transfer’s name from the 1989-90 era: Bryan Fortay. This is his tale of woe. A prep “Junior Heisman Trophy” winner, Bryan Fortay was a 6’2” 200 QB prospect, with a 4.6 40-yard dash time, who was recruited to the U by Jimmy Johnson after Fortay’s 1988 senior season in high school in East Brunswick, New Jersey. Fortay reportedly threw the proverbial 50-yard rope, just like at your local Hooters, and was considered by most experts to be the top QB prospect coming out of high school that year. Coach Johnson also had landed QB Gino Toretta the year before.

However, Jimmy Johnson soon took the Dallas Cowboys job, and Dennis Erickson took over as UM’s Head Coach for the 1989 season. With starter Craig Erickson missing 3 games in 1989 with a hand injury, redshirt freshman Gino Torretta and true freshman Bryan Fortay both played enough at QB to earn varsity letters in ‘89. As a temporary starter in ‘89, Torretta lit up San Jose State for 486 yards, setting a school record for most passing yards in a game that has not since been broken, and helping the 1989 Canes win a National Championship that year. Unfortunately, Torretta also threw four interceptions and failed to score against No. 9 Florida State from the one-yard line three different times (1 interception, 1 fumble, 1 stopped on downs) in Miami’s only loss (24-10) of that 1989 Championship season.

The competition between Torretta and Fortay in pre-season practice was intense in 1990, even if it was just for backup since Craig Erickson returned to the U for his final year of eligibility in ‘90. Bryan Fortay definitely thought he deserved a shot at the starting job ahead of Torretta, if Craig Erickson were to go down again. Before the fourth game of the 1990 season, Coach Dennis Erickson informed Bryan Fortay, who had yet to play in the Canes’ first three games, that he would be redshirted as a sophomore for the 1990 season. Gino Torretta, who had already been redshirted as a freshman, would be number two on the depth chart at QB for the rest of the season. Bryan Fortay, and as importantly his father Peter Fortay, were livid. They claimed that Dennis Erickson lied to Bryan when he promised that Bryan that Fortay would not be redshirted after lettering at UM as a true freshman, and would be the starting UM QB ahead of Torretta. The Fortay’s also had felt abandoned by Jimmy Johnson after his move to the NFL. Unfortunately, things were about to get worse for the Fortay family because of the little matter of Bryan’s involvement in a $173,744 Pell Grant fraud investigation.

An ongoing Federal criminal investigation of this large-scale Pell Grant fraud case at the University of Miami focused on Bryan Fortay as a key subject for the Feds because of his high profile as a star QB. In his first semester at Miami, Fortay was assigned a counselor by the University who was an athletic department employee named Tony Russell, and who also turned out to be a serious drug addict. Russell had gotten Fortay and sixty-two other Miami students (including at least 56 other Hurricane players) $1,400 each in Pell Grant money after collecting a $75 fee from each of the applicants to do the paperwork for these Pell Grants.

These need-based federal grants, that scholarship players should not have been entitled to since they already receiving scholarships, were being illegally processed to support Tony Russell’s drug habit, literally under the proverbial noses of the University’s officials. All of the involved student-athletes including Fortay were instructed by the University of Miami to give an interview to "some people," although they were not informed who these people would be. As a result, Fortay was not advised of his right to legal counsel by either the University of Miami’s attorneys or the Federal authorities, and subsequently talked to two FBI agents and a representative of the U.S. Attorney's Office involved in investigating Tony Russell, and possibly incriminating himself in the process. Cue the late Warren Zevon’s lawyers and money, “because the shit had hit the fan.”

Bryan Fortay gave it one more try against Gino Torretta for the starting job at QB-U in Spring Practice in 1991, and admittedly lost that contest to be the starting QB at the U that Spring. As legend has it, Fortay then left Miami in a fit of pique at the end of that academic year. Realistically, Bryan Fortay had already been redshirted as a sophomore so a transfer meant the loss of a full year of eligibility, and the decision to leave Miami was certainly not undertaken casually for a QB like Bryan Fortay with professional aspirations. On the other hand, Bryan’s Dad, Peter Fortay, did not appreciate having to pay for a criminal defense lawyer for his son, nor did he approve of the University’s overall handling of the Pell Grant fraud situation. Along with the question of playing time, all of this combined baggage convinced Bryan Fortay to transfer away from the U. Fortay chose to transfer to Rutgers in his old backyard, and enrolled there the for the Fall semester of 1991 and started a second redshirt transfer year in New Jersey at that time.

Back in Miami during 1991-92, the University had made arrangements with the Federal Prosecutors to secure deferred prosecutions if the student/player Defendants entered a pre-trial diversion program. Once the program was completed, the incident would be taken off of his record without any need for any jail time or any additional fines, probation or community service. To reiterate, this was not an offer for a deferred or suspended judgment, but an actual agreement to not even pursue a federal prosecution if the diversion program was successfully completed.

All sixty-two of the other students in Miami took the deal from the Feds, and the University administrators hoped to do its best for all the individuals involved (except drug-addict counselor Tony Russell, who was sent upriver) with this arrangement, and then put the whole situation behind them. As with Robert Marve, Miami threatened to not release Fortay from his UM scholarship to go to Rutgers if he didn’t take the deferred prosecution deal, but the University relented and gave him his release anyway. Fortay got his scholarship from Rutgers without taking the deal from the Federal authorities.

In New Jersey, early in his first season at Rutgers, Bryan Fortay continued to turn down the deferred prosecution plea and fought the investigation by the FBI and the U.S. Department of Education that he "fraudulently received Pell Grant monies while attending the University of Miami.” He did this without any support from the University of Miami other than the advice to take the sweet deal already on the table that the University had previously arranged with the federal prosecutors. On the playing field at Rutgers during the ’92 season, Fortay also ironically found himself sharing time at QB with a freshman, Ray Lucas. Meanwhile, back at the U, Gino Torretta had two years in 1991 and 1992 that were both so outstanding that they just got him elected to the College Football Hall of Fame.

Sick of Fortay being the sole holdout in their fraud case, the Feds leaked his name as a high-profile QB to the press and fingered him as the sole co-conspirator of Russell’s, among 63 charged defendants, who had not already pled out. They Feds told Fortay directly that they would revoke the deal offer to go to the diversion program and would indict him instead. The Feds also threatened Fortay that he would be suspended from football and incur substantial legal fees, Federal fines, and even possible prison time for his involvement with his counselor’s illegal actions. Still, Fortay publicly maintained his innocence. Fortay also revealed to the media that he had passed a lie detector test. Unfortunately, despite the fact that he would be named to the All-Big East Academic Team, this last fact mostly seemed to confirm that Fortay was a clueless dupe, at best, or a complete idiot, at worst.

Finally, with the prospect of the criminal case spilling over into another Rutgers football season, in 1993 Fortay entered the diversion program after all - to avoid the forthcoming federal indictment. Did Bryan Fortay then concentrate on his final year of eligibility at Rutgers in the 1993 season, hoping to look good for the upcoming ’94 NFL draft? Not exactly….

In late July, 1993, Bryan Fortay instead filed suit against the University of Miami for $10 million. The suit contained 25 counts that were based on breach of written and verbal contracts along with equitable relief based on the doctrine of promissory estoppel, plus damages for negligence based on Fortay's being forced to enter the diversion program to avoid indictment and the original hiring of his school-appointed counselor, both causing him trauma and embarrassment. The stakes were high because of the alleged high-dollar damage done to Fortay’s chances for a professional football career. “The only thing I ever promised Bryan Fortay is that he would be given a fair chance to compete for the job,” Dennis Erickson said after the suit was filed. “How stupid could you be to guarantee somebody's position? All I can tell you as a coach is that everybody in the country, everybody that's playing college football, has to go out and win a job. That's what Gino Torretta did and Bryan Fortay didn't do.” Peter Fortay, Bryan's father, responded: “Erickson has the right to name anybody he wants to quarterback the team. The issue is the lying, the conniving and the deceit and Bryan having to make career decisions based on those things instead of the truth. Of all the phone calls and letters and visits we went through with different schools, we never once heard from an English professor or chemistry teacher.” Bryan Fortay himself prophesized during his senior season at Rutgers in 1993 that “I still think I have a good shot at getting picked (by the NFL). I expect to be in camp somewhere next fall. If you can play, the scouts are going to find you. Transferring may have hindered my chances in the draft, probably getting me a lower draft position, but I think I have a slim opportunity, at worst, to make the pros.” The reality on the playing field at Rutgers during the ’92 season was the opposite; Fortay again found himself getting less playing time with now-sophomore Ray Lucas getting most of the starts and snaps as the Rutgers’ QB.

The case of Fortay v. University of Miami moved slowly through the courts in 1993-94. The portion of the Fortay’s case that his Letter of Intent to accept a scholarship and attend Miami was a written contract that provided for substantial playing time and assistance from the University in the development of his athletic skills was dismissed, and the dismissal of all related counts was confirmed on appeal in 1994. However, the University lost its appeal to dismiss the oral contract claims and the claims for negligent hiring and supervision of the now-convicted Tony Russell. The oral contract claims centered on promises not to recruit other quarterbacks to Miami and a guarantee from Coach Erickson to grant starter status by Fortay’s third year. The case was put back on the calendar for trial in New York because Miami also lost its appeal to move the case to the U.S. District Court in Miami from New York where it was filed. The presiding Judge in New York had offered Tallahassee as an alternative to New York, but Miami’s lawyers thought they’d get a better chance at a fair jury in NYC compared with the hometown of rival Florida State.

After going 7-4 in 1992, Rutgers fell to 4-7 in 1993 with Ray Lucas overtaking Bryan Fortay as starting QB at Rutgers. Bryan Fortay did get to go to the Hula Bowl after the 1993 season. However, Fortay’s exposure at this top College All-Star Game, his legendary rocket arm, and his lingering reputation as a High School All-American did not translate into being picked in the 1994 NFL draft as he had predicted back in September, 1993. If any NFL team offered Bryan Fortay a free agent contract and an opportunity in training camp in 1994, that information has been lost to easy-to-access online history.

In 1991, Miami went 12-0 and won the National Championship with Gino Torretta at QB. In 1992, Miami went 11-1, again with Torretta’s leadership. In 1993 (in Fortay’s senior year), with Frank Costa under center, Miami slipped to 9-3. Since Rutgers’ other QB during Fortay’s time was the aforementioned Ray Lucas, who went on to start for two more years at Rutgers after Fortay left and then spent eight years as a backup QB in the NFL, it is safe to say that Fortay had stronger competition at Rutgers in 1993 than he would have had if he had waited his turn at Miami. Bryan Fortay could have competed with then junior Frank Costa in 1993 if he had stayed it out at the U. Fortay v. University of Miami went to a jury trial in New York in 1995, and all of the counts the jury was allowed to come back on were in favor of the defendant, the University of Miami, and against the plaintiff, Bryan Fortay. However, the Court permitted an amended re-file of part of Fortay’s case, and the plaintiff’s lawyers filed the customary Notice of Intent to Appeal on the delivered verdict as well. When high-profile cases like this drag on for years, the expenses alone for pre-trial investigation and discovery and for preparation for trial and appeals can run well into the six figures. The Parties often settle - just to cut their losses related to carrying these large investments in time and expenses. This is exactly what happened in Fortay’s case, when the University of Miami eventually entered into a confidential settlement with Bryan Fortay in 1996.

At the same time his case was winding down, Bryan Fortay actually got a chance to be paid to play QB when he joined the Arena Football League’s Miami Hooters in 1995. Back in the City of Miami, Fortay split time at QB with the Hooters with Cal’s Mike Pawlawski. Pawlawski went on to a long AFL and XFL career and set AFL records for one-season and career completion percentages, retiring with the highest all-time quarterback rating in AFL history. Pawlawski is now a TV announcer for ESPN, NBC and the Outdoor Channel. On the other hand, Bryan Fortay caught on next with the Frankfurt Galaxy, but this stint in NFL Europe didn’t pan out for him either. By 1996, Fortay’s brief professional stints in the AFL and NFLE and his case against the University of Miami were all over. Somehow, the NFL career that Fortay envisioned never materialized. Today, Bryan Fortay is more remembered for the notoriety of being a world-class whiner and for the legal precedent of his settled case against the U, than for anything he ever did on the football field - at any level. Hey, at least Robert Marve isn’t suing the U on the way out! Just try to imagine if controlling parents like Peter Fortay were successful in legally attaching deep-pocket College Endowments with successful judgments from cases like Bryan Fortay’s in 1993; big-time college football programs like the University of Miami’s would probably be over.

Finally, there are the three important lessons to be learned from this sorry episode of Hurricanes’ history involving Bryan Fortay, and they are still taught to Miami recruits to this day:

1. Be patient and wait your turn, and good things will eventually come to you at the U.
2. Be ready at all times, because you never know when you will be called into a game.
3. Don’t talk to FBI/Cops/Prosecutors under any circumstances.

“Seems (Bryan) Fortay has Dennis (Erickson), in 1990, saying, ‘We had a quarterback in here, Bryan Fortay,’ who seems to have secretly recorded some conversations with Dennis; ‘In all honesty, Bryan Fortay will be the next starter here. He'll have the opportunity to win the Heisman.’ Of course, Dennis gave the job to Gino Torretta, who wound up winning the Heisman. Now Fortay is suing. So from now on we want a guy (as Head Coach at Miami to replace Dennis Erickson) who not only can coach a kid but can also give him a quick frisk beforehand. We want you to be pro-player, pro-Miami and, well, just a pro. After all, we don't like to consider ourselves so much a college as an NFL franchise to be named later. Our last three coaches have accepted pro jobs, and most players come here solely in hopes of making it to the NFL. As for the benefits of the Miami coaching job, you get your own parking space and managed health care, but we're not providing lawyers anymore. Dennis is suing us because we wouldn't pay for his defense in the Fortay suit. Most of all, we don't want anybody who's all hung up on authority. At Miami, it's not really your team. It's everybody's. During practices and games you'll be joined on the sidelines by dozens of our alumni now in the NFL—such as the Seahawks' 290-pound All-Pro defensive tackle Cortez Kennedy. At Miami, former Hurricane players hand down the great tradition of winning.”

From “Hurricane Warning” by Rick Reilly in Sports Illustrated, January 23, 1995.

From Rick Reilly’s original SI column on Bryan Fortay’s Lawsuit “See You In Court” from August 30, 1993.

J.D. Simon
May, 2009