By Alexandra Miljanic, 3L, University of North Carolina School of Law
The evolution of college athletics has not only impacted student-athletes, but also football coaches, whose contracts have evolved from handshake agreements to written ones containing increased salaries and responsibilities which in turn require more sophisticated contract language.[1] Contracts address key issues including salary, responsibilities, duration, and the focus of this blog post, termination.[2] Termination provisions are usually either: (1) “termination for cause” which “provide for circumstances under which the university may terminate the coach . . . [and] is relieved of its duty to further provide the coach with compensation and benefits due under the contract,”[3] or (2) “termination without cause” which “provide what the coach’s compensation will be if the university [dismisses them] for any reason other than those laid out in the termination for cause provision. . . .”[4]
The distinction between termination type is of immense importance, as demonstrated by Michigan State University’s (MSU) firing of football head coach Mel Tucker (Tucker) for cause on September 27, 2023 – a distinction that, for MSU and Tucker, has at least 80 million reasons to matter.[5] MSU terminated Tucker for cause under what is “known as the morals clause sometimes referred to as moral turpitude or moralityclause.”[6] Morality clauses allow contracting parties (university) to terminate a contract when the other party (coach) behaves in a manner that could harm the reputation of the university or embarrass it, which is rather subjective and leads to disputes.[7] This paper will explore the legal issues surrounding the enforceability of morality clauses using MSU’s termination of Mel Tucker as a model, and applying Patricia Sanchez Abril & Nicholas Greene’s five-factor legal rubric for analyzing morality clauses to conclude that MSU properly enforced the morality clause when terminating Mel Tucker with cause.
Mel Tucker and Michigan State University
MSU hired Tucker as its head football coach in February 2020, later signing him to a guaranteed ten-year contract extension worth approximately $95 million in total compensation, “meaning that if the University terminate[d] [Tucker] without cause, it [was] responsible to pay the outstanding balance of compensation owed to [Tucker].”[8] Upon signing his extension, Tucker became the second highest paid college football coach in the U.S., which was, according to him, “[i]n recognition of [his] exceptional performance and impeccable reputation as well as the concern that [he] might leave MSU for another position after the season.”[9] Tucker’s contract included an early termination for cause provision that stated in part, “[c]ause for such termination includes . . . the Coach engages in any conduct which constitutes moral turpitude or which, in the University’s reasonable judgment, would tend to bring public disrespect, contempt, or ridicule upon the University.”[10]
In 2021, Brenda Tracy (Tracy), a rape survivor and professional advocate, was paid $10,000 to speak to MSU’s football players and coaches about sexual violence prevention.[11] It is undisputed that Tucker and Tracy developed a relationship following the event, though the nature of the relationship is disputed – Tracy claims it was strictly professional while Tucker claims it was personal.[12] Furthermore, it is undisputed that over the phone on April 28, 2022, Tucker made sexual comments to Tracy and masturbated but again, there is a dispute as to the nature of the interaction, with Tracy reporting Tucker’s actions as “unwelcome sexual advances … without her consent,” and Tucker classifying his actions as consensual “phone sex”.[13]
Tracy filed a complaint with MSU, prompting an investigation which concluded that Tucker violated the “University’s Relationship and Sexual Misconduct and Title IX Policy,” and in doing so, demonstrated conduct that constitutes moral turpitude and “brought public disrespect, contempt, or ridicule upon the University,” findings which amount to grounds to terminate his contract with cause, which MSU did on September 27, 2023.[14] At the time of his termination, Tucker had a remaining $80 million owed to him which has led to a contentious legal fight over the validity of MSU’s stated reasons for termination with cause and the enforceability of the morality clause.[15]
Morality Clauses
A morality clause is a written provision that allows contracting parties to terminate a contract when the other party behaves in a manner that could harm the reputation of the contracting party or embarrass it, and depending on how it is written can be rather broad or narrow.[16] Morality clause can be classified as “Bad Behavior clauses”, which ban certain “bad” behaviors completely (e.g., stealing, using drugs, etc.) or “Reputational Impact clauses”, where “the act triggering termination is not measured by its own substance, but rather by the effect that it produces in the community, or, more specifically, on the other contracting part,” (e.g., a scandal or harm to contracting party’s reputation).[17] It is important to note that when written broadly, Reputational Impact clauses do not require any actual damage to the contracting party, just that the other party acted in a way that the contracting party thinks will cause negative association.[18] Additionally, morality clauses rarely define “moral turpitude” leading the courts to apply a “‘I-know-it-when-I-see-it’ standard” when determining whether the contracted party violated the provision, causing morality clauses to be viewed as an subjective, “get out of jail free card” for contracting parties wishing to end a contractual relationship.[19]
To reduce the subjectivity of enforcement, Patricia Sanchez Abril & Nicholas Greene developed a two-part test: (1) “courts should analyze the clause itself to see if it enforceable . . . clauses might be deemed unenforceable for vagueness, lack of consideration, duress, or any other contract fault,” and then, (2) “courts must determine whether . . . such clause was violated by the acts of the allegedly offending party.”[20] Trying to balance the business interests of the contracting party with the rights on the other party and further reduce the subjectivity of enforcement, the test relies on a five-factor rubric: (1) “nexus between misconduct and business interest,” (2) “degree of meaning transfer: likelihood of association,” (3) “the scope and definiteness of the restrictive clause,” (4) “impact of offending behavior,” and (5) “burden on the restricted party.”[21] The factors come from comparable areas of law and are intended to be assessed on a spectrum to maintain some subjectivity but now within guardrails.[22]
Analyzing the Morality Clause in Mel Tucker’s Contract with MSU
The morality clause in Tucker’s contract can be categorized as a Reputational Impact clause given that MSU could contractually “fire Tucker for cause, if, in its own ‘reasonable judgment,’ it finds that Tucker’s behavior would ‘tend to bring’” negative attention to the university and does not require actual harm to MSU or specific acts for moral turpitude.[23]
My five-factor rubric analysis of the enforceability of the morality clause included in Tucker’s contract considers what MSU’s investigation determined to be the facts, and is as follows:
- Nexus: While ordinarily a head football coach’s private relationships are unrelated to his primary roles as a coach, Tracy was hired to speak to Tucker’s football team about sexual violence prevention and served as an honorary team captain which creates a nexus to his role as the leader of the team.
- Meaning transfer: While not his primary coaching responsibility, as the head football coach at well-known university, Tucker was a high-profile, public representative of the school who served as a leader to students, and as such, his private actions represented the university publicly.
- Scope of clause: While the morality clause in Tucker’s clause is quite broad, he could have easily predicted that his conduct met the morality clause’s requirements for moral turpitude and violated the terms of his contract.[24] Additionally, given that his actions were potentially illegal, they do not deserve heightened protection.
- Impact: Given the national spotlight on MSU caused by recent scandals, MSU understandably distanced itself from Tucker (a married man) due to the potential havoc his actions (which he admitted, only disputing the non-consensual aspect) could cause the school’s reputation if the public perceived it as being yet another sexual violence scandal.
- Burden: Tucker’s success and high level of interest by other universities (one of MSU’s motivating factors for giving Tucker such a large contract) granted him significant bargaining power when signing his extension agreement with MSU. Additionally, it is likely his actions have more of a negative impact on his reputation moving forward, than the termination of his contract does.
When considering the factors individually and as a whole, the support is clearly in favor enforceability of the morality clause, and subsequent termination with cause of Tucker’s contract.
Conclusion
It is important to note that Tucker denies any wrongdoing in regard to his interactions with Tracy, states his termination was improper, and in July 2024 sued MSU claiming that “[n]ot only did the Defendants trample upon [Tucker’s] rights to due process and his contractual rights, but their actions against [Tucker], who is Black, violated [Tucker’s] constitutional right to equal protection.”[25] It will be interesting to see if the judge handling the case similarly applies the five-factor test coming to the same conclusion I did regarding enforceability of the morality clause, or applies the test and comes to a different conclusion, or uses another test completely.
[1] Matthew J. Mitten, Timothy Davis, N. Jeremi Duru & Barbara Osborne, Sports Law and Regulation: Cases, Materials, and Problems 287 (6th ed. 2024).
[2] Id.
[3] Martin J. Greenberg, Termination of College Coaching Contracts: When Does Adequate Cause to Terminate Exist and Who Determines its Existence?, 17 Marq. Sports L. Rev. 197, 205 (2006).
[4] Id.
[5] Matt Mencarini & Kenny Jacoby, Experts: Ugly Court Fight Between Former Coach Mel Tucker, MSU Likely, Lansing State J. (Aug. 1, 2024, 12:45 PM), https://www.lansingstatejournal.com/story/news/local/campus/2023/09/27/mel-tucker-michigan-state-sexual-harassment-litigation-whats-next/70902024007/.
[6] Adam Epstein, An Exploration of Interesting Clauses in Sports, 21 J. Legal Aspects of Sport 5, 22 (2011) (emphasis removed).
[7] See Patricia Sanchez Abril & Nicholas Greene, Contracting Correctness: A Rubric for Analyzing Morality Clauses, 74 Wash. & Lee L. Rev. 3 (2017).
[8] Tucker v. Michigan State University, Case 1:24-cv-00795, at 32 (W.D. Mich. filed Aug 1, 2024).
[9] Id.
[10]Michigan State University Department of Intercollegiate Athletics Amended Employment Agreement §III(B)(1) (Nov. 24, 2021) [hereinafter Tucker Contract Extension] (§III(B)(1) “Early Termination; Damages” reads in its entirety: “(1) The university may terminate this Agreement prior to the expiration of its term at any time, for cause, without liability to the Coach or any other penalty. Cause for such termination includes, without limitation, the following: (a) the Coach materially breaches this Agreement; (b) the Coach is convicted of a crime, other than a minor traffic offense; (c) the Coach engages in any conduct which constitutes moral turpitude or which, in the University’s reasonable judgment, would tend to bring public disrespect, contempt, or ridicule upon the University (e.g., material insubordination or impropriety involving a student). Notwithstanding anything to the contrary herein, the University shall not terminate the Coach for cause unless the University has provided the Coach with written notice, specifying the grounds for termination, and afforded the Coach the opportunity to present reasons to the Athletic Director and the University’s President ad to why he should not be terminated on the grounds stated therein.”)
[11] Kenny Jacoby, Michigan State Football Coach Mel Tucker Accused of Sexually Harassing Rape Survivor, USA Today (Sept. 11, 2023, 10:02 AM), https://www.usatoday.com/story/news/investigations/2023/09/10/michigan-state-football-coach-sexual-harassment-claim/70679703007/.
[12] Id. (“Over eight months, they developed a professional relationship centered on her advocacy work. Tucker invited Tracy to campus three times – twice to speak to his players and staff and once to be recognized as an honorary captain at the team’s spring football game.”)
[13] Letter from Alan Haller, Vice President and Director of Athletics at Michigan State University, to Mel Tucker Re: Termination of Employment Agreement (Sept. 18, 2023), https://msu.edu/-/media/files/msu/issues-statements/supplemental-documents.pdf?rev=217e3abf7eb74a64b1bcb13e2957a015&hash=7A6107843D7A5E925C3D14A436355435, (in addition to Tracy’s claims, the letter states that Tucker “admitted to the following behaviors:
Commenting to the Vendor [Tracy] about her looks, body, and body parts, specifically her ‘ass’; Making flirtatious comments to the Vendor in conversations that you state ‘happened often’; Masturbating and making sexually explicit comments about yourself and the Vendor while on the phone with the Vendor, which you describe as ‘phone sex’ and ‘a late-night intimate conversation’.”) [hereinafter Letter from Haller].
[14] Id.
[15] Mencarini & Jacoby, supra note 5.
[16] See Abril & Greene, supra note 7.
[17] Abril & Greene, supra note 7, at 10-11.
[18] Abril & Greene, supra note 7, at 11 & 14.
[19] Abril & Greene, supra note 7, at 37 & 45.
[20] Abril & Greene, supra note 7, at 50.
[21] Abril & Greene, supra note 7,at 4-5. See also Abril & Greene, supra note 7, at 75 (“Simply put, morality clauses should be enforceable only when (1) there is a reasonable nexus between the offending activity and the imposing party’s legitimate business interests, (2) those business interests are definite enough so as to assist a reasonable person in predicting what is prohibited, and (3) the offending activity causes or will foreseeably cause a reputational backlash against the imposing party. In addition, courts should examine (4) the degree of meaning transfer, or associative power that the restricted party has with the company in the public’s esteem. For instance, the private, moral failings of low-level employees may be unlikely to mar an employer, but when the purpose of the contract is to create an association or endorsement, the scales tip in favor of the imposing party. Finally, courts should scrutinize (5) the burden imposed on the restricted party, as morality clauses can especially harm individuals with little bargaining power.”)
[22] Abril & Greene, supra note 7, at 50 (emphasis added).
[23] Mencarini & Jacoby, supra note 5.
[24]Letter from Haller, supra note 13, (Tucker’s “comments about the Vendor’s ‘ass,’ admitted flirtation, and act of masturbating on the phone with the Vendor, while married, amount to moral turpitude. It is highly inappropriate and improper to engage in extramarital sexual conduct with a Vendor, let alone an Honorary Captain of the Football Team, whose mission is to educate coaches and student-athletes, and specifically the University’s Football student-athletes under your direction, on sexual misconduct.”)
[25] Tucker v. Michigan State University, Case 1:24-cv-00795, at 9 (W.D. Mich. filed Aug 1, 2024).
