By: Dr. Anthony Rosselli — Texas A&M University — Commerce; Anthony.Rosselli@tamuc.edu
Power. Influence. Reputation. Legacy. These words come to mind when considering high-profile Division I NCAA college football and basketball coaches. With college coaching salaries sky-rocketing, coaches’ talk shows on radio and TV, and the celebrity-status achieved by these individuals, there is an associated cost with the fame. When things go downhill, they can bring fire and brimstone with them and damage reputations for a lifetime. Such has been the case for well-known college basketball coach Rick Pitino. Pitino, who was fired by the University of Louisville for just cause (Lerner, 2018), filed a lawsuit against sports apparel giant Adidas, claiming that Adidas deliberately damaged his reputation, and against the University of Louisville for wrongful breach of contract (Boone, 2018). Pitino’s suit has been dismissed by a federal judge, and the case has been recommended to be moved to arbitration (Boone, 2018). This article will examine the role of arbitration in cases involving coaches, provide examples of other scenarios in which arbitration has taken place, and examine language related to arbitration within coaching contracts.
Role of Arbitration
Arbitration refers to the process in which a neutral third party issues a decision after hearing both parties’ claims and evidence (Spengler, Anderson, Connaughton, & Baker, 2016). Some key differences exist between litigation and arbitration. First, arbitration cases are typically held in private, with only the parties involved and the arbitration representative present (whereas litigation is public). Second, decisions in arbitration are usually binding, with limited options for appeal (unless agreed upon within the arbitration clause). In litigation, appeal is a common practice. Third, arbitration hearings can be scheduled quickly, in many cases as soon as all parties agree upon a date. With litigation, the waiting period can be lengthy, as the case must make its way through the process (Murray, 2018).
Arbitration is ideal for many situations, one of those being high-profile disputes among individuals with near celebrity status (e.g., DI college coaches). Through arbitration, parties can keep their affairs behind closed doors, without the availability of public record. In many instances, this is beneficial for all parties involved. In the case of a college coach, their reputation can be spared some damage (due to the private nature) and the case is closed at arbitration. Via litigation, the issue becomes a topic of discussion for newspaper, social media, and cable TV outlets to dissect from all angles and speculation runs rampant.
Example of Arbitration Clause in Coaching Contracts
Greenberg (1991) provides a detailed examination of the college coaching landscape and the challenges faced by coaches in this high-turnover field. One of the recommendations provided by Greenberg is for coaches to negotiate arbitration clauses into their coaching contracts. Given the high publicity of the profession (even much more now sow since the 1990s), arbitration is ideal to not only protect the coach’s reputation but also their future in the field. We have seen no shortage of public spectacles in the collegiate coaching ranks in the past few years and the career-ending consequences. We now turn to an example of a college coaching contract that has an arbitration clause built in. Take the contract of Penn State football coach Bill O’Brien for example (obtained through the Penn State University’s official web records):
Any claim or dispute arising out of or related to this Contract, Coach’s employment or the discipline or termination of Coach pursuant hereto shall be resolved exclusively via confidential, binding arbitration at the Employer’s place of business, or at another site in Pennsylvania that is mutually agreeable to the parties. Arbitration shall be conducted by a panel of three (3) arbitrators selected pursuant to the rules of the American Arbitration Association (“AAA”). The arbitration panel’s award shall be final, and judgement may be entered upon it in accordance with applicable law in any court having jurisdiction thereof… (Section 15, RESOLUTION OF DISPUTES, p. 12)
It is important to note that many high-profile coaching contracts (e.g., Nick Saban, William ‘Dabo’ Swinney, Urban Myer, etc.) do not have arbitration clauses built in. Sometimes, as was the case for USC coach Steve Sarkisian, a separate document requiring arbitration of disputes is signed (Fenno, 2016). Many coaching contracts have a statement that all disputes will be handled in accordance with the state law in which the contract is issued. Furthermore, some indicate that the first step in a dispute is to bring the claim to the Athletic Director or University President who will issue a ruling after a hearing.
College Coaching Arbitration Examples
The following examples provide some context for the role of arbitration in college coaching. In 2015, USC dismissed coach Sarkisian due to personal misconduct. Sarkisian filed a suit of wrongful termination (VanHaaren, 2018) and both parties agreed to arbitration before the case went to court (Kaufman, 2018a). In this case, the arbitrator ruled in favor of USC. While the decision was made public, the testimonies were kept private and there is reason to believe that the case would have never been heard in court. The arbitration document Sarkisian signed would have been almost impossible to get out of, even though Sarkisian said he did not remember signing it (Fenno, 2016).
The case of UConn basketball coach Kevin Ollie has followed a slightly different path. Ollie was fired with cause from UConn after a series recruiting violations. According to the collective bargaining agreement (CBA) Ollie was hired under, he was first afforded a hearing with Athletic Director David Benedict (who upheld the termination decision) and then was heard by school president Susan Herbst (who also upheld the decision; Borges, 2018). The next step in the CBA is arbitration, of which Ollie is pursuing.
Another coach for USC, Mick Haley, filed for arbitration against USC for age discrimination and harassment (Kaufman, 2018b). Haley, aged 75, had been the volleyball coach at USC for 17 seasons, which included winning championships in 2002 and 2003 (Fenno, 2018). As with the Sarkisian case, Haley also signed an arbitration contract that limited his legal options.
Discussion
In college coaching disputes, many universities have historically chosen to settle with the coach rather than draw the issue out in court (Baker, 2018). Even in terminations for cause, the trend had been to settle, as this option was more affordable than a long drawnout legal battle, attorney’s fees, etc. With the Sarkisian case being handled via arbitration, and the university ending on the winning side, more and more universities may begin to defend their decisions rather than settle. If the evidence strongly supports their decision, arbitration may be the fastest and most cost-effective strategy. Furthermore, as college coaches are now leveraging their celebrity to other endorsement contracts, coaches and their attorneys should carefully plan their tactics in any contract negotiations. In these contracts, arbitration agreements are likely to limit their legal options in disputes. As in the case of Pitino and Adidas, Pitino’s agreement states that arbitration must take place in Oregon, and that only an Oregon district court can force the two parties to enter into arbitration (Lerner, 2018). Coaches have more to think about now than ever as the fame and prestige that comes with their position affords them greater opportunities for financial gain. In any case, the role of arbitration appears to be gaining traction in this profession and the Pitino case is just the beginning.
References
Amore, D. (2018, August 8). What’s next for Kevin Ollie and UConn? We asked lawyers to weigh in. Hartford Courant. Retrieved from http://www.courant.com/sports/uconn-mens-basketball/hc-sp-uconn-men-ollie-lawyers-0805-story.html#
Anderson, J. O., Anderson, P. M., Connaughton, D. P., & Baker III, T. A. (2016). Introduction to sport law. Champaign, IL: Human Kinetics
Baker, T. (2018, July 10). Steve Sarkisian arbitration could set trend for how NCAA schools fire coaches for cause. Forbes. Retrieved from https://www.forbes.com/sites/thomasbaker/2018/07/10/sarkisian-arbitration-could-set-trend-for-how-ncaa-schools-fire-coaches-for-cause/#74f5692367fc
Boone, K. (2018, August 14). Rick Pitino’s lawsuit against Adidas over alleged reputation damage dismissed by a federal judge. Retrieved from https://www.cbssports.com/college-basketball/news/rick-pitinos-lawsuit-against-adidas-over-alleged-reputation-damage-dismissed-by-a-federal-judge/
Borges, D. (2018, June). UConn coach’s termination upheld, case to arbitration. New Haven Register. Retrieved from https://www.athleticbusiness.com/civil-actions/uconn-coach-s-termination-upheld-case-heads-to-arbitration.html
Employment contract: William O’Brien (2012). Retrieved from https://www.psu.edu/ur/2012/openness/OBrien_contract.pdf
Fenno, N. (2016, March 2). Steve Sarkisian’s lawsuit against USC is headed for arbitration. Los Angeles Times. Retrieved from http://www.latimes.com/sports/usc/la-sp-usc-steve-sarkisian-lawsuit-20160302-story.html#
Fenno, N. (2018, July 25). Former USC volleyball coach Mick Haley accuses school of age discrimination and harassment. Los Angeles Times. Retrieved from http://www.latimes.com/sports/sportsnow/la-sp-usc-womens-volleyball-20180725-story.html
Greenberg, M. J. (1991). College coaching contracts: A practical perspective. Marquette Sports Law Review, 1(2), 207-282
Kaufman, J. (2018a, July 9). Arbitrator rules in favor of USC over Steve Sarkisian in wrongful termination lawsuit. The Orange County Register. Retrieved from https://www.ocregister.com/2018/07/09/arbitrator-rules-in-favor-of-usc-over-steve-sarkisian-in-wrongful-termination-lawsuit/
Kaufman, J. (2018b, July 25). Former USC women’s volleyball coach files for arbitration claim, citing age discrimination and harassment. The Orange County Register. Retrieved from https://www.ocregister.com/2018/07/25/former-usc-womens-volleyball-coach-files-arbitration-claim-citing-age-discrimination-and-harassment/
Lerner, D. (2018, August 14). Judge dismisses Rick Pitino’s lawsuit against Adidas. Louisville Courier Journal. Retrieved from https://www.courier-journal.com/story/sports/college/louisville/2018/08/14/judge-dismisses-rick-pitino-lawsuit-against-adidas/991380002/
Murray, J. (2018, September 2). The difference between arbitration and litigation. Retrieved from https://www.thebalancesmb.com/arbitration-vs-litigation-what-is-the-difference-398747
VanHaaren, T. (2018, July 10). Arbitrator rules in favor of USC over Steve Sarkisian in $30 million wrongful termination lawsuit. abc News. Retrieved from https://abcnews.go.com/Sports/arbitrator-rules-favor-usc-steve-sarkisian-30-million/story?id=56469769
