By Lauren McCoy, J.D. and Erica Zonder, J.D.
In 2018, a common trend emerging in new or revised college coaching contracts was the addition of termination language related to the employee’s duties under Title IX. These additions highlight university concerns about the ability to fire coaches for cause after a sexual assault scandal. As these scandals become public knowledge, public reaction is twofold. Some may be in disbelief or defend the university and its athletic program, but the larger reaction is often to question how this scandal occurred and to hold university officials responsible for inaction.
Beyond public criticism, the aftermath of these scandals can be financially damaging for universities accused of failing to address sexual violence. Schools have paid millions to victims to settle related Title IX lawsuits. However, those payments are not limited to the victims. A university could also face wrongful termination lawsuits after firing those considered responsible for continuing a culture that covers up sexual assault if those contracts lack specific information addressing that concern. Baylor University paid former football head coach Art Briles $15.1 million in an employment contract settlement (Carlton, 2018). Both parties acknowledged in a joint statement that there were “serious shortcomings in the response to reports of sexual violence by some student-athletes, including deficiencies in university processes and the delegation of disciplinary responsibilities with the football program” (Baylor University, 2016, p. 1). This settlement came days after Briles threatened to sue for wrongful termination.
Baylor’s willingness to settle here points to a lack of contractual language that would allow for cause termination based on the information acknowledged by both parties. The addition of contract language addressing a coach’s Title IX obligations provides universities with more flexibility in responding to scandal. These clauses are not creating new duties. They merely address existing responsibilities, as defined by the university, and create a means of termination for noncompliance.
Under Title IX, responsible employees are required to report incidents of sexual violence to the school’s Title IX coordinator or another appropriate individual as designated by the university. This responsible employee is generally considered to be an individual who has the authority to take action to address violence, who has been given a duty to report sexual violence, or anyone who could be reasonably believed to have this duty by a reporting student (Office of Civil Rights, 2014). Using a broad definition here allows coaches to be considered responsible employees and putting specific requirements in their contract language creates an avenue to terminate with cause any individual who fails to fulfill these responsibilities.
Provisions addressing Title IX reporting requirements garnered public attention after Ohio State’s Urban Meyer was placed on administrative leave in August 2018 during an investigation into his response to domestic violence allegations against former assistant coach Zach Smith. Much of the speculation into Meyer’s potential fate at the end of the investigation surrounded this contract clause, which was added in April 2018 as an addendum to his original agreement.
4.0: Coaches Specific Duties and Responsibilities
4.1(e): Coach shall promptly report to Ohio State’s Deputy Title IX Coordinator for Athletics any known violations of Ohio State’s Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence and stalking) that involve any student, faculty, or staff or that is in connection with a university sponsored activity or event. If Ohio State’s Deputy Title IX Coordinator for Athletics is not available, then Coach shall make such report promptly to Ohio State’s Title IX Coordinator. Any emergency situation should be immediately reported to 911 and/or law enforcement. For purposes of this Section 4.1(e), a “known violation” shall mean a violation or an allegation of a violation of Title IX that Coach is aware of or has reasonable cause to believe is taking place or may have taken place (Hope, 2018).
In this language, Meyer must report to the Title IX Deputy Coordinator for Athletics or any other Title IX Coordinator on campus any violations of Ohio State’s Sexual Misconduct Policy. As soon as Meyer is aware of a potential violation, it must be reported. This helps jumpstart any necessary investigations and allow for timely evaluation of these concerns. This policy allows for his responsibilities to cover any issues involving student-athletes along with the specific concerns that led to Ohio State’s August 2018 investigation (Berkowitz, 2018). However, those allegations stemmed from a 2015 domestic violence incident that predated this addendum. There was also an earlier allegation against Smith in 2009 when both coaches were employees of the University of Florida. It could be argued that this responsibility is not retroactive, limiting Meyer’s responding requirements in this particular situation. At the conclusion of the investigation, Meyer was suspended for three games during the 2018 season (SB Nation College News, 2018).
While Meyer’s contract could be considered the first test of contract language specifically addressing failure to meet Title IX reporting requirements, there are several other college coaches with similar language in their contracts. When the University of Houston hired Major Applewhite in December 2016, his contract included the following provision:
4.2 Prohibitions. Coach shall not:
4.2.8: Fail to Report to Title IX Coordinator. Fail to promptly report to the University’s Title IX Coordinator any known violations of the UH System Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence and stalking) that involve any student, faculty, or staff or that is in connection with a university sponsored activity or event. Any emergency situation should be immediately reported to 911 and/or law enforcement. For purposes of this Section 4.2.8, a “known violation” shall mean a violation or an allegation of a violation of Title IX that Coach is aware of or has reasonable cause to believe is taking place or may have taken place (Major Applewhite Employment Contract, 2017).
This contract pre-dates Meyer’s contract addendum and the language addressing Title IX and sexual misconduct is very similar. It specifically requires reporting to the Title IX Coordinator and references the University of Houston System’s Sexual Misconduct Policy. It is worth noting that Applewhite himself was disciplined while employed as the quarterbacks coach at University of Texas for “inappropriate, consensual behavior with an adult student” after the 2009 Fiesta Bowl (Woodburn, 2013). Public reporting of this discipline could have prompted the University of Houston to include this clause in his contract. It also could simply reflect emerging trends to clarify a head coach’s role as a responsible reporter for Title IX purposes.
While these clauses may address specific concerns related to the coach’s past conduct, they can also signify changes at the university as well. Each member of Jimbo Fisher’s coaching staff at Texas A&M has a clause concerning similar reporting requirements under Title IX.
5.1: Termination by University for Cause
5.1(e): Failure by Coach to promptly report to the University’s Title IX coordinator or the Athletic Department’s Senior Woman Administrator, or law enforcement in the case of an emergency situation, any information Coach knows relating to alleged or suspected illegal gender discrimination, sexual harassment, sexual assault, sexual exploitation, intimate partner violence, stalking and/or related retaliation (Jimbo Fisher Contract, n.d.).
The language used in the contracts for Fisher and his senior staff cover specific allegations instead of directing attention to university policy as seen in the previous examples. Texas A&M’s Title IX policy was undergoing revisions when these contracts were drafted and those revisions were not completed until August 2018 (Texas A&M, 2018). Each contract clause, regardless of language, has the same effect. It essentially codifies the head coach’s role as a responsible employee or mandatory reporter, which can help the university avoid future incidents related to reporting failures.
Comparable language is also used in contracts for senior athletic department staff members, like Phillip Fulmer’s athletic director contract at the University of Tennessee.
Article VIII — Termination by University for Cause
Section 8.2(p) Failure by Fulmer to report misconduct as required by University Rules (e.g. …failure to comply with University’s Title IX-related policies including without limitation failure to satisfy the duties of the mandatory reporter/responsible employee…); and Section 8.2(v) Violation by Fulmer of UTK’s Policy on Sexual Misconduct, Relationship Violence, Stalking, and Retaliation, which may be amended by the University from time to time (Fulmer Contract, n.d.).
The similarity between these clauses, whether coach or administrator, highlights each university’s need to address reporting requirements. While these clauses do allow for termination for failure to report misconduct, these same clauses could be viewed as clarifying responsibility under Title IX to prevent future confusion.
The ultimate impact of these clauses remains to be seen. Meyer’s contract language, for example, highlighted some of the complexities presented for using these clauses to terminate in the event of public scandal. After the investigation concluded, Ohio State believed its best course of action was a three-game suspension for Meyer. It is the university’s right to choose whether or not a clause applies to a particular situation regardless of public pressure. Additionally, the policies may not hold up to scrutiny if challenged. McCann (2018) noted that Meyer could have sued Ohio State for breach of contract if terminated and open the clause to interpretation based on precedent in that jurisdiction. The literal wording would have an impact but would be subject to questioning. A court could have agreed that Meyer’s actions were a violation of the university misconduct policy. Conversely, the court could conclude that the bulk of Meyer’s failures resulted from an incident in 2015 and could not be applied retroactively to the current contract.
Regardless of the legal success of these policies, they are still an important addition to these coaching contracts to ensure knowledge and highlight the importance of understanding responsibilities beyond coaching. It is beneficial to both the university and the individual employee to clarify this duty to report. Specific contract language allows for universities to address the legal responsibility as well as the ethical implications often connected to the public response. When the public is expecting a strong stance, this contract language can be used to carry out public demand or to address compliance with the law. The benefit of these clauses allows a university to avoid reaction solely due to public pressure while also allowing for some risk management in terms of preventing these issues in the future.
Baylor University (2016, June 24). Baylor University and Art Briles issue joint statement
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