When is finding NCAA violations at your university or college a good thing?
When you, the university or college, are being sued for wrongful termination by a jilted coach, and that coach has a clause in his contract, which reads that he or she can be fired for violating NCAA rules.
Two cases in point are Alabama State University (ASU) and the University of Hawaii (UH).
After ASU fired football coach Reggie Barlow in 2014, Barlow hired local attorney Donald Jackson and filed a wrongful termination lawsuit against the school.
Jackson recently told the Montgomery Advertiser that an NCAA enforcement staff member had informed him that ASU had recently reported that rules violations may have occurred on Barlow’s watch.
“I find this highly suspicious,” Jackson told the paper. “We had our first status conference in our lawsuit on Thursday. Then on Friday, I get a call — after no one saying a word about rules violations the entire time that Reggie’s been gone from over there — I get a call about this the next day. I truly hope this isn’t another (Historically Black College or University) using the NCAA enforcement process to back out of a coach’s contract.”
Reportedly, the contract between Barlow and ASU contained a clause that allows the university to terminate his employment should the NCAA find that he committed a major rules violation.
This is not uncommon, notes Glenn Wong, an attorney and professor in the Mark H. McCormack Sport Management Department in the Isenberg School of Management at the University of Massachusetts.
“From the contracts I have had an opportunity to review, the contracts have had a clause pertaining to NCAA violations,” Wong told Sports Litigation Alert. “There is usually a section for ‘termination for cause,’ and NCAA rules violations is something that falls under this section. The contract usually also states that the employer (University) is only obligated to pay salary to the date of the termination.”
Meanwhile, UH’s former basketball coach, Gib Arnold, faces a similar legal challenge.
After being fired in 2014, UH paid Arnold as a severance what was left on his contract for the 2015-16 season, or approximately $300,000.
Not enough, according to his attorney, James Bickerton, who claimed in a grievance on behalf of his client that Arnold is due four years of severance, or a little over $1 million. Bickerton has cited the section in Arnold’s contract for “Termination without cause,” which reads: “This Agreement may be terminated without cause upon ninety (90) days written notice to Coach. In such event, the University will pay as liquidated damages, a lump sum amount equal to the total amount of compensation earned under the terms of this Agreement as of the date of termination (incentives and extensions not achieved are not included in liquidated damages).”
William McCorriston, outside counsel for the school, said Bickerton is “focusing” on the wrong section (8) of the contract.
“The contract has to be read as a whole and there are many different provisions and the provision which is paramount in this contract is paragraphs ‘a,’ ‘b’ and ‘c,’ which require Coach Arnold to comply with the laws of the NCAA and its regulations and protocols,” he told Hawaii News Now.
He added that “if the notice of allegations received from the NCAA is correct, in whole or in part, it would be a violation of the contract. That provision — and the breach of it — would have to be considered along with any obligations, which may or may not exist, in section 8.
“If the NCAA allegations are at all correct, the University of Hawaii will suffer a large magnitude of damages, including all the fees in investigating and defending the university against the (NCAA) allegations, including any punishment or penalties the NCAA may impose on the athletic department, including damage to its reputation.”
The Origins of the Contract Clause
Gregg Clifton, Co-chair of Jackson Lewis’ Collegiate and Professional Sports Industry Group, told Sports Litigation Alert that the clause goes hand in hand with NCAA Regulation 11.2.1, which mandates as follows:
“Contractual agreements or appointments between a coach and an institution shall include the stipulation that a coach who is found in violation of NCAA regulations shall be subject to disciplinary or corrective action as set forth in the provisions of the NCAA infractions process, including suspension without pay or termination of employment for significant or repetitive violations.”
Clifton added that “in order to clarify and interpret this NCAA regulation and the meaning of the language ‘found in violation of NCAA regulations’ many schools have added language in contractual agreements to make it clear that the definition of ‘for cause’ includes the school’s determination that a significant NCAA violation(s) has occurred. The school’s conclusion is reached before the actual NCAA violation is considered and the Committee on Infractions process is concluded.”
As for the question of whether a school hit with a wrongful termination lawsuit should explore whether NCAA rules were violated, Clifton said such investigations should ideally take place on the front end.
“Member institutions have an affirmative duty to monitor, investigate and disclose potential NCAA rules violations,” he said. “If a member institution terminated a coach for any reason but had a belief that violations had occurred, they should conduct a complete and thorough investigation with or without a lawsuit.”
