I am currently working on an article concerning the lawsuit that Marist College brought against its former basketball coach, Matt Brady, and his employer, James Madison University. One of the issues that arose is the use of arbitration clauses in coaching contracts.
Opinions generally differ over the use of arbitration. Some attorneys believe that arbitrators tend to shy away from making a decision in favor of one party, preferring to split the difference. Other attorneys prefer arbitration, as it can provide an opportunity to choose a subject matter expert or experts decide the dispute, rather than relying on the luck of the draw at the courthouse to determine which judge handles the case.
Nevertheless, arbitration allows for parties to keep a dispute private, an element that was missing in the Marist v. Brady case. Although Marist arguably suffered damage to its reputation with respect to attracting coaching candidates, there will always be a limited number of Division I head coaching jobs (iHoops.com says 341) and a plethora of willing candidates. The public nature of the case appears to have been most detrimental to the coach, Brady, who lost time away from recruiting and coaching to endure depositions, hearings and trial, and may have suffered some damage to his reputation.
A clause requiring private and confidential arbitration could have shielded Brady and his current employer from the public eye. Moreover, Brady could have some control over the rules of arbitration, including controlling when, where and how he would testify. Coaches, their agents and attorneys should consider and discuss these factors when entering into a contract.