Seemingly each year a mid-major exceeds expectations and plays deep into the NCAA tournament. This year, Ohio University, a thirteen seed, has advanced to the Sweet Sixteen. The first round also offered a number of upsets, as Lehigh, VCU, and Norfolk State defeated Duke, Wichita State and Missouri respectively. The coaches for these schools often become hot prospects – recent examples include Butler’s Brad Stevens and VCU’s Shaka Smart.
Considering the virtual free agency that exists in college coaching, schools must consider whether they have taken measures to retain their up and coming coaches. A good place to start is with the coaching contracts. Smaller schools may always have less bargaining power than their larger brethren, but they still have legal rights. Here are three suggestions to enhance those rights:
1. Get the Entire Agreement in Writing
A few years ago, Boston College fired football coach Jeff Jagodzinski after he interviewed for the New York Jets’ head coaching vacancy. Although BC is not considered a mid-major, its football program has been used as a stepping stone for its head coaches to the NFL and other collegiate jobs. Jagodzinski’s contract lacked a clause that prevented him from interviewing for other jobs. But BC Athletic Director Gene DiFilippo maintained that Jagodzinski made an oral promise to him that his commitment was long-term and that he would not use BC as a stepping stone. The interview with the Jets was perceived as contrary to that agreement.
The purported oral agreement would have been inadmissible in a court of law had BC filed suit against Jagodzinski. It simply had no binding authority. Ultimately, BC reached a settlement with its former coach. The lesson from the Jagodzinski situation is clear: if there is in fact an agreement for a long-term relationship, it should be in writing, within the four corners of the contract.
2. Consider a Bonus Instead of a Buyout Clause
A buyout clause is less a deterrent than a price tag for voiding a contract. And for a large, Division I school, paying the buyout clause for a new coach is not especially difficult. If the school doesn’t want to pay the buyout, a booster club may be willing to do so. But that isn’t the only issue with buyout clauses.
Enforcement can also pose a challenge. A buyout clause is essentially a liquidated damages clause. A liquidated damages clause is only enforceable if the clause requires the coach to reimburse the school for the reasonable damages caused by the coach’s departure. The clause cannot be punitive. It is unlikely that a multi-million dollar buyout clause at a mid-major would be considered reasonable. Accordingly, a school could attempt to negotiate a large buyout for a talented coach like Brad Stevens, but the courts may not honor it.
A retention clause may be more useful. Similar to a roster bonus in professional sports, a retention clause rewards a coach for remaining at the school on a given date (after the hiring season has come and gone). Unlike buyout clauses, enforcement is not an issue. Moreover, some schools prefer the concept of rewarding a coach for staying put rather than punishing the coach for leaving while under contract.
3. Set a Precedent
A school’s courtship of a coach under contract could give rise to a claim for inference with contractual relations. Practically speaking, most schools are unwilling to get involved in these disputes. Consider Notre Dame’s Brian Kelly, who was hired from Cincinnati while under contract. It may have been disingenuous for Cincinnati to cry foul over Notre Dame’s hiring of Kelly, considering that Cincinnati likely hired Kelly under similar circumstances. The virtual free agency in collegiate coaching is implicitly accepted, and most schools are unwilling to take legal action.
Marist University, a mid-major in Poughkeepsie, New York, is an exception. When basketball coach Matt Brady left Marist for the head coaching job at James Madison, Marist sued both Brady and JMU. While the lawsuit cannot force Brady to return to Marist, it draws a line in the sand. Future Marist hires, and their agents, will be aware that Marist is willing to enforce its agreements.
Mid-majors and smaller schools will always be at a competitive disadvantage competing with larger schools for coaching talent. However, a carefully crafted contract can provide a measure of protection for the school and set expectations for both parties.