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Wednesday, August 20, 2008
Tom Crean Better be "Mr. Clean"

Tropical storm Fay is getting closer and has caused us to shut down school today and tomorrow. So it's a good time to blog about IU's new contract with head basketball coach Tom Crean signed last week and announced yesterday -- a 10-year deal that could be worth up to $23.6M. Mark Alesia of The Indianapolis Star highlights the fact that Crean's contract "includes far more strict language on rules compliance, disciplinary action and personal behavior than that of his predecessor, Kelvin Sampson." IU spokesman Larry MacIntyre told Alesia, "Obviously, after our experience, president (Michael) McRobbie wants to make sure we never undergo anything like that again, and I don't think we will with Tom Crean."

The provisions in Crean's contract regarding NCAA rules compliance and for cause termination are definitely stricter than Sampson's, and are some of the most stringent provisions I have ever seen in a college coach's contract. A complete copy of the agreement can be accessed here.

For starters, Section 2.01 A. 2. creates an obligation of "strict adherence" with all NCAA rules, including strict compliance by assistant coaches, staff, players and all other individuals under his direct or indirect supervision, direction or control. In the event of any violation of NCAA rules by any of such individuals (including the university), or any act or omission that may give rise to a violation of NCAA rules, Section 2.02 provides that IU, in its sole discretion, may take any disciplinary or corrective action against Crean as determined by IU. [Yes, that is what it actually says.]

The for cause termination language in Section 6.02 B. is also very favorable to IU. Among the definitions of "Cause" worth noting are (1) any violation of Section 2.01 [see 6.02 B.1.] and (2) any act or omission of Crean that may give rise to a finding of a violation of any NCAA rules [see 6.02 B.3.]. Compare those definitions with the definitions of cause in Sampson’s contract, which required (1) “a significant, intentional, repetitive violation of any law, rule (or) regulation” of the NCAA; (2) “failure to maintain an environment in which the coaching staff complies with NCAA … regulations”; and (3) in IU's “sole judgment” Sampson’s conduct “reflects adversely upon the university and its athletic program.” It is also worth comparing Crean's contract with the for cause termination language in Jim O'Brien's contract with Ohio State, which required "a material breach" by O'Brien or "an NCAA violation that results in a major infraction investigation and which results in a finding of a lack of institutional control or sanctions imposed upon Ohio State." Section 6.02 B.3. is something all schools may want to take note of, because it permits the school to fire the coach for cause prior to a final determination by the NCAA, which is favorable to the school if confronted with a wrongful termination claim.

Last but not least, Section 6.02 C. contains a highly unusual process for terminating Crean for cause. The athletics director may, in his sole discretion, make a determination that "Cause" exists, without conducting any prior review or investigation, in which case the university can immediately suspend him without pay. Crean then has the right to have the AD's determination reviewed by the university President, and if the President decides that the AD's determination was proper, the effective date of termination for cause commences on a date determined by the President.

And if you're thinking that Crean would still be able to challenge a for cause termination in court, the contract further provides that the decision of the President "shall be final and binding on the Employee for all purposes" and that it is "the exclusive procedure that will apply to any determination (or review or appeal of any determination) of Cause sufficient to terminate the employment of the Employee." Interestingly, if President McRobbie resigns or is terminated, then Crean has the right to renegotiate a post-termination procedure that includes "impartial members of the University community."

In summary, IU can do whatever it wants to Crean if he or any member of his staff or any player does anything that results in a violation of any NCAA rules or that may give rise to a potential violation, regardless of whether Crean knew about it and regardless of whether a minor or major infraction. The agreement essentially imposes strict liability on Crean and makes him vicariously liable for the acts and omissions of anybody under his direction or control. I know there are some out there who would say, "What's the big deal? If he keeps a clean program then he has nothing to worry about." Well, Tom Crean could be Mother Teresa and it wouldn't guarantee a clean program in today's compliance environment.


I wonder if this would include all those self report violations that occur and and are reported by the schools with little or no action from the NCAA. Like a coach giving a player a 5 minute ride home beacause of its pouring down rain or something similar.

While this contract seems to give IU an absolute carte blanche to decide if they want to keep him or fire him at any given time, I would assume it would still have to be in good faith?

Even with this for cause termination clause, a court could still determine that it was bad faith, could it not?

I know IU may be under scrutiny by the NCAA because of prior bad judgment, and there is always that NCAA "death penalty" for repeat violators, but this seems like overkill.

Blogger Jimmy H -- 8/21/2008 2:08 PM  


Interesting point. But in my opinion, no. If the parties to an employment agreement expressly agree that X is grounds for termination, and then the employer terminates the employee when X occurs, then the employee shouldn't be able to argue that the employer acted unreasonably, unfairly, in bad faith, etc. The dispute in these situations is typically whether X in fact occurred, but Crean agreed that the AD and president McRobbie have the right to determine that.

Furthermore, the agreement expressly states that X includes ANY NCAA violation -- there is no ambiguity in the contractual terms. So, even if a claim for breach of good faith were asserted, I don't think he would get much sympathy from a judge or jury when he expressly agreed to it.

I think the implied obligation of good faith comes into play if McRobbie resigns or is terminated, in which the parties agreed to negotiate a new post-termination process of review. In that case, both parties have an implied obligation to negotiate those provisions in good faith.

You say it's overkill, and some would argue this should be standard in every college coach's contract. I guess it all depends on which side you're representing.

Blogger Rick Karcher -- 8/22/2008 7:27 AM  

23.6 mil will buy a lot of spray tans! IU should have included a clause restricting Tommy's sun exposure (looking like an Umpa Loompa on the bench can't be good for the Hoosiers' image)

Anonymous Anonymous -- 8/26/2008 10:14 AM  

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