As detailed by Bruce Feldman of SI, the University of Tennessee on Sunday retracted an agreement to hire Ohio State defensive coordinator Greg Schiano as its next soccer coach. According to reports, the two sides signed a "memorandum of understanding" or memorandum of understanding. As explained below, an MOU for a college coach is a formal record of the understanding between the coach and the school regarding the key terms and conditions under which the college would employ the coach. Could Schiano sue the university for breach of contract, fraud or other claims? If all the necessary parties signed an MOU, the answer would be yes.
The tumultuous courtship of Tennessee by Schiano
The Tennessee soccer program is in disarray after a season in which the team finished 4-8 and without victories in the SEC. Earlier this month, the school fired coach Butch Jones. The dismissal was not a surprise, but that the school would point to Schiano, better known as head coach of the Tampa Bay Buccaneers and Rutgers before arriving in Columbus: replacing Jones was surprising.
Schiano has a controversial reputation, in part because of his time as defensive backs coach for Penn State in the early 1990s under former defensive coordinator Jerry Sandusky, who is currently serving a long prison term for badually abusing young children . In a 2015 deposition for a civil lawsuit between the school and his insurance company about payments to the victims of Sandusky, another former badistant to Penn State coach Mike McQueary testified that he had heard through another coach that Schiano had told how Sandusky had bothered a child. In interviews with the media, Schiano has denied the accusation, and was never charged or implicated by any other party in the long litigation of the Sandusky scandal. It is unknown if Schiano had the opportunity to deny it while under oath.
According to Feldman's details, university officials felt negative reactions from former students, fans and others after the media reported that Schiano became the next coach of the Vols. Sunday. While Schiano's main criticism was due to the implication that he knew in some way that Sandusky badually abused children and took no action, others cited the soccer reasons, including his largely unpopular tenure with the Buccaneers, as a key source of his displeasure.
On Sunday, Tennessee interrupted conversations with Schiano. It seems that the school will now pbad to other candidates.
Understanding the MOU as a legally enforceable contract
As a starting point, it is worth noting the obvious disclaimer: while journalists reported that Schiano and Tennessee signed an MOU, there has been no official statement by the parties of Schiano or Tennessee for that purpose. If such an agreement had not been signed, Schiano's potential claims would be much weaker.
Here is another disclaimer: even if a memorandum of understanding has been signed, it is not yet a public document.
With those disclaimers of responsibility out of the way, the language of an MOU signed by Schiano and Tennessee would be crucial to understand the rights of each party. Other MOUs signed by Tennessee may provide clues. One of these MOUs is available online. In 2015, Tennessee signed a memorandum of understanding with Rick Barnes to become the school's men's basketball coach. Barnes would then sign a contract for six years and $ 15 million. There are several key terms in the Barnes MOU:
1) The MOU is described as a "binding and legally enforceable agreement" once it has been fully executed (signed).
Meaning : Note first that the MOU must be signed by all relevant parties to become binding. In the case of Barnes' Memorandum of Understanding, four people had to sign it: Barnes; Vice Chancellor and Sports Director Dave Hart; Chancellor Jimmy Cheek; and the treasurer and CFO Butch Peccolo. If the Schiano Memorandum of Understanding contained similar requirements, it would not be enforceable unless signed by all the persons indicated.
Second, the Barnes MOU is presented as a provisional and incomplete contract, but nonetheless it is a binding contract. It is "provisional" in the sense that it would be replaced by an employment contract and is "incomplete", since it only highlights the key terms instead of detailing each term (as would be the eventual employment contract).
This particular language in Barnes The MOU reflects why universities use MOUs. An MOU partly reflects that the time of the coach and the university are at very different times. A coach wants to start immediately considering the implications for recruiting and forming a team. Waiting for the paperwork to be erased could put the coach and the program at a disadvantage.
A university, particularly a public university, usually can not move so fast. In general, the university's human resources department requires a background check of a pending hiring before the lease becomes official. Such control can take weeks. In addition, there may be Affirmative Action policies that are related to a close evaluation of the finalists and semifinalists who were considered for the position. In addition, the board of trustees of the university or the board of the state university system generally must vote to approve a contract. Although such votes are almost always pro forma, they are often not instantaneous. Given these hiring requirements, an MOU can facilitate the transition and allow the coach to badume some of their job functions.
2) Tennessee may terminate the memorandum of understanding or employment contract without cause by prior written notification to the coach. In this case, the university must pay the trainer $ 1 million per contract year for each remaining year of the contract. The college can make up for what it owes the coach if the coach gets a comparable job.
Meaning : When referring to "without cause", this language means a dismissal for reasons that nothing to do with the trainer's misconduct. If a coach is fired by his team or his team playing poorly, the dismissal would be without cause.
Some other points:
First, Tennessee must provide written notification to shoot without cause. While this seems to be a minor point, if the termination of the MOU occurs during a phone call, the termination would not be effective until, unless it was followed up with a letter, email or text message. We do not know how Tennessee officials communicated with Schiano or his representatives about his employment status.
Second, the Barnes MOU is treated in the same way as Barnes' employment contract for a dismissal without cause. If this were also true with Schiano, it could be due to a considerable amount of money through liquidated damages. In Barnes' contract, he would receive $ 1 million per year remaining in his contract if he is fired.
Third, the Barnes MOU provides compensation, which means that if you are fired, you would not receive the full amount of damages if you badumed "comparable employment". The MOU defines such employment to include coaching and dissemination positions.
3) Tennessee may terminate the MOU or employment contract with cause "as determined in the reasonable and good faith judgment of the University." A shot "for cause" may be the result of "acts or omissions in violation of NCAA legislation in prior institutions." Any dismissal "for cause" must "provide the coach with a post-termination opportunity to challenge the termination."
Meaning : A "for cause" dismissal is one in which the employer does not do so. You do not have to pay the employee the rest of the contract. It arises when the employee has acted incorrectly in terms of law or ethics.
Assuming that Schiano's memorandum of understanding with Tennessee uses a language similar to that used by the school with Barnes, it seems unlikely that Tennessee could terminate its memorandum of understanding with Schiano "for cause." While the language for "acts or omissions" in violation of NCAA rules in past institutions could theoretically be interpreted to cover Schiano's time at Penn State, such a construction would seem a stretch.
To begin with, Schiano questions the claim that he knew about Sandusky abusing children. In addition, the NCAA has never punished him for it. Tennessee was also presumably aware of the accusation before beginning to negotiate with Schiano. It would seem unethical for Tennessee to mention it as a reason to cut ties with Schiano after the school (reportedly) signed it to a memorandum of understanding.
Of course, there may be more in the history of what is known at this time. Perhaps Tennessee could cite damaging information about Schiano that is not currently known to the public and would justify a dismissal with cause. But in the absence of that kind of information, any Schiano termination would presumably be without cause.
Legal and reputation considerations for Schiano
It is quite possible, if not probable, that Schiano and Tennessee avoid a lawsuit over the inconvenient end of their brief courtship. The lawyers of both parties could reach an agreement that is considered mutually acceptable. Even if Schiano is angry about how Tennessee treated him, he may not want to spend the time and energy necessary to sue the school. Instead, he probably wants to return to his professional approach as defensive coordinator for Ohio State, especially with the Buckeyes playing in Wisconsin this Saturday in the Big Ten championship game.
Schiano also knows that filing a lawsuit against Tennessee could negatively affect the way schools consider it for future head coaching jobs. Schools may distrust negotiating with Schiano if these negotiations fail and lead to a possible demand.
But if Schiano and Tennessee can not come to an agreement and if Schiano wants to explore a potential legal case, he and his attorneys will likely focus on a claim for breach of contract. He would argue that his MOU became legally binding once signed by both parties. He would demand liquidated damages as stipulated in the MOU. The damage could be considerable, many millions of dollars, perhaps, according to the language of the MOU. Schiano would argue that his dismissal has no cause, since the university officials, sensitive to the reaction of the fanatics, seem to have had cold feet on the altar. As discussed above, he will note that his circumstances do not justify a "for cause" dismissal.
Schiano could consider other claims in the hope of obtaining more valuable damages. For example, you could argue that the university has illegally interfered with your possible contractual relationships with other schools for head coaching positions. To that end, Schiano could insist that, by retreating at the last second and, reportedly, for reasons related to Schiano's possible links to the Penn State scandal, the university has irreparably damaged Schiano's brand and reputation. I could argue that Tennessee implicitly endorsed McQueary's accusation against Schiano although Schiano categorically rejects it.
Schiano could also argue that Tennessee committed fraud in the inducement by inducing him to believe he would be hired. He could claim that the school gave him specific guarantees that the Penn State scandal would not disqualify him, and yet he left him under pressure for the same reason. Schiano would improve on that claim if he could prove that he trusted the Tennessee guarantees and refused to look for other training opportunities based on them.
Schiano and his representatives will also be alert to public statements made by Tennessee officials about the failed contract. If such statements could be considered defamation, Schiano could add it as a claim. However, as a public figure, Schiano would have to prove "real malice" – which means that Tennessee knowingly said something false and harmful about him – to prevail in a defamation lawsuit.
Tennessee, of course, would be armed with legal defenses. On the one hand, the school is a public university and in certain cases it can rely on "sovereign immunity". It is a legal principle that isolates public universities and other public entities (including the government) from being sued. Tennessee will also argue that it has a duty to respond to the alumni who intervened in Schiano's hiring reports. Similarly, as a state university, the school could be said to have a duty to be accountable to the ethical expectations of the citizens of Tennessee with respect to employees in state schools. In addition, the school can emphasize that it can hire whoever chooses the school and that freedom allows the school to cut ties with a coach when the school sees fit. The school also knows that if Schiano sued, the case would probably be tried in a court in Tennessee, a favorable forum for the school.
SI.com will keep you informed of any developments.
Michael McCann  is the legal badyst of SI. He is also a lawyer and Associate Dean of Academic Affairs at the Law School of the University of New Hampshire, and co-author with Ed O & # 39; Bannon of the next book Judicial Justice: The Inside Story of My Battle Against the NCAA ]