Free Advice on Keeping Brian Kelly by a Penn State Sports Law Professor

(c) 2009 F. Bruce Abel

At first glance I agreed with this article. After consideration, I don't.



Good legal advice could have kept Kelly
By Stephen F. Ross • December 17, 2009

University of Cincinnati head football coach Brian Kelly's decision to abandon the Bearcats for greener pastures at Notre Dame was greeted with understandable disappointment among his Bearcat players gearing up for perhaps their most important game, a BCS appearance in the Sugar Bowl against the Florida Gators.

As a sports fan, I feel for these players. As an attorney and law professor, I'm frustrated because their disappointment - and that of university officials, alumni and fans - could have been avoided with good legal advice.
In January 2008, Kelly signed a new five-year contract with Cincinnati, giving him a $1.8 million raise and committing the University to the construction of new facilities. At the time, Kelly stated that he wanted a long tenure at UC, and a university trustee was publicly quoted as saying, "I want Mr. Kelly to be locked up completely." However, Kelly's contract provided that he could terminate the agreement with a paltry (by current standards) $1 million buyout payment.
Lawyer-bashing and lawyer jokes are common, but this is one example where good lawyering would have come in handy. Competent counsel would have advised the inquiring trustee that this contract didn't even come close to "locking up" Kelly. Would Notre Dame have hired Kelly if, in addition to Charlie Weis' $18 million, they had to pay $10 million to Cincinnati?
Now perhaps Kelly, who in 2008 had already shown signs of success after his debut season with a 17th-place ranking and a Papajohns.com Bowl victory, would have refused to sign a contract extension if the UC counsel had drafted a clause that really would have locked him up. But let's think this through in terms of hard bargaining: If Kelly, a first-year coach at a rising-but-not-elite program, refused a contract extension, recruits are going to know about it. How likely is it that Kelly will be able to recruit top high school stars to Cincinnati if everyone knows he is looking to leave at the first opportunity?
Top high school recruits should demand that the coach bring a copy of his contract into their living room. They should ask a family friend or local attorney (make sure it is someone with no connection to a major football program, lest they be accused of undue influence) to look at the contract and advise them on how likely it is that the coach will remain at the school. They can then make an informed decision.
If I were counseling a five-star recruit (and I can't, of course, being at Penn State!), I would demand that the contract language be changed, to (1) specifically identify the school's football players as "third party beneficiaries"; (2) acknowledge that student-athletes recruited by the coach have relied on the current contract terms as a substantial factor in selecting the school; and (3) specifically note that the coach provides unique services to the school and the players (the latter clause is standard in professional player and coaching contracts). This would ensure that any buyout terms are strictly adhered to, and prevent the university and the coach from renegotiating a substantial buyout clause after the star athlete had already committed to the school.
The NCAA has a thick rule book that purports to allow student-athletes to make informed and sensible choices about where to attend college. If the member schools were truly concerned, they would allow student-athletes to immediately transfer when their coach leaves (which would give athletic directors a far greater incentive to insist on huge buyout clauses).
This reform is unlikely, so student-athletes need to protect themselves with good legal advice.