Fulmer contract, buyout protects UT more
KNOXVILLE – Tennessee athletic director Phillip Fulmer’s contract lists 26 ways he could be fired for cause.
The provisions range from getting too drunk to perform job duties to failing to reasonably cooperate with UT’s efforts to prevent sexual assault.
Fulmer’s contract includes seven ways he can be fired for cause that were not included in the contract of his predecessor, John Currie.
Given the multimillion-dollar buyouts that can ensue from firing a coach or athletic director, universities like Tennessee are adding more fire-forcause provisions to offer further protection and create more opportunity to get out from under the financial burden of buyouts if an employee is fired.
“I think it’s very smart of the university to cover themselves that way,” said B. David Ridpath, an associate professor of sports administration at Ohio University and an expert on NCAA matters.
Contract provisions aim to enhance UT’s Title IX commitment
Two of the new provisions in Fulmer’s contract pertain to areas of Title IX law, which requires universities to protect students from sexual violence, harassment and discrimination.
Fulmer’s contract states that failure to cooperate reasonably with UT’s efforts to prevent sexual assault, dating violence, domestic violence or stalking is grounds for firing for cause, as is a violation by Fulmer of UTK’s policy on sexual misconduct, relationship violence, stalking and retaliation.
“This is new language that will be in other contracts moving forward,” university spokesman Ryan Robinson said in an email to USA TODAY NETWORK Tennessee. “We are always trying to improve our contracts. We are constantly analyzing how to enhance our Title IX commitment, which includes enhancing contract language to emphasize the importance of our Title IX commitment.”
The university in 2016 reached a $2.48 million settlement for a Title IX lawsuit that centered on UT’s handling of sexual assault cases, especially those including accusations against studentathletes.
Currie’s contract noted in his job duties that he was a mandated reporter
under Title IX law. However, there was no provision listed under which he could be fired for cause if he didn’t uphold that duty or support UT’s Office of Title IX efforts.
By including that language under the firing-for-cause provisions of Fulmer’s contract, it not only offers UT protection, it shows a documented commitment to upholding Title IX law.
“I can only assume they wanted to reinforce the university’s dedication to deterring and curtailing sexual misconduct on campus,” said Chris Anderson, a Nashville-based attorney and shareholder with Littler Mendelson, P.C., a global management-side labor and employment firm.
“It reflects the university’s commitment to this issue when they put this in the contract of the highest management employee in the athletic department.”
Ridpath said that, due to the potential liability for universities, he expects language pertaining to Title IX efforts to become the norm in athletic contracts.
“You’re going to see contracts more and more — especially in this day and age — really cover the harassment, treatment of women, those types of things,” Ridpath said. “And, again, universities have to try to protect themselves a little bit better on these buyouts. If somebody deserves to be fired and they have broken what would get anybody else fired for cause, these contracts need to be a little bit more ironclad.”
Martin Greenberg, a Marquette University Law School professor and a sports attorney who has represented several college coaches, dubbed such Title IX contract provisions as “Baylor clauses.”
In 2016, Baylor football coach Art Briles, athletic director Ian McCaw and school President Ken Starr lost their jobs in the wake of law firm Pepper Hamilton’s independent investigation that determined those leaders failed to respond appropriately to numerous physical and sexual assaults by football players. Baylor paid more than $20 million to that trio in settlements.
Greenberg said provisions like the ones UT put in place “are reflecting the times” and show acknowledgment that college athletics needs to work to prevent instances of sexual violence. The fire-for-cause provisions tied to Title IX require the employee to attempt to prevent sexual assaults and to report potential Title IX violations or risk their buyout by turning a blind eye.
What other provisions are in Fulmer’s contract?
Unlike Currie's contract, Fulmer's contract also lists that he can be fired for cause if:
• He directly or indirectly sells complimentary tickets or admissions that are provided to him in his contract
• He doesn’t obtain prior approval for compensated outside activities, as outlined by his contract, or violates the conditions imposed by the chancellor concerning such activities
• He violates university rules pertaining to sexual relationships
• He consumes alcohol or drugs in a manner that impairs his ability to do his job
• UT determines any reason sufficient under Tennessee law to terminate an employment contract
“To discharge an employee before the contractual term of employment is over, under Tennessee law, an employer must justify the dismissal by showing the employee breached provisions expressed or implied,” Anderson said. “That’s why the contract set out 26 grounds under which he can be terminated by the university.”
Fulmer's contract, which he signed in April, is a four-year deal worth more than $1 million annually.
One fire-for-cause provision in Currie’s contract that wasn’t included in Fulmer’s stated that Currie could be fired if it was found he lied during his interview process about previous athletic rules violations or potential violations. Presumably, that provision wasn’t included in Fulmer’s contract because he’d never previously worked in athletic administration. Currie was hired after spending eight years as Kansas State’s athletic director.
Why toughen up the contract language?
When a coach or administrator considers a contract, a top concern usually pertains to salary and how it compares to peers, Greenberg said. What he considers more important is the language pertaining to what happens on the back end, when the employee is fired or leaves for another school.
“That’s what you read about — how much these universities are stuck with when they fire these coaches (or administrators), because there’s no guarantee that they’re going to be there for the term of their contract,” Greenberg said.
Tennessee knows the financial pain of buyouts all too well.
Football coach Butch Jones was owed $8.26 million when UT fired him in November, due in monthly installments until his contract ends on Feb. 28, 2021. Jones has a contractual obligation to mitigate the damages.
Currie’s stint as AD lasted eight months before he was ousted Dec. 1 amid a chaotic football coaching search and replaced by Fulmer. UT initially suspended Currie with pay while considering firing him for cause, which would’ve negated Currie’s buyout. In March, UT settled with Currie for $2.5 million, ending his employment. He’d been due a buyout of $5.5 million if fired without cause, though he had a duty to mitigate the buyout.
Fulmer's buyout, if he were to be fired without cause, is substantially less lucrative than the buyout terms for Currie. Fulmer’s current buyout stands at $1.6 million, a figure that will decrease throughout the contract.
Given the hefty buyouts that accompany firing a coach or administrator, Greenberg said universities are loading up contracts with a variety of fire-forcause provisions, some of which feature broad language, and then they try to find a provision that fits if that employee is fired.
“That’s the new trend in college athletics,” Greenberg said.
The goal isn’t necessarily to wriggle out of the deal without any damages but rather use the contract language as leverage and perhaps settle on a negotiated buyout that’s less than what was called for under the contract if that employee was fired without cause.
“The ultimate effect of this is, nobody wants to hang out dirty laundry in court … so they end up settling for something less than is owed,” Greenberg said.
He offered three recent examples in which a school at least explored firing a coach for cause.
• Florida football coach Jim McElwain was fired amid the 2017 season after he claimed he’d received death threats but failed to prove them. McElwain was due a buyout of nearly $13 million but settled for $7.5 million.
• Pittsburgh reportedly looked into firing men’s basketball coach Kevin Stallings for cause when it dismissed him in March after back-to-back losing seasons. Stallings was due a buyout of more than $9 million. The parties settled the dispute. Terms weren’t made public.
• Connecticut claimed “just cause” when it fired men’s basketball coach Kevin Ollie in March after a second straight losing season. The NCAA is investigating UConn for possible recruiting infractions. Ollie was due a buyout of about $10 million and is appealing the decision.
And there was Tennessee indicating in December it intended to pursue firing Currie for cause before settling for less than half of what he was owed.
USA TODAY’s Steve Berkowitz contributed to this story.