Jerry Kill paid despite unsigned deal
Nearly a year since his hiring was announced at New Mexico State, head football coach Jerry Kill still has not signed an employment contract with the university, the school confirmed this week.
As of Friday, he hadn’t even signed the university’s initial offer letter dated Nov. 21, 2021 – a two-page document that spells out the basic financial terms of his job but also states that he is on probation for a year like other new employees there.
It’s an unusual situation. Kill, 61, is still coaching at one of the most difficult jobs in major college football. He also is still getting paid at a rate of $550,000 annually, an athletic department official said. But without a signed contract – or even a signed initial offer letter – Kill’s situation delves into a precarious realm that carries significant risk for both sides and sometimes has created awkward situations and headlines that have raised the eyebrows of fans. Once, it became a federal case at Kentucky after men’s basketball coach Billy Gillispie went two years without signing his contact before being fired in 2009.
“This is a strange one,” said Martin Greenberg, an attorney and sports law professor at Marquette who has represented coaches in contract negotiations but is not involved in the Kill case.
USA TODAY Sports inquired about it in October as part of its annual survey of college football coaches’ compensation. NMSU deputy athletic director Braun Cartwright said on Oct. 10 that the university expected Kill’s contract to be signed “in the next few days.” The reason he said it wasn’t signed was “we’ve been going through a few things (in the contract)” but that “nothing on coach’s part” was causing the delay.
Kill didn’t immediately respond to a request for comment through a school spokesman.
His team is 4-5 this year after starting the season with four consecutive losses.
“There were a couple of extra changes that needed to be made,” Cartwright said in an e-mail Nov. 9. “Although we are close, it is still unsigned.”
Formal contract signings in college sports sometimes can be delayed for months after a coach’s hiring is announced, simply because it takes time to work out the various clauses and language in a document that can run 24 pages or more. In the meantime, before a formal contract is signed, coaches typically work under a two- or threepage memorandum of understanding (MOU) or offer letter that at least spells out basic pay terms.
In Kill’s case, he hadn’t even signed the latter letter, which is rare. And it’s been nearly a year since he was hired, which also is quite uncommon.
“This is a dangerous area for colleges,” Greenberg said.
The reason for that is it creates legal risk for both sides when there is no signed employment agreement, especially in the event of a termination. In effect, a signed contract serves as a prenuptial agreement, spelling out detailed terms of a potential separation and how much each is owed in the event of a firing or resignation. Without those terms spelled out in writing, it can lead to ugly and expensive disputes after separation, much like a contentious divorce between spouses who failed to sign a prenup beforehand.
For example, Kill’s unsigned offer letter obtained by USA TODAY Sports doesn’t outline what he or the university would owe if he resigned or got fired. In his case especially, he arguably has a heightened interest in securing such terms with signatures, given his history of kidney cancer and seizures, in addition to the fact that NMSU is one of the most difficult places to win in major college football.
In its history dating to 1894, only two NMSU head coaches out of 35 have won more than 25 games at the school. Since 1972, NMSU also has had 10 non-interim head coaches before Kill, nine of whom were fired. The other coach – DeWayne Walker – quit to take an assistant coaching job in the NFL in January 2013 after posting a 10-40 record in four seasons.
“At the time I just felt like my career possibly was at stake if I had stayed there another three years,” Walker told USA TODAY Sports in 2020.
And yet here is Kill, fighting that tide of history without a signed and sealed deal to protect him. It probably didn’t help that Kill’s previous agent, Jordan Bazant, left the agent business late last year. It’s unclear who is representing him now in contract negotiations.
What could go wrong in the meantime?
The Kentucky dispute
The Gillispie affair at Kentucky shows how low it can go. Gillispie signed a three-page MOU at Kentucky when hired in April 2007, but he never signed a formal contract as the two sides fought over issues in it, including deferred compensation and how to define termination terms, according to court records.
Then after he got fired in March 2009, it became a federal case.
Since there was no signed contract, each side sued the other over what Gillispie was owed after his firing.
“An actual and justifiable controversy has arisen between the parties as to whether the MOU constitutes a longterm contract of employment,” the university said in its lawsuit against him.
Gillispie, who finished with a 40-27 record at UK, asserted he was fired without cause and therefore was entitled to $6 million to buy out his contract according to his interpretation of the MOU.
Kentucky stated in court records it owed him nothing, because the MOU was “unenforceable” and the parties had not signed a long-term agreement.
The university “asserts that the MOU was expressly intended by the parties to be only a letter of intent or agreement to agree, and does not constitute either a fully-integrated writing or a final expression of the parties’ entire agreement,” the university said in its lawsuit.
The litigation dragged on until October 2009, when the two sides settled, with Gillispie getting about $2.9 million, about half of what his MOU stipulated.
“This is not an area where colleges want to be,” Greenberg said. “They don’t want to be making law in this area. They don’t want to be in the courts. Gillispie settled out and most of these things settled out because of dirty laundry (being used as leverage against the other in legal disputes).”
Greenberg once had his own issues with an unsigned contract when he represented then-Utah men’s basketball coach Rick Majerus in the early 1990s.
The Utah and Georgia cases
Greenberg said Majerus didn’t sign a contract for more than a year because Majerus did not want a moral turpitude clause in his contract, simply because it was not clearly defined. In the meantime, Majerus was a hot coach and became a candidate for a job at UNLV.
“I went to the athletic director (at Utah) and said, ‘We do not have a contractual relationship. We’re simply an employee at-will. You’re free to terminate, and we’re free to terminate. And we’re going to terminate,’ ” Greenberg said.
Utah ended up dropping its desire to add a moral turpitude clause in Majerus’ contract, Greenberg said. Majerus, who died in 2012, didn’t take the UNLV job and stayed at Utah.
Other coaches generated headlines in recent years when they went several months without signing contracts, causing fans to wonder if one side or the other was having second thoughts.
In another case, Texas A&M announced in early December of 2017 that it had hired coach Jimbo Fisher from Florida State. Six months later, the Texas Tribune published a story with a headline that said, “Texas A&M promised Jimbo Fisher a 10 year, $75 million contract five months ago. Here’s why it hasn’t been signed yet.”
Texas A&M cited tax code changes and Fisher’s busy schedule as reasons for the delay. Fisher then signed his contract on Aug. 17, 2018, more than eight months after his hiring was announced.
Kill also received attention from the local news media in 2011 after he went several months without a signed contract at Minnesota. Kill was hired there as head coach in early December 2010, but by April 2011, he still had no signed contract, prompting the Star Tribune to take note.
Kill finally signed his contract at Minnesota on Oct. 21, 2011, more than 10 months after his hiring was announced, according to the copy obtained by USA TODAY Sports. He then abruptly retired in October 2015, citing health issues.
At NMSU, Kill’s current unsigned offer letter makes his situation seem especially risky for him.
“The specific terms and conditions of your position may be changed without the necessity of a written addendum to this letter of offer,” the letter from November 2021 states.
By contrast, signed formal contracts generally require any changes to be made through bilateral written agreements. But Kill doesn’t have that or even a signed term letter.
What could go wrong?