Last month, we discussed former Ohio State men's basketball coach Jim O'Brien's successful lawsuit against Ohio State for breach of an employment contract ("Jim O'Brien v. Ohio State University: Materiality, Honesty & Breach of Contract," Feb. 17, 2006). O'Brien proved that Ohio State had breached his employment contract in 2004 by wrongfully firing him upon learning of his past NCAA recruiting violations. The facts began in 1998, when O'Brien gave (or, in his words, "loaned") $6,000 to Alex Radojevic, a 21-year old, 7'3 center from Serbia and Montenegro, in order to help pay for Radojevic's father's funeral. O'Brien never bothered to report this "loan"--which, unsurprisingly, was never repaid by Radojevic, who the NCAA would later deem ineligible because he had been pro in Europe.
Elia Powers of Inside Higher Ed now writes about the NCAA's decision to place Ohio State University on three years’ probation for major wrongdoing in its men’s basketball program. The University must repay nearly $800,000 in championship revenue and its team records from the 1999-2002 NCAA tournaments are erased. (Powers, "Black Eye for the Buckeyes," Inside Higher Ed, Mar. 13, 2006).
More controversially, the sanctions also require O'Brien to appear before the NCAA’s Division I Committee on Infractions if he seeks a job at an NCAA college in the next five years, and that any college that hires him must go before the NCAA to prove that it will control O'Brien's recruiting tactics (also known as a "show cause" penalty). The NCAA also threatened penalties against Wright State University if it didn't bar its head coach as of two days ago, former Ohio State assistant coach Paul Biancardi, from recruiting players over the next 18 months. Given the impossibility of that requirement, however, Biancardi stepped down from Wright State on Tuesday.
Has the NCAA gone too far in penalizing O'Brien by imposing a "show cause" penalty--will any Division I school hire him now? And what about the Biancardi penalty--it put his then-current employer, Wright State, in a no-win situation, even though the school had nothing to do with Biancardi's transgressions at Ohio State (which included making payments to Boban Savovic, a player later deemed ineligible, and serving as a liaison between Savovic and a sports booster who gave the player free housing and helped him commit academic fraud). Biancardi was essentially forced to resign as a result of the penalty, and now Wright State has to scramble to find a new head coach.
Powers interviews several people for this story, including Duke Law Professor Paul Haagen, Boston attorney Kevin Cuddy, and me:
The panel imposed a five-year “show cause” penalty on O’Brien that would require any institution seeking to hire him to come before the NCAA to discuss how the coach’s duties should be limited. Mandates like that tend to put a major dent in a coach’s employment prospects, said Paul Haagen, a professor of law at Duke University.Other than unintentionally sounding a little bit like former President Bush, or at least Dana Carvey's impersonation of him ("message here"), my point was that requiring O'Brien and Biancardi to carry their penalties sends an obvious deterrent to coaches who contemplate breaking recruiting rules, and it also encourages colleges to fully-investigate potential hires (which sends another deterrent to coaches on the brink of wrongdoing). On the other hand, and as Paul Haagen notes, the "show cause" penalty might be considered overly-punitive, since it can effectively force someone out of coaching for as long as the penalty remains in effect--colleges would probably rather hire someone else than going before the NCAA to show how it will control their new coach. For that reason, a "show cause" penalty of 5 years is almost like a 5-year suspension from Division I coaching--a harsh and stigmatizing penalty indeed.
Kevin Cuddy, a lawyer at the Boston-based law firm Ropes & Gray, which represents college coaches, said “show cause” penalties are reserved for the most egregious cases. He said he was surprised, given the language in the committee’s infractions report, that Biancardi didn’t receive a harsher penalty.
In punishing O’Brien and Biancardi, the NCAA also sent a strong message to colleges considering hiring a coach who has violated rules, said Michael McCann, an assistant professor of law at Mississippi College School of Law and contributor to Sports Law Blog. “The message here is when hiring someone, do an extensive background check and look out for any possible transgressions,” McCann said. “It encourages schools to do due diligence.”
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