Lawyers in Demand at University Athletic Departments?

Last week at the Street & Smith's Intercollegiate Athletics Forum, when NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in the upcoming year, Brand said "Coaches' contracts," and added that "agents have the upper hand" now and schools may need outside help negotiating these deals. [Jodi Upton, USA Today, Colleges troubled by coaches' rising salaries] Brand told Upton in an interview: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

I've always thought that university athletic departments would be better served by having a full-time attorney in-house to deal with not only coaches contracts, but also with compliance audits, Title IX issues, NCAA rules interpretations, the NCAA enforcement process, and the development of institutional policies and procedures that have all sorts of legal implications (i.e. drug testing, use of Myspace/Facebook, etc.), to name just a few. As a result of the increase in coaches salaries, coaches contracts, correspondingly, have become much more complex with respect to termination rights, liquidated damages (how much one party owes the other upon a breach), and mitigation of damages (whether the compensation under a future contract should reduce the damages owed by the university to the coach).

I agree with Brand when he says that agents have the upper hand in negotiating coaches contracts. One of the great benefits to having an agent when negotiating an employment contract is that the prospective employee, whether it be a player or coach, can play the "good cop, bad cop" role. In other words, the coach or player can say, "I know, but my agent is making some of these demands and I'm not a business person, which is why I hired him." An attorney working on behalf of the university might be able to level the playing field in that respect.

Also, I've always thought that the coach has more bargaining leverage than the university in the contract negotiation process. First, the coach and the university agree "in principle" that he is going to be the new head coach, and it hits the press that same day. Then, after it hits the press, the university and the agent get together over the next few days and hammer out all of the important details of the contract. During these negotiations, it seems that the coach would have a much easier time walking away from the deal than the university would, which gives the coach more leverage. The university is placed in the inviable position of having to explain to students, alumni and boosters that they lost their "prized" coach because they couldn't agree to the terms of the contract. Maybe an in-house lawyer could aid the university in that process at the outset when the agreement is reached "in principle".

As more universities hire counsel, whether in-house or outside, it creates more opportunities for lawyers who want to work in the sports industry.

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