On Monday, The University of Louisville began the process to terminate head men’s basketball coach, Rick Pitino’s contract for “just cause.” The University of Louisville Athletics Association Board met for over an hour and a half in closed session. When they emerged there were no votes against beginning the termination procedures. Additionally, at about the same time, the school acknowledged, through a spokesperson, that Rick Pitino had notified the University of what his lawyers perceived to be a material breach of his employment contract. It appears that the end is clearly in sight, the only question is how much, if any, is it going to cost U of L.

In order to analyze the issues, you must first understand what some of the key terms are, and how they impact the big picture. For starters, there is a process for the university to terminate Coach Pitino “for cause” and that process is outlined in section 6.1 of the contract. What follows is a breakdown of segments of the employment contract, and what obligations each party owes the other. Additionally, where, if at all, a breakdown may have occurred, and when. It is not light reading, so I apologize in advance, but I hope that it helps it make sense to you.

TERMINATION FOR JUST CAUSE

In pertinent part, section 6.1 states that: “Employer has the right to terminate this Employment Contract for Just Cause, or impose other appropriate discipline, in which case prior to such action, Employee shall be given ten (10) days prior written notice, and an opportunity to be heard.”

The agreement goes on to define what is included when determining whether or not just cause exists for the Employee’s termination. All of these can be found beginning midway down page 12 and continuing through the majority of page 13 of the employment contract. (Found here.)

In order to see where the University believes they have the best standing, let’s start by eliminating the seemingly obvious non-applicable portions of the termination for “Just Cause” and work our way backward. For starters, 6.1.4 doesn’t seem to fit, because it deals specifically with; (paraphrasing here a bit) dishonesty with Employer or University, (b) acts of moral depravity, (c) conviction of a felony or drug-related misdemeanor, or (d) being intoxicated while performing services of this contract in the presence of student-athletes. Unless Rick told a lie in his dealings with the University, he is free and clear on this one, we can presume.

Everything else is subject to interpretation, and litigation. I will explain them all, but it will be long and hopefully not too boring.

6.1.3 is the portion of the contract that deals with “Major violation of any rule, or bylaw of Employer, the athletic conference with which the University is then affiliated, or the NCAA, including Level I and/or Level II NCAA violations, which violation damages the Employer or University in a material fashion…” Now, with respect to the current situation before the University, Rick can argue that he doesn’t have any culpability in the recent allegations. Sure, he may be “Coach 2” but even still, nothing has been proven with respect to his conduct at this point. All he has done is make some phone calls to known business representatives of adidas. There is nothing wrong with that in and of itself. In fact, it can easily be explained away. While reviewing Coach Pitino’s contract and the rights associated with it, one could easily say that on this count, he is in the clear. We’ll talk more about this later.

6.1.2 Deals with “Disparaging media publicity of a material nature that damages the good name and reputation of Employer or University, if such publicity is caused by Employee’s willful misconduct that could objectively be anticipated to bring Employee into public disrepute or scandal, or which tends to greatly offend the public, or any class thereof on the basis of invidious distinction.” So the question that begs to be answered is; “What the hell does that mean?”

The first part is easy. Bad publicity that damages the good name and reputation of the school. If you do something shady, and it comes back to the school, this clause may apply. The second part is trickier, and it is where Pitino likely thinks that he is in great standing. The second part says that it requires Employee’s willful misconduct. He has to have known that the action going down was, in fact, going down. This is where the “it wasn’t me…” defense comes in nicely for Pitino. The last part just clarifies how bad the conduct must really be. I’ll have to admit “invidious distinction” is one of those lawyer type phrases that justifies the hourly rate, and it is a great phrase to add to your arsenal because if you drop it properly on Wednesday night at the bowling alley, you win whatever argument you are in. What it really means is conduct that is designed to enrage or make angry. So, engaging in pay for play, while on probation would likely qualify. (This statement is definitively true in the Bluegrass State.)

The last clause to identify and work through is 6.1.1 “A material violation of this Employment Contract or refusal or unwillingness to perform this Contract in good faith and to the best of the Employee’s abilities;” When you think of this, think of insubordination. Clearly, this did not apply to Pitino. There have been no allegations that I am aware of where he has failed to do as he was told by his superiors. Again, Pitino looks like there may be no portion of the contract that absolutely “gets him” with respect to this latest scandal. Where it appears that Pitino may have bigger issues, in fact losing issues, is in the first part of this clause. The very first line states “A material violation of this Employment Contract” That is important because it brings all of the terms of the contract into play, and you have to go look for where else he could be in trouble. With respect to this scandal, I think that this is where he loses.

When you take 6.1.1 and apply it to the entirety of the contract, you only have to then go back to section 4 of the contract which deals with Pitino’s duties. Section 4.1.3 states that Pitino will “Know, recognize and comply with the laws, policies, rules, and regulations governing Employer and its employees. . .” The section continues to say; “to diligently supervise compliance of assistant coaches and any other employee which the Employee is administratively responsible with aforesaid mentioned policies, rules and regulations.”

Again, it doesn’t take much imagination to see that Pitino has failed in this element with respect to the adidas, pay for play scandal. While a compelling case can be made that Pitino has failed, and failed miserably to diligently supervise his employees, this is not even the University’s strongest argument for termination.

Lost in all of this scandal is this; which clause of this contract fits the best? How can we legitimately apply any of this to Coach Pitino? The answer may be that none of it is a great fit. However, if you only look at this scandal you are missing the point. Coach Pitino was never publicly disciplined for the LAST scandal at U of L. He wasn’t suspended by the University, given a written admonishment, or held accountable for any of the misdeeds of his staff. And while that hasn’t happened yet, that does not mean that it cannot happen now.

Pitino was found by the NCAA to be guilty of major rules violations with respect to his program. He was suspended for the first five ACC Conference games, and the violation was noted to be a “Level I” infraction. As we discussed earlier, a Level I infraction is specifically spelled out as a reason for termination for “Just Cause” in section 6.1.3.

As we all know, the appeal has not been ruled upon yet. Once it is, if the NCAA’s appeals committee decides that Pitino was guilty of failing to monitor McGee, he would be in clear breach of his contract, and therefore the University would owe him nothing. A further detailed explanation can be found here…

PITINO’S BREACH OF CONTRACT CLAIM

As was reported earlier Monday, Pitino, through his attorney, notified the University that he believed them to be in breach of his contract. A request for that letter has yet to be made public, so there are a number of assumptions that must be inferred at this point. First, In Pitino’s contract, there is a clause that states the University is required to give him ten (10) days notice prior to initiating a termination for cause proceeding. That, however, is not the only trigger for the ten-day notice requirement. The contract specifically reads: “Employer has the right to terminate for just cause or impose other appropriate discipline in which case, prior to such action, Employee shall be given ten days written notice and provided an opportunity to be heard.” Here, Pitino clearly hasn’t been given an opportunity to be heard. Moreover, this opportunity was required not only if the university was going to fire Pitino, but even to suspend him without pay, which is what they have indicated was his status prior to Monday.

The school believes that by paying Pitino 10 days worth of salary they can avoid this requirement of the contract, and that is an assumption that I do not believe holds water. Ten days is less about the money, and more about an opportunity to garner support, tell your story and have a puncher’s chance at an administrative hearing that may be coming down the pike. Because of what is arguably a material breach of those terms, the University may have given some ground that they did not have to.

FINAL ANALYSIS

Obviously, Pitino is on the way out. Sure, he can, and will, file litigation in this matter, and really, who can blame him? Because of the previous scandal, along with any additional facts that come to light in the current case, the University has what I believe would have amounted to a bulletproof case for termination with just cause. However, because of what is arguably a series of missteps, it is highly likely that the school will be forced to pay a substantial amount to the Coach for his untimely exit. There was no need in allowing for this. The entire scenario clearly could have been handled in a far cleaner fashion. In their haste to take action, the University appears to have broken the very contract that they are attempting to enforce.

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Latest Posts Keith Poynter Keith Poynter graduated from the Louis D. Brandeis School of Law in May of 2011. While in law school, Keith studied Sports Law as well as other core curriculum. Prior to becoming an attorney, Keith worked in the insurance industry for 6 years, and was a police officer in both Kentucky and Tennessee for 6 years. As an avid sports fan, former basketball official and current youth sports coach, Keith is heavily involved in sports when not at work or with his family at the lake. Keith's diverse background makes him an excellent source for legal opinion about issues surrounding the sporting world. Whether the matter be criminal or contractual, Keith's unique experience and education allows him to offer insight that may be missed by the casual fan. Keith is available for commentary on any legal issues that may arise in the Kentuckiana area and will routinely post articles concerning local and national sports law topics. Latest posts by Keith Poynter see all) Another Day, Another Lawsuit. Let’s Take a Look - July 12, 2018

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