University of Memphis Athletic Director Tom Bowen (Mike Brown/The Commercial Appeal files)

SHARE March 27, 2013 — University of Memphis Basketball Coach Josh Pastner gets a hug from Athletic Director Tom Bowen during a press conference at the Hardaway Hall of Fame Wednesday afternoon to talk about his new contract and the Tiger's season. (Jim Weber/The Commercial Appeal) Related Coverage Pastner is gone but his deal not forgotten

By Marc Perrusquia of The Commercial Appeal

When University of Memphis Athletic Director Tom Bowen negotiated head basketball coach Josh Pastner's now-infamous contract in 2013 on behalf of the school, he needed no introduction to the coach's agent.

Fort Smith, Ark., attorney Joey McCutchen's NextLevel Sports agency represented Bowen while he was athletic director at San Jose State and arranged Bowen's hiring at the U of M in 2012, the athletic director said.

Now, with the basketball program reeling from the Tigers' near-collapse on the court this season and a sea of empty seats at FedExForum, questions are surfacing about Bowen's relationship to NextLevel Sports and whether it influenced the generous terms of Pastner's contract — a deal that would pay the coach up to $10.6 million were he fired.

U of M President M. David Rudd said Tuesday in a statement the school is investigating conflict-of-interest allegations that have circulated in recent weeks about Bowen.

"The University of Memphis has been made aware of the accusations, and in accordance with University and TBR (Tennessee Board of Regent) policies, will immediately launch a comprehensive investigation,'' Rudd's written statement read. "The University is in the process of retaining an outside source to conduct the review. Upon completion, a public statement will be made concerning the findings.''

Bowen denied any conflict in an interview earlier this month with The Commercial Appeal, saying he severed NextLevel's representation after he was hired by the U of M in 2012.

"NextLevel and I agreed that I'll no longer need any representation. I didn't want any issues. And so I just resigned,'' Bowen told the newspaper.

A year after signing Pastner's contract, Bowen hosted the 2014 College Athletic Leadership Symposium, a gathering of athletic directors and coaches produced by NextLevel Sports. Bowen has been a frequent speaker at the annual event, though McCutchen said Bowen has received no pay.

Bowen said his ties to NextLevel did not influence his handling of Pastner's contract, which includes a buyout clause that would pay the coach his $2.65 million annual salary in monthly installments through April 2020 if he's fired.

"No. No sir. And I resent the thought of that even being considered,'' Bowen said in a brief interview on March 4 before he quit returning a reporter's phone calls.

The university has not filled an open records request filed by the newspaper on March 9 seeking emails and other written communication between the school and NextLevel.

U of M policy requires employees "to avoid activities and situations that, either actually or potentially, put personal interests ahead of the professional obligations that they owe the University.'' Employees are required to make "full disclosure'' of potential or actual conflicts in writing. Records released by the university gave no indication whether Bowen, who's paid more than $416,000 a year, disclosed his relationship with NextLevel.

One expert in sports management ethics said Bowen's dilemma at the very least poses a public relations problem for the university.

"It has the appearance of a conflict of interest. That's especially true when it's such a favorable contract,'' said Walter T. Champion, a professor of sports law at the Thurgood Marshall School of Law at Texas Southern University who co-authored a 2012 book, Sports Ethics for Sports Management Professionals.

"I mean it looks to some people that, you know, you're helping out your agent or your ex-agent in giving his guy a great contract.''

The concern takes on added significance given last week's developments: Despite missing postseason play for the second year in a row, the U of M retained Pastner amid wide speculation the school simply couldn't afford to fire him and hire a new coach.

In a March 13 email, McCutchen acknowledged representing Pastner "in all his negotiations with the University of Memphis,'' describing NextLevel Sports as an agency that "represents a number of collegiate coaches.'' The agency has represented a few athletic directors in the past, but currently has none, he wrote. He listed two NextLevel principals: himself and Tulsa, Okla., sports businessman Will Reece.

McCutchen did not say directly in his email whether he has represented Bowen.

"I am not presently the agent for Tom Bowen and refer all questions regarding Mr. Bowen to him, as I do not think, for confidentiality reasons, it is appropriate for me to discuss any prior relationship with Tom Bowen,'' McCutchen wrote.

"Suffice it to say, any professional relationship I might have had with Tom Bowen was fully vetted, before any negotiations took place, with the University of Memphis. University Counsel Sheri Lipman, who is now a United States District Judge, as well Dr. Shirley Raines, who was President of the University of Memphis at time of the 2013 negotiations, were intimately involved in the Pastner contract process when Coach Pastner's 2013 contract was negotiated. The University of Memphis had multiple reputable individuals, in addition to AD Tom Bowen, involved in the negotiation process during the 2013 negotiation process, as it did in the negotiations both before and after.''

Raines and Lipman have declined interviews to discuss the negotiations.

In a six-sentence email on March 11, Raines said there was little more that she could add.

"With Coach Pastner's offer from another university, Tom Bowen and other university personnel negotiated a contract I signed. It did not match the offer from the other university,'' Raines wrote. "The recommendation and intention were to keep Josh. It was felt that there was a lot of fan and donor support to keep Coach Pastner.''

Though Bowen was quoted in 2013 as saying no school had asked permission to interview Pastner, that he only wanted to be "proactive" in locking the coach into a long-term extension, he has given a different account, with greater detail, in recent interviews.

The athletic director said on March 4 Pastner had an offer from a Power Five school that the U of M couldn't match. As a result, the university essentially converted Pastner's five-year contract to a seven-year contract, adding language that automatically renewed the deal in 2014 and 2015, Bowen said.

"We couldn't match the dollars. So that's why we came up with the years,'' he said, emphasizing the deal had support from administration and top boosters.

"I had conversations with all the major donors … and at the time three years ago they wanted him to be the coach at Memphis,'' Bowen said.

He said he is particularly disappointed Raines has not agreed to discuss details of the negotiations.

"I'm surprised she didn't talk to anybody and why she didn't say anything. I'm really disappointed. I was really disappointed. I mean, because they just kind of left me out there. I'm the one guy that tells the truth and catching all the arrows? I'm catching a lot of arrows. I'm getting really crucified.''

Raines said in a one-sentence follow-up email Tuesday, "I do not have anything to add to my reply which I sent to you on March 11.''

McCutchen, the agent, said in his email that neither Bowen nor any other athletic director or coach has been paid for participating in NextLevel's annual professional development symposium, which was held at the The Peabody in 2014.

"NextLevel Sports has NEVER made any payment to a collegiate coach, athletic director or university personnel, whether it related to CALS or otherwise,'' McCutchen wrote.

In fairness, McCutchen wrote, Pastner's contract followed a precedent set under former Athletic Director R.C. Johnson. He pointed to former football coach Justin Fuente's May 2012 contract, which did not require him to offset or mitigate payments promised by the university had he been fired and then got a new job. Language in Fuente's and Pastner's contracts promised payments after termination without cause as "liquidated damages.''

"With regard to Coach Pastner's 2013 contract, while mitigation or offset language might be the norm at some schools, it WAS NOT before Coach Pastner's 2013 contract and IS NOT the University of Memphis norm when in it comes to 'liquidated damages' and mitigation language with head coaches in major sports,'' McCutchen wrote.

However, Pastner's potential buyout grew so large for a couple reasons. One, Fuente's buyout was calculated based on 70 percent of his salary; Pastner's is 100 percent. The number of years of payments, grew, too, when Pastner's contract was essentially converted from five to seven years.

Regarding the liquidated damages provision in Pastner's contract that allows him to continue receiving his $2.65 million salary if fired, Bowen said he didn't know how that provision got in the contract.

"I wasn't part of that. I wasn't part of those discussions. I just wasn't.''