The vetting and hiring of a new coach is one of the most critical responsibilities athletic directors face. Athletic directors work to identify coaching candidates that will give the university’s teams an opportunity to win games. At the same time, they must also identify coaching candidates that will satisfy concerns of the various university stakeholders. The University of Tennessee’s recent coaching search demonstrates what happens when an athletic director fails to do the latter. The fallout at Tennessee serves as a cautionary tale for all athletic directors, and offers critical lessons that every athletic director must learn before embarking on a new coaching search.

The #SchiaNO Movement and Its Effect on Tennessee’s Coaching Search

In the early morning of November 26, 2017, the University of Tennessee’s then-Athletic Director, John Currie, boarded a plane destined for Columbus, Ohio. At the time, Currie intended for that trip to result in him hiring Ohio State’s Defensive Coordinator, Greg Schiano, as Tennessee’s next head football coach. Currie nearly succeeded in executing that plan, as he successfully procured Schiano’s signature on a memorandum of understanding and had a plane lined up to transport Schiano to Knoxville to be introduced as Tennessee’s coach later that evening. That announcement, however, never happened.

In the few hours it took Currie to travel to Columbus and meet with Schiano, Tennessee football supporters caught wind of Schiano’s imminent hire and united in a public backlash. Government officials, fans, students, alumni, national and local media, and even the White House Press Secretary spoke with a shared voice in opposition to Currie’s decision to hire Schiano, and they banded together around the catchy Twitter hashtag “#SchiaNO.”

In its core, the #SchiaNO movement was a reaction to deposition testimony of a Penn State whistleblower indicating that Schiano knew of Jerry Sandusky’s sexual misconduct but failed to properly report it to authorities while Schiano was employed as an assistant coach at Penn State in the 1990s. As the #SchiaNO movement grew, further reports detailing Schiano’s controversial tenure as head coach of the Tampa Bay Buccaneers added additional fuel to the fire.

With unprecedented speed, the #SchiaNO movement brought an end to Schiano’s candidacy and to Currie’s tenure as Tennessee’s athletic director. Within hours of its creation, the #SchiaNO movement caused Tennessee to back out of its memorandum of understanding with Schiano and transition the search to other candidates. In the following week, Tennessee removed John Currie from his position as Athletic Director and replaced him with former Tennessee head coach Phil Fulmer.

These events should serve as a cautionary tale for athletic directors across the country. Indeed, all athletics directors should be vigilant on the following issues before embarking on a new coaching search because there is a very real possibility their career will hang in the balance.

Vet Coaching Candidates the Way the Public Will Vet Them

In the immediate aftermath of the #SchiaNO movement, John Currie released a statement indicating that he “carefully interviewed and vetted” Schiano before he met with him in Columbus on November 26, 2017. According to his statement, Currie’s vetting process included a review of Louis Freeh’s 2012 investigation report detailing the findings of Freeh’s investigation into the Penn State/Sandusky scandal. Currie’s vetting process also included inquiries to The Ohio State University to confirm that Schiano was never called upon to testify as part of the investigation. Those steps were, of course, necessary for Currie to properly vet Schiano, but they were not sufficient. Absent from Currie’s statement was any indication of detailed investigation and consideration on Schiano’s tenure at Penn State.

Any consideration of Schiano should have included information likely available to Tennessee football supporters who would vet Schiano by searching Google, Twitter, and other online resources to find information published about Schiano’s coaching history. Even a cursory on-line search would have located the July 2016 Washington Post article entitled “Greg Schiano, Tom Bradley knew of Jerry Sandusky abuse at Penn State, documents show” that mobilized supporters behind the #SchiaNO movement. This would be an issue that would alert the need to conduct further investigation and to proactively explain a hiring decision despite such information.

Athletic directors must recognize their fan bases now have immediate access to extensive information regarding coaching candidates. Relatedly, athletic directors must not underestimate fans’ willingness and ability to unearth anything and everything ever published about a new coach. Failure to adequately consider and prepare for the results of public vetting may result in an embarrassing, and potentially damaging, outcome.

Use of a Robust Morals Clause in Coaching MOUs

When fully executed, a MOU between a coaching candidate and a university can serve as legally enforceable document that defines the parties’ rights and obligations before they enter a formal employment agreement. Accordingly, athletic directors must recognize the exposure for themselves and their employers to potential litigation the moment they put pen to paper and sign a MOU. In the Schiano saga, this threat of litigation is somewhat complicated by a partially-executed MOU.

Athletic directors can, however, take steps to mitigate such risks by including a morals clause within legal documents pertaining to athletic employment, including MOUs. Morals clauses have become standard provisions in endorsement contracts for sponsors that engage popular athletes to promote their brand and allow sponsors to terminate the agreement if the athlete engages in conduct that contrasts with community standards of honesty or good morals.

Tennessee’s coaching search is instructive as to the importance of morals clauses in MOUs with coaching candidates. If the Schiano/Tennessee MOU had a robust morals clause that provided Tennessee an exit option upon information implicating Schiano’s morals (particularly with respect to the course of prior athletic employment), the litigation threat from Schiano would be diminished.

Appropriate Standard of Review When Evaluating Coaches with a Tainted Past

A common refrain by those criticizing the #SchiaNO movement is that the deposition testimony connecting Schiano to the Penn State scandal constitutes double-hearsay that would be inadmissible in court. While that might technically be true (one Penn State assistant testified regarding what another assistant had told him about Schiano’s purported statements), that is not the determinative standard of review for athletic directors when evaluating a coaches with a tainted past.

The ultimate arbiters of an athletic director’s coaching decision are the various stakeholders of the university’s athletics programs, such as the board of trustees, administrative leadership, students, parents, boosters, and fans, not to mention the media. None of these stakeholders are constrained by the Rules of Evidence or bound by the standards of proof used by a court of law. For this reason, athletic directors must use a standard of review that accounts for this reality when evaluating coaching candidates with a tainted past. More specifically, athletic directors should adopt a standard of review that measures, at a minimum, the following three factors:

  • Severity of the Coach’s Suspected Bad Conduct: The #SchiaNO movement gained steam in significant part because Schiano’s suspected bad conduct was so severely reprehensible. But not all scandals are created equal. Athletic directors must identify where a coach’s suspected conduct falls on the severity spectrum and exercise increased caution when such conduct lies at a higher level of severity.
  • Reliability of Evidence Connecting the Coach to Suspected Bad Conduct: The evidence connecting Schiano to the Penn State/Sandusky scandal consisted of sworn deposition testimony from a non-party witness that held no direct financial interest in the outcome of the investigation. Though this testimony was based upon double-hearsay, it is still more reliable than the more speculative evidence connecting coaches to other well-known scandals. Athletic directors must gauge the reliability of evidence connecting a coach to suspected bad conduct and factor that reliability with other information into their decisions regarding that coach’s candidacy.
  • Coach’s Appeal in the Absence of Suspected Bad Conduct: Schiano has a career record of 68-67 as a collegiate head coach. His NFL head coaching record was even worse, as the Tampa Bay Buccaneers went 11-21 during his tenure and received criticism on Schiano’s locker room management. Recognizing this, athletic directors must consider a candidate’s appeal to a University’s stakeholders in the absence of any suspected bad conduct. That is certainly a key factor that stakeholders will consider when passing judgment on the athletic director’s hiring decisions.

The Schiano story provides an extreme example of how important these proactive actions are during a coaching search, and how swiftly an athletic director can be terminated for failing to follow them. The consequences may not always be as immediate and severe as they were for John Currie. However, make no mistake: athletic directors run the risk of damaging their careers and reputations every time they ignore these lessons during a coaching search, even if nobody creates a catchy Twitter hashtag to commemorate their mistake.

A celebrity should maximize the value of their brand by strategically monetizing every aspect of it.  For example, one who becomes famous through the recording industry would consider a career in front of and behind a television camera, through endorsement opportunities that are equity-based, along with employment and other business ventures. This is precisely the path taken by recording artists such as Will Smith and Queen Latifah.  Others, such as Michael Strahan, have taken a different path.  Strahan, a former pro football player, intelligently leveraged the NFL’s platform to build a successful on-camera television career, a television production company and numerous endorsement opportunities. This blog covers key considerations for a celebrity that seeks to avail herself or himself of ancillary revenue streams and how to go about protecting and preserving that brand.

BUILDING A BRAND – DNA MATCHING

For any celebrity, monetizing a successful brand requires that you develop, enhance and market your organic DNA and match it with brands with a substantially similar DNA. In many respects, you are who you are. A product is what it is. For the DNAs to work together, they have to match.

If you are uncharacteristically big, strong and powerful like LeBron James, Ezekiel Elliot or Kristaps Porzingis, you should be purposeful in pursuing opportunities that are consistent with those personal characteristics. Examples of those opportunities may be a Porsche, BMW or Dodge’s RAM Truck. Those brands symbolize strength and power and, therefore, share the same DNA as the aforementioned celebrities.

If you are strikingly beautiful and graceful like Beyoncé, Jennifer Lopez or Skylar Diggins, you should pursue opportunities that match that DNA.  Examples of matching DNA may be found in clothing lines, makeup and fragrances.

The first steps for a celebrity that desires to monetize their brand is to assess their organic DNA, be purposeful about enhancing that DNA and marketing it to companies that sell products or services that share the same DNA.

WHAT ARE YOU ENDORSING?

Once the celebrity matches their DNA with that of a company, the objective is to maximize the brand. Because celebrities will be paid more for endorsing multiple products instead of just one, they should consider narrowing the scope of an endorsement obligation. For example, if an athlete intends to endorse only “sneakers,” the endorsement agreement should not say the athlete is endorsing “footwear.” An athlete who has unknowingly signed an endorsement agreement for footwear could find himself or herself obligated to endorse everything one wears on their feet: sneakers, shoes, boots, flip flops, etc. Unintentionally including these additional categories foreclose the athlete’s opportunity to be paid an endorsement fee for endorsing, by way of example, shoes in addition to sneakers.

The same applies to actors and musicians.  An actress that expects to endorse “makeup” should not allow the endorsement agreement to be so broad that it includes all products considered to be in the “glamour category”.  The “glamour category” arguably includes hair products and is beyond what is intended by the term “makeup”.  While this might not be problematic for the athlete, additional compensation is warranted for the additional products. Simply put, there is an opportunity cost associated with every micro-product or service that a celebrity endorses and celebrities should seek to be compensated for each area.

A company may tell a celebrity that although the product category in an endorsement agreement precludes them from endorsing a broad range of products, their practice has been to grant a waiver to allow the celebrity to endorse pretty much whatever they want. In the end however, the agreement says what it means and means what it says. Don’t expect the endorsement agreement to be enforced any differently than what is written.

REVERSE MORALS CLAUSES

Companies that ask celebrities to serve as pitchperson typically require morals clauses in contracts, which give them the right to terminate an agreement in the event an athlete engages in conduct that contrasts with community standards of honesty or good morals (for example, convictions for DUI or use of banned substances).  It is understandable that a company would not want to continue its affiliation with a celebrity whose poor conduct has diminished the value of their brand. Similarly, celebrities must protect their brands against wrongdoing on the part of the companies (or their executives) they have agreed to endorse. For instance, if a celebrity is endorsing a product that has unintended health consequences, the celebrity may want to cease supporting the company. Including reverse morals clauses in an endorsement contract empowers a celebrity to terminate his or her agreement with a company in the same manner in which a company may disengage.

PROTECTING THE BRAND FROM ATTACK

Very often, unscrupulous individuals seek to attack celebrity brands. This may include everything from late night telephone calls threatening prosecution for a false sexual assault allegation to a claim that the celebrity figure allegedly offered to pay the claimant to abort an unborn child. There is simply no limit to the way in which individuals may seek to attack and, in some circumstances, extort the brand. An assessment has to be made on the validity of the claim.  At the same time, there is a critical step that must be taken as soon as the brand comes under attack.  Every reasonable step must be taken to make the brand unassailable.  The best way to achieve that is to quickly determine instances in which the claimant has been dishonest or misleading in matters relating to the celebrity. Armed with that information, the celebrity must swiftly utilize that information in court, in the media or such other strategically determined intended audience.

 

Notwithstanding the glitz and glamour of multi-millionaire race drivers and champagne, Formula One is all about data. Analytics are fundamental to understanding Formula One races. Teams are fueled by data, and around every corner you’ll find a car fitted with over 150 sensors monitoring car and driver behavior. These sensors track vital stats such as brake wear, tire life and driver biometrics. In one lap, they can transmit 2GB of data; over the course of a full race, 3TB of data.

NBA teams too are now using a form of technology, called “Player Tracking,” that evaluates the efficiency of a team by an analysis of player movement. According to the SportVu software website, teams in the NBA are now using six cameras installed in the catwalks of arenas to track the movements of every player on the court and the basketball 25 times per second. The data collected provides a plethora of innovative statistics based on speed, distance, player separation and ball possession. Examples include stats on how fast a player moves, how far he travels during a game, how many times he touches the ball, how many passes he makes, how many rebounding opportunities he has, and much more. The information is available to fans on NBA.com and NBA TV. Data analytics are also common in the MLB, NFL, MLS and other professional and collegiate sports, where statistics have become vital in analyzing games and players.

But gathering data in the volume and depth that is necessary to make accurate predictions comes with risks. What if the data falls into the wrong hands? How valuable would detailed statistics be? Of course, teams have traditionally monitored their opponents by sending scouts to games, or watching hours of video re-runs, while meticulously making notes on individuals’ performances; but access to the “fire hose” of data collected during training would provide a huge shortcut.

For example, in Formula One, a data or system loss, or even a malware infection, and the race is lost.  Formula One teams have data centers on the side of the track, processing every nanosecond of the race.  If any of that data fell into the wrong hands it could be disastrous, which is why Formula One teams take data security extremely seriously.

Interestingly, tools needed to make sure data can be collected safely and kept only in the hands of those who it’s intended for are already available. The problem is that outside of a few highly data-driven sports, such as Formula One, most clubs and teams just aren’t aware enough of the dangers to have implemented them. Like businesses gathering data, sports teams too should have a full understanding of any and all obligations and requirements under relevant data protection legislation.

Communication is also critically important, i.e., appropriate disclosure of what data is being collected and how it is stored. It’s also important to learn about and put in place the appropriate security measures to guard data, and to implement the necessary policies on deleting data a sports team no longer needs. The digital revolution engulfing sports has many challenges to overcome, but the point is that whether in sports or business, when data becomes an important asset that drives important decisions and competitiveness, it needs to be protected like any other important asset.