FOOTBALL COACH CONTRACTS: WHAT DOES THE STUDENT-ATHLETE HAVE TO DO WITH IT?

Linda Sheryl Greene’

I. INTRODUCTION

“Iflt’s Fall, It’s Football”1

Acronym laden satellite trucks; advertising dirigibles with overhead cam shots; fresh-faced athletic cheerleaders; snappy marching bands; tailgates and brats; beer and Bloody Mary’s; parties for the younger and receptions for the older; painted students; the “Wave” and the “Streak;” and there is also money, and lots of it at this crowded intersection of commerce and collegiate sport! According to the federal government statistics, the Football revenues of the National Collegiate Athletic Association (NCAA) “Football Bowl Subdivision”2 3 teams are close to two billion dollars per season, while their expenses are close to one billion dollars.4 In 2005, football Bowl revenue payouts from a single bowl game to participating schools and their athletic conferences ranged from 750,000 to 17 million5 with total revenue from Bowl Championship Series games

* Evjue Bascom Professor, University of Wisconsin Law School. A.B., California State University Long Beach; J.D., University of California at Berkeley (Boalt Hall). The author thanks Elizabeth M. O’Callaghan, Ph.D. Student in Higher Education at UW-Madison for her invaluable assistance with research and writing of this article, as well as Derek Gilliam. The author also thanks Stewart Macaulay and Gordon Smith for their incisive insights on the role of contracts in culture. ' The football stadia of major athletic conferences average from 56,000 for Atlantic Coast Conference to 80,000 for the Big Ten Conference, with average attendance at 88 percent. J. Sandbrook, The Knight Foundation Commission on Intercollegiate Athletics, Division I- A Postseason Football: History and Status, Table 3-2 (June 2004), http://www.knightcommission.org/images/uploads/sandbrook_2004.pdf. 2 The National Collegiate Athletic Association (NCAA) divides its university and college member institutions into divisions for purposes of sport competition with membership depending on a number of factors including the number of sports competed, number of games or competitions, and number of participants. Schools with football teams are further divided into a “Football Bowl Subdivision,” which was previously known as Division I-A, and a “NCAA Football Championship Subdivision,” which was previously called Division I-AA. NCAA, What’s the Difference Between Divisions 1,11 & HI?, http://www.ncaa.org/about/div_criteria.html (last visited Mar. 8,2008). 3 U.S. Department of Education, Office of Postsecondary Education, Aggregated Data for a Group of Institutions- Revenues, http://ope.ed.gov/athletics/screen_detail.asp (last visited Sept. 23, 2007) ($1,801,190,956 in revenues) (on file with author). 4 U.S. Department of Education, Office of Postsecondary Education, Aggregated Data for a Group of Institutions- Expenses, http://ope.ed.gov/athletics/screen_detail.asp (last visited Sept. 23, 2007) ($1,079,827,185 in expenses) (on file with author). 5 Mark Baucher, Corporations Give Athletics $6.6 Million- Company Sponsorship o f Athletic Teams up 20 Percent Since Last Year, Stan. Daily, May 16, 2000, http://daily.stanford.edU/article/2000/5/16/corporationsGiveAthletics66MillionCompanySponsorshi pOfAthleticTeamsUp20PercentSinceLastYear (Corporate sponsorship of Stanford athletics has grown to about $6.6 million for 1999-2000, including cash payments for advertising in-kind payments and apparel given to the teams); College Football Bowl Glance, http://www.statesman.com/sports/content/sports/stories/longhoms/12/whaleybowlglance.html (last visited Mar. 8, 2008) (Dec. 26,2005- Jan.4, 2006 bowl game payouts from $750,000 for the Motor 666 UMKC LAW REVIEW [Vol. 76:3 in 2005-2006 at over $120,000,000.6 Universities receive millions of dollars from sales of clothing bearing the name of athlete stars7 and the university.8 Companies such as Nike and Adidas pay millions in cash and sports apparel in exchange for a university’s agreement that athletes and athletic department personnel will wear a company’s apparel, use its equipment, and prominently display the company’s logo. 9 The salaries of head coaches also confirm that that coaching is big business.10 11 Head football coaches receive an average of $950,000 annually with nine such coaches making over $2 million per year.." Often the highest paid employees of universities, the salary levels are driven by the round-the-clock responsibilities of a head football coach, competition with universities and professional teams, and the economic value of multimedia and marketing rights.12 There has also been a four billion dollar building boom in college sports facilities, mostly for football stadia and improvements such as skyboxes; some characterize this trend as a “college arms race” with no end in sight.13

City Bowl to $14,998,000 for the Rose Bowl). See also Robert McCormick & Amy McCormick, The Myth o f the Student Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 71, 131-34 (2006). 6 McCormick & McCormick, supra note 5, at 134. 7 D. Stanley Eitzen, Slaves o f Big-Time College Sports, USA TODAY, Sept. 1, 2000, at 27. 8 C. Peter Goplerud 111, Pay for Play for College Athletes: Now, More than Ever, 38 S. Tex. L. Rev. 1081,1087(1997). 9 Id. 10 Earl Smith has coined the phrase “Athletic Industrial Complex,” which he used to describe the interlocking systems that emanate like a spider’s web from athletics departments such as coaches salaries, television contracts, stadium construction, air travel and hotel accommodations. Earl Smith, Race, Sport, and the American Dream 117-49 (Carolina Academic Press 2007). 11 For a description of the contract data reviewed for this article, see text accompanying footnotes 41-48, infra. See also Jodi Upton & Steve Wieberg, Million Dollar Coaches Move into Mainstream, USA Today, Nov. 16, 2006, at Al. These high salaries come from a variety of sources, including base salary commitments from individual institutions, to additional compensation opportunities from speaking, television and radio engagements, product endorsements and football camps. There are also various incentive programs for coaches for longevity and post-season team performance as well as the academic performance of their student- athletes. Id. 12 Upton & Wieberg, supra note 11, at A l. See also Anita Weier, What’s a Winner Worth?: Should a Football Coach Earn More than Top UW Academics?, The Capital Times (Madison, Wis.), Feb. 16, 2007, at Al. 13 The Knight Commission on Intercollegiate Athletics, A Call to Action: Ten Years Later, in A Call to Action: Reconnecting College Sports and Higher Education (2001), available at http://www.knightcommission.org/about/a_call_to_action_ten_years_later/ (last visited Mar. 8, 2008). For example, in 2007, The Ohio State University, a school that spent $109,382,222 on athletics, recently spent $19.5 million in a renovation of its football facilities. Jon Weinbach, Inside College Sports' Biggest Money Machine, Wall St. J., Oct. 19, 2007, at W4. Ohio State’s football program generated 57 million dollars in revenue and spent 23 million on football, with the remainder used to support the rest of the varsity sports program. Id. 2008] FOOTBALL COACH CONTRACTS 667

A paradox lies at this unique intersection of education and commerce. The NCAA is an athletic organization composed of educational institutions14 with a number of purposes recognized in its Constitution. These purposes include the provision of “intercollegiate athletics programs for student-athletes . . the adoption of “eligibility rules to comply with satisfactory standards of scholarship, sportsmanship, and amateurism . . and the maintenance of a distinction between its sports programs and those of official professional sports leagues.15 One commentator stated the problem in terms of two competing paradigms: the amateur/education model and the commercial/education.16

Under the prevailing amateur/education model, college sports are an avocation, engaged in by student-athletes to reap the educational, physical, mental, and social benefits presumably derived from athletic competition . .. . The commercial/education model recognizes the dynamic influence which commercialism exerts over intercollegiate athletics. The commercial/education model, more closely reflective of the modem day economic realities of college sports, can thus be contrasted with the competing amateur/education model, premised on illusory assumptions which fail to acknowledge commercialism as the driving force in college athletics.17

It is not surprising that universities fielding culturally want to maximize the tangible and intangible benefits of sport-generated fame by fielding ever more competitive teams. The performance pressure has led some employees to succumb to the temptation to pursue success at the expense of ethical and academic integrity. Too many have been willing to run the risk of academic fraud in order to achieve that success.18 The history of intercollegiate athletics — especially that of football and basketball - is littered with such examples.19

14 2007-2008 NCAA Division Manual, NCAA Constitution Art. 3.02, http://grfx.cstv.com/photos/schools/stan/genrel/auto_pdf72007-08_dl_manual.pdf [hereinafter NCAA Constitution]. 15 Id. at Arts. 1.2(a), 1.2(c), and 1.3.1. The NCAA seeks “to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.” Id. 16 Timothy Davis, Intercollegiate Athletics: Competing Models and Conflicting Realities, 25 Rutgers L.J. 269,271 (1994). 17 /(/.(citations omitted). 18 Alfred Dennis Mathewson, The Eligibility Paradox, 7 Vill. Sports & Ent. L.J. 83,106 (2000). 19 For accounts of academic misconduct including several well publicized cases at major universities, see e.g., Nathan Hunt, Cureton v. NCAA: Fumble! The Flawed Use o f Proposition 16 by the NCAA, 31 U. Tol. L. Rev. 273, 277-79 (2000); Kathleen B. Overly, The Exploitation o f African-American Men in College Athletic Programs, 5 Va. Sports & Ent. L.J. 31, 35-36 (2005); Jo R. Potuto, Academic Misconduct, Athletics Academic Support Services, and the NCAA, 95 Ky. L.J. 447 (2005); Welch Suggs, Once Again U of Minnesota Asks Why its Athletes are Scandal- Prone, Chron. Higher Educ. (Wash., D.C.), July 16, 1999, at A41 (article on the University of 668 UMKC LAW REVIEW [Vol. 76:3

In a series of academic eligibility reforms beginning in the 1960’s and continuing to the present day, the NCAA has fought the dogged charge that the organization is an anticompetitive profit-driven economic cartel masquerading as an educational enterprise. Others have charged that the NCAA is indifferent to the interests of the student-athletes who make up its profitable entertainment “work force”, ,20 21 and that student-athletes who receive grants-in-aid to play NCAA revenue generating sports are legal employees” rather than student athletes..22 Beginning in 1983 with Proposition 4823 to a recent requirement imposing percentage graduation requirements,24 the NCAA has fought back, seeking to brand itself as a sports organization committed to academic integrity.25 Though its efforts have been criticized and disparaged as minimal and cosmetic,26

Minnesota, a program with a long history of academic scandal in pursuit of athletic preeminence); Matthewson, supra note 18, at 106-07. 20 See Chad W. Pekron, The Professional Student-Athlete: Undermining Amateurism as an Antitrust Defense in NCAA Compensation Challenges, 24 Hamline L. Rev. 24,25-26 (2000). 21 McCormick & McCormick, supra note 5, at 96-114. See also Otis B. Grant, African American College Football Players and the Dilemma o f Exploitation, Racism, and Education: A Socio- Economic Analysis o f Sports Law, 24 Whittier L. Rev. 645 (2003) (college football players have contractual relationships with their universities). 22 See generally McCormick & McCormick, supra note 5, at 96-130 (Reviewing both common law and NLRA criteria for employee status, McCormick and McCormick concluded that football players are employees because the primary focus of their activity at the university is athletics rather than academics. Moreover, they are supervised by non-faculty and their relationship to the university is exclusively economic.) 23 in a series of academic reforms, the NCAA increased academic qualifications for Division 1 athletic eligibility. Initially, the NCAA adopted Proposition 48 which conditioned initial eligibility upon the achievement of a 2.0 average in core, specified courses, and a minimum core of 700 on the SAT or 36 on the ACT. See Linda S. Greene, The New NCAA Rules o f the Game: Academic Integrity or Racism, 28 ST. Louis U. L.J. 101,103 (1984). In 1989, the NCAA adopted a measure called Proposition 42, prohibiting member institutions from providing financial aid to freshman athletes who did not meet the minimum proposition 48 requirements. In 1992, the NCAA added Proposition 16, which introduced a “sliding scale under which both the SAT or ACT, as well as the high grade point average determined eligibility. Under this eligibility formula, the NCAA increased the minimum test scores required for eligibility while retaining the 2.0 grade point requirement in specified core courses.” Kenneth L. Shropshire, Colorblind Propositions: Race, the SAT, & the NCAA, 8 Stan. L. & Pol’y Rev. 141 (1997). These eligibility requirements, and subsequent modifications, are contained in NCAA Bylaw 14.3 et seq. NCAA, History of Academic Reform, http://www2.ncaa.org/portal/academics_and_athletes/education_and_research/academic_reform/his tory.html (last visited Mar. 8, 2008). In its most recent regulation, the NCAA will monitor the eligibility and retention of student athletes by setting minimum percentage standards for graduation and will withdraw scholarships from teams that do not meet minimum standards. 25 History o f Academic Reform, supra note 23. 26 Mathewson, supra note 18, at 105 (“[Propositions 48 and 16’s] principle function was not to increase the value of the educational opportunity afforded to student-athletes, but to lessen the image that the NCAA and its members were offering professional sports.”). See also K. Todd Wallace, Elite Domination o f College Football: An Analysis of the Antitrust Implications o f the Bowl Alliance, 6 Sports Law. J., 57 (1999). 2008] FOOTBALL COACH CONTRACTS 669 discriminatory against blacks,27 and motivated by anticompetitive concerns,28 the academic integrity movement continues both within and without the NCAA.29 30 The debate continues over the question whether calls for reform are substantive or show. But there is no doubt that the institutions associated with successful and lucrative sports operations are extraordinarily visible and that visibility carries with it the potential for both positive and negative reputational consequences—a veritable “two edged sword. 0 The August 2007 Appalachian College victory over the University of Michigan31 demonstrated the immediate national recognition that may be associated with a single successful football engagement. Those benefits include: name recognition for universities competing for the hearts and minds of America’s high school graduates; dollars for new buildings; named professorships; luxurious athletic facilities;32 and revenue from the sale of

27 See Greene, supra note 22, at 101; Overly, supra note 19, at 59-60; Smith, supra note 10, at 108. 28 See Peter C. Carstensen & Paul Olszowka, Antitrust Law, Student Athletes, and the NCAA: Limiting the Scope and Conduct of Private Economic Regulation, 1995 Wis. L. Rev. 545, 548 (1995): Any college which opts to have intercollegiate athletics programs will incur major sunk costs in those programs. The coaching staff, athletic equipment, and facilities will be used efficiently only if used extensively. While scope and intensity of athletics programs varys [sic] dramatically, once colleges make an investment, as rational economic actors, they want to have commercially successful programs. There is no alternative use for the investment. Hence, each college has an incentive to evade rules, to develop regulations that will minimize costs, and to protest any enforcement that may threaten the economic integrity of its programs. Moreover, sub-groups of colleges have incentives to seek to disadvantage other colleges that are economic competitors for players and/or audience. Id.', see also Mathewson, supra note 18, at 105; Pekron, supra note 20, at 25-26. 29 Since 1989, The Knight Commission of the Knight Foundation has spearheaded a dialogue about reform in intercollegiate athletics: The Knight Foundation Commission on Intercollegiate Athletics was formed by the John S. and James L. Knight Foundation in October 1989 in response to more than a decade of highly visible scandals in college sports. The goal of the Commission was to recommend a reform agenda that emphasized academic values in an arena where commercialization of college sports often overshadowed the underlying goals of higher education. Knight Commission on Intercollegiate Athletics, supra note 1. 30 Knight Commission on Intercollegiate Athletics, supra note 1: Renown for athletic exploits can be a two edged sword if the university is forced to endure the public humiliation of sanctions brought on by rules violations. Above all, the fragile institution of the university often finds itself unable to stand up against the commitment, the energy and the passion underlying modem intercollegiate athletics. Id. 31 Teddy Greenstein, Life in the Fast Lane; Appalachian State Gets Star Treatment, Chi Trjb, Sept. 2, 2007, at C l. 32 There is an ongoing debate over the question of whether successful football teams result in more applicants and economic benefits to schools and their surrounding communities. See Robert Baade, Robert Baumann & Victor Matheson, Down, Set, Hike: The Economic Impact o f College Football 670 UMKC LAW REVIEW [Vol. 76:3

branded college clothing. A successful football team bathes a university in a glow of celebration that lingers long beyond a crisp Saturday fall afternoon. Successive victories bring the promise of warm climate bowl games at the beginning of winter33 as well as donors clamoring to pay any premium for better seats and a first shot at bowl game tickets. However, in a heartbeat, that glow can be undone when allegations of misconduct are leveled at student-athletes. The sweet face of adulation towards college athletes may quickly turn to one expressing outrage over the coddling and privileging of college athletes. The Duke Bluedevil Lacrosse debacle and its “Tale of Two Cities” narrative34 and the 2001 rape scandal at the University of Colorado35 are just two recent examples. These risks may be greater in the contexts of sports, like football, that are vehicles of opportunity for young men from wildly different socioeconomic, cultural, education backgrounds. Universities recruit them for sports-related competitive reasons as well as to provide otherwise unavailable educational opportunities, that might be otherwise physical and mental sport potential as well to provide sports potential These young people often leave their smaller communities to live as perpetually visible

Games on Local Economies, (College of Holy Cross, Dep’t o f Economics Faculty Research Series, Paper No. 70-02) (February 2007), available at http://www.holycross.edu/departments/economics/RePEc/Tvlatheson-Baumann_CollegeFootball.pdf (successful football programs bring fame but not necessarily fortune). 33 Mark Hales, The Antitrust Issues o f NCAA College Football within the Bowl Championship Series, 10 Sports Law.J. 97, 101 n.23 (2003). 34 Charles Dickens novel, Tate of Two Cities (1859) about the run-up to the French Revolution, opens with a paragraph among the most well known in literature: "It was the best of times, it was the worst of times; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity; it was the season of Light, it was the season of Darkness; it was the spring of hope, it was the winter of despair...” Id at 1. So to it was at Duke, whose academic fortunes have soared in its reputation as one of the top ten universities in the country, and one of the leading research universities in the United States and whose reputation was sullied by a stripper party hosted by the Duke men’s lacrosse team.. See http://colleges.usnews.rankingsandreviews.com/usnews/edu/college/rankings/brief7tlnatudoc_brief. php In late March of 2006, the members of the Duke University Lacrosse team had a party with two invited strippers that led the District Attorney, Gary Nifong, to charge three of the players with the rape and assault of one of the of the strippers, an African American women. The result was a nightmare for all involved. See Viv Bernstein & Joe Drape, Rape Allegation Against Athletes is Roiling Duke, N.Y. Times, Mar. 29, 2006, at A1 (the matter resulted in negative publicity for Duke and the cancellation of the remainder of its lacrosse season); Sara Lipka, Embattled Duke Lacrosse Players Abused Alcohol and Had Little Oversight, Reports Say, Chron. Higher Educ. (Wash., D.C.), May 12, 2006. Eventually, charges were dropped against the players and the district attorney was disbarred and prosecuted for contempt of court. Nifong Surrenders License: Prosecutor of Duke Lacrosse Rape Case Disbarred for Conduct, Balt. Sun, June 17, 2007, at A3. See generally Duke University, Report of the Lacrosse Ad Hoc Review Committee, http://www.dukenews.duke.edu/mmedia/features/lacrosse_incident/lacrossereport.html. (last visited Mar. 8,2008) [hereinafter Lacrosse Ad Hoc Review Committee]. 35 Jennifer Jacobson, Sex and Football: A Scandal at the University o f Colorado at Boulder, Chron. Higher Educ. (Wash., D.C.), Feb. 27, 2004 (points to nationwide problems in recruiting). See also Douglas Lederman, Colleges Seek Tactics to Prevent Criminal Conduct by Athletes, Chron. Higher Educ. (Wash., D.C.) Nov. 10, 1995, at B I. 2008] FOOTBALL COACH CONTRACTS 671 celebrities in what are often the small population enclaves that characterize many “town-gown” environments. Many make the adjustment without incident, but some do not,36 and the resultant headlines send high-level college officials scrambling to do reputation damage control.37 Some advocate get-tough measures including automatic suspensions38 and scholarship revocations after arrests, or a prohibition on the admission of athletes with troubled backgrounds.39 Others say that the role and responsibilities of the football head coach are key to the development of student athlete character and intellectual maturation in the highly-charged and visible context of big-time college football.40

36 See Emmett Gill, The Role of Type of Sport, Race, and Gender in the Identity and Grade Point Average of Division One Student Athletes (2007) (unpublished Ph.D. dissertation, University of Maryland) (on file with author). Gill advocates a social work approach to the management of student athletes, observing that: Some life challenges that affect student athletes can be partially attributed to the current fanatic, entertainment-like environment that dominates intercollegiate sports and affects the identity and overall self concept of student-athletes . . . [but] can also be attributed to ignoring historical and lifelong issues that accompany student-athletes to college campuses. Direct and objective services are sorely needed to help student- athletes cope with their upbringing and how it impacts their current environment, as well as provide student-athletes with the necessary tools to adapt to their immediate environment. Id. at 123. 37 See Jack Carey, Duke Report Urges Stricter Oversight, USA Today, May 2, 2006, at 12C. See also Lacrosse AD Hoc Review Committee, supra note 33. 38 Sara Lipka, Punishing Personal Fouls, Chron. Higher Educ. (Wash., D.C.), Jan. 13, 2006, at 43. 39 Jeffrey R. Benedict, Colleges Must Act Firmly When Scholarship Athletes Break Laws, Chron. Higher Educ. (Wash., D.C.), May 9, 1997, at B6. 40 See Douglas Lederman, supra note 34, at BI (“Day-to-Day interaction with department personnel, particularly coaches - the kind of people they are and what they stand for - is going to send a much stronger message than anything programmatic.”) (quoting Ted Kissell, the Athletics Director of the University of Dayton). See also Edward Wong, There's No Stopping Athletes Misbehavior, N.Y. Times, Dec 23, 2001, § 8, at 1 (“What I am saying anecdotally is that coaches are reclaiming a role of educators of university morals, universal virtues.”) (quoting Todd W. Crosset, Associate Professor of Sport Management, University of Massachusetts at Amherst); Office of Operations Review and Audit- University of Wisconsin System, Academic Performance Standards in NCAA Division I and II UW Athletic Coaches Contracts and Performance Evaluations, (Sept. 2006), at i, http://www.uwsa.edu/audit/coachcontracts.pdf. (The Board of Regents of the University of Wisconsin System asked that the State Office of Operations Review and Audit to review all coach contracts to determine whether academic standards were included in those coach contracts and performance evaluations.) The audit found that some contract and appointment letters for athletic directors and coaches did include specific clauses addressing student-athlete academic achievement. Id. Despite the fact that not all contracts contained these provisions, the audit found that academic performance of student athletes “is routinely considered as part of job performance evaluations.” Id. In addition, the audit reported that those academic administrators interviewed stated that “coaches play an important role in assuring the academic success of members of their teams.” Id. at 2; Chantal Vallee and Gordon Bloom, Building a Successful University Program: Key and Common Elements o f Expert Coaches, 17 J. of Applied Sport Psychology 179,179-82 (2005). 672 UMKC LAW REVIEW [Vol. 76:3

If salaries paid are an important indicia of a university’s valuation of an employee, head football coaches are extraordinarily highly valued. As recently reported by USA Today, and confirmed after reviewing the actual contracts, head coaches receive an average of $950,000 annually with nine such coaches making over $2 million per year1*1 and the highest compensated coach with Kirk Ferentz from University of Iowa receiving a minimum of $4.6 million.41 42 These high salaries come from a variety of sources, including base salary commitments from individual institutions, to additional compensation opportunities from speaking, television and radio engagements, product endorsements and football camps.43 There are also various incentive programs for coaches for longevity44 and post­ season team performance45 as well as the academic performance of their student- athletes.46 Like most commodities, the rationale for paying coaches such high salaries can be boiled down to the basic market principles of supply and demand. National Football League coaching salaries, competition for successful coaches and multimedia and marketing rights have all been cited as sources of inflation for coaching salaries.47 But what is the role of head coaches in relation to the core business of universities, the education of the next generation in preparation for their assumption of societal responsibilities. And yet, the context of the business of football is higher education, and if the enterprise is justifiable in that context, some inquiry into the responsibility of coaches to their student-athletes seems appropriate. The question of whether the intercollegiate sports activity is simply business rather than an extension of the non-profit educational activity, has arisen more recently in the debate over the unrelated business income tax - a tax nonprofits must pay on activities unrelated to their non-profit educational activity. Coach pay, the role of corporate sponsorship, and graduation rates of athletes figure prominently in this debate.48 In 2006, The House of Representatives Committee on Ways and Means, in conjunction with a broad review of the tax-exempt sector, sent a letter to the NCAA president questioning the tax exempt status of the NCAA.49 The twenty-five question letter asked the

41 Universities pay several coaches over 2 million dollars per year including Bob Stoops, University of Oklahoma; Kirk Ferentz, University o f Iowa; Pete Carroll, University of Southern California; Mack Brown, University of Texas; Tommy Tuberville, University of Auburn; Phillip Fulmer, University of Tennessee; Jim Tressel, Ohio State University; Dennis Franchione, Texas A&M University; Frank Beamer, Virginia Tech. University. See USA Today Database, supra note 47. 42 Upton & Wieberg, supra note 11, at A1 (contracts for college coaches cover more than salaries). 43 W. 44 Id. Longevity refers to an agreement to remain at an institution for a specified period of years, regardless of win-loss records or other employment opportunities. For example, Kirk Ferentz received a $400,000 bonus for remaining at the University of Iowa thru June 2006. Id. 45 Id. Participation in bowl games is the most common benchmark for this type of bonus. 46 Id. 91 Id. 48 Elia Powers, Ball’s in the NCAA's Court, INSIDE HIGHER Ed, Oct. 6, 2006, http://www.insidehighered.com/news/2006/10/06/ncaa. " i d . 2008] FOOTBALL COACH CONTRACTS 673

NCAA to state how it accomplishes its purpose “to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body.”50 Among other inquiries, the Committee inquired about low graduation rates, the academic rigor of courses taken by athletes, and the minimum academic standards for intercollegiate athletes.51 The NCAA response emphasized the educational value of having athletics as a part of the overall educational experience, recent academic reforms, and the NCAA progress in “holding] [institutions] more accountable for their players’ academic performance.”52 The NCAA response suggested the importance of an examination of the extent to which higher educational institutions explicitly hold head football coaches accountable for the academic performance of their athletes.53 Therefore, it was hypothesized that the high financial and reputation stakes associated with major football programs, as well as the increasing congressional and NCAA scrutiny of the academic side of football might incent universities to impose explicit responsibilities on head football coaches with respect to academics and citizenship. In order to test this hypothesis, the author examined 44 head football coaching contracts from five major sports conferences. Eight are from the Atlantic Coast Conference,54 nine from the Big IO,55 eleven from the Big 12,56

50 See NCAA Constitution, supra note 15, at Art. 1.3.1. 51 See Powers, supra note 55. 52 I d 53 It should be noted that nothing in this article is intended to demean head football coaches as individuals. They work around the clock, occupy jobs with little or no job security, and manage division size operations under an unforgiving demand for instance success. The reports of the recent deaths of two football coaching greats, Bill Walsh and Eddie Robinson, focused as much on their contributions to the mentoring of innumerable young men as they did on their on the field success. After the death of Eddie Robinson, long time Grambling coach, the outpouring of grief included accolades for Robinson’s positive effect on the lives of the young men he coached and mentored. See Roscoe Nance, Coach recalled as a "Humanitarian " Pioneer Sent More than 200 players to NFL, USA TODAY, Apr. 5, 2007, at C l; Chris Dufresne, Record Setting Grambling Coach Made Civil Rights Part o f Game Plan, L.A. Times, Apr. 5, 2007, at A 10; Rick Stroud, A Coach for a Lifetime Eddie Robinson: 1919-2007, St. PETERSBURG TIMES , Apr. 5, 2007, at 1A (discussing the many lives Coach Grambling had touched in his role as a football coach, and recognizing that not all of his athletes went on to the pros.). The obituaries and reactions on the death of Bill Walsh sounded a similar note of deep admiration for Walsh’s positive effect on the men he coached and mentored. See Pioneering Walsh Recalled as Colossal Figure with 'Common Touch', ESPN.COM, Aug. 9, 2007, http://sports.espn.go.com/nfl/news/story?id=2967840 (last visited Mar. 8, 2008); Former 49ers Coach Bill Walsh Dies at 75, NBC11, July 30, 2007, http://www.nbcl l.com/news/13782440/detail.html (last visited Mar. 8, 2008) (Jerry Rice remarked, “I came to San Francisco and I found another father.. . [Tjhis man meant the world to me, and I’ll never forget him.”). 54 The Atlantic Coast Conference is made up of Boston College, Clemson, Duke, Florida State, Georgia Tech, Maryland, Miami, North Carolina, North Carolina State, Virginia, Virginia Tech, and Wake Forest. The Atlantic Coast Conference, http://www.theacc.com/ (last visited Mar. 8, 2008). 674 UMKC LAW REVIEW [Vol. 76:3 seven from the Pacific Athletic Conference, known as the PAC 10,55 5657 and nine from the Southeastern Conference, known as the SEC.58 All of the contracts are from public schools.59 Almost all were downloaded in early 2006 from a publicly accessible source, 60 and those that were not available on line were obtained directly from the universities. The contracts were read and analyzed for a number of common factors and terms.61

55 The Big Ten is composed of the universities of Illinois at Urbana-Champagne, Indiana- Bloomington, Iowa, Michigan, Michigan State, Minnesota, Northwestern, Ohio State, Pennsylvania State, Purdue, and Wisconsin-Madison. Big Ten Conference, http://bigten.cstv.com/school- bio/big 10-school-bio.html (last visited Mar. 8, 2008). 56 The Big Twelve includes Baylor University, the University of Colorado, Iowa State University, the University of Kansas, Kansas State University, the University of Missouri, the University of Nebraska, the University of Oklahoma, Oklahoma State University, the University of Texas, Texas A&M University, and Texas Tech University. Big 12 Conference, http://www.bigl2sports.com/ot/bigl2-nav-schools-list.html (last visited Mar. 8,2008). 57 The Pacific Athletic Conference is composed of Arizona, Arizona State, the University of California-Berkeley, Oregon, Oregon State University, Stanford University, University of California at Los Angeles, the University of Southern California, the University of Washington, and Washington State University. PAC 10 Conference, http://www.pac-10.org/default/pacl0- default.html (last visited Mar. 8,2008). 58 The Southeastern Conference is composed of the University Alabama, the University of Arkansas, Auburn University, the University of Florida, the University of Georgia, the University of Kentucky, Louisiana State University, the University of Mississippi, Mississippi State University, the University of South Carolina, the University of Tennessee, and Vanderbilt University, Southeastern Conference, http://www.secsports.com/index.php?s=&change_well_id=9998 (last visited Mar. 8,2008). 59 Two public schools (Mississippi State University and University of Mississippi) submitted only outside income reports and were thus excluded from the analysis. According to the Office of the General Counsel of Mississippi State University, under Mississippi law employment contracts are exempt from public records requests. Email from Jennifer Rush, Assistant General Counsel, Mississippi State University, to Linda S. Greene, Evjue-Bascom Professor of Law, Univ. of Wise. Law Sch. (Dec. 3, 2007, 09:25:32 EST) (on file with author). In addition, Counsel for the Pennsylvania State University also asserted that information about the contract of the celebrated Joseph Patemo is exempt from Pennsylvania state records disclosure laws due to the small amount of state money appropriate for the University. Email from John Snyder, Partner, McQuaide Blasko Law Offices, to Linda S. Greene, Evjue-Bascom Professor of Law, Univ. of Wise. Law Sch. (Oct. 2, 2007 14:07:39 EST) (on file with author). Until late December, the matter was in litigation in the Pennsylvania Courts. See Penn. State Univ. v. State Employees’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct., 2005), appeal granted,, 907 A.2d 1104 (Pa. 2006), affd, 2007 Pa. Lexis 2406 (Pa. Nov. 20, 2007). Ultimately, the Pennsylvania Supreme Court decided that the amount of salary paid to state employees, including Mr. Patemo, was not exempt from public disclosure. None of the nine private institutions that are a part of the major NCAA football conferences make football coach contracts available, including Baylor University, Boston College, Duke University, the University of Miami, Wake Forest University, Northwestern University, Southern California University, Stanford University and Vanderbilt University. 60 Upton &Weibert, supra note 11. 61 Id. To see how much each football coach makes see Compensation fo r Div. I-A college football coaches, USA Today, http://www.usatoday.com/sports/graphics/coaches_contracts/flash.htm (last visited Mar. 8, 2008) [hereinafter USA Today Database}. This salary database includes School, Conference, Coach Name, Term Commencement, Term Expiration, Base Salary, Maximum Bonus 2008] FOOTBALL COACH CONTRACTS 675

Part II of this Article discusses the extent to which these contracts impose responsibility, rewards, or penalties related to the academic performance of football players. Part III discusses the presence of any contractual responsibility to control or deter football player misconduct. Part IV examines the relationship between the presence of student academic performance contractual provisions and the academic achievement of football student athletes as measured by NCAA academic progress and suggests that contractual provisions that address head football coach responsibility for athlete academic performance and good citizenship are necessary, but insufficient, to ensure the quality of the student- athlete experience.

II. STUDENT ACADEMIC PERFORMANCE

Institutional decisions to include head football coach responsibility for the academic performance of athletes are based on several concerns. Of course, the NCAA regulations to require that athletes maintain minimum grade point averages make satisfactory progress toward degrees, and more recently graduate in acceptable numbers. Football is a complex tactical sport with great position specificity. Coaches have a strong interest in maintaining the eligibility of as many players as possible in order to rely upon the availability of those athletes in both practice and live competition. There are also academic reputation issues at stake. The existence of a sharp divide between the academic achievement of athletes and the rest of the student body taints the integrity of the institution, creating the specter of hypocrisy in its commitment to academic excellence. In addition, for some parents and some athletes the attractiveness of an institution may rest on their perception of the quality of the educational experience and the prospects for professional success after college beyond the field of play. Additionally, an institution may also wish to communicate to the football coach, who alone is responsible for a significant percentage of athletes making up any athletic department, that the frequently iconic football coach is an individual who possesses enormous power to influence the young men under his control. Such explicit contractual provisions urge that coach to use that power to enhance the academic experience of his athletes. A significant number of the contracts reviewed did impose some academic responsibilities on head coaches. Thirty of the contracts reviewed contain clauses establishing responsibility for student-athlete academic performance.

Salary, and Responsibility for Academic Performance, Bonus for Academic Performance, Responsibility for Student-Athlete Behavior, Bonus for Student-Athlete Behavior, Termination for Cause Provisions, Termination at Will Provisions, Liquidated Damages, Annual Review Process and other additional pertinent information. 676 UMKC LAW REVIEW [Vol. 76:3

Seven are within the ACC,62 five are within the Big 10,63 seven are in the Big 12,64 four in the Pac 10,65 and seven in the SEC.66 For example, the University of Maryland contract with Ralph Friedgen requires that he play an active role in promoting academic achievement.

The Coach agrees that academic progress and achievement of the student- athletes under his supervision is of the highest importance. The Coach agrees to adhere to the University's standards for the academic performance of its student-athletes . . . The Coach will set annual grade-point average goals for the team . . . He will be actively involved in remedying absences from classes, tutorial services, and study tables.67 68

Florida State University requires that Bobby Bowden prioritize “student athlete welfare.”

In concert with the Director of Athletics, Coach is expected to set high standards of player conduct and team and individual discipline which safeguard the institutional mission of the University while prioritizing student-athlete welfare and academic integrity above all else . . . Making every reasonable effort to ensure that all student-athletes’ academic requirements are met in cooperation with and in support of the University faculty and administration . . . . The Coach recognizes and supports the importance to the University of its academic policies, standards and requirements and the Coach hereby agrees to abide by and support these and any future academic standards adopted by the University, in all aspects of his duties as set forth herein.

Indiana University and Coach Terry Hoeppner agree that he will mesh athletic and academic concerns.

Employee is responsible for . . . supporting student-athlete conduct and welfare. . . .[Head football coach] has these additional specific responsibilities: . . . Maintain an environment where the pursuit of higher

62 Georgia Tech University, Virginia Tech University, the University of North Carolina, the University of Maryland, Clemson University, North Carolina State University and Florida State University. 63 The University of Minnesota, the University of Michigan, Ohio State University, Indiana University, the University of Illinois. 64 The University of Nebraska, Texas Tech University, the University of Missouri, Oklahoma State University, Iowa State University, the University of Colorado, Kansas State University. 65 The University of Washington, the University of Arizona, Arizona State University, Washington State University. 66 The University of Tennessee, Louisiana State University, University of Georgia, the University of South Carolina, the University of Florida, the University of Alabama, the University of Arkansas 67 Contract between Ralph Friedgen and the University of Maryland, (2002), at 4, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/maryland_fb.pdf. 68 Contract between Robert C. Bowden and Florida State University, (1999), at 6, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/florida_state_fb.pdf. 2008] FOOTBALL COACH CONTRACTS 677

education is a priority. . . [w]ork to integrate the student-athletes and team into the whole spectrum of academic life so as to complement the University and its mission . . . ,69

The contract between Ron Prince and Kansas State University emphasizes compliance with academic standards and policies.

Coach agrees to comply with the academic standards and requirements of the University with respect to the recruiting and eligibility of prospective and current student-athletes for the football program. Coach will comply with the academic policies established by the University, including monitoring and encouraging the regular progress toward an academic degree of those student-athletes who are on the football team. Coach will make reasonable and good faith efforts, in cooperation with the University's faculty and administration, to meet all student-athletes’ academic requirements and to integrate sports into the whole spectrum of academic life for all student- athletes. Coach will use reasonable efforts to arrange travel and scheduling by student-athletes in such a manner as to minimize lost classroom time.70

Twenty-four schools provide bonuses to the coach for the academic achievement of their players. These bonuses range from $5,000 to $175,000 depending on the level of academic achievement.71 Six of the most highly paid coaches bear responsibility for student-athlete academic performance and five are eligible to receive salary bonuses based on the academic performance of the football team, ranging from $5,000 to $150,000 annually.72 Clemson University, Washington State University and the University of Florida provide for the termination of the coach for a breach of specific sections of the contract that outline responsibility for student-athlete academic performance.73

69 Contract between Terry Hoeppner Indiana University, (2004), at 2-3, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/indiana_fb.pdf. 70 Contract between Ron Prince and Kansas State University, (2005), at 6, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/kansas_state_fb.pdf. 71 See Appendix B. Of the twenty-four teams providing bonuses four are in the ACC (Georgia Tech University, Virginia Tech University, the University of North Carolina and the University of Maryland); two are in the Big 10 (the University o f Minnesota, Ohio State University); seven are in the Big 12 (the University of Texas - Austin, Texas Tech University, the University of Missouri, Oklahoma State University, Iowa State University, University of Oklahoma and University of Colorado); seven are in the PaclO (the University of Washington, the University of Arizona, Arizona State University, the University of California, Oregon State University, Washington State University and the University of California - Los Angeles); and four are in the SEC (Louisiana State University, the University of Florida, Auburn University and the University of Alabama). 72 See Appendix C. 73 See Contract between Tommy Bowden and Clemson University, (2003), at 12-13, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/clemson_fb.pdf; Contract between William A. Doba and Washington State University, (2003), at 6, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/washington_state_fb.pdf; 678 UMKC LAW REVIEW [Vol. 76:3

These contractual provisions suggest that many universities expect football coaches to win on the field and in the classroom, but to what extent do these contractual provisions yield the fruit of academic progress and graduation? In order to determine whether coach explicit contractual responsibility for academic performance is associated with better or worse academic performance, the author compiled information on football athlete graduation rates. Appendix D compiles data based on two different measures of football athlete graduation data - an NCAA Academic Progress Rate74 (“APR”) and the Federal graduation rate75 both of which examine graduation success rates for the student body as well as black

Contract between Urban Meyer and The University Athletic Association, Inc., (2005), at 18-23, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/florida_fb.pdf. 74 See Gary T. Brown, APR 101, Implementation o f Penalty Structure Triggers New Terminology, Consequences, Questions, The NCAA News, Feb. 14, 2005, at 1. For additional information on the purpose and calculation of the APR. see Press Release, National Collegiate Athletic Association, NCAA Division I Board of Directors Gets Outlines for Academic Reform Standards (Jan. 10, 2005), available at http://www.ncaa.org/wps/portal/legacysiteviewer?CONTENT_URL=http://www2.ncaa.org/portal/ media_and_events/press_room/2005/january/20050110_dl_bod.html (last visited Mar. 8, 2008); Power Point: Academic Eligibility Standards and NCAA Reform Measures (Univ. of Wisc.- Madison) (Personnel Committee of the Athletic Bd.) (2007) (on file with author). The Academic Progress Rate structure is the foundation o f the NCAA’s academic reform efforts. The APR, first implemented in January of 2005, is designed to give a “real time” assessment of a school’s academic performance. The APR is based on several factors believed to be more indicative of academic progress than simply considering graduation rates. In calculating a team’s APR score, the NCAA awards two points each term to student athletes who meet certain academic eligibility standards and who remain enrolled at a given academic institution. An APR score is calculated annually for each team. Four years of data determine a team’s APR. This is represented as the “Multi-Year” APR in Appendix D. A team’s APR is the total points earned by the team at a given time divided by the total possible points available. Since the mid-1980s, the NCAA has emphasized the combination of grades, core curriculum, and standardized test results to measure student-athlete performance. In 2004, the NCAA developed the APR metric to evaluate academic success. Broadly speaking, the APR had two goals: to promote a student-athlete culture that fosters academic achievement and to raise current student-athlete academic standards. Some have argued that the APR is a more reliable figure to gauge academic progress than simply considering graduation rates because graduation rate data relies on a six year window while the APR provides a more real-time assessment. 75 See Press Release, National Collegiate Athletic Association, NCAA Division I Board of Directors Gets Outlines for Academic Reform Standards, supra note 73. The Federal graduation rate is a separate standard from the APR and is used to measure student-athlete academic performance. There are different measures of graduation rates. The graduation rate calculated as a percentage for represented by the letter “N” for those students who enter an academic institution and graduate within six years. The Federal graduation rate data calculates student-athlete graduation rates, the student body graduation rate (all students including athletes) and breaks down graduation rates by sport and race. Graduation rates may be affected by a number of factors including whether a student works part-time or takes more than six years to graduate. The rate is also affected by transfer students, academic dismissals, mid-year transfer students, students that die or become disabled, and students that had they returned to the academic institution, would have been academically eligible to compete. 2008] FOOTBALL COACH CONTRACTS 679 and white football players.76 The data available on graduation rates is ambiguous due to these two different approaches to measuring athlete graduation. It is clear, however, that disparities in graduation rates still exist between football players and the general student body - with football players graduating at lower rates. In addition, as Appendix D shows, a striking disparity exists between the graduation success rates of black and white football players. While the APR and the Federal Graduation rates are different measures - both reports ask essentially the same question: whether student-athletes are performing well inside the classroom. To that end, the APR is a term-by-term measure of student-athlete eligibility, retention and graduation for those that have received financial support from an academic institution based in part on athletic ability during a particular academic term77 and also includes a penalty structure for NCAA member institutions whose student-athletes fail to meet minimum academic standards.78 Under the APR structure, each team must maintain a multi-year APR score of at least 925 to avoid “contemporaneous penalties.”79 These penalties are rehabilitative in nature and may result in a team’s inability to replace grants-in- aid of players, for one year, if the teams have students who withdrew from an institution based on poor academic performance.80 These students are called “0- for-2,” and are players who are neither academically eligible nor remain with the institution.81 Teams above the 925 cutoff yet have “0-for-2” players are not subject to the contemporaneous penalty.82 Since the NCAA intended the contemporaneous penalties to serve as a warning to teams whose members are performing poorly and not a sharp demarcation line to withhold funding, the NCAA has limited contemporaneous

76 Column 1 of Appendix D is entitled the “Multi-Year Football NCAA Academic Progress Rate.” It is calculated independently of the data in the remaining four columns. The data in the remaining four columns is taken from the Federal graduation rate statistics. 77 Brown, supra note 73, at 1. The APR is a team’s “snap-shot rate” and is calculated at the beginning of each academic year and is based on student athlete academic performance during the previous academic year. Several variables go into calculating the APR. First, each institution must determine the term-by-term academic eligibility status for each student athlete in the cohort. Second, the institution must evaluate whether the student athlete continued enrollment as a full­ time student or satisfied a legislative exception for full time enrollment as of the fifth week of classes. See also NCAA Backgrounder on Academic Reform http://www.ncaa.Org/wps/portal/lut/p/kcxml/04_Sj9SPykssy0xPLMnMz0vM0Y_QjzKLN4g38nY BSYGYxqb6kWhCjhgiPmEQIV8DfV-P_NxUoHikOZBvGhqmH5WTmp6YXKkfrO- tH6BfkBsaGlGe7wgAjlk5 WA! !/delta/base64xml/L0IJSk03dWlDU 1 !BIS9JTGpBQUV5QUJFUkV SRUlrLzRGR2dkWW5LSjBGUm9YZnJDRUEhLzdfMF81WYvMTMONTczOA!!?WCM_POR TLET=PC_7_0_5UV_WCM&WCM_GLOBAL_CONTEXT=/wps/wcm/connect/NCAA/Academi cs%20and%20Athletes/Education%20and%20Research/Academic%20Reform/General%20Inform ation/backgrounder_academic_reform.html (last visited March 29,2008) (on file with author). 78 Brown, supra note 73, at 3. 19 Id. 80 Id. 81 Id. 82 Id. See also NCAA Bylaw 15.5 “Eligibility for Aid”. 680 UMKC LAW REVIEW [Vol. 76:3 penalties against a team to roughly ten percent of the team’s financial aid limit.83 Thus, by limiting aid based on poor academic performance, contemporaneous penalties are designed to serve as a catalyst for change unlike heavier “historically based” penalties.84 * These “historically based” penalties include loss of scholarships, postseason bans, and restricted NCAA membership in some severe cases. A team with an APR below 900 triggers NCAA review to determine whether a team should be subject to such penalties.86 In this situation, the NCAA will consider several factors to determine penalties how the team compares with other teams in the sport, the team’s institutional resources devoted to student-athlete academic success, whether the team’s APR improved over time, and how the factors work together.87 The NCAA hopes that the more severe penalties will forcibly encourage better academic vigilance at member institutions.88 The question still remains as to whether a coach’s explicit contractual responsibility to foster academic performance for student-athletes has yielded meaningful fruit. As noted above, a substantial number of the contracts reviewed did impose head football coach responsibility for academic performance of football players. Thus, it is difficult to know what in fact accounts for the range in scores associated with various football programs. For example, the NCAA APR data shows a range of scores from 883 (University of Arizona) to 967 (Auburn) for 29 schools whose coach contract incorporated explicit academic responsibility, and a range of 912 (Oregon) to 965 (UCLA) for the 14 that do not.89 With respect to football player graduation rates for both white and black athletes, in general football players graduated at lower rates than the student body. Only eleven schools boasted football graduation rates higher than those of the general student body: Boston College (93% v. 91%), Wake Forest University (90% v. 88%), Northwestern University (94% v. 93%), University of Mississippi (64% v. 56%), University of South Carolina (68% v. 63%), Vanderbilt (91% v. 89%), Baylor (84% v. 74%), Texas Tech (79% v. 56%), University of Colorado (68% v. 66%), and Nebraska (83% v. 62%).90 A number of schools did, however, have higher white football player graduation rates than that of the overall student body, while all but one school, Florida State, had lower black football player graduation rates than those of white football players. The data showed notable gaps between black football player graduation rates and white football player graduation rates at Georgia Tech (34% black v. 81% white), Georgia (29% black

83 Brown, supra note 73, at 3. 84 W. 95 Id. 96 Id. 87 Id. 88 This penalty structure is too new to determine its rigor or effectiveness in incenting universities to prioritize minimal levels o f academic achievement over short term win-loss column gains. 89 See supra Appendix D. 90 Id. 2008] FOOTBALL COACH CONTRACTS 681

v. 67% white), Iowa State (39% black v. 71% white), and University of Texas- Austin (30% black v. 67% white).91 Moreover, the data in Appendix D show that eleven schools (Michigan State, Purdue, Minnesota, Oregon State, University of Arizona, University of Oregon, Mississippi State, University of South Carolina, Oklahoma State, and Texas A&M) fall below the minimum 925 APR score required for compliance with NCAA standards. Only one school, the University of Arizona, falls below the 900 APR rate which triggers the historical penalties under the APR rubric. Of the eleven schools below the 925 rate, on average, these schools are ten points below the minimum mark. While these schools are out of compliance with the APR requirements, every school with the exception of the University of Arizona is subject only to the more minor contemporaneous penalties from the NCAA. Of these schools that are possibly subject to contemporaneous penalties, it is unclear whether each football team with “0-for-2” on its roster will put a team out of compliance with NCAA standards. Further research by the NCAA on the enforcement of its standards will be necessary to clarify expected penalty outcomes, determine But disparities in academic outcomes persist even where head coaches have contractual responsibility for academic achievement. And the disparities between black and white athletes are especially striking. 92 Differences in academic performance of football players may be due to other factors not reviewed here, including the academic culture of programs, different courses taken by football players in programs,93 admissions standards, and individual player preparation for college study. A more comprehensive study would include an examination of the manner in which coaches meet these contractual expectations, and the extent to which the head coach responsibility for football player academic performance may be less important than the academic culture and academic controls of a specific program, or the precollege preparation of football athletes. The NCAA penalty structure may be less important than the precise characteristics of the head football coach reward system. Though a number of contracts did include financial bonuses for the achievement of specific academic benchmarks, the significance of these rewards must be measured against the background of the overall value of the contract including significant financial incentives for successful win-loss records. In addition, as noted above, only three contracts provided for the possibility of termination for failure to meet academic progress standards. And all contracts differentiate between “for cause”

91 DeVos Sport Bus. Mgmt, Keeping Score When it Counts: Assessing the 2007-2008 Bowl-bound College Football Teams-Academic Performance Improves but Race Still Matters (Dec. 3, 2007), http://www.bus.ucf.edu/sport/public/downloads/2007-08_Bowl_APR_GSR_Study.pdf (Richard Lapchick, the primary author of the study observes the academic performance dichotomy between black and white players participating in bowl games). 92 A more sophisticated study involving controls for entry level predictors would be necessary to fully explore the explanations for the black white graduation rate differences. See generally this section. 93 See Overly, supra note 19, at 46. 682 UMKC LAW REVIEW [Vol. 76:3 and “without cause” terminations. To the extent that the failure to meet specific academic goals is not defined as a reason for a “for cause” termination, and “without cause” termination are accompanied by significant financial payouts, the incentive system may prioritize win-loss records over the academic progress of athletes.

III. STUDENT MISCONDUCT AND COACH CONTRACTS

The perception that student-athletes may engage in misconduct may be both myth and reality. Celebrity is a double-edged sword that cuts both ways. Universities and their prize athletes stir up excitement at the prospect of success on the field. In a society that worships athletes, athletes are both extremely visible and therefore vulnerable to intense media scrutiny. Some may have been accustomed to privilege and on their own for the first time may be unable to set self -boundaries. As celebrities, they are also human magnets for a wide range of people, some of whom may exert a negative influence. In addition, football players, perhaps more than other athletes, come from a wide range of socioeconomic backgrounds and may be disproportionately black. They are often thrust into relatively homogeneous college communities where they are visible as a result of media attention as well as physical bearing. Although it is inevitable that people will demand that athletes “act like regular students and good citizens” and become invisible when off the field, it may be extremely difficult to be both a star athlete and a regular student.94 Off-campus misconduct is increasingly becoming a concern for institutions of higher education95 and the number of institutions implementing student codes of conduct that cover both on-

94 The recent incident involving the Duke University lacrosse team may be fresh in memory, but it is only the most recent of highly publicized incidents. See, e.g., Selena Roberts, Sports o f the Times; Women's Word and Two Athletes' Honor are at Odds, N.Y. TIMES, Oct. 20, 2002, at 1; Edward Wong, There's No Stopping Athletes' Misbehavior, N.Y. Times, Dec. 23, 2001, at 8; Suggs, supra note 19. See also Mary Koss & Hobart Cleveland, Athletic Participation, Fraternity Membership, and Date Rape, Violence Against Women, 2(2) at 180 (1996); Rana Sampson, Acquaintance Rate o f College Students, Problem-Oriented Policing Guide No. 17, U.S. Community Oriented Policing Services, Department o f Justice (2002); Todd Crosset, Mark McDonald & Jeffrey Benedict, Male Student-Athletes and Violence against Women, 2 Violence Against Women, 163, 163 (recognizing that a disproportionate number of college athletes are reported to college and university administrators for acquaintance rape.). In addition, male student-athletes are over-represented in reports of violence against women. See Todd Crosset, Mark McDonald & Jeffrey Benedict, Male Student-Athletes and Violence against Women, 2 Violence Against Women, 163, 163. A 1994 study found that male athletes, who make up approximately three percent of the student body, were accused of nineteen percent of the reported sexual assaults and thirty-five percent of reported cases of domestic violence. Jeffrey Benedict, Colleges Must Act Firmly When Scholarship Athletes Break Laws, Chron. Higher Educ. (Wash., D.C.), May 9, 1997. In another study in 1995, approximately twenty percent of student-athletes surveyed admitted to having been in an off-the-field fight. Wong, supra note 39. 95 Megan Twohey, Students' Off-Campus Behavior to be Targeted, Milwaukee Journal Sentinel Online, Mar. 26, 2007, http://www.jsonline.com/story/index.aspx?id=582303 (last visited Mar. 8, 2008). 2008] FOOTBALL COACH CONTRACTS 683 and off-campus behavior is growing.96 To that end, a growing number of schools are adopting conduct codes, specific to athletes, intended to govern behavioral expectations.97 For example, in response to the Duke stripper incident, the Report of the Lacrosse Ad Hoc Review Committee noted a need for a specific code of conduct for athletes and a clearly articulated and enforced alcohol policy at Duke University.98 Beyond these measures, is it the role of the head football coach to assist the athlete in his maturation as a citizen while in the spotlight of celebrity? A number of institutions say, “Yes!” Twenty-one of the coach contracts contain clauses establishing coach responsibility for student-athlete conduct.99 100 A few representative contractual provisions are listed below.

Clemson University:

Coach agrees to: . . . Use his best efforts to ensure that his student athletes conduct themselves in a manner that will reflect a positive image for the University both on and off the football field . . . Enforce the discipline policy and the drug education policy of the Athletics Department that pertain to student athletes . . . Supervise . . student athletes . . .so as to maintain strict * • • • 100 compliance with the rules and regulations of the University. . . .

University of Missouri:

The Head Football Coach and assistant coaches acknowledge that student athletes are subject to all policies, rules and regulations governing all students of the University and that the University, Head Football Coach and assistant coaches should make all reasonable efforts to create an environment in which student athletes respect and adhere to such rules and regulations.101 Kansas State University:

96 Sara Lipka, Punishing Personal Fouls, Chron. Higher Educ. (Wash., D.C.), Jan. 13, 2006, at 43. 91 Id. 98 Department of Education, Office of Postsecondary Education, Aggregated Data for a Group of Institutions- Expenses, supra note 4. 99 See Appendix A. Five of the schools are within the ACC (Clemson University, Georgia Tech University, Virginia Tech University, North Carolina State University, and the University of Maryland); three are in the Big 10 (Purdue University, the University of Iowa, and Indiana University); seven are in the Big 12 (the University of Missouri, Iowa State University, the University of Colorado, Texas Tech University, the University of Kansas, the University of Oklahoma, and Kansas State University); and six are in the SEC (Louisiana State University, the University of Georgia, the University of South Carolina, the University of Florida, Auburn University, and the University of Alabama). 100 See Contract between Tommy Bowden and Clemson University, supra note 72, at Dec. 30, 2000 to Nov. 30, 2010 (2000) (on file with the author). 101 Contract between Gary Pinkel and the University of Missouri, (2001), at 16, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/missouri_fb.pdf. 684 UMKC LAW REVIEW [Vol. 76:3

Coach will make his best effort to maintain and enforce conduct (both on and off the field) and disciplinary rules and sanctions fairly and uniformly for all student-athletes in the football program so as to insure academic and moral integrity while encouraging excellence; 2.04 NCAA, Big Twelve, or University Rules and Regulations: Coach agrees to abide by and comply with the constitution, bylaws, and interpretations of the NCAA and all NCAA, Big 12 Conference, and University or Intercollegiate Athletic Council of Kansas State University, Inc. (IAC) rules and regulations. Coach will also ensure compliance with these rules and regulations by student-athletes ...

Louisiana State University:

COACH shall perform his duties and personally comport himself at all times in a manner consistent with good sportsmanship and in accordance with the high moral, ethical and academic standards of the Athletic Department and the UNIVERSITY. At all times COACH shall exercise due care that all personnel and students under COACH'S supervision or subject to COACH'S control or authority, comport themselves in a like manner. COACH shall further observe and respect the principles of institutional control in every aspect of the football program . . . . COACH shall, at all times, take every action necessary to comply with and to implement the policies of the Athletic Department and UNIVERSITY relating to substance abuse and class attendance by students subject to his direct control or authority, and to exercise due care that all personnel and students subject to his direct control or authority comply with such policies.102 103

Of the ten most highly paid (per base salary) head football coaches under study, two bear responsibility for the behavior of their student-athletes (the University of Iowa and Georgia Tech University); none receive bonuses for the exemplary behavior of their student-athletes; and one head coach (the University of Wisconsin) may be terminated for cause for student-athlete related misconduct.104 The highest paid head football coach (based on base salary), Kirk Ferentz at the University of Iowa, is specifically charged with the duty of

102 See Contract between Ron Prince and Kansas State University, supra note 69, at 5-7. 103 Contract between Les Miles and Board of Supervisors Louisiana State University and Agricultural and Mechanical College, (2005), at 7-9, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/louisiana_state_fb.pdf. 104 See Contract between Bret A. Bielema and the Board of Regents of the University of Wisconsin System (2006), at 4 (recognizing the procedure for termination of the agreement on the part of the University): A specific written finding, following investigation, of a deliberate or serious violation, material in nature, of any law, rule, regulation, constitutional provision, of bylaw of the Big Ten Conference or the NCAA by a member of the coaching staff or any other person under Coach's supervision or direction, which violation may, in the sole judgment of the University, reflect adversely upon the University of its athletic program and which constitutes a major violation found by the Big Ten Conference or the NCAA . . . . Id. 2008] FOOTBALL COACH CONTRACTS 685

requiring "exemplary citizenship” of his student-athletes. Chan Gailey of Georgia Tech University is similarly required to discipline student-athletes for violations of team rules, athletic association regulations or conduct impacting upon team matters, team policies, or the reputation of the athletic association.105 Four schools provide bonus incentives for coaches based on the behavior of student-athletes; three are within the Big 12 Conference and one is in the ACC.106 These bonuses range from $25,000 to $100,000, depending on the specific threshold of qualifying behaviors. The four specific contractual provisions are listed here:

University of Maryland:

[T]he University will pay the Coach a bonus of [$50,000], if with regard to all football student-athletes, the Coach, and any other member of the coaching football staff: (a) There are no violations of the University’s Code of Student Conduct or its Code of Academic Behavior that results in any actions by the Office of Judicial Programs; and (b) There are no arrest, indictments, or convictions for any criminal or suspected criminal conduct; and (c) There has occurred no neglect or willful conduct which the Athletic Director concludes violates the NCAA Operating Bylaws, especially those pertaining to ethical conduct.107

University of Missouri: [T]he University in order to emphasize the importance of these obligations will pay the below designated extra compensation upon satisfaction of the following: The Director of Athletics, after consultation with the Head Football Coach, shall establish each year a goal or goals within the area o f. . . the social responsibility and conduct of the student athletes in the Football Program, which goals shall include the following: Student athletes observance of University student conduct rules and regulations and those of the athletic department and the Football Program . . . . The University will pay to the Head Football Coach $25,000 extra compensation each year that the established goal or goals for . . . social responsibility and conduct are m et___ I08Iowa State:

Consideration for increasing . . . compensation . . . will be based on several factors, including, but not limited to . .. Successful management of the team, including the on and off-field behavior of the players and coaches.109

105 See Appendix C. 106 For the Big 10 conference, Iowa State, die University of Colorado and the University of Missouri provide bonuses for student-athlete behavior, while the University of Maryland provides the same for the ACC. See infra Appendix A. 107 Contract between Ralph Friedgen and the University of Maryland, supra note 56, at 13. 108 Contract between Gary Pinkel and the University o f Missouri, supra note 99, at 16-17. 109 Contract between Dan McCamey and Iowa State University (1994), at 3-4, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/iowa_state_fb.pdf. 686 UMKC LAW REVIEW [Vol. 76:3

University of Colorado

[Coach] will be eligible to receive incentive compensation . . . if he meets agreed-upon performance objectives related to . . . measurable criteria in the following three areas . .. ( c ) Development of the Football Program outreach, culture and reputation on campus; integration and support of campus constituencies, community involvement and development of community of support for the Football Program; . . . [a]nd, coach and staff citizenship. Incentive compensation for meeting agreed upon goals in this category shall not exceed the amount of $100,000 in a Contract Year.110 111112113

Four contracts contain termination-for-cause provisions linked to student- athlete conduct. One is from the ACC (Clemson University); two are from the Big 10 (the University of Wisconsin and Purdue University); and one is from the PAC 10 (Arizona State University). A sample of these provisions is noted below :"1

Arizona State University:

This Contract may be terminated by the President of the University or his designee “for cause.” “Cause” means: (g) material violation of NCAA of Conference Legislation (including, without limitation, the rules relating to illegal gambling, illegal betting and bookmaking) relating to the Football Program by an assistant coach, other Football Program personnel, or a Football Program student-athlete, and either (i) the violation occurs or continues to occur after Coach knew of should have known that it was about to occur or was occurring, or (ii) the Coach failed to establish and maintain reasonable policies and procedures for the Football Program to prevent violations of NCAA, or Conference Legislation . . . ."2

University of Wisconsin:

A specific written finding, following investigation, of a deliberate or serious violation, material in nature, o f any law, rule, regulation, constitutional provision, of bylaw of the Big Ten Conference or the NCAA by a member of the coaching staff or any other person under Coach's supervision or direction, which violation may, in the sole judgment of the University, reflect adversely upon the University of its athletic program and which constitutes a major violation found by the Big Ten Conference or the NCAA."3

110 Contract between Dan Hawkins and the Regents of the University of Colorado (2006), at 8, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/colorado_fb.pdf. 111 The Clemson University contract provision is not listed here as it simply references another portion of the contract, rather than being a descriptive clause. 112 Contract between Dirk Koetter and the Arizona State Board of Regents (2001), at 15, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/arizona_state_fb.pdf. 113 Contract between Bret A. Bielema and the Board of Regents of the University of Wisconsin, supra note 102, at 4. 2008] FOOTBALL COACH CONTRACTS 687

Purdue University:

It is also recognized, however, that certain limited circumstances may make it appropriate for the University to terminate this agreement prior to completion of the entire term. (b)Termination by University for Just Cause . . . . The term “just cause” shall include . . . any of the following: A serious or intentional violation of any law, rule, regulation, constitutional provision, bylaw or interpretation of the University, the Big Ten Conference or the NCAA by a member of the intercollegiate football coaching staff or any other person under the Coach's supervision and direction, including student athletes in the program, which violation may, in the sole judgment of the University, reflect adversely upon the University and its athletic program, including but not limited to any serious violation which may result in the University being placed on probation by the Big Ten Conference or the NCAA.11

In addition to termination-for-cause provisions, all of the contracts have specific provisions for dismissing the coach at-will. While under each contract the coach is entitled to liquidated damages for this type of dismissal, typically either a lump sum in the $l-$4 million dollar range, or annual payments of the value of the contract until contract expiration, it allows the college or university to remain in complete control of the employment contract and conditions. This review demonstrates that twenty-five universities and colleges have created contractual duties and responsibilities for the head football coach with respect to athlete behavior. Twenty-one have included explicit duties with respect to misconduct, four have provided monetary incentive programs to encourage head coaches to activity discourage misconduct, while four other institutions included as a termination for cause ground the failure of head coaches to monitor and regulate the conduct of their athletes.115 114

114 Contract between Joseph Tiller and Purdue University (2000), at 4-5, http://images.usatoday.com/sports/graphics/coaches_contracts/pdfs/purdue_fb.pdf. 1,5 The question whether one or the other of these approaches is more effective is a fertile ground for research. There is no literature that evaluates the relative efficacy of these alternative approaches a search for scholarly literature on the topic of coach responsibility for student-athlete misconduct returned a paucity of scholarship on this specific issue. Four separate searches for relevant literature were conducted, two were for scholarly articles and the other two were for articles in the mainstream press. The first scholarly search used the research database ProQuest that returned a total of 534 citations under the search terms “athletes” and “behavior.” The second search, performed in LexisNexis, returned a total of nine law review articles under the search terms “coach,” “athlete,” and “behavior.” Unfortunately, few of the articles directly discussed the role of a coach in either supporting or reducing student-athlete misconduct. The most appropriate articles for inclusion simply described research on successful coaching strategies, which happened to include discussions of encouraging the total development of the student-athlete, both on and off the field. The last two searches, one in archives of the New York Times and a second in the archives of The Chronicle of Higher Education, returned a list of eighteen articles that were relevant to the current research and provided much of the details surrounding current activities in institutions of higher education as it relates to reducing student-athlete misconduct. However, the literature that 688 UMKC LAW REVIEW [Vol. 76:3

IV. CONCLUSION

Division IA Intercollegiate Head Football coach contracts are multimillion-dollar agreements negotiated in the context of an academic enterprise. Their lucrative terms for those coaches, the millions of dollars generated by their performance, as well as the unique public conditions under which they are negotiated symbolize the importance of football to institutions of higher education. Although it is clear from a review of these contracts that the longevity and increased compensation of head football coaches depend largely on success on the field,* 116 this review of head football coach contracts from five important athletic conferences revealed a trend toward explicit head football coach responsibility for student-athlete academic performance as either a term of the contract or as a factor in bonus determination. Yet, by NCAA measures, the contractual provisions imposing head coach responsibility seem weakly related to academic performance of student athletes as measured by graduation rates. Moreover, there are significant differences in graduation rates of black and white athletes, especially important because approximately 50% of football athletes are black. In contrast, fewer contracts impose a duty of responsibility for athlete misbehavior or penalize or reward the coach for improper or unlawful conduct of their student-athletes. The former trend is an important component of a number of measures that might insure that the enterprise of bowl division football is primarily, rather than incidentally, a component of the core education activity of institutions in the core business of education rather than entertainment. The later trend of contracts without explicit coach responsibility for athlete misconduct was relevant included analyses of successful coaching strategies, as well as a host of other issues related to sanctions for student-athletes for their misconduct. Relying on data gathered from five Canadian female university coaches, two researchers from McGill University recognized four essential elements in successful team sports programs. See Vallee & Bloom, supra note 39, at 179 First, coaches cultivate a variety of leadership behaviors that are applicable in multiple settings. Second, each coach had a strong desire to foster his or her players’ individual growth. Third, coaches also possessed high levels of organizational skills that allowed them to plan for and execute successful seasons. Finally, the three preceding elements were often contained and integrated within a coach’s personal philosophy for success. As it relates to the individual growth of players, the researchers noted that the coaches worked to “establish a positive and safe environment where they taught their athletes to become balanced people.” Skills and values that were taught for the sport were promoted and encouraged on and off the court. Id. at 187. One coach reported, “1 teach the athletes . . . how to control their character and deal with their emotions. I believe these will serve them well in life. I do parallels with the work force. I teach things [for sport], but at the same time, it is also for after sport.” Id. at 188. 116 A comparison of amount of bonuses payable for academic achievement to the amount of bonuses payable for on the field success revealed that with few exceptions, bonuses for victories, increased ticket sales, and bowl game eligibility far exceeded those paid for student academic success. For example, University of Minnesota coach Glenn Mason’s maximum bonus payable was $750,000, with a $150,000 maximum payable for academic achievement of football athletes. Louisiana State University head coach Les Miles could receive a maximum bonus of $450,000 with a $50,000 maximum for athlete academic achievement. Moreover, the contracts pay base salary amounts that represent a fraction of coache’s compensation as compared to guaranteed amounts for camps, television and radio shows, or shoe and apparel contracts. 2008] FOOTBALL COACH CONTRACTS 689

seems counterintuitive in light of the consequences of misconduct to the athlete, the football program, and the university. As to both concerns, head football coaches are charged with the responsibility for over 60,000 athletes in NCAA football programs nationwide.11 There is an extraordinary opportunity to develop the physical, intellectual, and citizenship capacities of a significant number of students. Whether new models move beyond minimal academic requirements, employ comprehensive social work approaches117 118 119 or hold head coaches strictly accountable for educational outcomes’ , the educational legacy of Bowl Division football is at stake. Sports contracts are a lens through which we may view the values of the parties and their priorities. Although many contest the claim that Bowl Division football is an integral part of a quality educational experience of the universities that field its teams, if the achievement of a quality educational experience is in fact a core NCAA aspiration, the NCAA will make plain its values, and more universities will impose upon thehead football coach responsibility, and accountability, for the maturation of student-athletes as both scholars and citizens.120 Head football coach contracts are more than mere agreements between a coach and a university. “Contracts Matter.”121 They are cultural materials that tell us “different theoretical stories”122 about our experience and our aspirations.

117 NCAA (1981-1982 - 2004-2005) NCAA Sports Sponsorship and Participation Rates Report (2006) at 122, http://www.ncaa.org/library/research/participation_rates/1982- 2005/1982_2005_participation_rates.pdf. 118 One scholar advocates a social work approach to predicting and supporting athlete academic and personal success that combines traditional academic data with sociodemographic information, athlete identity and self concept information. See Gill, supra note 35. Similarly, Keith Harrison and Jean Boyd advocate “a deeper examination of how culture influences academic attitudes and life long learning.” C. Keith Harrison & Jean Boyd, Mainstreaming and Integrating the Spectacle and Substance o f Scholar Bailer: A New Blueprint for Higher Education, the NCAA and Society, in Diversity and Social Justice Issues: Sport Management and the Student Athlete 201,226 (Dana Brooks & Ronald Althouse, eds.) (Fitness Info. Tech. 2007). 119 The recent firings of several highly paid financial institution executives -Charles Prince (Citigroup) Kenneth Thompson ( Wachovia) and Stanley O’Neal (Merrill Lynch) are examples of Board efforts to hold highly paid executives strictly responsible for multibillion dollar losses. 120 This author does not disparage those who play football, nor does she discount the value of intercollegiate athletic participation in the lives of the young men who play football at the Bowl Conference Series level. Perseverance, resiliency, confidence, humility, emotional intelligence, grace, leadership, collaboration, intuition, as well as physical stamina are necessary in this endeavor. Intuitively, this athletic experience along with a meaningful college education would provide an excellent foundation for rewarding postgraduate lives. 121 Gordon D. Smith & Brayden King, Contracts As Organizations 1 (Univ. of Wis. Law Sch. Legal Studies Research Paper Series, Paper No. 1037, 2007), available at http://ssm.com/abstract=969816. 122 Id. 690 UMKC LAW REVIEW [Vol. 76:3

They are a part of the structures in “a system of order” that “reflects social, political, and economic values central to virtually every society.” 123 These head football contracts are a part of the story about the values of institutions that host multimillion-dollar football programs.124 To the extent that this review demonstrates that a significant number of institutions have included responsibility for student-athlete performance in their head football coach contracts, the contractual provisions make a symbolic, though incomplete, statement about institutional values. Viewed in isolation, contractual provisions do not conclusively demonstrate that institutional practice embodies values suggested by the terms of employment. The picture of commitment to improved academic progress and citizenship maturation is not complete without the consideration of measures in performance evaluation, bonus awards, and retention decisions. Moreover, the ultimate goal must be the improvement of the overall quality of the student-athlete experience, rather than de minimis maintenance of academic eligibility without law enforcement contact.125 Unless retention depends upon more than a minimal quality student experience, the commitment to the student experience will be symbolic rather than substantive. The existence of these contractual provisions is a necessary, though insufficient, signal that the core concern of Bowl Division universities is the student aspect of the athlete experience. A more vigorous commitment would involve rigorous evaluation of a coach’s oversight of academic culture and progress, controls to protect the academic course content, and, where warranted, oversight of grading practices for student-athletes. Stewart Macaulay observed that “Americans also learn from sports about breaking rules or honoring them in form but not in substance.”126 On any given Saturday, millions of Americans join in a ritual of fealty to intercollegiate football. Except in so far as a key athlete may be ineligible, fans and spectators hold their breath in anticipation of the score at the end of the fourth quarter. They also wait impatiently for the Monday morning papers and web postings to determine whether their team is in the top 25 in the important polls127 or banished to the hinterlands beyond poll-dom.128 But for the universities mounting football

123 Timothy Davis, Balancing Freedom o f Contract and Competing Values in Sports, 38 S. TEX. L. Rev. 1115,1117(1997). 124 As Professor Davis observed, “Similar values underlie both mainstream contract ideology and sports.” Both contract law and sports have the same fundamental dichotomy, namely “the conflict between values associated with competition, individualism and the unrelenting pursuit of self- interest and those associated with moral responsibility and interdependence . . . . ” Id. 125 Interview with Walter Dickey, George H. Young Chair, Univ. Wis. Law Sch., in [Specifics of interview provided by author] (Feb., 2007).

126 Stewart Macaulay, Popular Legal Culture: An Introduction, 98 Yale L.J. 1545, 1554 (1989). 127 See, e.g., Associate Press Poll, The Coaches Poll, The Bowl Conference Series standings, the USA Today Poll, and the CBS Sports Poll. 128 Such was the fate of the University of Michigan when unranked Appalachian State unexpectedly defeated Michigan on September 7,2007. Football promptly descended into a state of shock, and a 2008] FOOTBALL COACH CONTRACTS 691 on their “fields of dreams,” head football coach contracts state the terms upon which men head lucrative enterprises that define and shape the values of their institutions and the young men whom they lead. What will be the legacy of NCAA football? Thecore purpose of the NCAA is “to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.”129 Will this core purposes be realized in the billion-dollarcontext of Bowl Conference Series football? What will sport historians say about the role of head coaches in that enterprise?

flood of news stories and commentary ensued. See Jane Curtis, Pulling Appalachian State’s Win in Perspective, S.F.Chron., Sept. 3,2007. 129 See Our Mission, NCAA.ORG, http://www.ncaa.org/wps/portal (follow “About the NCAA” hyperlink; then follow “Overview” hyperlink; then follow “Our Mission” hyperlink) (last visited Mar. 8,2008). 692 UMKC LAW REVIEW [Vol. 76:3

APPENDIX A

EXPLICIT COACH RESPONSIBILITY FOR STUDENT-ATHLETE BEHAVIOR

Clemson University ACC Georgia Tech University ACC Virginia Tech University ACC North Carolina State University ACC University of Maryland ACC Purdue University Big 10 University of Iowa Big 10 Indiana University Big 10 University of Missouri Big 12 Iowa State Big 12 University of Colorado Big 12 Texas Tech University Big 12 University of Kansas Big 12 University o f Oklahoma Big 12 Kansas State Big 12 Louisiana State University SEC University of Georgia SEC University of South Carolina SEC University of Florida SEC Auburn University SEC University of Alabama SEC

INCENTIVES OR BONUSES FOR COACH FOR STUDENT-ATHLETE BEHAVIOR

University of Maryland ACC Maximum Bonus: $50,000 University of Missouri Big 12 Maximum Bonus: $25,000 Maximum Bonus: Negotiated Iowa State Big 12 annually University of Colorado Big 12 Maximum Bonus: $100,000

SANCTIONS FOR COACH FOR STUDENT-ATHLETE BEHAVIOR

Clemson University ACC University of Wisconsin Big 10 Purdue University Big 10 Arizona State University Pac 10 2008] FOOTBALL COACH CONTRACTS 693

APPENDIX B

EXPLICIT COACH RESPONSIBILITY OF DUTY FOR STUDENT- ATHLETE ACADEMIC PERFORMANCE

Clemson University ACC University of Maryland ACC Georgia Tech University ACC Virginia Tech University ACC North Carolina State University ACC University of North Carolina ACC Florida State University ACC Indiana University Big 10 University of Minnesota Big 10 University of Michigan Big 10 The Ohio State University Big 10 University of Illinois Big 10 University of Missouri Big 12 Iowa State Big 12 University of Colorado Big 12 Texas Tech University Big 12 Kansas State Big 12 University of Nebraska Big 12 Oklahoma State Big 12 Arizona State University Pac 10 Oregon State University Pac 10 University of Washington Pac 10 University of Arizona Pac 10 Washington State University Pac 10 Louisiana State University SEC University of Georgia SEC University of South Carolina SEC University of Florida SEC University of Alabama SEC University of Tennessee SEC University of Arkansas SEC 694 UMKC LAW REVIEW [Vol. 76:3

APPENDIX B CONTINUED

INCENTIVES OR BONUSES FOR COACH FOR STUDENT-ATHLETE ACADEMIC PERFORMANCE

University of Maryland ACC Maximum Bonus: $100,000 Georgia Tech University ACC Maximum Bonus: $25,000 Virginia Tech University ACC Maximum Bonus: $25,000 Maximum Bonus: 1/12 of annual University of North Carolina ACC base salary University of Minnesota Big 10 Maximum Bonus: $150,000 The Ohio State University Big 10 Maximum Bonus: $175,000 University of Missouri Big 12 Maximum Bonus: $25,000 Iowa State Big 12 Maximum Bonus: $50,000 University of Colorado Big 12 Maximum Bonus: $50,000 Texas Tech University Big 12 Maximum Bonus: $50,000 Oklahoma State Big 12 Maximum Bonus: $5,000 University of Oklahoma Big 12 Maximum Bonus: $100,000 University of Texas - Austin Big 12 Maximum Bonus: $100,000 Maximum Bonus: 10% of annual Arizona State University Pac 10 base salary University of Washington Pac 10 Maximum Bonus: $105,000 University of Arizona Pac 10 Maximum Bonus: $25,000 Washington State University Pac 10 Maximum Bonus: $30,000 University of California Pac 10 Maximum Bonus: $25,000 Oregon State University Pac 10 Maximum Bonus: $35,000 University of Califomia-Los Angeles (UCLA) Pac 10 Maximum Bonus: $50,000 Louisiana State University SEC Maximum Bonus: $50,000 Maximum Bonus: Negotiated University of Florida SEC annually University of Alabama SEC Maximum Bonus: $50,000 Maximum Bonus: One month’s Auburn University SEC base salary

SANCTIONS FOR COACH FOR BREACH OF RESPONSIBILITY FOR ACADEMIC PERFORMANCE OF STUDENT-ATHLETES

Clemson University ACC Washington State University Pac 10 University of Florida SEC 2008] FOOTBALL COACH CONTRACTS 695

APPENDIX C

RESPONSIBILITY FOR ACADEMIC PERFORMANCE AND BEHAVIOR OF STUDENT-ATHLETES FOR THE TEN MOST HIGHLY PAID NCAA FOOTBALL COACHES, UNDER STUDY IN 2006, BASED ON BASE SALARY.

Academic Student/Athlete Performance behavior School Conf Base Salary Resp. Bonus Resp. Bonus 1. Univ. of Big 10 $1,200,000 No No Yes No Iowa 2. Tex. A&M Big 12 $500,000 No No . No No Univ. 3.Univ. of Big 12 $480,000 No Yes No No Tex - Austin 4. Univ. of Big 10 $450,000 Yes Yes No No Minn. 5. Ga. Tech ACC $437,582 Yes Yes Yes No Univ. 6. Univ. Pac 10 $425,004 Yes Yes No No Wash. 7. Mich St. Big 10 $400,000 No No No No Univ. 8. Univ. of Big 10 $350,000 No No No No Wis. 9. Univ. of Pac 10 $350,000 Yes Yes No No Ariz. 10. Univ. of Big 12 $325,000 Yes No No No Neb. 11. Univ. of SEC $325,000 Yes No No No Tenn.

* Eleven schools are included here as there is a tie for Tenth Place with a salary of $325,000 for both University of Nebraska and University of Tennessee. 696 UMKC LAW REVIEW [Vol. 76:3

APPENDIX D

Overall Black White Football Football Football Multi- Student Players Players Players Year Body Graduation Graduation Graduation Coach Football Graduation Success Success Success Responsibility NCAA Rate Rate Rate Rate for Academic Academic (From (From (From (From Performance Progress Federal Federal Federal Federal School Rate Graduation Graduation Graduation Graduation (APR)* Data) Data) Data) ♦** Data) *♦* ACC Boston 976 91% 93-e 90-e 94-e No Data College Clemson 945 75% 75-e 75-e 75-e Yes University Duke 978 94% 93-e 88-e 98-e No Data University Florida State 952 68% 58-e 60-e 50-a Yes University Georgia 959 77% 51-e 34-e 81-e Yes Tech University North 942 70% 60-e 52-e 76-d Yes Carolina State University University of 944 79% 69-e 62-e 80-e Yes Maryland University of 966 73% 70-e 63-e 88-d No Data Miami (Florida) University of 948 84% 79-e 75-e 88-b Yes North Carolina University of 948 92% 68-e 62-e 81-e No Virginia Virginia 928 79% 72-e 70-e 78-e Yes Tech University Wake Forest 966 88% 90-e 89-e 90-e No Data University BIG 10 Indiana 943 72% 67-e 61-e 77-e Yes University Michigan 922+ 74% 43-e 35-e 58-d No State University 2008] FOOTBALL COACH CONTRACTS 697

Northwestern 962 93% 94-e 90-e 97-e No Data University Penn State 960 85% 76-e 76-e 79-e No Data University Purdue 915+ 70% 70-e 61-e 74-e No University The Ohio 928 71% 53-e 43-e 74-e Yes State University University of 926 82% 73-e 61-e 84-e Yes Illinois University of 957 65% 73-e 64-e 85-e No Iowa University of 958 87% 73-e 56-e 92-e Yes Michigan University of 919+ 61% 49-e 41-e 64-e Yes Minnesota University of 935 78% 61-e 52-e 69-e No Wisconsin PAC IO Arizona 926 56% 55-e 53-e 64-e Yes State University Oregon State 913+ 60% 62-e 47-e 72-e Yes University of 947 84% 57-e 53-e 59-e No Data Southern California Stanford 984 95% 93-e 91-e 97-e No Data University University of 883 57% 41-e 27-e 52-e Yes Arizona University of 965 89% 52-e 49-e 58-e No California University of 931 89% 56-e 43-e 70-e No California - Los Angeles University of 912+ 63% 55-e 41-e 78-e No Oregon University of 942 75% 64-e 56-e 65-e Yes Washington Washington 930 60% 58-e 45-e 86-e Yes State University SEC Auburn 967 63% 59-e 47-e 84-e Yes University Louisiana 941 57% 51-e 42-e 70-e No State University 698 UMKC LAW REVIEW [Vol. 76:3

Mississippi 921+ 58% 59-e 55-e 83-c No Data State University University of 942 63% 49-e 41-e 73-e Yes Alabama University of 934 56% 53-e 35-e 88-e No Arkansas University of 961 79% 72-e 64-e 86-c Yes Florida University of 963 75% 41-e 29-e 67-e Yes Georgia University of 946 59% 59-e 51-e 71-e No Kentucky University of 937 56% 64-e 52-e 95-d No Data Mississippi University of 913+ 63% 68-e 65-e 79-d Yes South Carolina University of 938 60% 52-e 47-e 60-c Yes Tennessee Vanderbilt 955 89% 91-e 81-e 96-e No Data University BIG 12 Baylor 940 74% 84-e 79-e 86-c No Data University Iowa State 930 66% 55-e 39-e 71-e Yes Kansas State 926 75% 73-e 58-e 91-e Yes Oklahoma 924 59% 64-e 56-e 81-e Yes State Texas A&M 922+ 77% 62-e 59-e 70-e No University Texas Tech 931 56% 79-e 70-e 86-e Yes University University of 934 66% 68-e 61-e 78-e Yes Colorado University of 918+ 59% 56-e 49-e 64-e No Kansas University of 934 69% 60-e 47-e 81-e Yes Missouri University of 935 62% 83-e 71-e 92-e Yes Nebraska University of 936 59% 44-e 40-e 53-d No Oklahoma University of 944 77% 42-e 30-e 67-e No Texas - Austin