Special thanks to Jason Anderson for putting me under a deadline to draft a post that somewhat tries to explain the fallout from Tom Jurich’s termination letter and his legal team’s response, both released on Tuesday afternoon. Jason said you all would want a piece to try to assist you in deciphering the finer points of this mess. He’s right, and I know it. However, wading into the morass that is employment law at such a late hour is a daunting task. Please forgive in advance any and all errors that may result. And Jason, you owe me lunch now at Ollie’s Trolley.
THE TERMINATION LETTER
Let’s start with Dr. Postel’s termination letter to Tom Jurich. For starters, the most offensive portion of this letter may be the fact that it was released without redacting Tom’s home address. As a former police officer, whose personnel files were subject to open records requests, I cringe any time a public agency discloses the address of an employee. Perhaps it is my sensitivity to the issue, but it seemed bush league and spiteful. With respect to the letter itself, Postel describes in great detail the painstaking process that the Board undertook when contemplating Jurich’s fate. Postel describes the weeks of thoughtful deliberation that went into this on the part of the Board members and how they acted in good faith and in the fiduciary best interest of the University. Let’s unpack that just a bit.
The good faith, fiduciary best interest language is boiler plate language that is used to describe the Board’s actions in order to insulate them individually from civil liability. It is called the “Business Judgment Rule” and it is used solely to rebut any liability claims. Of course, it is not enough to claim that you are using good faith, and operating in the fiduciary best interest of the University, you actually have to be doing it. This may be something that the Jurich camp will explore as this case plays out. If anyone on the Board can be proven to be working with ulterior motives, i.e., taking retribution against Jurich, then they could be subjected to personal liability. If, however, they can demonstrate that they acted in accordance with that which is in the best interest of the school, then they have freedom to make decisions.
Next, when Postel describes the “weeks of deliberation” that the Board members undertook, I cannot help but wonder how, when, and with what information did the Board members utilize for these deliberations. First, Jurich was placed on suspension on September 27th. Jurich was then granted a hearing on the merits of his employment on October 18th, and the Board voted at that time to terminate Jurich for cause. It is interesting to note that the entire Board didn’t have the facts of this case in their entirety until October 18th. Therefore, it is hard to imagine that the Board could have deliberated for “weeks” in considering this situation. Additionally, while individual Board members may have had some ideas about their personal feelings for Jurich, and athletics as a whole, they were bound to not discuss any portion of the case amongst themselves due to Kentucky law concerning open meetings. Regardless, this language in the letter may have been a mere oversight, but it is not one that should go completely unnoticed, or unchecked. Clearly, the Board members could not have deliberated for weeks in this case.
The termination letter next goes on to describe Jurich’s action, or inaction, in the position of Athletics Director and characterizes his alleged shortcomings as “willful misconduct.” For example, Postel points out that Jurich had a duty to “promote zero tolerance for infractions through education and enforcement.” Postel continues that Jurich failed in this duty because over the course of several years, while under his management, the University has been portrayed negatively because of “multiple compliance lapses, occurring in multiple sports.” The paragraph concludes that “This is willfully inconsistent with promoting the University and promoting “zero tolerance.” Again, let’s unpack some of this language. (Charlie Strong would be so proud of all this packing and unpacking we are doing here.)
First of all, Postel doesn’t name each instance of NCAA violation alleged to have occurred under Jurich’s watch. Obviously, the Katina Powell case, and the FBI case come to mind with respect to Men’s basketball, but there were no other specific instances outlined in Jurich’s letter. One may assume that Postel is including the Clint Hurt matter from years ago, wherein Hurt was found to have lied to NCAA investigators concerning his involvement while on staff at Miami, but there is really no way of knowing whether or not that is what Postel was referring to. Additionally, there is no way of knowing if there are any additional violations that the public may not be aware of that Postel is referencing. Next, while Jurich’s contract calls for him to to “promote” a zero tolerance policy, it doesn’t require him to “guarantee” that there will be no violations of NCAA rules. In fact, Jurich seemed to have Postel’s blessing when both men stood before the media after the NCAA released their findings and levied their punishment in the Powell case. If Postel had truly wanted a “zero tolerance” policy to be enforced with respect to compliance, he could have instructed Jurich to terminate Pitino for this episode alone. No such admonition was offered. It is hard to argue that you are offended at Jurich and his lack of enforcing a zero tolerance policy when you stood shoulder to shoulder with him not three months earlier doing the same thing.
From here, the letter then goes on to point out that Jurich did not supervise the head coaches appropriately, and even cited that a number of head coaches never had a personnel review performed during their tenure at the University. As a result, the University argues that this fact is indicative of Jurich’s lack of management of his head coaching staff and, further, that this lack of management “created a culture of tolerance within University Athletics for behavior that falls far short of NCAA, ACC, & University expectations.” This is a bold assertion, it will be interesting to see how the University backs it up. For starters, Jurich has indicated that his management style was to meet with his coaches routinely, even weekly, and to provide feedback and support. Moreover, in the previous 19 years that Jurich engaged in this method of review, no one had ever taken exception to it. For Postel, and this Board to do so now is, according to Jurich, an attempt to justify his termination in any manner available.
Once the letter touches on a few additional shortcomings of Jurich, including laying the FBI investigation at his feet, Postel begins to attack Jurich for his management style. It is in this portion of the letter that it gets personal. Jurich is called “a bully, unprofessional and divisive.” He is said to have a lack of collegiality that extends from student government to University’s senior leadership. In short, Postel has called Tom an ass. While I do not know whether Jurich is or is not as he is described, I can tell you that from a legal standpoint this entire segment of the letter does nothing for the University’s case for termination. There are no provisions in Tom’s contract that require him to be “friendly” with members of student government, or senior administrators. Jurich’s job was to run the athletics department, to make a profit, to field competitive teams, and yes, to ensure that all of this was done under the rules of the NCAA. The school would have been far better off to have focused on any objective failures that Jurich had in his duties than to have included this in their reasoning.
Lastly, Postel levies one of the most serious charges in the entire letter when he says that Jurich essentially engaged in self dealing by negotiating contracts that were favorable to him, while simultaneously being detrimental to the university, in violation of Jurich’s fiduciary duties to the school. This could be a big deal. If a party is said to owe a fiduciary duty to an organization, he or she is said to have an obligation to promote the organization, and for every action they engage in to further that organization. In short, do no harm to the organization. While Postel doesn’t indicate what contracts he is specifically referring to when making this statement about Jurich’s breach of fiduciary duty, we are left to assume that he Postel is describing Jurich’s employment terms. If that is the case, nobody cares. Obviously, Jurich can negotiate a contract in his own best interest. Fiduciary duties do not preclude you from attempting to get a raise. However, if there are additional agreements that Jurich entered into where the benefit was not so clearly defined, or there is evidence that the deal was unconscionable, then the University may have a stronger argument. For Jurich’s part, having the sign off of the former Board will be a huge shield for him with respect to any compensation agreement he entered into. Without knowing what cards the school has exactly, it is hard to speculate on their ability to be successful in this phase of the litigation.
JURICH STRIKES BACK
For Tom’s part, he was not impressed. Now, not only has the school breached his employment contract, in his view, they have also potentially defamed him. By categorizing the statements of Postel as a ‘smear campaign’, and ‘character assassination’, it is clear that the Jurich team has taken the gloves off and intends to vigorously defend their claim to Jurich’s contract and potentially much more. Of particular interest is the inclusion of David Grissom in the Jurich response letter. Nowhere in Postel’s letter to Jurich is David Grissom mentioned, but no other Board Member is specifically called out in Jurich’s response. It is clear that there are either clearly defined battle lines, or at least the perception of them from the Jurich camp.
Jurich attorneys took steps to spell out all of the work that Tom has done in the past 20 years, and all of the accolades that he has received. They noted that the NCAA remarked how cooperative Jurich was with them during their investigation into the Powell case, and all of the on field success that Jurich oversaw. In short, they took the resume’ of one of the nation’s most recognized Athletics Director on a stroll and showed off his accomplishments. All of these notes concerning Jurich and his successes will be large stores of ammunition to defend the claim that he is entitled to all of his contract benefits.
The Jurich team also pointed out that Postel himself had taken the exact opposite stance concerning Jurich previously when discussing him and the athletic department at U of L. It is hard to have your own words used against you, but clearly, given all of Tom’s accolades, this is going to be a common occurrence in his litigation against the school.
As mentioned earlier, Jurich pointed out that he had engaged in reviews of his coaches for a number of years. Prior university administrators had allegedly known of Jurich’s method for conducting his review of his coaches and had never questioned it. In fact, Jurich had received numerous letters of commendation from the school for his exemplary management of the Athletics Department at U of L, and monetary bonuses. It will be hard to imagine that all of those glowing reviews won’t make their way to the courthouse as exhibits defending Tom’s tenure at U of L.
HOW DOES IT PLAY OUT
This is perhaps the biggest and most frequent question that I field when discussing the potential outcomes of litigation. For starters, it is a fool’s errand to attempt to guess what any jury will do on any given case. (See Simpson, Orenthal, and Anthony, Casey for detailed examples.). That said, I have often been mistaken for a fool, so here goes…
First, I see a high probability that this case will settle. The sheer reality of it is that over 90% of cases filed never make it to a jury. By the numbers alone, it would be a safe bet to think that this too settles. Second, Tom Jurich isn’t in need of any money, and he feels wronged. He may be angry enough that he is unwilling to settle this case for anything short of his full contract. (With that in mind, there is an increased chance that it does go to trial.). Not only are juries hard to read, but so too are bull headed parties to litigation. When money isn’t your motivation, you are highly unpredictable. So Tom may have some fun with this.
If trial is the ultimate outcome, my prediction is that Jurich would prevail. In large part because of the terms of his contract. The University was required to give Jurich notice of any deficiency that he had, and to allow him 30 days to cure them. They clearly failed to do that in Tom’s case and this fact alone will be huge in deciding any case between the parties.
Next, I wouldn’t rule out the possibility that Jurich takes action against individuals in this case. Postel, and Grissom appear to be in Jurich’s crosshairs, and the “character assassination” and “smear campaign” language is not being offered inconsequentially. When the litigation is unfurled, I expect that there will be not only breach of contract claims against the University, but also tort claims for defamation against at least one party involved from the University.
My best advice to everyone, stay tuned. All of the players involved are highly powerful men in large dollar positions, and the stakes are as high as possible in the civil arena. Millions of dollars hang in the balance, and there are egos the size of all outdoors on both sides. Lawyers will advise, and sometime, their clients will listen, but I am afraid no matter who you find yourself pulling for, this case will get worse long before it gets better. (There you go Jason, I hope you are satisfied…)
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