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 This past week Baylor University took the unprecedented step of relieving Head Football Coach Art Briles of his duties and reassigning University President Ken Starr due to the fallout from the report prepared by Pepper Hamilton, and independent law firm contracted by the University. Head coaches are fired all the time, some are fired for serious off field indiscretions. Never has the most successful coach at a program been fired at the apex of his career for the behavior of his players. Anyone that has followed the case understands that this was not a knee jerk reaction from the Board of Trustees. Anyone that has followed college football long enough understood that Briles was unlikely to survive this case without some serious mental gymnastics being performed by the BOT. The story here is that Baylor DID NOT perform any mental gymnastics. That Baylor, a private school, did release the findings of the Pepper Hamilton investigation. That Baylor, a program on top of their conference for the first time in their history, with a brand new stadium to keep full, and a fanbase that would have accepted any reasonable sanction, chose to fire the Head Coach that made it all possible.


The Pepper Hamilton report is easy enough to find online. The details surrounding this case have been widely reported for about a year. The motivations of the Baylor BOT, however, can only be guessed at. In order to get a better understanding of these issues, we spoke to Fanteractive Sports Law expert Andrew Bondarowicz.

 

Andrew, let’s start with Baylor releasing the report. Since FOIA requests do not apply to private institutions, why wouldn’t Baylor simply make these moves without revealing the details?

Correct, Baylor as a private institution is not required to make their report public. However, the public scrutiny of the sexual assault allegations forces the school to have to get out in front of the issue in the court of public opinion before they find themselves under even more scrutiny, let alone the other regulatory scrutiny they may face from the NCAA or government investigations. At the same time, they don't want to reveal more than they really have to. There is always a risk to revealing too much too as it can invite more scrutiny.

 

It is difficult to fire a head coach for cause in the NCAA. Does releasing the report help protect Baylor from any legal claims made by Briles?

It certainly does not hurt. The "morals clauses" in coaching contracts are carefully crafted from both sides and while it doesn't stop a school from firing a coach, it can alleviate the responsibility for paying them the balance of their salary or buyout. Cause is usually one of the factors that is justifiable reason for termination, so Baylor would need to show that Briles somehow violated the terms of his contract somehow in this situation to justify it. The report will certainly be used to support that finding.

 

Do you believe the BOT acted so thoroughly in order to stave off any potential Title 9 - or other federal -investigations? If so, do you think they will succeed?

The problem for Baylor is that they may already be too far down that road to prevent other investigations or government scrutiny. However, by acting so swiftly after the report is released, they can claim that they took action immediately upon becoming aware of the situation and facts of the cases. That can help lessen penalties, which is probably the main concern at this point for Baylor.

 

There seemed to be a lot of focus on how Baylor’s football program actively sought to undermine the University process. Was this action decisive and swift enough to protect the narrative that they “were unaware of the details” and thus less liable in civil cases?

The question is one of "duty": Did the Baylor leadership of Board of Trustees have a duty to know. It is definitely impossible for a school president to know everything that happens on campus, but when there are issues like this swirling around your football program - at a Power 5 school - it is hard to claim that there was zero knowledge of the situation. Starr and Briles probably have each other on speed dial! There may be an implicit "don't ask, don't tell" understanding, but it is hard to believe that there was no knowledge of it at all. Secondly, some of the transfers that were brought in had very checkered records. There is definitely some scrutiny from the school and the athletic department that was put into whether to allow the student-athletes into the school to begin with.

 

Does this make Briles unemployable in the NCAA moving forward?

Not necessarily. His record as a coach and what he did at Baylor is still one of the greatest turn around stories in college football history. So, as a coach, I think ADs will covet him. However, until the dust settles on the Baylor situation, schools will shy away from him until his actions are fully understood. It is also possible that the NCAA can impose a "show cause" order against him which invites scrutiny on the hiring school to show why they are hiring a particular candidate that has been ruled in violation of NCAA rules. That makes the school more at risk of NCAA sanctions if there are any further violations after the hire. That said, there are definitely schools that are going to be willing to take that risk in order to be successful on the football field.

 

Andrew Bondarowicz is an Adjunct Lecturer in Sports Law at Rutgers Law School in Newark, NJ. As an attorney, he has represented players, coaches, and other personalities in employment contract negotiations, endorsements deals, and other sports-related deals. He is also a frequent panelist on sports business and legal issues surrounding sports.


 

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