Bruce Pearl protected by contract
Tennessee cannot terminate coach Bruce Pearl for cause without paying him until there is an NCAA "finding" and, even then, it has to be determined Pearl knowingly engaged in conduct that was a "significant" NCAA violation.
A review of Pearl's contract by an attorney familiar with these types of cases showed the specific termination clauses that protect Pearl despite his admission he misled NCAA investigators while they were pursuing allegations of recruiting violations. The contract examined had the salary amended in 2009 to increase Pearl's salary to $1.9 million a year and extended a year through the 2014-15 season.
Pearl, who led the Volunteers to their first Elite Eight last March, was hired at Tennessee in 2005 after coaching Wisconsin-Milwaukee to the Sweet 16.
"It's hard to imagine a contract that affords a coach more protection than [fomer coach] Jim O'Brien's contract with Ohio State," said Columbus-based attorney Joseph Murray, who represented O'Brien in his lawsuit against Ohio State for terminating him for cause prior to an NCAA investigation.
"Bruce Pearl doesn't have to imagine though, because he's got just such a contract."
O'Brien had admitted to making a payment to a recruit's family for humanitarian aid in the former Yugoslavia. But firing him prior to the NCAA due process allowed O'Brien to collect more than $2.4 million from Ohio State.
Tennessee self-imposed penalties on Pearl when it received notice of inquiry from the NCAA, which is the first phase of the investigative process. The NCAA enforcement staff is investigating the football program and men's basketball program. A finding won't occur until the committee on infractions issues its report, which will come after a hearing. All of this isn't likely to occur until sometime in 2011.
Tennessee's self-imposed penalties on Pearl included docking him $1.5 million in salary over a five-year period and banning him from recruiting on the road for a year beginning on Sept. 24. Pearl admitted to misleading the NCAA when interviewed. Multiple reports have said Pearl hosted recruits at his house in 2008 for unofficial visits -- a violation -- and then lied about a photo taken on the occasion.
The notice of allegations would have names redacted but would include the specific violations by the head coach and the ways he misled investigators.
Tennessee athletic director Mike Hamilton said at a news conference on Sept. 10: "Bruce made one mistake in this incident and he came forward to correct it. I'm glad he's our basketball coach."
The reason the school couldn't have acted more forcefully is Pearl's contract.
Article XV of Pearl's contract, section F.1., details how Pearl can be terminated for adequate cause. Section (ii) states: "a finding by the NCAA Committee on Infractions or, if appealed, the NCAA Infractions Appeals Committee that Coach Pearl has knowingly engaged in or condoned significant or repetitive violation(s) of NCAA regulations, provided that the University gives notice of termination within (60) days of such a finding."
Section (iii) states: "acts by Coach Pearl that he knew, or should have known, constituted a prohibited conflict of interests under applicable University policy or state law, provided that the University gives notice of termination within sixty (60) days of its good faith substantiation that Coach Pearl has engaged in such an act."
Murray said the key word is there has to be a "finding by the NCAA."
"No. 1, there has been no finding by the NCAA," Murray said of the current state of the investigation. "I think Bruce Pearl has a lot of room to argue and say these aren't significant. It's incumbent upon Tennessee to prove that these were significant violations."
Section (iv) states: "acts of fraud by Coach Pearl in the performance of his duties under this Agreement, provided that the University gives notice of termination within (60) days of its good faith substantiation that Coach Pearl has engaged in such an act."
Murray said it would be hard to fit misleading an NCAA investigator into an act of fraud since, "he's now come forward and set the record straight."
"By all appearances, he has corrected his own inaccurate statement," Murray said. "I would argue that you would have to look at specific provisions relative to the NCAA. This contract is like O'Brien's in that it is clear what the parties expectations are as to when and why he can be fired for conduct related to the NCAA violations and investigations. That is, there has to be a finding, the finding has to be knowingly engaged in a significant violation of NCAA rules."
Murray said Tennessee would have a problem since the wording is "significant" not "secondary" or "major violation," meaning there would have to be a determination if the violation had a significant impact on the program and university.
"If they decide to terminate they may have to pay and they can't do it now, they have to wait until there is a finding and even then it's not just finding a violation, that won't do it, it has to be a significant violation," Murray said. "Word choice is a big deal here."
Murray said NCAA Bylaw 10.1 deals with unethical conduct and a judge would have to determine if Pearl engaged in conduct that was a significant violation.
"At this point he has corrected it, he's gone to the NCAA," Murray said. "He did what the NCAA wants if you make a mistake, you correct it. I'm not sure you could impose unethical conduct on someone who corrected their mistake. He shouldn't be penalized as severely as someone who didn't correct it."
Murray said O'Brien had similar protection to Pearl. Ohio State terminated O'Brien in 2004 when then-athletic director Andy Geiger found out that O'Brien had six years earlier given $6,000 to the family of one-time recruit Aleksander Radojevic, a 7-foot-3 center who declared for the NBA draft and was selected by the Toronto Raptors. Improper benefits given to Boban Savovic were the reason Ohio State was put on probation and the 1999 Final Four vacated.
O'Brien received a show-cause penalty that elapsed during the legal process. According to Murray, the NCAA concluded the loan was a violation but that was appealed and the NCAA's appeals committee determined the conduct was outside the NCAA's statute of limitations so it was dropped.
"[Ohio State] promised O'Brien the benefit of due process in his contract but when it came down to give it to him they jumped the gun," Murray said. "The caution here is that Tennessee would not make the same mistake as Ohio State and terminate coach Pearl without affording him the due process."
Andy Katz is a senior writer at ESPN.com.
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