Author’s note: For this piece, I spoke to three lawyers with experience in negotiating college coaching contracts. Two asked to remain anonymous out of caution that they could be used as expert witnesses in a potential trial. The third is Attorney Martin J. Greenberg, who negotiated former Northwestern head coach Randy Walker’s contract.
Shortly after being fired on July 10, former Northwestern coach Pat Fitzgerald announced in a statement that he hired Dan Webb from Winston and Strawn LLP to “take the necessary steps to protect [his] rights in accordance with the law.”
In the weeks since, Fitzgerald has been named a defendant in a lawsuit by a former student-athlete who says Fitzgerald was negligent in allowing hazing to occur. The lawsuit also alleges Fitzgerald, who maintains he had no knowledge of any hazing within the program, “took part in the harassment, hazing, bullying, assault, and/or abuse of athletes.”
Northwestern is now facing at least five lawsuits from former football players, and although those legal situations are complex and warrant their own deep dive, the primary focus of this piece is to break down Pat Fitzgerald’s current legal situation and his own potential lawsuit against the school.
Why did Fitzgerald decide to hire legal counseling?
The move to hire Dan Webb is no small headline. Webb served as the Special Counsel in the Iran-Contra affair where he successfully prosecuted John Poindexter, Ronald Reagan’s National Security Advisor for lying to Congress. Webb has represented Bill Gates and Microsoft in United States v. Microsoft Corporation and Fox News in Dominion v. Fox News Network, as well as securing convictions against Jussie Smollett as the special prosecutor.
According to Attorney Martin J. Greenberg, when a coach and university divorce without mutual agreement, there are four key ways it can happen:
- Death or disability
- Termination without cause
- Termination with cause
The first two are relatively straightforward. In the third, when a coach is terminated without cause, usually for poor performance, the university is still liable to pay the remaining amount on the contract and is usually attached to lucrative buyout numbers.
The Fitzgerald case falls under the fourth category, termination with cause, which according to Greenberg, is a growing trend in college sports, as it does not require the university to reward the coach with their remaining salary.
Fitzgerald reportedly signed a 10-year, $57 million contract extension in 2021 that would have kept him in Evanston through 2030. With roughly $42 million yet to be earned on the deal, Fitzgerald swiftly moved to lawyer up and explore legal options. Webb has stipulated that Fitzgerald’s firing was a breach of contract with significant damage to the coach’s reputation.
What does the language of the contract look like?
Because Northwestern is a private university, it does not need to abide by Freedom of Information Act requests, which means that unlike many other coaching contracts, the details of Fitzgerald’s deal with Northwestern remain unavailable to the public.
For that reason, the most crucial pieces of information lie only in the hands of Fitzgerald, his legal team and the university. The key to the entire puzzle is what vocabulary the contract constitutes is “for cause” in that fourth category that Fitzgerald’s exit falls under.
According to several lawyers I spoke to, what “for cause” looks like in the due process clauses of a coaching agreement varies from contract to contract. Of course, criminal activity and breaches of that nature would qualify as reasons for termination at any school, but the minutia can differ depending on a variety of factors.
One lawyer explained that private and public universities will often have different provisions and that at an academically prestigious school such as Northwestern, there may be emphasized bylaws about behavior that inhibits student-athletes from benefitting from their academic experience. Faith-based institutions and military schools also have key distinctions from typical coaching contracts. All this to say, each contract is unique, and Fitzgerald’s is no different.
Additionally, one lawyer would not say for sure but mentioned they would not be surprised if over several contract extensions, as the coach built up goodwill and accolades, the specific language in Fitzgerald’s deal became more lenient over time.
When it comes to making the decision to let a coach go for cause, Greenberg explained that the university president usually becomes the “judge and jury” in the case. When he negotiated a contract on behalf of Walker, who preceded Fitzgerald at Northwestern, he fought to have the decision for what “for cause” is be handled by a panel of arbitrators rather than the president. He estimated that this was one of the first instances in the history of college coaching that language like this was used in a contract. However, this type of clause, which was negotiated for eight months, has not become standard procedure in the two-plus decades since.
With so much money at stake, Greenberg said that he tells his law classes at Marquette University that “when negotiating and drafting coaches' contracts, the back end is more important than the front end. In other words, the termination provisions are more important than how much you get paid.”
What strategy might Fitzgerald’s legal team pursue?
In the scenario where Fitzgerald and Northwestern do not agree to a settlement and this case goes to trial, Webb’s team has already begun showing legal strategy. Clearly, a main bullet point is that Fitzgerald was unaware of the hazing in his program, and as a result, was fired without justifiable motive.
All of the lawyers I spoke to mentioned that the original punishment for Fitzgerald being a two-week suspension will definitely be used in his favor. One of the major questions remains: in the weekend between issuing the short suspension and the decision to sever ties completely, what changed? Did new information come to light, or was it just public scrutiny and pressure? Webb will likely pursue a line of argument that states that at one point, by deciding to suspend Fitzgerald rather than any stronger punishment, the university itself clearly determined that Fitzgerald’s actions were not severe enough to warrant termination for cause.
One lawyer also mentioned that in a case like this, with an outside investigation, it can be difficult to get testimonials from current and former players and staff members because of the friendly relationship so many still have with Fitzgerald. As a result, Webb and his team may have more access to certain information than the university, allowing them to build a case of strong testimonials of people who were close with Fitzgerald and knew him for decades.
What about the other side of the case?
For the university, without knowing the exact language of the contract, it is hard to speculate, but one major aspect is NCAA Bylaw 184.108.40.206, which states:
It shall be the responsibility of an institution’s head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach.
The bylaw later states, “a head coach is presumed to have knowledge of what is occurring in his program and therefore, can be responsible for the actions of his staff and individuals associated with the program.” This bylaw promotes the doctrine of vicarious liability, which places the responsibility of assistants and their actions under the scope of the head coach. If it can be proven that assistant coaches under Fitzgerald knew about the hazing, Webb’s argument that Fitzgerald was unaware and therefore immune to any punishment is effectively nullified.
Under this bylaw, Fitzgerald would have committed a Level I Violation labeled as “Severe Breach of Conduct.” According to the legislation, this could lead to penalties in the form of a postseason ban, financial sanctions, scholarship reductions, recruiting restrictions on official and unofficial visits or complete probation.
In other major college football coaching contracts, such as Dabo Swinney’s at Clemson, there is a subclause within the section that outlines the coach’s duties, requiring him to refrain from “any act or omission (including but not limited to physical and/or emotional abuse of student athletes) that creates, or could reasonably be expected to create, an unreasonable risk of harm to a student athlete.” This type of clause, from Swinney’s deal signed in 2019, is believed to be among the first of its type in a coaching contract. This would mean that any hazing scandal, like the one at Northwestern, would be an automatic cause for termination. Although it is a new occurrence, in the chance that Fitzgerald’s new contract featured any language reminiscent of that in Swinney’s, Fitzgerald and Webb’s claims would be baseless.
What are some similar examples of termination in college sports?
One of the most recent examples of firing with cause in college sports may be the best comparison to this case, as it also involves hazing. The New Mexico State men’s basketball program canceled the remainder of its season this past February after two players filed a police report detailing hazing and assault. Coach Greg Heiar was subsequently terminated.
In June, the players who filed the report settled their lawsuit with the school, with New Mexico State agreeing to pay $8 million to Deuce Benjamin and Shak Odunewu. Four months after being fired by NMSU, Heiar was recently hired to be the head coach at Mineral Area College, a junior college in Missouri.
In 2021, Washington State football coach Nick Rolovich was fired with just cause for refusing to comply with the state’s COVID-19 vaccine mandate for state employees. Although the circumstances of the termination are vastly different, Rolovich similarly appealed the decision, claiming he was wrongfully terminated.
With roughly $4 million remaining on his contract, Rolovich pressed charges, citing faith-based reasons for his unwillingness to receive the vaccine. This spring, a judge dismissed parts of his lawsuit, but his claims against Washington State were allowed to proceed toward trial and are worth monitoring as another data point in determining what Fitzgerald’s outcome may be.
Another similar case can be found in former Kansas football coach David Beaty. Beaty was originally fired without cause, with Kansas agreeing to pay the coach the remaining $3 million owed. Beaty was later informed that he was under investigation for misconduct for the use of a non-coaching staff member in a coaching role, putting him in violation of the aforementioned NCAA Bylaw 220.127.116.11. As a result, the status of Beaty’s termination was switched from “without cause” to “with cause.”
In 2019, Beaty sued the university for breach of contract, claiming Kansas was using the investigation to avoid paying him the remaining amount in his deal. A year later, the two parties reached a $2.55 million settlement.
Tennessee football coach Jeremy Pruitt, Texas basketball coach Chris Beard, St. John’s basketball coach Mike Anderson and LSU basketball coach Will Wade are among the other coaches fired with cause in just the past two years, a list that continues to grow.
What is the most likely outcome?
Ultimately, the lawyers I spoke to did not want to speculate too much because of the unknowns in Fitzgerald’s contract language, but most believed a settlement might make sense for both sides.
The Fitzgerald side has the incentive to wrap up this process sooner rather than later so he can know his eligibility as a coach for future jobs and potentially enter his name into the coaching carousel for the 2024 season. On top of that, Fitzgerald may want to avoid trial, where the university — with all of its resources — would be able to build a case against him.
The university and conference have an additional incentive to iron this out before the 2024 season as well. With UCLA and USC set to join the Big Ten and the prestige that comes alongside the shiny new TV deal, it is a poor look to have one school engaged in an active investigation and pending lawsuit.
Additionally, universities have additional motives to remove the lingering scandal. Take Wichita State, for example, where former basketball coach Gregg Marshall resigned in the wake of an investigation into his abusive behavior. As explained by Alex Utrup when breaking down why Wichita State agreed to a $7.75 million settlement rather than going to court, “A trial involving whether a coach was properly terminated for cause is always high profile, constantly being dissected and discussed by the media and fans, and may have an ultimate effect on the college in terms of recruiting, donations from alumni, and impede the general functionality of the athletics department and the program. Also there is the time factor. Rather than focusing on the raising money from alumni, putting winning teams on the playing field, athletics departments are forced to use their resources for a drawn out expensive and intense legal battle.”
However, one lawyer I talked to pointed out that depending on what is uncovered in the former student-athletes’ lawsuits against Fitzgerald, it could reach a point where the university can no longer settle. If the information released in those cases, which is likely to move faster than a potential Fitzgerald lawsuit against the school, is incredibly damming, the PR and logistics of a settlement could look so bad for Northwestern that it is no longer a reasonable outcome.
Fitzgerald also needs to be careful with his options to avoid receiving an NCAA show-cause penalty, which could dissuade other programs from hiring him for the foreseeable future. The show-cause penalty, the most serious penalty a coach can receive, can be given to any coach found to have committed major rules violations and is intended to prevent coaches from escaping their punishments by taking a job at an unpenalized school.
According to lawyers, if the two parties, who both have some incentive to do so, can agree to a settlement, the figure is likely to be far less than the reported $42 million remaining on Fitzgerald’s deal. Regarding the timeline for an outcome, a settlement could accelerate the process, but lawyers agreed that the complexity of this situation, in addition to the other lawsuits, could extend this affair for a while.