A Potential Contract Sweetener: Rewarding Good Behavior

By Colleen Kielty

The Dallas Cowboys and owner Jerry Jones breathed a collective sigh of relief this past week when a state judge ruled that a lawsuit brought against Jones by Jana Weckerly, a former stripper, was barred by the statute of limitations.

Ms. Weckerly brought the suit against Jones in September, alleging that Jones had sexually assaulted her in 2009 and seeking over $1M in damages. She later made an amendment claiming that Jones and his attorneys had paid her over the past four years for her to keep her silence. In addition to arguing that the statute of limitations barred the suit, counsel for Jones and the Cowboys denied Ms. Weckerly’s allegations and described the suit as an attempt to extort Jones. Counsel also moved for sanctions against Ms. Weckerly for filing what they described as a “frivolous pleading for the purpose of harassment.”

Sexual misconduct charges are not uncommon in professional sports. The dismissal of the Jerry Jones lawsuit conjures memories of similar suits against Kobe Bryant, Ben Roethlisberger, and more recently, Colin Kaepernick. Charges against Bryant, Roethlisberger, and Kaepernick were ultimately dropped, but the accusations left dark shadows on otherwise illustrious careers.

Both athletes and management are at risk – arguably high risk – for finding themselves the objects of such lawsuits brought by intimate partners, acquaintances, or even strangers. Whether or not there is truth behind the accusation, the effect of the accusation on both athletes and management is significant. With the seemingly endless reports of NFL athletes’ off-the-field conduct, attorneys are confronted with the reality that more must be done to prevent these kinds of cases. Attorneys are wise to take greater preventative measures beyond morality clauses and fines, and beyond simple warnings to their clients of the irreversible damage such accusations can have on their careers and lives. But how does an attorney encourage professional athletes or their leadership to avoid compromising situations?

An effective contract provision could be deferred bonus payments. The pay structure would reward solid performance on the field and incentivize good behavior off the field. The bonus would allow the team to forgo paying a bonus if a player under-performs or if he engages in any kind of off-the-field behavior that the league finds contrary to its values or harmful to its reputation. The deferred bonus could easily be inserted into a coach’s contract as well. The Arizona Cardinals have instituted a deferred bonus pay scheme against Tyrann Mathieu, who has a history of drug abuse. Mathieu will receive his bonuses if he is not suspended for drug violations. So far, he’s made great contributions to his team without the off-the-field issues.

Simply stated, perhaps professional sports organizations should reserve the right to forgo payment for any athlete who generates negative publicity as a result of off-the-field conduct. If a team makes explicit the expectation that off-the-field conduct is just as important as on-the-field performance, it will not only save itself money in the event of negative publicity, but its players and leadership will be motivated – by real money – to stay in line.

Colleen Kielty is a 2L at the Sandra Day O’Connor College of Law at Arizona State University. She is an associate editor for the Sports & Entertainment Law Journal.