By: Jeff Solloway
On November 26, 2017, the University of Tennessee Volunteers hired Ohio State defensive coordinator, Greg Schiano, to be the next head football coach at the school.[1] Schiano was slated to get on a plane to Knoxville and join the team, but then, he was not. The Volunteers backed out of the deal after fans, former players, elected officials, students and alumni created a firestorm on social media, claiming Schiano covered up child rape while coaching at Penn State during Jerry Sandusky’s tenure.[2]
In a 2015 deposition, former Penn State assistant coach, Mike McQueary, testified that another Penn State assistant coach, Tom Bradley, had told him that Schiano had talked to him about seeing Sandusky abusing a boy in the shower in the early 1990s.[3] Schiano was never implicated by another party over the course of the investigation into Sandusky, who is now serving 30 to 60 years in prison for his conviction on 45 counts of sexual abuse.[4] McQueary’s statement was double hearsay, which is probably why law enforcement never followed up on it.[5] Yet the Tennessee faithful did not hesitate to light up the Internet and sully Schiano’s reputation, killing his chances of coaching the Volunteers.[6] This fiasco illustrates the sheer power of social media and general media backlash in today’s day and age. The situation, however, could have legal implications.
Schiano and Tennessee Director of Athletics and Vice Chancellor John Currie reportedly signed a Memorandum of Understanding (MOU) setting forth the basic terms of the agreement, which would pay Schiano $27.7 million over six years.[7] The MOU further stated that it “constitutes a binding agreement between Coach and the University . . .”[8] Schiano could pursue legal options here, in the form of a breach of contract or defamation lawsuit.[9] The breach of contract suit has a hurdle, because, although Currie and Schiano signed the MOU, there are signature lines for Chancellor Beverly Davenport and CFO David Miller, which were blank.[10] As a result, the breach of contract suit might not have legs if all parties did not sign the MOU in question.[11] The last sentence of the MOU, however, reads, “until such time that the Employment Agreement is executed, this MOU shall constitute a binding employment contract between the parties.”[12] This sentence seems to portray the document as a binding contract. Tennessee could have included language in the MOU to say the document had to be fully executed in order to be binding, which would require all signatures to be signed.[13]
In the alternative, Schiano could pursue a defamation claim against the university. Clearly, his reputation and brand have been negatively impacted by the incident.[14] Schiano might avoid a lawsuit, however, because this could negatively impact how schools consider him for future head coaching jobs.[15] Schools may be leery of negotiating with Schiano if such negotiations fail and lead to a potential lawsuit.[16] Schiano might want to also avoid litigation because he would certainly be deposed in any lawsuit, which could be harmful if he is harboring past information that would do further harm to his brand.[17]
Tennessee could be harmed in a lawsuit involving Schiano as well. The university appears to be incompetent in the negotiating process, due to the Schiano situation.[18] Lingering litigation will only serve to emphasize that point.[19] In addition, public perception of the way the university handled the Schiano incident seems to be less than favorable, regardless of what happened during his past tenure at Penn State.[20] It is more likely that this incident will end in a settlement between Schiano and Tennessee, in which Schiano will get a portion of his salary and the university will escape bad press from litigation.[21]
The Greg Schiano-Tennessee Volunteers fiasco illustrates the power of social media and public perception regarding hiring decisions by large football programs. Social media has changed our lives in a myriad of ways.[22] It has given a voice to the previously voiceless.[23] Never has there been such a direct line between the powerful and the previously powerless.[24] Furthermore, if enough voices get together and get fired up enough, they can turn into a mob, swaying the decisions of those at the highest levels of program management.[25] As we can see here in Tennessee’s case, social media backlash and the subsequent relinquishment by university brass could have legal implications in the future. Universities should be extra careful and do due diligence before extending offers to coaches in large sports programs.
[1] Jordan Kobritz, Tennessee and the Greg Schiano Saga Is Not Over, Sports Litigation Alert (Dec. 22, 2017), http://www.hackneypublications.com/sla/archive/003271.php.
[2] Id.
[3] Joe Drape, Tennessee, Greg Schiano and Moral Outrage in College Sports, The New York Times (Nov. 27, 2017), https://www.nytimes.com/2017/11/27/sports/tennessee-football-greg-schiano.html.
[4] Patrick Rishe, Breaking Pact with Greg Schiano, Tennessee Athletic Department Shows Its Cowardice, Forbes (Nov. 29, 2017), https://www.forbes.com/sites/prishe/2017/11/29/gutlessness-of-tennessee-athletics-department-severely-taints-greg-schianos-brand/#1b9d8ce34db1.
[5] Kobritz, supra note 1.
[6] Id.
[7] Id.
[8] Id.
[9] See Rishe, supra note 4.
[10] Kobritz, supra note 1.
[11] See Rishe, supra note 4.
[12] Kobritz, supra note 1.
[13] Id.
[14] Id.
[15] See Michael McCann, Greg Schiano’s Memorandum of Understanding With Tennessee Could Burn Vols, Sports Illustrated (Nov. 27, 2017), https://www.si.com/college-football/2017/11/26/greg-schiano-tennessee-volunteers-memorandum-understanding.
[16] Id.
[17] See Rishe, supra note 4.
[18] Kobritz, supra note 1.
[19] Id.
[20] Id.
[21] See McCann, supra note 15.
[22] See Andy Staples, The Lessons and Warnings of Tennessee’s Greg Schiano Saga, Sports Illustrated (Nov. 27, 2017), https://www.si.com/college-football/2017/11/27/greg-schiano-tennessee-coach-protest-penn-state.
[23] Id.
[24] Id.
[25] Id.
