Bill O’Brien has a good case that Penn State should let him out of his contract, observers say, but is more likely to stick around and use the university’s misbehavior to advantage.
The first-year Penn State coach’s five-year agreement with the university (posted online shortly after his hiring as part of PSU’s move toward greater transparency) specifies that he’d have to buy himself out of the remaining years of his deal if he chose to leave. But O’Brien was hired in January before Jerry Sandusky’s trial began, before the Freeh Report had been completed, and before this morning’s announcement of severe NCAA penalties. Given the amount of Penn State malfeasance newly revealed in those cases and the punishment that has resulted, several veterans of sports contract negotiations told BuzzFeed, he could argue that the university did not convey to him the full extent of its culpability before he agreed to take the job.
“The stance his lawyers would take is that he’s not the one breaching the contract, it’s Penn State that breached the contract many times over,” said Darren Heitner, founder of the Sports Agent Blog and a sports lawyer and agent based in Florida.
It’s not a straightforward case. “In hindsight, a view which is always a little unfair, especially in law, his lawyer should have negotiated a provision allowing an out if Penn State faced severe NCAA sanctions; not sure if his lawyer tried to get that and Penn State rejected or if no attempt was made,” said Michael McCann, the Director of The Sports Law Institute at the University of Vermont. “Either way, it’s not there. Maybe Penn State will let him out without paying just to avoid another controversy, but legally it does not appear they have to.”
O’Brien’s contract does not specifically require disclosures of previous misbehavior by Penn State via the clauses known as warranties or representations — though O’Brien’s himself was required to guarantee that he has not committed NCAA violations or broken the law.
Heitner said he found it strange that Penn State was not required to make parallel guarantees, but said that the lack thereof may have been accounted for by other incentives in the contract, or simply accepted by O’Brien’s representation because of a perceived lack of leverage on their end.
That leverage will no longer be in short supply, Heitner and others observed, agreeing that it was not likely for O’Brien to try to leave Penn State. He’ll be viewed as a hero if he carries the team through its lowest point, and his willingness to stick out the punishment without involving Penn State in yet another legal dispute will give him leeway to push the administration to put all the resources it can spare toward the program.
“With the fan base and alumni reach, I would think that Penn State could bounce back fairly quickly, certainly much quicker than SMU, and could be a top 25 team again toward the end of the contract,” one sports-law expert, who requested not to be named, told BuzzFeed by way of explaining why he thought O’Brien should stay.
Said Heitner: “My belief is that Bill O’Brien will stay as coach and that he won’t use the situation to his advantage [salary-wise]. But at the same time, I think there will be this undisclosed understanding that this will be his club going forward and there will be probably an atmosphere of non-interference. He’s going to be given what he desires other [than a raise].”