An Argument that Michigan Can Terminate Dave Brandon's Contract "With Cause" - Part 2

I will pick up where Part 1 left off. The Michigan loyal should be concerned about Dave Brandon because of his actions since he took the position in 2010 and their effect on the Michigan image. It is considerably ironic that the former CEO of one of the nation's largest pizza chains is having deep public relations issues, but using a standard business model in a commercialized society in an esteemed, time-honored athletic program of the historically highest caliber would not sit well with the people who demand a product that is already suffering. In treating the program in this way, Michigan could terminate Brandon's employment contract "with cause" given the following provisions:

SECTION 8.2 - "OTHER TERMINATION"

Subsection (a) defines the term "cause" for which the University may terminate Brandon's employment at any time. If he is so terminated, he would only be entitled to receive unpaid Base Salary and Additional Compensation through that date. Of course, "cause" includes meanings such as felony charges (8.2(a)(ii)), a morality-type clause regarding him offending public decency based on the standard prevailing in the community (8.2(a)(iii)), and violating NCAA rules. The first enumerated item in the definition for "cause" is "the failure by the Director to perform in any material respect any of his duties or obligations under this Agreement" (8.2(a)(i)) [emphasis added]. In contrast, subsection (b) defines a termination "without cause" as termination "other than for expiration of this Agreement without renewal, death or disability or Cause."

In firing Brandon, section 8.2(a)(i) is the definition of "cause" Michigan could use. It is general enough to cover everything Brandon is contractually obligated to do. Therefore, we must next look to what the contract enumerates as his "duties or obligations."

SECTION 5 - "DUTIES AND RESPONSIBILITIES"

First, the agreement says Brandon is the person responsible for "the leadership of, and shall oversee and administer all aspects of[ ] the University's Athletic Department, including each of the University's intercollegiate athletic programs." It uses phrases such as "best efforts" and performing "faithfully, diligently, and competently" in describing Brandon's requisite behavior.

I would not go as far as saying he has failed to use his best efforts in conducting his position's responsibilities. That would be incredibly difficult to show, anyway. Rather, I would focus on the use of "competently" and move forward to the specifically enumerated Athletic Director duties in Exhibit C. There are various ways the University could establish the requisite level of competence. Most likely, all Michigan would have to show is that Brandon has not acted as a reasonable person in a similar situation would act, and it could compare and contrast his actions the past four years to that of other athletic directors across the nation. Common practice is not necessarily the standard, but it would be one way the University could establish the standard it expected in hiring him.

EXHIBIT C - "DIRECTOR OF ATHLETICS - JOB DUTIES AND RESPONSIBILITIES"

Under this exhibit, the University can identify plain language to apply to Brandon's specific and general behaviors. Here are some of the provisions I would focus on:

• "Direct and supervise the intercollegiate athletics program in a manner that promotes the mission, values and aspirations of the University."
• "Serve as primary spokesperson for the Athletic Department, promoting the philosophy and mission of the University and its athletic program with faculty, staff, students, alumni, the media and the general public on a local and national basis."
• "Consult with the Advisory Board on Intercollegiate Athletics ("ABIA") on areas where such input is required, customary or appropriate."
• "Recruit, select, employ, and supervise staff to ensure efficient and productive operation of all administrative, business, fiscal, and athletic activities of the Athletic Department."
• "Develop initiatives that enhance the image and attractiveness of the University and the Athletic Department."

Knowing these are the terms under which Brandon contractually agreed to employment by the University (and also in the Amended Version with the extension), you can begin to understand the argument I will present in Part 3, the final installment of this topic. Also, for additional fun reading, I strongly recommend John U. Bacon's article published this morning. Anything he authors is pretty much gold.

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