By Dennis Read
Dennis Read is an Assistant Editor at Athletic Management.
Athletic Management, 13.3, April/May 2001, http://www.momentummedia.com/articles/am/am1303/word.htm
It has often been said that oral commitments aren’t worth the paper they’re not written on. A clever statement to be sure, but is it true when it comes to college recruiting?
In February, Northwestern University settled a lawsuit brought by the father of a prospective student-athlete who alleged that the school’s basketball coach had reneged on a scholarship commitment. The parent claimed that the school offered his son a scholarship, only to later take back the invitation.
The student-athlete subsequently enrolled at a non-scholarship Division I school, where he is a member of the basketball team, but the father sought recompense from Northwestern for the supposedly promised scholarship. The two sides reached an undisclosed settlement before the case went to trial.
On the flip side, coaches report that they are increasingly dealing with broken promises from recruited student-athletes. More and more prospective student-athletes are ignoring their oral commitments or giving them to several different schools at the same time. But most lawyers say a school would be ill-advised to bring suit against a student-athlete for backing away from an oral commitment.
So where does this leave athletic administrators? While some coaches feel there are no strategies or solutions to this sticky problem—“Today’s kids have less integrity. What can you do?” they lament—others are working to curb the trend. They say there are several things athletic directors at both the high school and college level can do to help their coaches and student-athletes through this rocky part of the recruiting process.
Many people mistakenly believe that oral agreements are not legally binding. It is true that oral agreements can often be harder to enforce than written contracts, but that’s largely because of the difficulty in proving that there was such an agreement.
“There are certain things you can’t contract for orally, but most types of agreements can be oral,” says Michael Glazier, Partner in the law firm of Bond, Schoeneck & King in Kansas City. “It’s just more difficult to prove that the agreement existed when it’s oral instead of in writing.
“Generally, people think of these commitments as being governed by NCAA legislation, but NCAA legislation doesn’t recognize an oral agreement as being binding,” Glazier continues. “Since there’s no enforcement mechanism through the NCAA, people turn to the courts. And there, a decision would be based on whether or not the student-athlete could show if there was, in fact, an oral contract.”
The standards regarding oral agreements vary from state to state and court to court. Therefore, lawyers suggest that collegiate athletic directors find out the precedents they’ll be held to now, rather than waiting until a suit is filed.
“I think one of the first things athletic directors should do, in terms of looking at this from a legal standpoint,” says Michael Buckner, an associate with the law firm of Holland & Knight in Jacksonville, Fla., “is to get together with their general counsel or outside law firm and examine the respective state laws and whether any state courts have looked into this issue. They can look for any laws surrounding recruiting and athletic scholarships or just the general state law on oral contracts and oral agreements to see whether any of those could be applied in the athletic context. Then, on the NCAA side, they could also have their compliance office go over certain aspects of Bylaw 13, which is the NCAA bylaw that governs recruiting.
“I think each athletic department will have to come up with its own plan, based on the legal and regulatory rules, as to what its policies and procedures are going to be,” Buckner continues. “Each institution should decide for itself the extent of what coaches can and cannot do so they don’t get themselves in a legal problem. Oral commitments are going to happen, and there’s nothing wrong with that— people make those types of agreements all the time. The question becomes, how is an institution going to deal with an oral representation that is challenged?”
Although he couldn’t talk about the specific case at his school, Northwestern University Athletic Director Rick Taylor indicates that his department has since taken another look at its policies and procedures. “If we’ve learned one thing, it’s to put everything in writing,” he says. “For example, to keep a log of all phone records, so that it doesn’t get into a ‘he said, she said’ scenario.
“We’re also working on adding all sorts of nuances in our written scholarship offers that won’t hurt us, but still let the kid know exactly what the procedure is,” Taylor continues. “You have to be explicit in everything you do, and be able to back up with records, in writing, what the youngster has been told.”
Since the Northwestern case was settled before going to trial, there are still a lot more questions about what constitutes an oral scholarship agreement than there are answers. But an expanding appetite for litigation combined with growing visions of financial grandeur may lead to an increase in similar suits in the future.
“The law is not well developed in the area of collegiate sports, and that’s because there haven’t been a lot of student-athletes filing cases against institutions,” Buckner says. “But now that there is more money to potentially be made—with professional leagues in several sports offering pretty good salaries—I think you will probably see more student-athletes filing cases on various legal issues.”
The ability to enforce all oral commitments could be a blessing for athletic administrators and coaches, if it wasn’t for the inevitable catch. When it comes to oral commitments, schools are basically operating on a one-way street. Although possible in theory, it’s highly unlikely that a court would make a prospective student-athlete honor an oral commitment he or she made to a school.
“Because it’s a big institution versus a quote-unquote naive 18 year old, the student-athlete may be able to hold the university to a commitment, but the university can’t hold the kid to his or hers,” Taylor says. “So it’s a strange dichotomy.”
“Plus, the student is a much more sympathetic figure in that case,” Glazier says. “You’re going to have a hard time finding a judge or jury that would be very sympathetic to a college that brings an action against a prospect who has changed his or her mind.”
Then there’s the issue of age. Many prospective student-athletes are under the age of 18 and even the National Letter of Intent requires the signature of a parent or guardian if the prospective student-athlete is under 21.
“A court will look at which party has greater bargaining power and which is more sophisticated in a certain area versus the other party,” Buckner says. “In this type of instance, we have a college coach, sophisticated in the industry and recruiting, and you may have a prospect who is a minor. And if these oral commitments are made outside of parental advice or the presence of a guardian or parent, it goes back to whether this kind of commitment would be legally binding.”
But even if the parents have gone along with the oral commitment and the law is completely on the school’s side, any school pursuing this course of action would face a long, uphill battle. “It’s probably not the best case for a school to bring from a public relations standpoint,” Glazier says. “And then, how do you measure your damages as an institution? It wouldn’t be as easy as a student-athlete who can measure damages by the value of the scholarship. You don’t know whether that athlete is going to turn into a Heisman trophy winner and be the impetus behind the generation of thousands of dollars for the athletic department. It’s all speculative, and that doesn’t make for a very good lawsuit, in my opinion.”
A Longstanding System
If prospective student-athletes’ oral commitments can’t be enforced, should coaches continue to ask for them? Most say yes. Because the realities of filling a recruiting class require coaches to get an indication of who will accept scholarships before they are awarded, the system cannot be easily scrapped. And, of course, many student-athletes do follow up on their commitments.
But tales of student-athletes retracting a previous oral commitment and making another to a different school (known as de-committing and re-committing) are becoming more commonplace. There are also stories of student-athletes orally committing to every school that seems interested.
“When I came out of high school, if we committed, we pretty much stood by it,” says Rodney Garner, Assistant Football Coach and Recruiting Coordinator at the University of Georgia. “I don’t remember many kids changing their minds.
“But we’re in an era, now, where so many kids are committing and then changing their minds that it seems like that’s the protocol,” he continues. “It’s made recruiting really difficult because, in the past, if you could get a young man committed, you didn’t have to worry as much about him; you could really concentrate on some other people and get them in the fold. Now, just because they’ve said they’re on the boat doesn’t mean they’re really on it.
“You always have to be on your toes because if you’re not, you’ll think you have this young man and in actuality he’s going to go somewhere else. So you really have to be conscientious of everything and make sure you have enough numbers to cover yourself because nothing is for sure until you get that [National Letter of Intent] fax back in.”
And, in some cases, even that’s no guarantee. “Although I’m not saying it’s the way most coaches feel around here,” says Terry Cole, Associate Athletic Director at the University of Illinois, “with the changes that have occurred in recent years, my philosophy is that I won’t believe they’re committed until we have their name on the dotted line, and even more so, until they show up on campus. I think the National Letter of Intent used to be taken a lot more seriously than it is today, and I think an oral commitment used to be taken a lot more seriously than it is today.”
Garner and his brethren of college recruiters are not likely to find much sympathy for their plight, though. Many feel the college coaches themselves are at least partially responsible for creating an atmosphere where everyone is fair game until they sign their name.
“The coaches are fishing around a lot more than they used to,” says George Walters, Athletic Director at Heritage High School in Newport News, Va. “Coaches are coming in at the last minute even though the kid’s already given a prior oral commitment.”
“In some ways, all an oral commitment really does is make the kid more marketable to other schools,” Garner says. “When they’ve committed to the University of Georgia, or Auburn, or Tennessee, I think attention from competitors increase a lot. If a young man has not received that much attention before committing, afterwards it just seems like it’s open season on him. And it really makes you have to spend a lot more time doing maintenance to hang on to the commitment.”
College coaches themselves obviously hold one of the keys to calming this increasingly unsettled area of recruiting. But a unilateral move to stop recruiting student-athletes who have made oral commitments doesn’t seem likely. For coaches eager to move their programs up a notch, the practice is a part of their competitive drive. Not pursuing a potential recruit just because he’s made an oral commitment would seem like professional suicide.
Yet, there are people doing just that. “Our basic policy at Northwestern is that once a youngster has made a verbal commitment to another school, our coaches tend to back off,” Taylor says, “unless there are some mitigating circumstances—something like a coaching change, or a youngster contacts our coach and says, ‘I may like to reconsider.’ But, normally, we back off.”
At Georgia, Garner does the same thing. “I’m not very good at getting kids to change their minds,” Garner says. “Once they say they’re going somewhere and they truly feel that’s it, I try to respect that.
“But if they do commit to us, we commit to them,” he continues. “If a young man commits to us and he tears his knee playing basketball and can never play football again, we’re still going to honor that commitment and try to keep him involved in the program in some kind of way.”
Once the coaching staff at Georgia has decided to offer a high school athlete a scholarship, they send a letter to the athlete and his coach. When the offer is accepted, they ask the athlete to stop making any campus visits.
“If they’re going to continue to visit other schools, then obviously they’re not very committed,” Garner says. “We tell them, ‘If you commit to us, we drop someone else. So we would like for you not to take these visits.’
“But there are a lot of people who really put on more steam when a kid commits,” Garner continues. “They’re very persistent and they keep calling them, so it’s definitely a problem that I don’t think is going to get solved anytime soon.”
While Garner may be pessimistic about college coaches changing their recruiting methods, he is optimistic about the role high school coaches and athletic directors can play in smoothing out the recruiting process for their student-athletes. That may sound like college coaches asking others to protect them from themselves, but it may also be the most realistic solution to date.
“High school coaches can give their athletes good advice to help them, because it is a big decision,” Garner says. “It’s probably the biggest decision a 17 or 18 year old can make in his life, and he has to understand that it’s not one that can be made without a lot of thought and information gathering.”
“High school coaches and parents need to be educated more about the recruiting process itself and understand what an oral commitment really means,” Cole says. “They also need to know what it means to sign a National Letter of Intent—that they’re not signing with a coach, they’re signing with an institution.
“Even though that’s explained over and over again, there’s a re-education that has to take place because there’s always a different class of kids coming up the next year,” he continues. “You might explain it to one group of parents, but then the parents coming up with the next group of kids might not understand. So it’s continuous education and re-education of those involved in the recruiting process itself.”
Schools with such educational programs already in place advise using handbooks, parental education and sound advice. “Our coaches are pretty good about sharing with the kids what their responsibilities are and mentoring them through the process,” says Duane Buturusis, Associate Principal in Charge of Athletics and Activities at Downers Grove (Ill.) North High School. “They do everything they can to help the kids and I think that’s the key—to have a staff of individuals who are willing to work with kids and help them understand what is and is not appropriate.”
“We have a special handbook where we talk about recruiting, although we haven’t specified anything about oral commitments,” Walters says. “But it probably is something we really should do. Our guidance director speaks quite a bit to the top recruits at our school and tries to get to all the athletes, so he could be a good person to bring this up, too.”
West Monroe (La.) High School Head Football Coach and Athletic Director Don Shows does talk to his players about committing to colleges. “I tell my kids from the beginning,” he says, “‘Once you commit, if another coach calls, you just tell them you’ve already committed and you would appreciate it if they don’t call anymore. Be upfront with them, be nice, and thank them for calling, but explain that you’ve already committed and you have no interest in their school.’
“I also tell my players to sit down with their parents and talk about what they’re going to major in and where they want to go to school, and then visit just the schools they’re interested in,” Shows continues. “I tell them, ‘Don’t take a visit just to take a visit, because that could knock some other kids out.’”
Garner echoes Shows’ points about asking high school athletes to take the recruiting process seriously and commit for the right reasons. “I think coaches should tell their kids not to commit until they’re absolutely certain that it’s what they want to do,” Garner says. “And that’s what I always tell a young man who’s thinking about committing, ‘If you’re not sure that’s what you want to do, you shouldn’t do it—because it gets to a point where it’s all about your word.’”
It also comes down to trust. Student-athletes trusting coaches. Coaches trusting student-athletes. And coaches trusting other coaches.
Coates v. Northwestern
E-mail messages and second thoughts made up the bulk of the case Peter Coates brought against Northwestern University after the school allegedly reneged on a basketball scholarship offer to his son, Andrew. The elder Coates’ suit sought unspecified damages for the tuition at the University of Pennsylvania, where Andrew eventually enrolled. An undisclosed settlement was reached between the parties before the case went to trial.
According to the Daily Northwestern, Coates’ lawsuit claimed his son first received mail from Northwestern in the winter of 1997 as he was in the middle of a 20-point per game season for Eastside Catholic High School in Bellevue, Wash. By season’s end, Coates was selected to the All-Seattle Metro league team as a high school junior.
Northwestern eventually asked for some game tapes, which Coates forwarded to the Wildcat coaching staff, leading to an exchange of e-mails between the coaching staff and Coates. The lawsuit cited an e-mail from Head Coach Kevin O’Neill in May of 1998 extending a scholarship offer to Coates.
The father and son visited the campus in June and even met with Northwestern President Henry Bienen to discuss Andrew’s academic career. Later that month, Andrew Coates called O’Neill and the coaching staff to accept the scholarship offer.
Trouble reportedly surfaced after Andrew Coates attended a summer camp in Indianapolis early that July. Limited by illness and injury, Andrew did not play well in the camp, which marked the first time O’Neill saw him play live. Coates’ suit claimed that shortly thereafter, O’Neill called Peter Coates and took back the scholarship offer.
Peter Coates wrote to President Bienen, who reportedly conferred with O’Neill before replying that the scholarship offer stood. Coates replied to Bienen in an attempt to clear his confusion about the scholarship’s status, but said he received no response. Bienen told the Daily Northwestern that he thought a valid scholarship was available for Coates to use.
“It is my understanding that Coates was offered a scholarship here and he was still offered a scholarship here when he decided to go to Penn,” Bienen said.
Coates sat out his freshman season at Penn—which does not offer athletic scholarships—with an injury, and saw limited playing time this past winter. O’Neill has since left Northwestern and is an assistant coach with the New York Knicks.