Analysis: Can Ohio State Fire Urban Meyer For Cause?

By: Cameron Miller

On August 1, college football reporter Brett McMurphy posted a story to his Facebook page detailing domestic violence accusations lodged by Courtney Smith against her ex-husband, former Ohio State assistant football coach Zach Smith. McMurphy previously published a story on July 23, 2018 recounting Zach Smith’s arrest in 2009 for assaulting a then-pregnant Courtney Smith. The initial story also reported that Courtney Smith filed a protective order against Zach Smith on July 20, 2018 after he violated a criminal trespass warning regarding the couple’s shared parental rights. Zach Smith was fired by Ohio State on July 23.

McMurphy’s reporting and other subsequent stories revealed a string of domestic abuse incidents involving the Smiths dating back to 2009, including a second arrest of Zach Smith in October 2015 for another assault on his wife. Courtney Smith considered filing charges against her husband after the 2009 incident, but was discouraged from doing so by a number of individuals. The story also describes how Courtney Smith was in contact with Ohio State football coach Urban Meyer’s wife, Shelley, and the wives of other football staffers regarding the abuse, sending photos to corroborate her claims. Meyer has admitted to being aware of the 2009 domestic abuse episode (when Zach Smith was on his staff at Florida), but denied any knowledge of the 2015 incident at Big Ten media days in late July. But text messages Courtney Smith exchanged with the wife of another Ohio State football staffer in November 2015 suggest that Meyer did discuss the 2015 incident with Zach Smith. In that text message chain, Zach Smith reportedly “denied everything” to Meyer, who allegedly “[didn’t] know what to think.” In an interview with Stadium, also released August 1, Courtney Smith said that while Shelley Meyer told her she would inform Urban Meyer of the 2015 assault, she did not know whether Shelley Meyer followed through.

Shortly after the August 1 reporting, Ohio State announced it would investigate that matter and place Meyer on paid administrative leave. While the questions of what Meyer knew, when he knew it, and what steps (if any) he took in response are likely only a narrow section of the investigation’s scope, the answers will be of great significance should the school move to terminate Meyer for cause. This note analyzes the potential contractual and other legal consequences for Meyer resulting from Courtney Smith’s allegations.

Meyer’s initial contract with Ohio State was signed in 2011, with extensions in 2015 and 2018. The 2018 contract is not publicly available, though certain language has been re-published by USA Today.

Language in Meyer’s contract that may become relevant if Meyer knew of Zach Smith’s October 2015 assault of his wife and subsequent conduct, yet kept Smith on his staff until July 2018, includes:

• “[Meyer] agrees to represent Ohio State positively in public and private forums and shall not engage in conduct that reflects adversely on Ohio State or its athletic programs. [Meyer] shall perform his duties and personally comport himself at all times in a manner consistent with good sportsmanship and with the high moral, ethical and academic standards of Ohio State and its Department of Athletics.”
• Amongst Meyer’s responsibilities as coach include obligations to: “[o]bserve and uphold all academic standards, requirements and policies of Ohio State”; “[k]now, recognize and comply with all federal, state and local laws, as well as all applicable University Rules and Governing Athletic Rules”; and “promptly report to Ohio State’s Deputy Title IX Coordinator for Athletics any known violations of Ohio State’s Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence and stalking) that involve any student, faculty, or staff that is in connection with a university sponsored activity or event (a ‘known violation’ shall mean a violation or an allegation of a violation of Title IX that Coach is aware of or has reasonable cause to believe is taking place or may have taken place)” (new as of 2018 amendment).
• Ohio State may fire Meyer for cause if, in the school’s discretion, there existed: “[a] significant or repetitive or intentional violation (or a pattern of conduct which may constitute or lead to a major violation), as determined by Ohio State, by [Meyer] (or any other person under [Meyer’s] supervision and direction, including, but not limited to, student-athletes, which [Meyer] knew about or should have (in Ohio State's determination) reasonably known about) of any laws, University Rules or Governing Athletic Rules”; “[a] violation by [Meyer] of any University Rules or violation by [Meyer] of any law of the State of Ohio or the United States, including but not limited to, Ohio's ethics laws, as determined by Ohio State”; “[f]ailure by [Meyer] to report promptly to the Director and to the Office of Compliance Services in writing any violations or potential violations known to [Meyer] of Governing Athletic Rules or University Rules including, but not limited to, those by [Meyer], the assistant coaches, students or other persons under the direct control or supervision of [Meyer], as determined by Ohio State”; “[c]ommission of or participation in by [Meyer] of any act, situation, or occurrence which, in Ohio State's judgment, brings [Meyer] and/or Ohio State into public disrepute, embarrassment, contempt, scandal or ridicule or failure by [Meyer] to conform [Meyer’s] personal conduct to conventional and contemporary standards of good citizenship, with such conduct offending prevailing social mores and values and/or reflecting unfavorably upon Ohio State's reputation and overall primary mission and objectives, including but not  limited to, acts of dishonesty, misrepresentation, fraud or violence that may or may not warrant criminal prosecution by the relevant authorities”; or failure to report “any known violations of Ohio State’s Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence and stalking) that involve any student, faculty, or staff that is in connection with a university sponsored activity or event” (new as of 2018 amendment).

If Ohio State’s investigation verifies Courtney Smith’s claims—particularly those concerning Meyer’s knowledge of Zach Smith’s alleged abuse—the school could seek to terminate Meyer for cause. Under the “for cause” designation, the school would not owe Meyer “any further compensation or benefits…which have not been earned as of the date of termination.” Firing Meyer without cause before January 31, 2019 would trigger a $38.1 million buyout payment to the coach, meaning Ohio State has a powerful financial incentive to pursue a for cause firing if it wishes to terminate the coach.

Of the provisions outlined above, the language that appears to place Meyer in greatest jeopardy is that relating to morality/good behavior and the obligation to report “known violations” of the University’s Sexual Misconduct Policy.

Since McMurphy’s follow-up report was published August 1, Zach Smith’s conduct and Meyer’s alleged knowledge of it has quickly become a national story. Although a full set of facts has not yet been determined, Meyer has been widely ridiculed on social media and in the press, with many calling for his ouster. Within hours of McMurphy’s report, the University placed him on administrative leave—a painful, embarrassing look for one of college football’s most successful programs, and a move that will likely hurt Ohio State in recruiting. In an era when sexual misconduct and men protecting other men from its consequences are in the national spotlight, the current situation undoubtedly brings both Ohio State and Meyer “into public disrepute, embarrassment, contempt, scandal or ridicule[.]” Meyer’s purported knowledge of Zach Smith’s post-2009 battery of Courtney Smith, failure to report it, and subsequent misrepresentations to the media is, obviously, not the type of “good citizenship” and “moral [and] ethical” behavior envisioned by the contract. Further, Meyer’s statement that he had no knowledge of Zach Smith’s 2015 arrest is, if refuted, an “act[] of dishonesty” that, particularly in the current climate, “offend[s] prevailing social mores and values” and certainly “reflect[s] unfavorably upon Ohio State's reputation[.]”

The new language inserted into Meyer’s contract during its most recent amendment provides the University additional grounds for a “for cause” firing. Those provisions required Meyer to report “known violations” of Ohio State’s Sexual Misconduct Policy, which proscribes the precise conduct Courtney Smith alleges Zach Smith engaged in—“intimate violence and stalking.” However, Meyer was only required to report such conduct if it involved  “any student, faculty, or staff that is in connection with a university sponsored activity or event” (emphasis added). While Zach Smith was staff member at Ohio State, whether his allegedly abusive conduct was “in connection with a university sponsored activity or event” is unclear. Had he assaulted his wife at an athletic department function, Meyer’s reporting duty would have been triggered. Here, though, Zach Smith’s assaults of his wife took place in and around the couple’s home (and perhaps other off-campus locations; there is not yet any evidence the abusive behavior occurred on-campus), which may relieve Meyer of his reporting obligation. Should the meaning of this contractual language reach a judge or jury, Meyer’s fate could turn on the interpretation of “in connection with” and whether that phrase refers to the “violations” or the individuals committing them. Complicating the reporting issue further is that the threatening text messages Zach Smith sent Courtney Smith may have originated from his work phone, which may be sufficient to meet the “in connection with a university sponsored activity or event” bar. But as of yet, there is no indication Meyer was aware of those communications.

Also of importance here is the contract’s provision that the University may seek a for cause firing for “findings or determinations of violations during employment of [Meyer] at Ohio State or any other institution of higher learning” (emphasis added). Whether this language required Meyer to report to Ohio State his knowledge of Smith’s 2009 assault of his wife is also unclear; if construed that way, it would place an onerous burden on Meyer to report violations or potential violations committed by fellow Ohio State coaches with whom he coached at previous schools.

But Meyer’s contractual obligation to report “known violations” of the University’s Sexual Misconduct Policy (“Policy”) may ultimately be of little import, because the actual Policy—to which Meyer is also required to adhere—contains an unqualified reporting obligation. To be clear, the Policy "applies to alleged sexual misconduct that takes place on university property or at university-sponsored events," though it can be interpreted to apply to "alleged sexual misconduct that occurs off-campus, including virtual spaces" when the school's Title IX coordinator or deputy coordinator believes the conduct at issue "could reasonably create a hostile environment" (while there is not yet any evidence Zach Smith's actions against his wife took place on Ohio State's campus, the potential use of a work phone to send threatening messages could be enough to create an "on campus" nexus).

Section IV(D) of the Policy requires “[a]nyone who supervises faculty, staff, students, or volunteers” (which would seemingly include Meyer) to report any type of sexual misconduct. That includes domestic violence and stalking, which the reporting suggests Zach Smith committed against his wife. Assuming that conduct took place "on campus" and Meyer knew of it and did not report it, he violated the school’s Sexual Misconduct Policy. Even if Meyer did not know of Zach Smith’s continued abuse of his wife while the duo coached at Ohio State, the University may still find that Meyer “should have…reasonably known about” Smith’s conduct.

If terminated for cause, Meyer’s financial losses and legal consequences could be steep. He would lose, at minimum, the $42.6 million he was owed under his most recent contract extension, a number that does not include the value of the ancillary benefits he currently enjoys as head coach. And, the facts uncovered during the University’s investigation could give Courtney Smith additional ammunition for a civil lawsuit against Meyer, which might allege that Meyer was negligent and reckless is carrying out his duties as Ohio State’s head coach (which required him to report instances of domestic violence and stalking). Although it is unclear whether Smith would sue Meyer, she remarked in her Stadium interview that she felt “[w]hen someone is crying out for help, I believe the coach – along with the coach’s wife – they have a duty to do something to help…” Courtney Smith could argue that, had Meyer known of and reported Zach Smith’s conduct, she would have been spared some of the abuse she allegedly suffered.

It is worth remembering that these contractual and legal ramifications largely depend on the outcome of Ohio State’s investigation, which is only beginning and about which little is known. Absent a negotiated separation between Meyer and the University, the investigative findings will likely be a significant factor in the school’s approach to Meyer’s employment and the coach’s legal situation.

Cameron Miller is a 2016 graduate of Stanford University and earned a Master's in Sports Law & Business from Arizona State University in 2017. He is the Sports Lawyers Association's Research Assistant.