An Argument that Michigan Can Terminate Dave Brandon's Contract "With Cause" - Part 3

  Photo: David Guralnick / Detroit News

Photo: David Guralnick / Detroit News

As many of you have been doing, I have been sitting back and watching Dave Brandon and company dig themselves into a deeper and deeper hole. To finish this series, below is a summary of the argument the University of Michigan has if it wanted to terminate Dave Brandon's employment contract "with cause" and avoid paying him a gross amount of further compensation and benefits that many would powerfully argue should not be placed into his hands.

The University of Michigan can fire Brandon "with cause" because he has failed to direct and supervise Michigan's intercollegiate athletic program in a competent manner, he has neglected to promote Michigan's philosophy and mission, he has ignored the requisite consultation with the Advisory Board on Intercollegiate Athletics ("ABIA"), and his initiatives have weakened rather than enhanced the image and attractiveness of the University and its athletic department. Brandon's employment contract defines "cause" as "the failure by the Director to perform in any material respect any of his duties or obligations under this Agreement." Furthermore, Exhibit C lists the Director's specific duties and responsibilities:

Direct and supervise the intercollegiate athletics program in a manner that promotes the mission, values and aspirations of the University... [s]erve 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... [c]onsult with the Advisory Board on Intercollegiate Athletics (“ABIA”) on areas where such input is required, customary or appropriate... [r]ecruit, select, employ, and supervise staff to ensure efficient and productive operation of all administrative, business, fiscal, and athletic activities of the Athletic Department... [d]evelop initiatives that enhance the image and attractiveness of the University and the Athletic Department.
— http://www.toledoblade.com/attachment/2012/06/02/Michigan-AD-Dave-Brandon-s-contract.pdf

Here, Dave Brandon has failed to fulfill his duties and responsibilities on various occasions during his tenure as Director of Athletics at the University of Michigan. The athletic department's mission focuses on the welfare of its student-athletes and has integrity, focus on the individual participant, academic and athletic excellence, equity and access, and support services as its guiding principles. By failing to properly inform head football coach Brady Hoke of Shane Morris's medically-diagnosed concussion for 12 hours and let him harm his own image as well as the Michigan brand in whole, Brandon did not supervise his staff. His incompetency led to inefficient administrative and athletic decisions and goes against student-athlete well-being, for although a student may stand up for its program and proclaim he just wants to play football, it is up to the adults whose mission it is to protect the student-athletes to stand by their mission. By issuing a public statement around 1:00am concerning this most recent controversy, Brandon has also neglected his duty to serve as the primary spokesperson for the Athletic Department.

Moreover, by failing to consult with the Advisory Board in the past on his intent to hiking ticket prices and altering the varsity status of teams, he detracts from the department's integrity that it so proudly heralds as being "honest in [its] dealings with student-athletes, coaches, staff, opponents, and governing bodies." By pointing the finger at Rich Rodriguez, ending his employment as head football coach, and failing to acknowledge the real administrative issues within the department (see Three and Out: Rich Rodriguez and the Michigan Wolverines in the Crucible of College Football by John U. Bacon), Brandon has intentionally disregarded the best interests of the program. If Brandon was evaluated under similar six criteria on which he evaluated and fired Rodriguez - "game performance, recruiting and retention, academic performance, leadership, the university image of the players and the university image of the coaches" - he would lose his job, too.

By hiring and allowing those in his staff to toss out loved traditions of marching band songs between nearly every play, passing out tickets as if they are pizza giveaways solely to keep the attendance record streak alive, and ignorantly making public statements that measure Wolverine happiness on a scale of one-to-Beyonce after taking student polls that reveal what is most important to the Michigan football Saturday experience (among other things), he has demonstrated that he neither represents nor truly cares about what is important to the Michigan image. Brandon has showed his incompetency to run an athletic department by treating a technically nonprofit model as a purely profit model, especially when there are more qualified prospects for the job who understand the intercollegiate athletics model, and the block "M" is becoming either a joke or irrelevant - take your pick - when it was historically king not too long ago.

By failing Michigan's head football coach and student-athletes, the Michigan Athletics community, the fans, and the department's nationwide reputation over the course of his tenure, Brandon's actions have produced negativity and a significantly depleted brand that constitute a "material" failure under which the University can fire Brandon "with cause." As mentioned earlier, the material quality of the Director's conduct is what subjects his actions to termination of employment "with cause." Although the contract does not define what would constitute a "material" failure, we can use the plain meaning of "material" as important, going to the merits, and having to do with the substantive matter in analyzing the contractual duties.

Here, Brandon has materially failed to perform his duties and responsibilities because he has not protected the block "M," which is the essence of his employment contract and the nitty-gritty of the contract's substantive matter. All the University may need to do is discuss the protest on the Diag and the accompanying petition to release Brandon from his position. If the Wolverine community did not feel Brandon has failed to perform his substantive duties, they never would go to lengths such as this. Those who wear the block "M" are trying to be loyal, but it is difficult to be loyal to a program when the person in charge refuses to listen to its base. Honestly, I am not aware of an uproar like this happening to another athletic director before. He is operating the department in a manner that is unattractive to prospective student-athletes, future and current loyal fans, future athletic department personnel including coaches and athletic directors, and a society in general that is watching NCAA athletics under a microscope. That goes directly to the merits, and that is the definition of "material." Therefore, in light of the events named and those I do not have time to discuss here, his actions constitute failure to perform his duties and responsibilities in a material way, and the University can terminate his employment "with cause."

Dave Brandon has failed to do justice to what the block "M" stands for. Despite him personally handing the University many reasons to fire him, the Michigan Student-Athlete Advisory Committee released a statement supporting Brandon late last night. If the University wants to save face and have a chance to recover as soon as possible, it will find a new Director and not humor him with the various benefits and compensation he would contractually receive if fired "without cause."