MSU Gets It Right | A Cross-Post with LinkedIn

There have been all kinds of articles in the news right now about Mel Tucker (Tucker) and Michigan State University (MSU). Example are here, here, here, and here. There are lots more.

Trigger Warning & Disclaimer

This article discusses allegations of sexual assault, so please do not read if doing so may lead to a triggered state. Further, 888 Investigations has no personal knowledge of the actual facts in this situation and makes no claim that the allegations that have been publicly available are true or false. Instead, this article focuses on the process followed.

Background

Mel Tucker was riding high during and after the 2021 Michigan State University (MSU) football season. MSU reached 11 wins, had beaten its in-state rival (The University of Michigan) and ended the season ranked No. 8 in the Coaches Poll and No. 9 in the AP poll. MSU and Tucker agreed to a 10-year, $95 million contract extension and Tucker was named the Big 10 Coach of the Year that season.

That was the high water mark for MSU and Tucker.

The next season ended with a losing record and 5th place in the East Division. In 2023, MSU started 2-0 before Tucker was suspended because of allegations of sexual harassment. Among other allegations, he is accused of making sexual comments and masturbating during a phone call (I cannot determine whether this was an audio-only or a video call). The accuser is a rape survivor who educates athletes about sexual violence. Tucker has described the encounter as consensual phone sex.

Contractual Issues

The lawyer in me lives for these details, but they are not critical for today's discussion, other than to say that Tucker's contract allows for dismissal for cause for "any conduct which constitutes moral turpitude or which, in the university's sole judgement, would tend to bring public disrespect, contempt or ridicule upon the university." Termination for cause would allow MSU to avoid paying Tucker the remainder of his pay, which would otherwise be guaranteed.

I'm using the term "with cause" here generically as the term is used in society. Specific states have different terms with varying meanings.

MSU's Course of Action

MSU hired an outside investigator to look into the allegations. Upon the conclusion of the investigation, MSU scheduled a formal hearing to determine whether Tucker violated the school's policy banning sexual harassment and exploitation. MSU initially suspended Tucker indefinitely, and eventually informed Tucker that it intends to fire him for cause.

Tucker's Response

Within the past day, Tucker's attorney filed a 25-page response insisting that Tucker did not "engage in unprofessional or unethical behavior." She further stated that Tucker asked for a medical leave for a serious health condition during the suspension and MSU denied the request. “The fast track to termination following Tucker’s assertion of rights under the FMLA is retaliatory,” she wrote. While Tucker's attorney did not say it, others have: if MSU football was doing better, he could still have a job.

Discussion

This situation was always going to lead to litigation. There is approximately $80M in question. There was no way that Tucker was going to accept being fired and simply walk away without being paid. So what did MSU do? It brought in an independent investigation firm who had no "skin in the game." If the investigation firm found that there was no evidence of an infraction, it wouldn't be on the hook to pay Tucker the compensation remaining on the contract. It had no incentive to cover anything up.

And importantly, MSU now has a fact-finder acting at "arms-length" that it can point to for justification in the actions that it takes. Recall that clause in the university's sole judgement? Well, that sole judgment doesn't always find sympathy with judges, especially when it might stand to gain significant financial rewards. But when you take sole judgment and add in an independent investigation's findings? That's rock solid.

Prediction

In my view, if the allegations are proven, MSU has a much better case to prevail than other similar cases. It very well might win outright. But you never know with litigation, and there is a cost to litigation itself. And those litigation costs are not recoverable even with a clean victory. For that reason, and others, I strongly suspect that the parties will reach an out-of-court settlement. But that settlement will be a fraction of what Tucker would have otherwise been entitled to.

Takeaway

Like our article yesterday, we strongly suggest bringing in an independent investigation firm in significant matters. DEFINITELY bring in an outside firm if it's a "bet the firm" kind of matter. Most of the time, bringing someone in is a great investment that pays dividends in terms of process, results, and defensibility. 

 

This is a cross-post with LinkedIn.