DJ Durkin: Why Maryland Reinstated Head Football Coach

After a second report describing the Terrapins' football program as abusive, the University of Maryland reinstated football head coach DJ Durkin on Tuesday. Since August, the former assistant of Jim Harbaugh and Urban Meyer, 40 years old, is on administrative leave (professional status related to a paid suspension and often used by employers for marginal employees under investigation). Durkin regained control of a 5-3 team tentatively coached by offensive coordinator Matt Canada.

The reinstatement of Durkin comes seven days after the release of a report commissioned by the university on football culture in Maryland. The report was critical of Durkin, athletic director Damon Evans and fitness coach Rick Court, among others. At the same time, the report called his Durkin critics to reflect the uncertain lines of command within the sports department and Durkin's lack of experience as the lead coach.

Maryland had three options for resolving Durkin's employment problem: (1) to reinstate him, (2) to shoot with him without cause, or (3) to shoot with him for cause.

If Maryland had terminated with Durkin without just cause, the school would have deliberately violated his employment contract, without claiming that Durkin had breached its own contractual obligations. In other words, a school that fires a coach without a reason simply wants someone else to coach the team and accept the financial penalty for making such a change. The termination clause of Durkin's contract details the operation of a dismissal without just cause. Maryland would be required to pay Durkin liquidated damages equal to 65% of the balance of his contract. If Durkin had been fired without just cause, he would need about $ 5.1 million: 65% of the remaining $ 7.8 million from a transaction that is due to expire in 2021, plus 65% of the remaining balance in 2018.

If Maryland had sent Durkin with This would mean that the school concluded that Durkin had breached his contract by engaging in misconduct that violated the terms of the contract. This classification would have eliminated the requirement for the University to pay Durkin in the future, apart from any basic annual salary, additional annual income or any compensation accrued prior to the official termination date. In the absence of a successful court challenge, Durkin – the second highest-paid state employee in the state of Maryland after Mark Turgeon, basketball coach at Terrapins – is would be denied the remaining $ 7.8 million of his contract.

Instead, and at least for the moment, Maryland has chosen the first option: keep Durkin. As explained in more detail below, the University's reasoning for maintaining Durkin probably includes football, legal and financial reasons.

The decision was not unanimous among university leaders. According to Rick Maese of the Washington Post, university president Wallace Loh – who has the power to fire Durkin – wanted to fire Durkin, but his boss, the board of directors of the University of Maryland , I was discouraged to do it. Loh apparently feared that the jury would have dismissed him if he had sent Durkin away. Loh apparently assumed that he would not only have lost his job by firing Mr. Durkin, but also increased controversy for everyone involved.

The Walters Report and its Reflections on Durkin

Two "independent" reports have been reported on various types of misconduct by people associated with Maryland football.

In September, athletic training expert Dr. Rod Walters released a report that reflected the findings of his investigation into the fatal heat stroke death of offensive lineman Jordan McNair. 6-foot-5 and 325-pound Redshirt rookie died on June 13, two weeks after suffering the symptoms of heat stroke when she ran sprints during a cold-weather team training session. 80 degrees.

To put it mildly, Walters' report was extremely critical of McNair's school. He identified the multiple failures of trainers and medical staff to meet industry standards, and concluded that such failures should be attributed to McNair's rapid deterioration in health. As detailed in another SI story, the report describes Maryland employees as strangely passive and inexplicably indifferent to a teenager with serious health problems.

Walters' report did not mention Durkin by name, nor did he criticize it by reference. Yet the report identified a misconduct by Durkin's staff who could have followed Durkin's instructions. More specifically, the report recounted the story of a student athlete who had witnessed McNair during the practice that preceded his hospitalization. The student-athlete recalled that McNair was having trouble breathing and that instead of McNair being taken care of, the sports head coach Wes Robinson would have "shouted at the trainees to hang out [McNair] across the field. "

On the one hand, Robinson did not report to Durkin. An organizational chart attached to Walters' report makes it clear that Robinson reports to Steve Nordwall, Director of Athletic Training. For his part, Durkin demanded that coaches, staff, and players adopt a mentality of prohibiting abandonment. It also did not seem to insist on the safety of the players or the health of the players, but rather on the fact that the players must overcome any obstacle. To the extent that Durkin's influence on the team culture has in turn influenced Robinson (and others criticized by Walters), it can be argued that Durkin was partly responsible for the mistakes made by these other people.

The report of the commissioners and his reflections on Durkin

The second report was written by eight "commissioners" hired by Loh and the board of directors. Commissioners include retired federal judges, experienced lawyers, an orthopedic surgeon and other highly qualified personalities. They were charged with investigating the abusive practices of the Terrapins football program. Their charge was far-reaching and inclusive: (1) to test whether the culture of the Maryland football program was "toxic"; (2) investigate specific incidents of player abuse as alleged in media reports, and any other incident that may have occurred during the investigation; and (3) propose recommendations to improve the program.

The 192-page report contains stories of student-athletes, coaches, staff members and many others. The report is perhaps the most damning of Rick Court, the licensed fitness coach, who is repeatedly described as psychologically abusing players and ignoring their well-being. The report criticizes Durkin less directly but attributes to him a certain degree of responsibility for not having prevented, corrected and deterred the abuses.

The uncertain degree of Durkin's responsibility for the actions of the Court – which Durkin hired but whose reports were uncertain – is a topic that appears repeatedly in the report. Here are some examples:

• The court reportedly found a player in the weight room unable to perform an extra pulldown on a sidebar. Court is accused of being behind the player and shouting to him, "Come on, mom, fuck!" The court would then have pressed the bar into the player's neck, smothering it as well. Durkin told the commissioners that he was not present when this incident occurred. The player told his parents that Durkin had acknowledged the incident and his wrongdoing, but that he had done nothing.
• Durkin admitted that he had heard the court screaming often while swearing around the players. Once, he took the food into the hands of a player and threw it against the wall. Yet, Durkin asserted that such actions, although aggressive, did not "cross any course of action".
• Durkin denied that he knew that the court would have forced a sick player who would have vomited in the weight room to clean up the vomit and put it in a trash can. The court is then accused of throwing the bobbin across the room. The court says that such an incident has never occurred, although he admits to having thrown small weights at times, but never to anyone. Durkin also claims that he knew nothing about the weight of the court.
• Durkin admitted that he knew the court had instituted a practice of engaging players in "individual war battles before breakfast," but Durkin never considered this practice to be abusive.
• Several actors accuse Court of using homophobic insults – without fear of any repercussions from Durkin or others – to "motivate" them, although Court denies having made such comments.
• Durkin claimed that he did not know Court had "forced" the players to eat treats until ESPN reported this practice. According to several witnesses, Court tried to shame an overweight player by asking him or asking him to eat chocolate bars while watching his teammates. The court also described the overweight player as a "loss of life". The court admitted a modified version of this account, but denied calling the player a "loss of life". It does not appear that Durkin did anything to make the court take such a course.

Durkin's direct actions have also been called into question. Consider these examples:

• The report notes allegations that Durkin violated the NCAA's compliance rules designed to protect players' health and meet academic requirements. To this end, Durkin claims to "override the NCAA deadlines" (the NCAA prohibits schools from requiring their football players to devote more than 20 hours a week to mandatory sports activities) and "requires players to sign forms required that would be audited. by the NCAA. "
• Durkin showed the players "disturbing videos" including videos of "serial killers, drills penetrating the eyeballs, bloody scenes with animals devouring animals, [and] Durkin viewed these "horror" videos as acceptable tools for motivating and entertaining his players.
• Durkin may have been indifferent to a depressed player because of Court's bluffing techniques and other intimidation techniques. This player reportedly confided his emotional trauma to Durkin, but it is not clear that Durkin took any corrective action against Court.

While criticizing Durkin, including not deterring the court, the commissioners pointed out that his missteps were not entirely his fault. At this point, the report points out that the "mismanagement" of the Maryland Sports Department has had adverse effects on the football program. This mismanagement also hampered the institutional support of Durkin, a first-time trainer who was appointed to Maryland during his participation in the Big Ten conference in 2014. "The links between football and the sports department, emphasized the report, were fuzzy and inconsistent. "

For this purpose, the organizational charts in the Appendix to the Walters Report indicate that the Court did not report directly to Durkin and therefore Durkin is not directly liable for its actions. It's a "jump from the ball" as to whether Durkin's contract of employment requires him to supervise the strength and conditioning coaches. Durkin insists that his contract expresses that he did not have such an obligation while the commissioners disagreed with that interpretation. My own reading of Durkin's contract leads me to believe that the subject of the Court's report is simply not dealt with.

The Court's employment contract designated the head coach (Durkin) as his direct report. In addition, Evans agreed that Durkin was supervising Court. However, Kevin Anderson and Durkin, former athletic directors, testified that Court reported that he attended Assistant Athletic Director David Klossner, who disagreed with the assessment, but admitted Court had presented his reasons when Randy Edsall was there. head coach of Maryland. Short, unsurprisingly perhaps, said he did not know who he was supposed to report to.

The Commissioners' report concluded that this type of operational confusion and structural mismanagement led the Court to "not account to anyone", while its staff "was relatively uninsured for long periods of time". In addition, the report notes that the sports department has fled "" formal mechanisms "to evaluate the performance of coaches and track student complaints.

As a result, there has not been a single review of the Court's performance, despite numerous allegations that it has been abusive and intimidating. Although the Court appears to have had a disgusting behavior, Durkin's responsibility for his actions was a source of uncertainty in the report. On the one hand, Durkin hired the Court, worked closely with her every day and delegated her powers to the Court. On the other hand, there was a "lack of clarity in the reporting relationships of the Court" and, as noted above, Durkin insisted that it was not his responsibility to supervise the Court.

In addition, Durkin has received favorable ratings from some players. One player told the commissioners that Durkin had created a culture of meritocracy in which he "gave everyone the opportunity to play and treated everyone on an equal footing". In addition, one parent went so far as to say, "When I tell you that Durkin loves my son, he loves my son. In addition, Evans pointed out that while Durkin was sometimes very strict, he "operated in the standard of the big programs in the big schools". Similarly, Anderson describes Durkin as "demanding but fair. "

These stories led the commission to conclude that Maryland football, under the supervision of Durkin, was not "toxic", which the commission defines (through Merriam Webster's dictionary) as "extremely hard, malicious or harmful ". However, the commissioners concluded that there was abusive behavior and that Durkin bears some responsibility in not having prevented, corrected and deterred such abuse.

Trying to understand Durkin's return to Maryland

If Maryland should have dismissed Durkin is a question that leads to different responses depending on the respondent. Clearly, many in the university football community are in shock. Some are disturbed by the fact that a coach whose player has died in avoidable circumstances and who leaves someone like Court to degrade and degrade several times should remain entrusted to the well-being of the students.

The following analysis does not contradict or contradict these concerns, but attempts to make sense of Maryland's decision to reinstate Durkin. Maryland has decided to retain Durkin for at least several reasons, and the school can count on the support of both investigation reports to make its decision.

First, Durkin's missteps appear to be in the sense of careless negligence in supervising wrongdoers and in defining a wrong tone rather than an active or intentional wrongdoing. Taken together, both reports suggest that Durkin was a hardened coach who tolerated dubious practices on the part of his staff, particularly Court. Durkin apparently took this approach apparently because he believed that his only way to compete in the Big Ten was to push his players to the limit.

The Commissioners' report underlines that Durkin was hired "under conditions of high pressure" to "turn a troubled football program into a Big Ten competitor with less funding and less support from supporters than from other players". other conference programs ". The commissioners' report also notes that Durkin, a new head coach, was not trained to take on administrative responsibilities and had received little help from Maryland's sport administrators. Illustrating this perspective, chairman of the board, James Brady, told the media on Tuesday that Durkin was a victim of chaos in the sports department. "We think," insisted Brady, "Coach Durkin has been unfairly accused of dysfunctioning sports department." These points may seem to be attempts to explain Durkin's abuse of violence, but they could also be read to suggest that Durkin has room. grow and improve.

Second, if the school dismissed Durkin without just cause, it should (as explained above) approximately $ 5.1 million. Maryland is of course a public university, which means that it is partly financed by taxes. According to public records, Mary (Turgeon), football (Durkin) and women's (Brenda Frese) basketball coaches from Maryland are the highest, second and third largest public sector employees in the country. State, while its president, Loh, is "only" the 21st highest. The dismissal of Durkin would require the hiring of another head coach. Presumably, this coach would receive a substantial salary, probably the same as the salary received by Durkin and other Big 10 head coaches. Since this is a public university and the state legislator makes some of its financing decisions, Maryland would probably want to avoid a scenario and the resulting perspective by paying two football coaches, one of whom is no longer employed, wages that make them second and third highest-paid public servants in the state. This seems particularly true since the school was criticized for paying millions of dollars to its predecessor, Edsall, after his dismissal in 2015.

Third, if the school had dismissed Durkin with reason and refused to pay him, he would almost certainly take the school to court. Probable claims in a lawsuit would include breach of contract, defamation and, as Durak is an employee of a public institution, claims based on due process in accordance with the US Constitution and the Maryland Constitution.

In its defense against such prosecution, Maryland would insist that Durkin's contract defines the term "cause" in five ways, and only one must apply to justify a reasoned termination. These five ways are:

(i) Material misconduct, immoral (in the sense inconsistent with the professional standards governing the conduct of an intercollegiate football coach) or unlawful, which compromises Durkin's ability to meet the performance standards and performance commitment set forth . [earlier in contract];

(ii) unprofessional or unsportsmanlike repetitive behavior (provided that Durkin receives a written notice and a reasonable opportunity to remedy the situation at trial);

(iii) a material act of insubordination or repeated acts of insubordination;

(iv) the substantial non-respect of the material duties and obligations established in this Agreement – these duties include the maintenance and enforcement of fair and uniform disciplinary rules and sanctions for all players to promote academic and moral integrity ( provided that Durkin receives prior written notice and a reasonable opportunity to heal); or

(v) An NCAA finding that you have committed a material breach of any rule in force, whether you are employed by Maryland or a previous use in another NCAA institution, or a conclusion of the NCAA NCAA that the program has committed a material breach of any applicable rule. rule for which Durkin is guilty.

Although (v) is not applicable at this time as it contemplates a conclusion from the NCAA and none has yet occurred, Maryland could reasonably argue that any of (i), (ii ), (iii) and (iv) apply. To this end, the school could point out that Durkin has acted "immorally", including creating a culture of "win at all costs" leading to physical and psychological abuse. In addition, Durkin has failed to discipline the court and mitigate its abusive practices. The school could also argue that Durkin had an unprofessional behavior (assuming Durkin had already been warned in writing). Similarly, the school might insist that Durkin was both insubordinate to the university's guidelines and indifferent to the program that preserves a safe environment for students.

The legal challenge for Maryland is that Durkin and his lawyers would be armed with many counter-arguments. First, there was total confusion as to who reported the Court. Durkin could argue that this confusion was the fault of the university leaders and that this confusion is the main cause of the problems that have occurred. If Durkin were not liable for the Court's behavior, Durkin would be excused for most of the wrongdoing. Second, and in a related way, the organizational charts indicate that the medical and training staff were not attached to Durkin. This creates a further distance between the wrongdoings that resulted in misconduct – the most serious death – McNair's death – and Durkin himself. Third, Durkin would note that Walters's report blames McNair's death for a number of Maryland coaches and medical teams, but clearly does not blame Durkin. Fourth, Durkin would argue that the school acted precipitously by placing him on administrative leave (which is stigmatizing his reputation) and that the decision was detrimental to his chances of remaining in a job. The school refuted by pointing out that it had put Durkin on administrative leave for the sole purpose of not harming Durkin's reputation, as such placement was not a statement of fault. However, Durkin would insist that he had no chance once on leave because fans and the media would assume his guilt. Sixth, Durkin would look for the completeness and veracity of the two so-called "independent" reports, but funded by the university. As with other reports resulting from private investigations, both Maryland reports were conducted by private individuals without subpoena powers (which means they do not may not compel the disclosure of documents or require the cooperation of witnesses) and the witnesses who spoke to the investigators did not swear no threat of perjury if they knowingly lied).

The school may also have been motivated to retain Durkin because he may be able to resurface as a witness in a lawsuit for death and presumed survival by McNair's family. As I explain in more detail in another SI article, McNair's family is about to go to school if both parties were unable to reach a settlement that would extinguish any claim. While Durkin would be compelled to testify truthfully in any legal proceeding, whether or not he is an employee of Maryland, he is probably in possession of emails, texts, and other evidence likely to prove him wrong. interest the media, let alone lawyers who sue the school. issues related to the football program. Keeping Durkin at his side can help the school control a crucial witness who, if dismissed, would have more reason to implicate his superiors in wrongdoing.

Durkin's status is anything but permanent

Although Durkin is back as a coach, we do not know how long he will stay. Durkin knows that, according to reported information, the president of the university would like it to come out. It's hardly a resounding endorsement. It is also reported Nicole Auerbach, Athletics, that some players came out of a meeting with Durkin on Tuesday. If Durkin is fired, and if it is for a valid reason, it will be appropriate to return to the legal analysis mentioned above.

Michael McCann is SI's legal analyst. He is also Associate Dean of the Law School of the University of New Hampshire and Editor and Co-Writer of the Oxford Handbook of American Sports Law and Court Justice: The Story of My Battle Against the NCAA.