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  • Maryland had three options for resolving DJ Durkin’s employment: (1) reinstate him, (2) fire with him without cause or (3) fire with him cause. SI's legal expert breaks down their decision.
By Michael McCann
October 30, 2018

(Editor's note: One day after the school reinstated DJ Durkin, Maryland ​President Wallace D. Loh terminated the head coach.)

In the wake of a second report that depicts the Terrapins football program as abusive, the University of Maryland on Tuesday reinstated head football coach DJ Durkin. Since August, the 40-year-old former assistant to Jim Harbaugh and Urban Meyer has been on administrative leave (an employment status akin to a paid suspension and often used by employers to sideline employees who are under investigation). Durkin has regained control of a 5-3 team that had been coached on an interim basis by offensive coordinator Matt Canada.

Durkin’s reinstatement comes seven days after publication of a university-commissioned report into the culture of Maryland football. The report leveled criticisms against Durkin, athletic director Damon Evans and fired strength conditioning coach Rick Court, among others. At the same time, the report qualified its criticisms of Durkin to reflect the uncertain lines of command within the athletic department and Durkin’s inexperience as a head coach.

Maryland had three options for resolving Durkin’s employment: (1) reinstate him, (2) fire with him without cause or (3) fire with him cause.

If Maryland had fired with Durkin without cause, the school would have intentionally breached his employment contract and did so without claiming that Durkin had failed to satisfy his own contractual obligations. Stated differently, a school that fires a coach without cause simply wants someone else to coach the team and it accepts the financial penalty for making such a change. The termination provision of Durkin’s contract details how a firing without cause would work. Maryland would be obligated to pay Durkin liquidated damages equal to 65% of the remainder of his contract. If Durkin had been fired without cause, he would be owed about $5.1 million: 65% of the $7.8 million left on a deal that is set to expire in 2021, plus 65% of remaining pay in 2018.

If Maryland had fired Durkin with cause, it would mean the school concluded that Durkin had breached his contract by engaging in misbehavior that violated terms of the contract. This classification would have extinguished the university’s obligation to pay Durkin going-forward, save for any annual base salary, supplemental annual income, or potential compensation that accrued prior to the formal date of termination. Absent a successful legal challenge, Durkin—the second-highest paid state employee in Maryland behind Terrapins basketball coach Mark Turgeon—would have been denied the $7.8 million left on his deal.

Instead, and at least for the time being, Maryland has selected option one: keep Durkin. As explained more fully below, the university’s reasoning for retaining Durkin likely includes football, legal and financial reasons.

The decision was hardly unanimous among university leadership. Rick Maese of The Washington Post reports that university president Wallace Loh—who has the authority to fire Durkin—wanted to fire Durkin but was discouraged from doing so by his boss, the University System of Maryland Board of Regents. Loh apparently feared that the Board would have fired him if he fired Durkin. Loh apparently surmised that he would have not only lost his job by firing Durkin but also enlarged the controversy for everyone involved.

The Washington Post/Getty Images

The Walters report and its reflections on Durkin

There have been two “independent” reports on different types of misconduct by persons associated with Maryland football.

In September, athletic training expert Dr. Rod Walters published a report that reflected findings from his investigation into the heatstroke-related death of offensive lineman Jordan McNair. The 6-foot-5, 325-pound redshirt freshman died on June 13, two weeks after he exhibited the symptoms of heatstroke while running sprints during a team practice held in 80-degree weather.

To put it kindly, Walters’s report was extremely critical of the school’s care of McNair. It identified multiple failures by trainers and medical staff to follow industry norms and concluded that such failures should be blamed for the rapid worsening of McNair’s health. As detailed in another SI story, the report depicted Maryland employees as oddly passive and inexplicably indifferent towards a teenager who was exhibiting serious health problems.

Walters’s report neither mentioned Durkin by name nor criticized him by reference. Yet the report identified fault with persons who worked with Durkin and who may have taken direction from Durkin. Specifically, the report recounted the narrative of a student-athlete who had witnessed McNair at the practice that preceded his hospitalization. The student-athlete recalled McNair struggling to breathe and instead of McNair being taken into care, head football athletic trainer Wes Robinson allegedly “yelled at the interns to drag [McNair] across the field.”

On one hand, Robinson did not report to Durkin. An organizational chart in the appendix to Walters’s report makes clear that Robinson reported to Steve Nordwall, the director of athletic training. On the other hand, Durkin required that coaches, staff and players adopt a “no quit” mentality. He also did not appear to stress player safety or player health, instead advocating that players must overcome any obstacle. To the extent Durkin’s influence on the team’s culture in turn influenced Robinson (and influenced other persons criticized by Walters), it is arguable that Durkin was partly responsible for those other persons’ missteps.

The Commissioners’ report and its reflections on Durkin

The second report was drafted by eight “commissioners” who were hired by Loh and the Board. The commissioners include retired federal judges, experienced attorneys, an orthopedic surgeon and other highly-credentialed persons. They were commissioned to investigate abusive practices in the Terrapins’ football program. Their charge was far-reaching and inclusive: (1) attempt to answer whether the culture of the Maryland football program was “toxic”; (2) probe the specific incidents of player abuse as alleged in media reports, and any other incidents that surface during the investigation; and (3) offer recommendations for improving the program.

The 192-page report contains accounts of student-athletes, coaches, staff and many other persons. The report is perhaps most condemning of Rick Court, the fired strength conditioning coach, who is repeatedly depicted as psychologically abusing players and disregarding their well-being. The report is less directly critical of Durkin but does assign some degree of blame to him for failing to prevent, correct and deter abuse.

Durkin’s uncertain degree of responsibility for actions by Court—whom Durkin hired but whose reporting line was unclear—is a subject that appears several times in the report. Here are several examples:

  • Court allegedly noticed a player in the weight room who was unable to complete an additional pulldown on a lat bar. Court is accused of coming up from behind the player and yelling at him “Come on mother***er!!”. Court then allegedly pressed the lat bar into the player’s neck, thereby choking him. Durkin told the commissioners he was not present when this incident occurred. The player told his parents Durkin acknowledged the incident and its wrongness but didn’t do anything about it.
  • Durkin admitted he heard Court often yell swears around players and once took food out of a player’s hands and threw it against the wall. Yet Durkin claimed that such actions, while aggressive, did not “cross any lines.”
  • Durkin denied he knew that Court allegedly forced an ill player who vomited in the weight room to clean up the vomit and place it into a garbage can. Court is then accused of hurling the can across the room. Court claims such an incident never occurred, although he admits he threw small weights at times, but never at anyone. Durkin also claims he knew nothing about Court throwing weights.
  • Durkin admitted that he knew Court instituted a practice of players engaging “one-on-one pre-breakfast tugs-of-war” but Durkin didn’t regard the practice as abusive in any way.
  • Court is accused by multiple players of using homophobic slurs—without any fear of repercussions from Durkin or others—to “motivate” them, though Court denies saying such language.
  • Durkin claimed he didn’t know about Court “compelling” players to eat candy bars until ESPN reported on this practice. Court, according to multiple witnesses, tried to fat-shame an overweight player by requesting or demanding he eat candy bars while his teammates watched. Court also allegedly called the overweight player a “waste of life.” Court admitted to an altered version of this account but denied calling the player a “waste of life.” It doesn’t appear that Durkin did anything about Court partaking in such conduct.

Durkin’s direct actions were also called into question. Consider these examples:

  • The report notes allegations that Durkin disregarded NCAA compliance rules designed to protect players’ health and meet academic requirements. To that end, Durkin allegedly “thwarts NCAA time limits” (the NCAA forbids schools from requiring their football players to expend more than 20 hours per week on required athletic activities) and “makes the players sign off on the required forms that would be audited by the NCAA.”
  • Durkin showed players “disturbing videos” that included videos of “serial killers, drills entering eyeballs, bloody scenes with animals eating animals, [and] rams and bucks running at each other at full speed.” Durkin regarded these “horror” videos as acceptable tools to motivate and entertain his players.
  • Durkin may have been indifferent towards a player who became depressed because of Court’s “fat-shamming” and other bullying techniques. This player reportedly confided his emotional trauma to Durkin but it’s not clear that Durkin took any kind of corrective action against Court.

While critical of Durkin, particularly in failing to deter Court, the commissioners stressed that his missteps were not entirely his fault. To that point, the report stresses that the “mismanagement” of Maryland’s athletic department posed adverse effects on the football program. Such mismanagement also stymied institutional support for Durkin, a first-time coach, who took the job as Maryland entered the Big Ten Conference in 2014. “Reporting lines between football and the athletics department,” the report emphasized, “were blurred and inconsistent.”

To that end, organizational charts contained in the appendix to Walters’s report indicate that Court did not directly report Durkin and thus Durkin was not directly responsible for Court’s actions. It is a “jump ball” as to whether Durkin’s employment contract obligates him to supervise strength and conditioning coaches. Durkin insists his contract expresses he did not have such a duty whereas the commissioners disagreed with this interpretation. My own reading of Durkin’s contract leads me to believe that the topic of Court’s reporting is simply not addressed in it.

Only muddying the waters, Court’s employment contract designated the head coach (Durkin) as his direct report. Also, Evans concurred that Durkin supervised Court. Yet former athletic director Kevin Anderson and Durkin argued that Court reported to associate athletic director David Klossner, who disagreed with this assessment but admitted that Court reported to him when Randy Edsall was Maryland’s head coach. Court, perhaps not unsurprisingly, said he was unsure as to whom he was supposed to report.

This kind of operational confusion and structural mismanagement, the commissioners’ report concluded, led Court to become “effectively accountable to no one” while his staff “were relatively unsupervised for extended periods.” In addition, the report notes that the athletic department eschewed “formal mechanisms” to assess coaching performance and track student complaints.

As a result, there was not one performance review of Court, despite numerous allegations that he partook in abusive and bullying conduct. While Court appears to have engaged in sickening conduct, Durkin’s responsibility for Court’s acts was a source of uncertainty in the report. On one hand, Durkin hired Court, worked closely with Court on a daily basis and delegated authority to Court. On the other hand, there was a “lack of clarity in Court’s reporting line” and, as noted above, Durkin insisted it was not his responsibility to supervise Court.

In addition, Durkin received favorable assessments by some players. One player told the commissioners that Durkin created a culture of meritocracy where he “gave everyone their opportunity to play and treated everyone equally.” In addition, one parent went so far as to say, “When I tell you that Durkin loves my son, he loves my son.” Also, Evans stressed that while Durkin is at times very strict, he “operates within the norm of big programs in big schools.” Likewise, Anderson describes Durkin as “demanding but fair.”

These accounts led the commission to conclude that Maryland football, under Durkin’s watch, has not been “toxic,” which the commission defines (through Merriam Webster’s dictionary) as “extremely harsh, malicious, or harmful.” However, the commissioners found that Court engaged in abusive conduct and that Durkin bears some responsibility for failing to prevent, correct and deter such abuse.

Trying to make sense of Maryland reinstating Durkin

Whether Maryland should have fired Durkin is a question that leads to different answers depending on the answerer. Clearly, many in the college football community are shocked. Some are disturbed that a coach whose player died in avoidable circumstances and who let someone like Court repeatedly degrade and debase players should remain entrusted with the well-being of college students.

The following analysis doesn’t question or contradict those concerns but tries to make sense of Maryland’s decision to reinstate Durkin. There are several reasons why Maryland has decided to keep Durkin—for now, at least—and the school can rely on support from the two investigative reports in reaching that determination.

First, Durkin’s missteps appear more along the lines of negligently failing to supervise wrongdoers and setting the wrong tone than of actively or willfully engaging in misconduct. Taken together, the two reports suggest that Durkin was a hard-charging, no-nonsense coach who tolerated dubious practices by others on his staff, especially Court. Durkin apparently took this approach apparently because he believed that his only way to compete in Big Ten was by pushing his players to the limit.

To that point, the commissioners’ report highlights how Durkin was hired “under high-pressure circumstances” to “turn a struggling football program into a Big Ten contender with less funding and fan support than other conference programs.” The commissioners’ report also stresses that Durkin, a first-time head coach, was not trained to handle administrative responsibilities and received scant assistance from Maryland’s athletic administrators. Illustrating that perspective, Board chairman James Brady told media on Tuesday that Durkin was a victim of sorts to athletic department chaos. “We believe,” Brady insisted, “Coach Durkin has been unfairly blamed for the dysfunction in the athletic department.” While these points may sound like attempts to explain away Durkin tolerating abuse, they could also be read to suggest that Durkin has room to grow and to improve.

Second, if the school fired Durkin without cause, it would owe him (as explained above) about $5.1 million. Maryland is, of course, a public university, meaning it is funded in part by tax dollars. According to public records, Maryland’s men’s basketball coach (Turgeon), football coach (Durkin) and women’s basketball coach (Brenda Frese) are the respective highest, second-highest and third-highest paid public employees in the state, while its president, Loh, is “only” the 21st highest. The firing of Durkin would necessitate the hiring of another head coach. Presumably, that coach would receive a substantial salary, most likely along the lines of the salary received by Durkin and other Big 10 head coaches. Especially given that it is a public university and relies in part of funding decisions by the state legislature, Maryland would probably want to avoid a scenario and the accompanying optics in paying two football coaches, one of whom is no longer employed, salaries that make them the second- and third- highest paid public employees in the state. This seems especially true since the school was criticized for paying out millions of dollars to Durkin’s predecessor, Edsall, after he was fired in 2015.

Third, if the school had fired Durkin with cause and refused to pay him, he would almost certainly then sue the school. Probable claims in a lawsuit would include breach of contract, defamation and, because Durkin is an employee of a public institution, constitutional due process claims arising under the U.S. Constitution and the Maryland Constitution.

In defending against such lawsuit, Maryland would stress that Durkin’s contract defines “cause” in five ways, and that only one needs to apply to justify a for-cause firing. Those five ways are:

(i) Material misconduct, which is wrongful, immoral (meaning inconsistent with the professional standards of conduct of an intercollegiate head football coach) or unlawful conduct, which adversely affects Durkin’s ability to meet the performance standards and performance commitment set out [earlier in contract];

(ii) Repetitive unprofessional or unsportsmanlike behavior (provided Durkin receives written notice and a reasonable opportunity to cure the first instance);

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

(iv) Failure to substantially fulfill the material duties and obligations established in this Agreement—those duties include maintaining and enforcing disciplinary rules and sanctions fairly and uniformly for all players so as to promote academic and moral integrity (provided that Durkin first receives written notice and a reasonable opportunity to cure); or

(v) A finding by the NCAA that you have committed a major violation of any governing rule, whether while employed by Maryland or during prior employment at another NCAA institution, or a finding by the NCAA that the program committed a major violation of any governing rule for which Durkin is culpable.

While (v) would not be applicable at this time since it contemplates a finding by the NCAA and none has yet occurred, Maryland could plausibly argue that any and all of (i), (ii), (iii), and (iv) apply. To that end, the school could stress that Durkin acted “immorally” by, among other things, creating a “win at all costs” culture that led to physical and emotional abuse. In addition, Durkin failed to discipline Court and mitigate his abusive practices. The school could also contend that Durkin partook in unprofessional conduct (assuming that Durkin had previously been warned in writing). Likewise, the school could insist that Durkin was both insubordinate to university directives and indifferent towards the program maintaining a safe environment for college students.

The legal challenge for Maryland is that Durkin and his attorneys would be armed with numerous counter-arguments. First, there was complete confusion as to whom Court reported. Durkin could contend this confusion was the fault of university leaders and such confusion is the main cause of the problems that occurred. Assuming Durkin was not responsible for Court’s behavior, Durkin would be excused of much of the wrongdoing that took place. Second, and relatedly, the organizational charts indicate that medical and training staff did not report to Durkin. This creates further distance between the wrongdoing that led to various misconduct—most gravely McNair’s death—and Durkin himself. Third, Durkin would note that Walters blamed report blames a number of Maryland training and medical staff for McNair’s death but noticeably doesn’t blame Durkin. Fourth, Durkin would contend that the school acted hastily in placing him on administrative leave—which is reputationally stigmatizing—and that the decision prejudiced his chances for retaining employment. The school would rebut by stressing that it placed Durkin on administrative leave for the very purpose of not harming Durkin’s reputation since such placement does not constitute a finding of fault. However, Durkin would insist he had no chance once placed on leave since fans and media would assume he’s guilty. Sixth, Durkin would take aim at the completeness and veracity of both reports, which are self-styled as “independent” but were funded by the university. Like other reports resulting from private investigations, the two Maryland reports were conducted by private persons who lacked subpoena powers (meaning they could not compel disclosure of documents or demand that witnesses cooperate) and witnesses who spoke with investigators did not do so under oath (meaning no threat of perjury if they knowingly lied).

The school may have also been motivated to keep Durkin because he could resurface as a witness in any wrongful death and survival action lawsuit brought by McNair’s family. As I explain more fully in another SI article, McNair’s family is poised to sue the school should the two sides be unable to reach a settlement that would extinguish any claims. While Durkin would be obligated to testify truthfully in any legal proceeding regardless of whether he is employed by Maryland, he is likely in possession of emails, texts and other evidence that would be of interest to media, let alone to any attorneys suing the school for matters related to the football program. Keeping Durkin around may help the school control a pivotal witness who, if fired, would have greater reason to implicate his superiors in wrongdoing.

Durkin’s status is anything but permanent

Although Durkin is back as coach, it’s not clear how long he’ll remain so. Durkin knows that, according to reporting, the university president wants him out. That is hardly a ringing endorsement. It’s also been reported by The Athletic’s Nicole Auerbach that some players walked out of a meeting with Durkin on Tuesday. If Durkin is let go, and if it is for cause, it will be worth revisiting the legal analysis noted above.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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