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Trading Secrets A Law Blog on Trade Secrets, Non-Competes, and Computer Fraud

Restrictive Covenant Lessons from…College Football Recruiting?

Posted in Restrictive Covenants

The recent travails of newly hired Tennessee head football coach Lane Kiffin provide some interesting parallels to issues faced by a host of employers. As the penultimate paragraph of this piece from SportsIllustrated.com’s Andy Staples sets forth, Tennessee raided the coaching staffs of conference rivals Alabama and South Carolina to hire David Reaves and Lance Thompson, respectively. According to Staples, Reaves immediately began recruiting high school players whom he had previously recruited on behalf of South Carolina. 

Reaves, like most assistant coaches for major college football programs, is tasked with developing relationships with promising high school players and then convincing the players to come play for his employer. Without a restrictive covenant in place, Reaves apparently was free to move from South Carolina to Tennessee and commence recruiting his prior contacts to play football for the Volunteers instead of the Gamecocks. Moreover, knowing South Carolina’s tailored pitches to the players and the players’ responses to the pitches, Reaves would have been in a prime position to undercut the sales message that South Carolina was making to the players.

Although not apparent at first blush, Reaves’ recruiting role makes his assistant coaching position similar to the sales representative positions that are common throughout the country. In this analogy, high school recruits function as the “customers” of major college football programs. Like football coaches, sales representatives are tasked with establishing and cultivating relationships that are critical to the continued success of their employers. Like football coaches, sales representatives know their employers’ customer-base, as well as the methods used to identify the customers, the preferences of those customers, and the way that the employer has pitched and serviced those customers. Because of those relationships and that knowledge, football coaches and sales representatives can represent competitive threats to their former employers when they move to competitors. 

In the commercial context, a non-compete or non-solicitation of customers provision is the most common way for an employer to protect itself against a sales representative resigning and then making a play for the employer’s customers. Although these clauses are rare in the employment agreements of college football coaches, they are not unheard of. Recently, there has been discussion of a non-compete provision in Arkansas head coach Bobby Petrino’s employment agreement with the school that would forbid Petrino from accepting a coaching position with any of Arkansas’s divisional rivals. As the stakes increase in college football, one would expect such restrictive covenants to become more common. The same is true in any industry where relationships and non-public information are critical.