Now that the high-profit, revenue-raising fall and winter college sports seasons are over, at teams the University and other schools are turning their attention to next year’s crop of players from high school, newcomers to returning players entering or exiting through the ever-widening transfer portals, and those players on the rosters who have eligibility remaining.

It’s not an easy task to do so and the difficulty is magnified by a transcending feature, NIL, the acronym for Name, Image and Likeness, which has greatly changed the landscape of college athletics by allowing college athletes and high schoolers to receive compensation for use of their NameImages and Likeness was a result of a ruling by the U. S. Supreme Court three years ago in a case entitled NCAA v. Alston. The case eviscerated the long-time restriction imposed by the regulatory National Collegiate Athletic Association (NCAA) as a violation of federal anti-trust law because it constituted impermissible “price-fixing” depriving athletes of their ability to engage in the “free market” to obtain “fair compensation“ for their services.

The Alston ruling has led to a deluge of privately funded “collectives” to gather and dole out NIL money recruiting incoming athletes, lure others from their current teams, or induce them to stay put.

The University of Minnesota is playing catch-up with its “Dinkytown Collective” to compete with some of the powerhouse and wealthy schools and their backers in the Big Ten and around the country, placing the Gopher programs at a serious competitive disadvantage.

With NIL the preeminent factor, coupled with the portals, in college sports these days, here are five suggestions to curb its excesses and make it more equitable and palatable.

1. Who’s in charge here?

The Supreme Court ruling has left the NCAA with sparse regulatory authority and, what it does have, is of dubious legality as lawsuits continue to reject restrictions on player mobility through the portals. Athletic conferences, like the Big Ten and others, are loathe to impose their own constraints for fear of putting themselves or their members at a competitive disadvantage, and the same is true for individual schools as well.

But some entity needs to step in to impose some order on the process because existing structures are incapable or unwilling to control NIL excesses.

2. Transparency

Although money that fuels NIL comes from private sources, it has the heavy imprimatur of the colleges that effectively funnel them to the players and pay for staff to direct athletes to the sources of the emoluments and monitor the programs. Thus, the NIL payments are in essence semi-public funds, at least at public institutions like the University, and the public has a right to know about who is receiving how much from whom for what.

The only type of transparency now is the NCAA rule calling for reporting within 30 days of any transaction in excess of $600. But conferences or individual schools could impose their own measures to provide more meaningful reporting, and it in a state like Minnesota, the Data Practices Act, could be used for the disgorgement of more data on a timely basis.

3. Ceilings

Capping the NIL amounts that players can receive might assure that compensation is disbursed more equitably and with greater inclusivity although imposing ceilings may run afoul of the same anti-trust considerations condemned by the Supreme Court. But there ought to be some creative and lawful mechanisms that could establish some upper limits like some professional sports leagues do so that high-demand athletes don’t end up making more than university presidents, let alone their high-paid coaches.

Alternatively, constraints could be imposed on how much particular businesses could spend during a specified period or on a particular player or team members.

4. Reimbursement

Another NIL curb could require recipients to pay over to their schools for a portion of their intake. It would be reasonable to require NIL recipients to use their NIL money to reimburse their schools for the value of the benefits (tuition, room and board) they have received as scholarships that gave them the opportunity to achieve their NIL fame and fortune.

5. Tithing, Too

Last, but not least, is a proposition that NIL recipients contribute a portion, perhaps a tithe (10%), to their academic institutions for distribution to other teammates who inherently have limited NIL appeal, like linemen in football, reserve players or those in other low-profile so-called “minor,” non-revenue producing sports offering lesser NIL opportunities.

None of these suggestions will curtail all of the excesses and inequities of NIK. But they could provide a more sensible playing field if they can be developed in a way that does not run afoul of the anti-trust rationale of the Alston case that created the current situation.

However, there is a way out: legislation at the federal level exempting certain arrangements or restraints from anti-trust laws, as has been done with some professional sports. But the outlook for any measures seems remote given the current impasse in Congress and the opposition of recipient athletes and their various representatives.

With bleak prospects for reform, NIL is here to stay — and to expand; institutions like the University must adapt to it or get out of the business of big-time college athletics.

Marshall H. Tanick is a University of Minnesota alumnus and a Twin Cities Constitutional and employment law attorney who has represented amateur and professional athletes, coaches and administrators. 

The death two weeks ago of O. J. Simpson evoked distant memories of his connection to the University of Minnesota, The Minnesota Daily and an alumnus of both: me.   

The Simpson saga is well known from football superstar to accused and acquitted double murderer. But much more obscure is Simpson’s nexus to the University, this publication, and me.  

His passing, at age 76, of cancer provides an opportune occasion to recall those links.  

Story starts

The story begins in mid-September 1968, before the start of the 1968-69 academic year at the University.

Simpson’s college team, the defending national University of Southern California (USC) Trojans, to open the season here against the Gophers, coming off a three-way tie for the Big Ten title the prior year. 

During the week, as was customary then, the competing teams made available a star player or two for a telephone conference with the media at the rival’s location to promote the game. 

The USC participant was Simpson, returning from an All-American season as a running back. I was one of the media reps here, doing double duty as Sports Editor of The Daily as well as Sports Director for the campus radio station, WMMR.

I posed one rather lame question: “Do you think you will win the Heisman this year?” referring to the award given annually to the best college player. 

“Well, I’ll certainly try to,” Simpson obliged in his baritone voice.  

My question was prescient and his response prophetic because Simpson did win the Heisman, launched by his remarkable performance a few days later on an off-and-on rainy Saturday afternoon here at Memorial Stadium (where the McNamara Center now stands), leading his team to an exciting come 29-20 win before a frenetic opening game crowd of 60,000-plus fans. He gained 365 all-purpose yards running, pass receiving, and kick returns, scoring all four of his team’s touchdowns in the comeback win. 

In my dual roles, I not only covered the game for The Daily –– which ran a huge multi-page spread on it in the first publication of the school year two days later –– but also broadcast it on WMMR. 

Afterward, I briefly encountered him in the flesh in the locker room and obtained a few banal post-game remarks for the radio station and my front-page Daily story.

Bills brouhaha

Fast forward to the next summer.  

Simpson was the top draft choice of the lowly Buffalo Bills, pro football’s worst team, which spent the summer training near its base at Niagara College in upstate New York. 

I had spent the prior summer working as a sports reporter for a daily newspaper in Rochester and had covered the pre-Simpson Bills summer session.  The next summer, after a stint covering the Moon landing from Earth for the Voice of America international radio system in Washington, D. C., I drove up to the Buffalo training camp to catch-up with some journalists and Bills acquaintances, as well as freelanced a sports story or two before heading off to law school.  

There, lo and behold, I had my third close encounter with Simpson, who was engaged in a brouhaha with the Bills holding out for a big contract. Not participating in pre-season drills, he hung around the sidelines watching practices in well-garbed street clothes.

As I roamed seeking my acquaintances and a story. I found both with Simpson, who was, as they say in the trade: “Good copy.” I reminded him of the Gophers gave the year before and he said, “Man, it sure was a downpour that day.”

Actually, it was more of a hard drizzle. But his reaction was understandable because, according to the period hit Albert Hammond song, “It Never Rains in Southern California.”  We had an amiable chat on the sidelines, about football and life in California, where I was headed for law school.

The Bills ultimately gave Simpson a whopping five-year $650,000 contract, the largest in sports at the time, and he earned it. After a slow start, he became a perennial all-pro player, Most Valuable Player in 1973 and the game’s first 2,000-yard rusher in a season. While elevating the Bills to be a competitive team, Simpson was never able to reach a title game with that team or in his two final years with his hometown San Francisco 49ers, where he concluded his 11-year pro career.

I never saw him again after that third sideline tete-a-tete encounter, except on televised games, a few of his movies, the ubiquitous television commercials dashing through airport terminals and finally in the courtroom with his Dream Team of lawyers.  But I will always remember how affable, well-spoken and humble he was in our three encounters.

He didn’t seem like the killer type.

Marshall H. Tanick is a University of Minnesota alumnus and Twin Cities Constitutional law employment law attorney.

As the second semester of the 2023-24 school year begins, the search for a new president here at the University of Minnesota seems to progressing beneath radar. Although there have been some vague blurbs on the website created by the Board of Regents, nothing is being disclosed about the process to replace the departed Joan Gabel, who departed in July without warning in the midst of her contract to sign on with a $1 million annual deal to head the University of Pittsburgh. 

The University’s opacity about what is happening in the search for her successor is both consistent with the institution’s dismal past practice and an ominous sign for its future lack of transparency. 

The Board has long followed a practice clothed in secrecy and yielding a single “finalist,” contrary to good public policy — and the law.  

The search for a new President to take over the reins from  Jeff Ettinger, the former Hormel CEO who was tapped by the Board of Regents last summer on an interim basis is being conducted by a suburban Chicago-based search firm, Wittkieffer, at a hefty price tag of $200,000 plus expenses. That probably will end up costing about a quarter million dollars or about one-fourth the annual NIL cost of securing a top-flight quarterback for coach P. J. Fleck’s beleaguered after its yawn-inspiring Motor City Bowl against Bowling Green the day after Christmas. 

That’s a lot of money to end up with a single candidate. 

Regrettable ruse

But the presidential search need not — and ought not — repeat that regrettable ruse of coming up with and disclosing to the University community and the public with a single candidate. The expensive and time-consuming search ought to produce at least multiple finalists for the position. Indeed, the law virtually seemingly demands it despite the institution’s long-standing practice of craftily circumventing that obligation. 

The Regential pattern over most of the past several decades has deviated from advancing multiple finalists for the presidency. Instead, the Regents have almost invariably conducted a secret search, announcing a single “finalist,” and anointing that individual president as a fait accompli with no public oversight or input. It’s akin to a beauty pageant having only one contestant and, after the obligatory gestures, crowning that individual’s head.  Indeed, even the Vatican is more transparent, but not much, before white smoke floats from the Cathedral signifying the selection of a new Pope.

Data demands

The process flies in the face of the Minnesota law, which demands that public, taxpayer-supported bodies must comply with the state Government Data Practices Act, one of the state “Sunshine laws.” It requires them to publicly identify any “finalist” for high-level leadership positions. The statute defines “finalist” as a person chosen to be interviewed by the governing body. 

Most governmental units follow the law, ranging from counties, municipalities, school boards, as exemplified by the Minneapolis Public Schools, six weeks ago identified two eminently qualified finalists for the position of Superintendent and held informative public interview sessions with each of them before selecting a former Minneapolis educator, Lisa Sayles-Adams. Other publicly-funded college campuses throughout the state do likewise, usually with two or three final candidates. 

But not here in the Twin Cities, where the Regents have, with rare exceptions for token runner-up candidates, cut corners by announcing a lone “finalist,” who is de facto chosen by the Board and then subjected to a perfunctory public interview session before being formally given the position. 

Valid reasons underlie the “Sunshine” provision, enabling the public, which is footing the bill for the selection process, to see how its money is being spent. More significantly, it permits members of the public to know who’s seeking the position and to weigh in with anecdotal remarks or other comments that might bolster particular candidates or sound warning alarms over their shortcomings, a process that had it been followed may have prevented the Gabel fiasco.

The principal rationale espoused by the Regents and others who support their penchant for habitually blotting under the “Sunshine”  in this contrived way is that publicly disclosing the identities of multiple candidates, rather than solely the lone de facto appointee, would deter many quality candidates from applying, especially those already in upper echelon positions in academia, because of concern that public disclosure of their interest would damage their standing at their current institutions by reflecting a lack of loyalty. It also, one might surmise, discourage prospective aspirants who fear the embarrassment of not being selected, which could create a feeling of rejection and air of defeat.

But these reasons are tenuous, at best. Many institutions of higher learning with similar “Sunshine” laws, policies or protocols disclose multiple finalists, even all candidates.  There is little anecdotal evidence that those practices scare away quality applicants. 

Indeed, the University’s habitually secretive approach has hardly blessed the institution with consistently stellar leadership, and Gabel is (sorry to pick on her) is a poster child for that inadequacy. 

But even if that concern of repelling surmise that some worthy, squeamish candidates don’t apply, it is trumped by the state’s commitment to transparency in public affairs that ultimately transcends the trepidations of academics seeking to enhance their lucrative employment arrangements at the expense of the taxpayers.

Openness should overcome opacity. 

The University has the opportunity in the current presidential selection process to learn from its mistakes and refrain from its lone “finalist” gimmick, a procedure that was discredited by a ruling of the state Supreme Court nearly two decades ago in a case brought by this newspaper and other media, Star Tribune v. Board of Regents, deeming the University’s gambit improper. But the Regents nonetheless persisted –– like Nick Carraway, the character in St. Paul native F. Scott Fitzgerald’s in “The Great Gatsby,” rowing their “boats against the current borne back ceaselessly into the past,” during the ensuing searches, including the one that yielded the overmatched Gabel.

This time, the public ought to insist the Regents heed the oft-repeated admonition of George Santayana from his epic 1905 work “The Life of Reason” that “those who cannot remember the past are condemned to repeat it.” They ought to learn a lesson from the recent Superintendent selection process in Minneapolis and come up with multiple candidates. 

If the Minneapolis school system can do it, why not the University?

Marshall H. Tanick is a University of Minnesota alumnus and Twin Cities Constitutional and employment law attorney.

The untimely recent death of one of the University of Minnesota’s best athletes undeservedly received scant attention. It was a loss not only of a great former Gopher, a two-sport star no less, but one whose post-athletic career may have been even more noteworthy, albeit less notable, than his sporting skills.

He was Jim Carter, a hard-charging three-year running back on the Gopher football team, who died of cancer at age 75 on Thanksgiving Day. The former Gopher gridder led the team to its last Big Ten championship, a three-way title tie in 1967. While not as legendary as Bronko Nagurski, Bruce Smith  Paul Giel, Bobby Bell, Michael Thompson, Kevin McHale, Paul Molitor, Lou Nanne, Lindsay Whalen, Krissy Wendell and some other Gopher icons in a variety of athletic pursuits, he warrants a high place in the pantheon of University athletics, but not only for his prowess as a player.  

Carter, a South St. Paul high school standout, was a rarity: a two sport college athlete in a day when they were few and far between, although even less prevalent today. In addition to his three years in the gridiron, he also played a couple years of hockey as a bruising defenseman for the Gophers. Interestingly, one of his teammates during that era was another native Minnesotan, Noel Jenke of Owatonna, a three-sport athlete. A teammate of Carter on both the football and hockey squads, he captained the 1968 football team along with a stint as a Gopher baseball player, who passed away in 2020.

Following his senior year, when he succeeded Jenke as captain of the football team, Carter went on to a solid nine -year career with the Green Bay Packers. Converted to a linebacker, he was one of the premier plays, a Pro Bowl all-star, on a team that fell into mediocrity in the 1970’s after its championship squads in the prior decade. 

After athletics

But it was his accomplishments after his athletics career ended that transcend his successes on the gridiron and ice rink. A businessman, Carter went into the family business, primarily in automotive sales. 

While doing so, he made three cardinal contributions to the community. Battling substance addiction for many years, he was passionately participated in rehabilitation for himself and as a guide and mentor steering many other addiction-afflicted individuals through recovery programs.

He also was a fierce advocate for improvements in the administration and governance of his beloved University as well as its Athletic Department. While a big booster of both, he was not a mindless cheerleader but spoke out critically when abuses, improprieties, and poor judgment stalked the halls of Morrill Hall and then the McNamara Center, as well as the Bierman complex. 

Additionally, Carter was, unlike many of his locker-room contemporaries, very knowledgeable and engaged in public affairs. He was an unwavering supporter of equity, fairness and justice in political and social matters, opposing authoritarianism, dangerous tendencies and other aberrant developments. 

In recent years, he and I occasionally corresponded and conferred about these matters concurring on a great number of issues, except for pleasantly disagreeing about the posture of labor unions: I wanted them to be enhanced. He was of a different mindset, probably stemming from his business background. 

Carter won many accolades and awards for his athletic achievements. But he was truly a man for all seasons and reasons, and in the game of life that he was an ultimate winner. 

Marshall H. Tanick is a University alumnus and Constitutional and employment law attorney with the law firm of MEYER NJUS TANICK.

It’s getting tiresome for University of Minnesota Gopher football fans to hear head coach P. J. Fleck’s typical comments after each disappointing, sometimes devastating and well-deserved defeats like Saturday’s regular, season-ending 28-14 loss here to border rival Wisconsin for the venerated Paul Bunyan’s Axe.  Despite the defeat, resulting in an under-achieving 5-7 win-loss record, the team managed to achieve an undeserved placement in a post-season bowl game to be designated, probably one matching uninspiring teams lacking winning records.

This year’s team was characterized with a porous defense, subpar quarterback play, an unimaginative offense and a consistent inability to maintain leads against mediocre opponents. 

As a result, Fleck’s squad did not beat a team with a winning record. Its quintet of wins came against middling competition or bottom feeders.  

After nearly each loss, Flecked mouthed the same mantra that his team was “out-coached” and then went  on to attribute the dismal performance to other factors like inexperienced players, lack of depth, and injuries, among other excuses. However, he rarely mentioned another topic: the other team was better.  

These lamentations are quite lame.

Other teams that Fleck’s squad competes against have as many, or more, youthful freshman and sophomore players; in fact, the Gophers have had, due to COVID and other factors have had a number of players who have been around for five or six years, longer than the customary four-year span of eligibility. The lack of depth is due to inability to evaluate, attract, recruit and maintain enough quality players in the program and need to raise large sums of NIL money to purchase better players (the going rate for an adequate quarterback is $250,000), challenges nearly all other schools face. As for injuries, every team has them, many more severe than the Gophers’. 

That the Gophers were badly outplayed and out-scored in the second halves of all seven of their losses reflects lack of depth (yes, Fleck’s right about that). But, more importantly, it shows a failure to make mid-game adjustments compared to the competition, a deficiency that Fleck and his coaching staff own. 

But if the Gophers are consistently being “out-coached,” it might be appropriate for Athletic Director Mark Coyle to go shopping this Holiday season for a new one, notwithstanding the multi-million buy-out the University would have to pay Fleck. It’s done so for the previous series of dismissed coaches going back nearly five decades, except for Lou Holtz, who voluntarily left after a couple of years in the mid-1980’s in the midst of his contract to go to Notre Dame. 

If Coyle is going to replace Fleck, he had better act fast because the best available ones are being grabbed off the shelves swiftly — and they will require a huge buy-out clause in their contract.

Marshall H. Tanick is a University alumnus and Constitutional and employment law attorney with the law firm of MEYER NJUS TANICK.

Marshall H. Tanick is an attorney with the Twin Cities law firm of MEYER NJUS TANICK and was one of the Daily’s attorneys in the Stanley case.

The 40th anniversary of a landmark First Amendment freedom of expression case at the University passed without much notice or fanfare a few weeks ago: a federal appellate court ruling upholding the challenge by The Minnesota Daily, in successfully challenging the retaliation against it by the Board of Regents for a controversial “Humor” issue that wasn’t very funny.

Four decades ago, on October 11, 1983, the Eighth Circuit Court of Appeals that oversees litigation in Minnesota unanimously overturned a decision of the U.S. District Court in St. Paul. It held in a case entitled Stanley v. Magrath, the First Amendment right of Daily and its staff was infringed. The suit was in response to a decision by the Board stripping some of The Daily’s financial base in response to publication of an issue that was deemed offensive by many Minnesotans, including University officials.

The roots of the Stanley case stem from student strife over the Vietnam War in the late 1960’s.  In a landmark case entitled Tinker v. Des Moines, the U.S. Supreme Court upheld the right of high school students to wear black armbands in school protesting the war, finding that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Tinker rang the bell for the expansion of freedom of expression rights in the academic world. But the Daily and its editors were taken to the proverbial woodshed a decade later due to the paper’s “Finals Week” edition at the end of the 1978-1979 school year.

Known as the paper’s “Humor” issue, The Daily parodied the popular “National Inquirer” tabloid and laced it with provocative content that included some scatological terminology that would be mild by today’s standards. The issue poked fun at University administrators and, most controversially, contained a mock interview entitled “Christ Speaks” with a pretend Jesus Christ, garbed in a crucifix or a cross in the middle of the Mall adjoining Northrop Auditorium offering this advice to students: “take drugs” and fornicate.

A firestorm broke out, with the 12-member Board of Regents, by a 9-3 vote, heeding the urging of University President, C. Peter Magrath to teach the paper and its staff a lesson to make it more “responsible” and “responsive.” Ignoring the Tinker rationale, the Board Tinkered with the long-standing mandatory “student-service fees” paid by students for the newspaper. That arrangement dates back around 60 years, which at the time was about $5.50 per year. The Regents converted it to an optional arrangement allowing objectors to “opt-out” of paying the fee while getting access to the newspaper.

Because few students opted out, the amount of money lost by the Daily was negligible.  But the paper claimed the retaliatory sanction caused it to steer away from controversial matters or items that might be deemed sensitive or disturbing.

The Daily, through its editors, sued the University and claimed a First Amendment infringement of their right as freedom of the press, an assertion that was rejected after a trial. District Court Judge Robert Renner in St. Paul deemed the fee dilution a “rational” exercise of the Regents’ authority.

But the appellate court 40 years ago reversed that determination, ruling the Regents’ action constituted a First Amendment violation. A three-judge panel reasoned that the slight “amount of money [at issue] is beside the point” because the Regents financial retaliation caused a “chilling effect” on the newspaper and its staff by impermissible “reacting to the contents of the paper and the disapproval that others expressed of those contents,” in violation of the First Amendment.

The Daily was reimbursed for its slight economic loss, along with attorney’s fees for its lawyers. The lawyers, later, generously contributed a portion to establish a “First Amendment Fund,” providing scholarships and other awards for journalism and law students at the University and sponsoring educational programming on First Amendment issues.

The Stanley ruling, as a successor to the Tinker case, constituted a high water mark for Constitutional rights of students who pass through “schoolhouse gate.” While its potency as a bulwark against censorship is academia been diluted over the years, especially at the high school level, it’s a precedent that still stands in Minnesota today 40 years later.

The decision last Friday by the Board of Regents to hire a search firm to find a new permanent President for the University of Minnesota will end up costing the institution  — and the taxpayers — around  a quarter of a million dollars. 

It ought to come from the large pocketbook of departed President Joan Gabel, whose secret deal with another institution and then abrupt abdication from her position here this summer precipitated the expenditure.

The embattled Gabel, who clearly was over-matched at the University — and greedy to boot — fled to a nearly million dollar yearly position as head of the University of Pittsburgh a little over a year after she had signed a lucrative five-year extension of her contract here providing a $1 million-plus figure annual compensation package.

The University now be shelling out $200,000, plus expenses that might amount to another $50,000 or so, to Wittkieffer, a search firm out of suburban Chicago to recommend a replacement to Interim-President Jeff Ettinger. Coming off a hard-fought but successful run last year for Congress in southeast Minnesota, Ettinger’s one-year arrangement ends next summer.

Gabel did what many high-profile college coaches of high revenue-producing football and basketball do: leave for what seems to be better, usually more lucrative positions and a fresh start somewhere else.  But many of them, like the ones here at the University, often have buy-back provisions in their contracts requiring them or their successor employers to compensate their outgoing employer for leaving before their agreements expires.

But the University apparently did not have such in its contract with Gabel, leaving her a free pass, literally and figuratively, to depart. 

Courts cannot compel

Courts cannot force an employee to perform a contract with employer because it would be uncomfortable, indeed untenable for both sides to be compelled to co-exist when the employee does not want to work there and the feeling often is mutual.

But that hesitation does not restrict courts from awarding monetary damages to an employer when a contractual employee leaves without justification during the pendency of an employment relationship.

The damages suffered by the University due to Gabel’s unforced, but perhaps welcomed departure are fairly easy to calculate: $250,000-plus for the search firm, miscellaneous costs associated with University personnel engaged in the search process, and perhaps any excess salary and benefits paid to the new president beyond what Gabel was getting. Ettinger agreed to accept a mini-$400,000 package for his one-year term, but that amount will be dwarfed by the package for the incoming President next year.

A lawsuit for those damages would seem to be a slam-dunk. It seems so simple that even the poorly-performing Gopher basketball teams, men and women alike, could do it.

But the savants at the McNamara Center apparently has no stomach for that type of action, probably deterred for several reasons. One is the cost that might be involved if the school has to hire outside counsel, who know how to churn out legal bills. The University is reeling from legal fees in the UCare imbroglio, which cost some $2 million, along with fees for the entangling the Fairview arrangement and a myriad of other matters. More significantly, as a practical matter, a lawsuit could be off-putting to future presidential aspirant who be reluctant to pursue an opportunity here at an institution that sues its former leadership.

But even without going to court, the Regents and University’s lawyers should not have let Gabel get away scot-free. Before she left, they should have used the threat of litigation as leverage to work out a compromise pay-back cash settlement in lieu of litigation, a rather conventional process that the University decision-makers were either too shy, scared, slothful, or stupid to pursue. Rather than showering praise upon Gabel at her final meeting last June, the University should have taken steps to get her to pony up some of the costs of her departure.

That it did not is a testament to the old boys/girls network that is alive and well, repeatedly allowing elite administrators and athletic personnel to get away with these schemes and scams. So, Gabel is off to greener pastures, although about the only greenery she’ll see in the Steel City is her nearby million dollar comp package, and the U is going to be out $200,000-plus.

Hopefully, the school will learn from its costly lapses and structure a better contract with its next president that will deter that individual from pulling off what Gabel did without having to pay for the privilege of leaving the University in the lurch. The Regents and their learned counsel out to recall the oft-quoted admonition of philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.”  

Marshall H. Tanick is a University alumni and Twin Cities employment and labor law attorney.

Reports about the death in late June at age 73 of Stephanie Schleuder, the highly-decorated Gopher women’s volleyball coach overlooked her most significant achievement that led to major changes in the law, first, for employees in Minnesota, and later, throughout the country.

Widely known as Steph, the Minneapolis native was a multi-sports athlete at Richfield High School in the 1960s before the University’s Duluth campus, where she excelled in volleyball and other athletics, earning an award as the top woman in the school’s physical education program.

After graduation, Steph began her long and successful 34-year college coaching career.

Her first stop was assisting in volleyball at Bemidji State, followed by a stint at her alma mater, where she assisted in women’s volleyball and coached women’s basketball, too, and then eight years at the University of Alabama, where she continued double duty coaching the women’s volleyball and basketball squads.

Returning home, she spent 13 years coaching volleyball here at the University from 1982-1994, compiling a laudable 263-163 win-loss record, along with a couple of post-season appearances although her teams were usually in the middle of the pack in the then truly 10-team Big Ten.

After she was dismissed here, she ended her coaching career with a 12-year stint at Macalester in St. Paul before her retirement, compiling  702 wins in her 34-year career while earning many honors, including induction in the inaugural group of the University of Minnesota – Duluth Hall of Fame, the Minnesota Volleyball Hall of Fame and the parallel Hall of Fame of the American Volleyball Coaches, a group she presided over for two years while heading the Scots at Macalester.

Schleuder statutes 

Despite her achievements, no statue was erected of her. But she did bring about important state and federal employment statutes.

Following a mediocre season, she was ousted, technically a contract non-renewal, by the then-women’s athletic director, Chris Voelz. While no reason was given, it was attributed to a dispute over a discrimination complaint by Schleuder about her $50,000 salary which she felt was well below that paid to coaches of similarly-situated men’s teams.

After she was discharged, by Voelz, Schleuder asserted a claim of gender discrimination against the University, which ultimately led to a sizable monetary settlement and a new law.

As part of the settlement, the University and Voelz insisted Schleuder agree not to make any negative remarks or accusations of discrimination, which which was capsulized into what is known as a non-disparagement agreement, or “NDA” or “gag” clauses, requiring silence by settlement recruits.

But her termination led to a firestorm, reaching the legislative chambers in St. Paul. After several volleys back and forth, the Minnesota Government Data Practices Act, which dictates government-related information was amended to bar any terms in settlement agreements with public sector employees that have the “purpose or effect of … limiting the discussion of information or opinions related” to their work, which was deemed to be “void and unenforceable” by courts of law.

Schleuder’s saga

The provision eliminating NDAs or “gag” clauses for public sector employees here did not end Schleuder’s saga. The “Schleuder” provision was the forerunner for a federal measure: the “Speak Out Act,” which bars some NDAs or “gag” clauses in and permits employees who receive settlements to “speak out” about them and the conditions that led to them.

The statute was followed a few months later by a decision of the National Labor Relations Board (NLRB), the agency that oversees labor and management-labor relations in the private sector, which proscribes nondisparagement or “gag” clauses in settlement agreements. It bars employers from inserting clauses in settlement agreements forbidding ex-employees from discussing the terms of their settlements or any adverse conditions in the workplace that led to them.

The “Speak Out” federal measure barring NDAs applies to all employees, both public and private, but it only covers settlements of sexual assault or harassment claims, and not the vast number of other workplace matters. The NLRB prohibition of nondisparagement clauses covers nearly all employers and employees.

Credited to the #metoo movement that arose in 2017, these federal measures are traceable to the foundation laid by Schleuder and her case with the University nearly three decades earlier.

Because of her legacy, “gag” clauses are no longer a laughing matter in Minnesota or elsewhere.

Marshall Tanick is a Constitutional law attorney with the Twin Cities law firm of MEYER NJUS TANICK.

The official departure this week of University of Minnesota President Joan Gabel is a product of the school’s penchant for secrecy.

The sudden and stunning announcement this spring that Gabel would be leaving the University this summer to become Chancellor at the University of Pittsburgh caught everyone by surprise, except Gable and those at Pittsburgh who pirated her away.  

Her abrupt flight from the University after only four years, following her highly-acclaimed pomp-and-circumstance investiture, grew out of a clandestine arrangement between her and the authorities at the smaller, less prestigious Pennsylvania school, where she starts her new job on July 1. Her expedited departure from the University, as finalized by the Board of Regents last Friday, was accompanied by a $160,000 payment to her retirement fund, part of the largesse in her five-year contract with the institution, which she breached in mid-term.

It’s been reported in Pittsburgh that Gabel’s salary there will be close to hers at the University, $950,000 annually, but with sweeteners including retirement funding and multiple bonuses that will bring her compensation package close to $1.5 million or more, about double the $700,000 salary of the outgoing Chancellor.  

With that kind of compensation package, Gabel won’t have to moonlight.

Rather than paying her, perhaps the school should have declared her in breach and pursued a claim against her for damages caused by having to hire an interim head and conduct a search for a new permanent one, along with the higher salary her replacement will undoubtedly command.

But don’t hold your breath for that: too much “Minnesota Nice” to disturb Gabel on her way out. The University is acting like a banker helping to escort a robber out the door and tossing a bit more cash into the get-away car.   

Pittsburgh was able to hire Gabel only a few months after she entered into a new five-year extension of her contract here, highlighted by a compensation arrangement of about $1 million annually plus bonuses. Her stealthy departure comes on the heels of the controversy following her acceptance of a second part-time $130,000 moonlighting spot (the same amount that ex-President Trump paid for Stormy Daniels’ silence) on the Board of Directors of Securian, a financial outfit that does billions of dollars of business with the University, preceding her withdrawing a month later from that position due to the incredibly bad optics and potential conflict of interest.

That incident created a sour situation that may have played a role in her decision to look for greener pastures, although the Steel City is not known for its greenery.

Gabel’s disowning of her arrangement with financial titan Securian was brought about because of a firestorm at the Legislature a lot of hand-wringing by influential observers and newspaper editorialists arising out of her secretly making that deal and the Regents then insouciantly approving it.

That blaze was kindled by this publication in an article a few days after Gabel’s deal was revealed, an arrangement and ensuing critique that probably paved the way for here to look elsewhere for work. 

Gabel and Pittsburgh managed to pull off the heist because the hiring process there was shrouded in secrecy. That’s the same type of covert process that accompanied her hiring here, as it has been done for decades at the University, much to the consternation of many advocates for transparency, including this writer.  

The University’s capacity for opacity, which underlied her obtaining the presidency here, facilitated Pittsburgh spiriting her away by shielding the process until after it became a fait accompli. By being stung this way, the University may have learned its lesson that transparency is a better process than the secrecy that has traditionally been the way it picks its Presidents.  

Meanwhile, Gabel is being replaced temporarily by former Hormel CEO Jeff Ettinger, fresh off his uphill losing race as a Democrat for Congress in the First District in southern Minnesota, the former stomping grounds of Governor Walz.

As an interim, his salary will be $400,000 annually, a steep drop from his pay at the Austin food producer but nonetheless a living wage.  

The Regents, to their credit, opened up the interim selection process a bit by identifying publicly the four “finalists,” two internal candidates and two outsiders, including Ettinger, whom some speculate may seek the position on a permanent basis. That overture was a departure from the University’s long, and often-criticized,  practice of only naming only a single candidate for the top job.

The temporary transparency may, hopefully, form a model for a similar approach during the search for a permanent President in conformance with the requirements of the state “Sunshine” laws, which the institution customarily flouts, as it did in the secretive selection of Gabel.

Marshall H. Tanick is a University of Minnesota alumnus and employment and Constitutional law attorney.

Athletic Director Mark Coyle has not had a slow trigger when dispensing with coaches of high-profile revenue-raising sports like football, hockey and the two basketball teams when those squads have become stagnant.

That’s why it’s time to dispose of Gopher baseball coach John Anderson. The Hibbing native and former player and student manager as an undergraduate here, he has compiled an enviable record over his 43 years at the helm, including a won-lost record of 1347-964-3, 11 Big Ten regular season championships and 10 conference tournament titles, earning eight Conference Coach of the Year awards, along with national honors as the second-winningest Division I Coach and induction into the College Baseball Coaches Hall of Fame, among other well-deserved accolades.

But the last few years have witnessed a precipitous and disturbing decline in the quality of the teams he has fielded, including three consecutive losing seasons that hit rock bottom at 5-31 and 16-36 in the past two seasons, which was emulated with this year’s desultory 10-14 Big Ten mark, 10th in the 13-team conference, and an overall 18-34 record, which the leadership has blamed I that old baseball bugaboo, injuries, an affliction that strikes other teams, too, and reflects the paucity of depth in the Gopher program.

This is a far cry from the school’s illustrious baseball history, highlighted by three national championships and 41 professional major leaguers over the years, including some stars and Hall of Famers.

At 67, Coach Anderson should be commended for helping to contribute to this legacy, accorded gratitude for his four-plus decades of loyalty to the program and ushered into retirement.

The team’s past glory probably cannot be regained in today’s environment in which Sun Belt teams dominate at the college level. But the Gophers had been competitive at the national level and in the top echelon of the Big Ten until the recent slide.

There’s no reason the team cannot attract good talent, particularly with its two high quality
home fields at Siebert Field on campus and the Twins’ facility at Target Field, along with the allure of Major League Baseball in town. While it may not be able to dominate at the conference level or have a significant presence nationally, consistent with its past history, the University of Minnesota’s baseball team can and should do a lot better.

Athletic Director Coyle acted on sympathy, rather than pragmatism, when he agreed last week to exercise the one-year renewal of Anderson’s contract. In doing so, he failed to recognize the University baseball team is withering while the women’s softball team has achieved a high level of success in the conference and nationally. The baseball team has the tools to resume that level of competitiveness.

It needs new leadership to do so.

Marshall H. Tanick  is a former Daily sports editor from 1967-1969 and long-time Twin Cities attorney.