Ole Miss officials were told not to harm Houston Nutt's reputation as football coach – USA TODAY


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In its 2011 separation agreement with former football coach Houston Nutt, the University of Mississippi agreed to “direct” top officials for the school’s athletics foundation and university not to make any statements about Nutt’s tenure that could harm his reputation as a football coach.

USA TODAY Sports reviewed that language on Friday, which has been part of an agreement both sides have kept confidential since it was signed on Nov. 25, 2011. Nutt’s attorney, Thomas Mars, provided it to USA TODAY Sports after the school informed him earlier Friday it intended to make it public through the Mississippi Public Records Act.

The wording of Nutt’s non-disparagement clause has been central to the defamation lawsuit he filed last month against Ole Miss and its athletics foundation, alleging top school officials including former football coach Hugh Freeze and athletics director Ross Bjork concocted a misinformation campaign in 2016 to suggest the majority of the school’s NCAA violations occurred under Nutt’s watch.

The wording also underscores why Ole Miss refused to apologize to Nutt or engage in settlement talks.

“Outside of any obligation, legal or otherwise, to reveal the terms of this Agreement to third parties, the University agrees not to release or disclose information related to this agreement,” the clause reads. “The University further agrees to direct members of the control groups for the Foundation and for UM not to make any statement relative to Nutt’s tenure as an employee that may damage or harm Nutt’s reputation as a football coach.”

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Mars said university attorneys told him the control group includes seven titles: 

  • The Chancellor of the University of Mississippi Dan Jones
  • The Director of Athletics Pete Boone
  • The Senior Executive Athletics Director John Hartwell
  • The Executive Associate Athletics Director Lynette Johnson
  • The General Counsel for the University of Mississippi Lee Tyner
  • The Executive Director of the University of Mississippi Athletic Association (“UMAA”) Danny White
  • UMAA Board of Governor Members Don Fruge, Cal Mayo, Max Williams, and David Blackburn

Among those names, only Johnson, Tyner, Fruge, Mayo and Blackburn are still employed by the university.

Ole Miss has consistently maintained that it has satisfied its obligations to Nutt under the terms of the agreement and owes him no apology. It rejected a settlement offer that included a public apology and a $500,000 donation to fund a commission for ethics in Mississippi college sports.

David Kaufman, the attorney for the Ole Miss Athletics Foundation, told the Jackson, MIss., Clarion-Ledger on Aug. 3: “In the 2011 negotiations of the severance agreement, Mr. Nutt’s lawyer at the time asked for a non-disparagement provision, but the request was refused. Instead, we simply agreed to give a directive to certain people, and we did exactly what we promised.”

Mars has challenged that rationale and intends to do so again next week when he re-files the lawsuit in Mississippi state court after a Federal judge granted a motion to dismiss it earlier this week on jurisdictional grounds. Mars agreed to the motion to dismiss and said his new lawsuit will include more information he has acquired relevant to the case.

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Mars said there’s “no court in the country” that would interpret the settlement language to mean that only a handful of top officials at the university would be legally bound not to disparage Nutt while “everybody else can slander him until the cows come home.”

“The cardinal rule in any contract interpretation case is what was the intent of the parties?” Mars said. “That’s the judge’s job is to determine the intent of the parties and I don’t think any lawyer would look at the language and say that was the intent of the parties and the word for word meaning couldn’t possibly have been the intent of the parties. To lay people that may not make a lot of sense, but that’s the way things work in the legal world.

“It’s a universal rule, when there are two possible interpretations of a contract that are reasonable, the court has to interpret the contract in the manner that is most favorable to the party who didn’t draft the contract. The law requires the contract to be construed against the party who drafted it and the theory behind it is if you’re drafting it you’re in the best position to make clear what you wanted and if you didn’t make it clear, the court is going to construe it against you because you failed to make it clear which is a pretty important contract construction rule in this case.”

Mars’ initial lawsuit on behalf of Nutt attempted to connect phone calls made by Freeze and Bjork to allegedly deliver misleading information about Nutt’s culpability in NCAA violations to journalists, who subsequently used the information shortly before National Signing Day in 2016.  The call logs also revealed a one-minute call from Freeze to a number tied to an escort service. Ole Miss then launched an investigation into Freeze’s phone records and fired him on July 20, citing a pattern of inappropriate personal behavior unrelated to its ongoing NCAA infractions case.

Excerpt from the separation agreement between the University of Mississippi and former football coach Houston Nutt:

8. Confidentiality and Duty of Loyalty: Nutt shall, aside from discussing the Agreement with Nutt’s attorneys, financial advisors, and/or tax preparers, keep the terms of this Agreement that have not otherwise been made public completely confidential. Nutt agrees that during the period that he is receiving payments from the University, he has a continuing duty of loyalty to the University to keep confidential any information that may harm the University or its current and former officers or employees. Nutt understands and acknowledges that the University would not agree to this Agreement but for these promises of loyalty and confidentiality, and any breach of confidentiality or of his duty of loyalty is a material breach of this Agreement. Outside of any obligation, legal or otherwise, to reveal the terms of this Agreement to third parties, the University agrees not to release or disclose information related to this Agreement. The University further agrees to direct members of the control groups for the Foundation and for UM not to make any statement relative to Nutt’s tenure as an employee that may damage or harm Nutt’s reputation as a football coach.”


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