On National Signing Day, an interesting thought occurred to me: Could a non-competition agreement prevent Will Muschamp from coaching at South Carolina? Now, the truly-faithful Auburn fans might argue that South Carolina really doesn’t amount to competition on the football field, anyway. But, for purposes of this hypothetical, let’s assume that Auburn wanted to prevent Will Muschamp from coaching at another SEC school. Would Alabama law enforce a non-competition agreement in his employment contract?
Non-competition agreements in Alabama are governed by Alabama Code Section 8-1-1. Here is a link to the November, 2015 edition of The Alabama Lawyer: Alabama Lawyer. My law partner, Rich Raleigh (on Twitter @RichRaleigh), helped to author a great article in that magazine discussing recent revisions to Section 8-1-1.
I think it would be difficult to enforce a non-compete against a major college football coach. First, the non-compete must be designed to preserve a “protectable interest.” “Confidential information” is protectable, as well as “commercial relationships with specific prospective or existing customers or clients.” Auburn would undoubtedly try to argue that something about its football program (like Coach Malzahn’s playbook) is confidential. An innovative lawyer might also argue that Auburn’s recruits are “prospective or existing customers or clients.”
More importantly, Auburn would have to show that Muschamp “holds a position uniquely essential to the management, organization or service of the business.” Many Auburn fans would say that Will Muschamp provided nothing uniquely essential in his management of the defense last year. Less subjectively, given the high rate of turnover in college football coaches, an argument could be made that there is nothing uniquely essential about a defensive coordinator.
Auburn might also try to argue that it is trying to keep Muschamp from “engaging in a similar business within a specified geographic area.” But, such restrictions can only be enforced by “commercial entities.” The new revisions to Section 8-1-1 do not define “commercial entity.” Therefore, there is a chance that a public university like Auburn might not be a “commercial entity.”
If you are interested, Will Muschamp’s contract does not contain a non-competition agreement. In fact, it expressly contemplated that Muschamp might leave and required a buy-out. Here is a link to an AL.com article, which includes a copy of the contract at the end: Muschamp Contract.