In the realm of examining whether non-compete provisions should be used in particular professions, this article by Clay Travis asks an interesting question: why don’t college football coaches have non-competes? It is a timely question in January as every sports media outlet is full of headlines about coaches unexpectedly moving between schools, a recent example being the abrupt move of Todd Graham from Pitt to Arizona State. It’s difficult to answer Travis’s question, but here are a few potential explanations:
1. Non-compete restrictions have to be limited. Generally speaking, a non-compete provision has to be limited to protecting an employer’s legitimate interests. The most common legitimate interests are exposure to confidential information, customer relationships, and goodwill. It is possible to see these interests show up in college football. For instance, the contents of a playbook or a team-specific game plan could be confidential information. Contacts with recruits could function as protectable relationships. An advertising campaign built around a certain coach could be evidence of goodwill.
The problem in terms of enforcing a restriction would be the geographic scope. Take the example of Graham. Pitt would have a hard time establishing that Graham coaching Arizona State poses a competitive threat because: (a) the teams do not play one another, so Graham would not have the opportunity to use his knowledge of Pitt’s schemes against them (plus, those schemes would change under a new coach, so the shelf life of that confidential information is limited); (b) it is unlikely that Pitt and Arizona State compete for specific players because they have different recruiting bases; and (c) Pitt and Arizona State do not compete for fans, i.e. there is no hypothetical consumer who will decide to buy season tickets for Arizona State instead of Pitt based on a hypothetical advertising campaign by Pitt featuring Graham.
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