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Why College and University Presidents Need an Attorney-Negotiated Contract – Part 3

Frequently Asked Questions

1.     Q.     Won’t the Board be put off that I am using a lawyer? Can they withdraw my offer?

A.     There are several answers to these concerns, or rather, several parts of one overall answer which should allay any legitimate worry in the presidential candidate’s mind.

The first point to understand is that the Board of any institution of higher education in 2021 who resists having the prospective president obtain the assistance of an executive employment attorney knowledgeable about contracts in higher education demonstrates a frightening lack of sophistication. Most Boards will actually welcome a presidential candidate who has a lawyer able to “get the deal done,” even if the president’s attorney does point out areas in which the president could be better protected or more adequately compensated. It does not serve any college or university to have a president who realizes, six months or a year after having been hired, that they have not been given an adequate contract.

Also, what does it say about the candidate who, as president, will be asked to handle the school’s most important matters — everything from essential fundraising to the latest student crisis, massive and costly long-range planning to satisfying the college’s different constituencies — that he or she would be so inexperienced, fearful or careless about their own interests, as to blindly accept the terms and conditions of an executive employment agreement designed to last for several years, without having it reviewed by an executive compensation attorney thoroughly experienced in higher education?

Any such attorney acquired that experience by being a dealmaker, not a “deal killer.” Such an attorney has sufficient confidence, based on that experience, to know what is important and what is not, to cut to the heart of the matter and focus on necessary improvements to the contract without wasting time on non-essentials. A wise Board will always recognize this.

Moreover, if a Board which takes issue with the president’s use of an attorney to review and adjust the initial draft of the contract (and we have found few if any such institutions), the candidate should seriously think about whether to dedicate a major portion of his or her mature academic career to dealing with such a Board, or whether it might be better to wait for the next opportunity.

Finally, we have never had a situation where a Board, having selected a candidate for president after a meaningful search, threatened to withdraw an offer which was being was being promptly and respectfully negotiated, and any potential president should think twice about involving themselves with a school where the Board would use this kind of tactics. They would bode extremely badly for the good working relationship between the Board and the president which is necessary for a productive working relationship.

2.     Q.     Isn’t a presidential contract something which any attorney can handle?

A.     No. We have had, on more than one occasion, to deal with the fallout from presidential employment contracts which were reviewed, sometimes even negotiated, by attorneys with little or no experience in higher education. The results were not pretty. The prospective president’s estate attorney or the attorney who handled her home purchase may be an excellent professional in their own areas of concentration, but if they lack the knowledge and experience to understand the nuances of higher education agreements, they are almost certain to miss one or more essential issues. We have handled dozens of these contracts involving a wide variety of institutions of higher education, big and small, private and public, well-endowed or struggling, throughout the United States. There is no substitute for targeted legal and executive compensation knowledge and experience in this particular arena of legal practice.

3.     Q.     Are these negotiations of the contracts of college and university presidents always handled lawyer-to-lawyer or is there any room for other types of negotiations?

A.     Every situation is different, and is, in part, a function of client preference as guided by experienced attorney advice. Sometimes our client, the prospective president, wants to conduct his or her own negotiations directly with the Board Chair or the head of the search committee, using our guidance “behind the scenes.” More often, the candidate (or sitting president) wants us to take over the negotiations and deal directly with counsel for the college or university; this gives the prospective president a way to stay above the details of the negotiations, and have the important issues thrashed out between the lawyers. As noted above, this also can provide “cover” for the president to ask for something which he or she might be hesitant to pursue in direct conversation with the Board Chair. After all, the Board Chair will be the president’s boss and direct report for a number of years to come.

Accordingly, there is no uniform answer as to how directly the president’s executive employment lawyer is involved in the negotiations. The facts of the particular situation will dictate the client’s preference, and that preference, filtered through our legal and practical guidance, will determine how we handle each particular situation. Here, too, knowledge and experience in executive employment agreements in higher education will assist us in arriving at the correct approach.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.