It’s not very enjoyable to be writing about The Blind Side, Michael Oher, and the Touhys now that they’re back in the spotlight...but it is instructive. If you read the book and then saw the movie, you may well have seen something like this coming: after all, the full title of the book is: The Blind Side: Evolution of a Game, and it is very much about both the game of football and the business of football. Its tagline on Amazon is: In football, as in life, the value we place on people changes with the rules of the games they play.
The Plot
But now, of course, Michael Oher and the Tuohys are all over the media. We all know at least the Hollywood version of the story - a homeless Michael Oher is given a place to live by the well-to-do Tuohys. He blossoms into a football prodigy, goes to the Tuohys' alma mater, Ole Miss, is a Unanimous All-American, goes in the first round of the NFL draft, wins a Super Bowl with the Baltimore Ravens, plays 110 games in the NFL, earns around $30 million over a nine-year career.
Michael Lewis’ (of Moneyball fame) book about Oher and the Tuohys ends (sorta) with Michael accepted at Ole Miss and with the Tuohys adopting him. A few years later The Blind Side was a huge hit, the feel-good movie of 2009 and Sandra Bullock won the Academy Award as Leigh Anne Tuohy.
The Lawsuit
Last week, Oher - who was never happy with his portrayal in the movie - sued the Tuohys. As you would expect, this thing is a mess right now with everyone from the Tuohys to Michael Lewis (lifelong friends with Sean Touhy) to Oher's high school coach to The Blind Side actors to everyone who can type on a social media site writing about it 24/7.
Here's what is clear right now: the Tuohy's never adopted Michael. Instead, they imposed a conservatorship on him and reserved for themselves the right to manage some areas of his life, including his image and right to contract. This happened just after Michael turned 18 and was about to enroll at Ole Miss. He said he signed what he thought were adoption papers, the Touhys say they explained that it was a conservatorship that was needed to ensure his enrollment in the University of Mississippi and their lawyer told them they could not adopt someone over eighteen.
What Lawyers Are Saying
Tennessee estate planning lawyers are at best skeptical about both the existence of the conservatorship and the reasons given for it. They point out that no one - except, perhaps, Hollywood - had any concerns over Oher's mental capacity, noting that he was a dean's list student, graduated Ole Miss, and has written two books himself. They also explain that adopting someone over 18 is legal and very much a thing in Tennessee.
The Touhys, Michael Lewis, and a host of friends and family say it was all done as an expedient to get Oher into Ole Miss and on his way to the NFL and no one has profited off his name.
Since this is all being done very – very – publicly and the movie is so pervasive in popular culture, and it’s about football, the media and social media lines have already been drawn. This is only going to get uglier over the next months, and who can say how it will go at this point?
We won't make any guesses but we will note that the book makes clear that Michael Oher was already a football prodigy (and basketball) when he met the Touhys and the real subject of Michael Lewis’ book was how changes in the NFL since the 1980s led to left offensive tackles becoming the second highest paid players on the average NFL team (that, by the way, has since changed).
This is not to cast aspersions on anyone; it’s just a fact that there was always money involved, at least in theory.
Here is a solid fact: none of this would have happened if Michael had had his own attorney review the documents and ask a few questions. That's it.
The Lesson
If you need to draft any kind of agreement for anything important, for any aspect of business law, save yourself real potential grief down the road and make sure the other party has their own lawyer read it, ask questions, and explain.
This entire matter would never have occurred if Oher had an attorney read the conservatorship . . . and if it still had, the Touhy’s had only to say, “His lawyer approved it.”