Only decades later, he claims, did Oher learn that in making the Tuohys his conservators, he signed away his right to enter into contracts and even to make his own medical and educational decisions. The truth, he says, was nothing like an adoption.
Now, Oher has essentially flipped the script, using the long-dormant conservatorship to build a legal case against the Tuohys. In a filing earlier this month, Oher argued that they breached their fiduciary duty as his conservators and should be sanctioned.
The Tuohys have said they entered into the agreement because of scrutiny from the NCAA, whose rules prohibited the Tuohys from supporting Oher while he played football for their alma mater, the University of Mississippi. After Oher filed his complaint in court, the family said they would end the conservatorship. But their attorney would not answer questions about why they chose a conservatorship over an adoption, which is also an option for those over 18, saying only that they had followed the advice of counsel.
The explosive allegations in Oher’s petition to end the conservatorship — that he was never the Tuohys’ “adopted son,” as the couple claimed, and that they never paid him his share of profits from “The Blind Side” — have thrust the complex realities of the agreement into the spotlight and reignited the debate over the film’s portrayal of Oher, who is Black, and the dynamics of his relationship with the Tuohys, who are White.
The allegations raise questions about the ethics of the conservatorship and why it was entered into at all, according to a review of legal documents and interviews with local and national legal experts.
The reality of how the conservatorship was used, however, is far more limited than in other high-profile cases to which Oher’s has been compared, like that of pop star Britney Spears. And it is also in large part because of the conservatorship, legal experts told The Post, that Oher potentially has a case against the Tuohys at all.
An ‘unusual’ agreement
Oher had a fractured and difficult childhood, born in Memphis to a drug-addicted mother and a father who was frequently in prison, but he was eventually admitted to a private Christian school where he blossomed into a top football recruit. He was bouncing between foster homes when the Tuohys, whose children also attended the school, offered to take him into their home.
Courted by some of the country’s top college football programs, Oher eventually chose the University of Mississippi, the Tuohys’ alma mater. But his decision attracted the scrutiny of the NCAA, in part because his GPA was too low to qualify him for a Division I scholarship, but also because the Tuohys were donors to the university. NCAA rules forbid so-called “boosters” from offering housing and financial support to a football recruit.
The NCAA would have required the Tuohys and the Ohers to show their relationship was “not created solely to get the athlete enrolled in a school,” said Josephine Potuto, the former chair of the NCAA’s Committee on Infractions and a retired professor at the University of Nebraska College of Law.
But a conservatorship, Potuto said, “isn’t required. Any sort of adoption would have been fine because it would have made the relationship formal.”
The choice of a conservatorship was, at the very least, experts agree, unusual. Local attorneys specializing in conservatorships in Tennessee told The Post they had never seen a document like the petition the Tuohys filed in 2004 asking a judge to approve their conservatorship of Oher.
Tennessee conservatorships were designed for people with mental or physical disabilities, said Patrick McKenrick, a conservatorship attorney and an adjunct professor at the University of Tennessee College of Law. But Oher has no known disabilities, a fact that the Tuohys acknowledge in their 2004 filing.
“A young man going to college, playing sports at an extremely high level, who’s not disabled — a conservatorship like this wouldn’t be anywhere near the first set of tools I would look to ensure that someone could help him,” McKenrick said.
Judges have an obligation to impose the “least restrictive means to secure [the] well-being” of the person in the conservatorship, McKenrick said. But the judge’s order imposed a far-reaching “plenary” conservatorship that takes away most of Oher’s legal rights. And while the Tuohys’ petition asked for the arrangement to continue “at least until he reaches the age of 25 or until terminated by order of this court prior to that time,” the judge’s order imposed it indefinitely.
Barbara Moss, a Tennessee conservatorship attorney, noted several other “unusual” aspects of the conservatorship agreement, including a request that Oher be declared “a resident member of [the Tuohys’] household” as part of the conservatorship. The petition, Moss noted, was also “strange” for the fact that it was signed by an out-of-state attorney, Debra Branan.
Branan is a graduate of the University of Mississippi, the school for which the conservatorship would ultimately enable Oher to play, and a family friend of the Tuohys. Later, Oher’s petition alleges, Branan was listed as his attorney in the contract for “The Blind Side,” even though the Tuohy family was represented by a professional agent with the Creative Artists Agency.
But it was also unusual, Moss noted, that both Oher and his mother joined the Tuohys’ request for the conservatorship to be created.
And while the restrictiveness of the conservatorship agreement is jarring, the reality of how it was used appears to be far more limited. Oher was fully in control of his finances and medical decisions, the Tuohy family said, and there were no financial assets in the conservatorship. He signed his own contracts and enlisted his own agents.
“The fact of the matter is that nobody really even thought about it, nobody ever considered it. The court never sent any notices,” said Randall Fishman, an attorney for the family. He claimed the Tuohys would have voluntarily ended the conservatorship whenever Oher asked, which Fishman said he did not.
In legal documents, Oher does not allege that the Tuohys controlled his medical choices or his finances. But he said they did make one important decision: signing away the rights to their lives, and his own, to make “The Blind Side.”
When they became his conservators, experts say, the Tuohys agreed that they would act only in Oher’s best interest, not their own. The finances of “The Blind Side,” Oher’s suit said, constituted “a breach of their fiduciary duty so gross and appalling that they should be sanctioned by [the] court.”
In exchange for their and their children’s life rights, the suit said, the Tuohys agreed to a contract of $225,000 plus 2.5% of “net proceeds,” the suit alleges — one that did not include any payment to Oher. The football player’s signature also appears on a later document that gave away permission to use his life story in a film without paying him anything in return, the petition said — an agreement Oher claims he did not remember signing, suggesting it was potentially obtained by “forgery” or “trickery.”
The Tuohys, who were worth millions when they took Oher into their home, have disputed that they made substantial money from “The Blind Side.” They split their portion evenly between themselves, their children, and Oher, the Tuohys have said, regardless of what was spelled out in any contract. Michael Lewis, who wrote the book on which the movie was based, told The Washington Post last week that Twentieth Century Fox paid $250,000 to option the film, money Lewis said he split with the Tuohys. He said he took home $70,000 after taxes and other fees.
“Everybody should be mad at the Hollywood studio system,” Lewis told The Post. “Michael Oher should join the writers strike. It’s outrageous how Hollywood accounting works, but the money is not in the Tuohys’ pockets.”
Oher’s petition also focuses on a $200,000 donation from the Fox successor Alcon Entertainment to Leigh Anne Tuohy’s nonprofit, the Make it Happen Foundation. Oher said the money was given to Tuohy’s foundation “due to the movie’s success,” but that he never saw any similar payments.
Alcon said in a statement that they had offered to donate an “equal amount” to the charity of Oher’s choice, but said he declined. In total, Alcon said, they had paid out $767,000 to the talent agency associated with the Tuohys and Oher.
At the time Oher was in college, NCAA regulations forbid athletes from earning money off of their names. Though Oher had finished playing in college by the time the movie was released, any payments before that would have jeopardized his NCAA eligibility, Lewis noted — which could have been a factor in a deal to pay money to the Tuohys.
“While he was playing at Ole Miss, the only way to get him the money for the movie was through the Tuohys,” Lewis said.
Oher also details how the Tuohys have promoted their image using Oher’s own name, image, and likeness, especially the claim that he is their “adopted son” — a phrase his suit says was used on Leigh Anne Tuohy’s website and other promotions. That, too, could be a violation of the conservatorship, experts said.
A judge will have to decide whether the Tuohys acted in Oher’s best financial interest as his conservators. As part of their petition, Oher and his attorneys have demanded the Tuohys pay not just “all sums of money” earned from the movie but punitive damages as well.
“You cannot use the conservator’s resources for yourself,” said Naomi Cahan, a family law expert and professor at the University of Virginia School of Law. And those assets are not purely financial, Cahan said. “I would consider name, image, and likeness to be resources.”
POST AUTHOR: Molly Hensley-Clancy and Ben Strauss