Why can’t we all just get along?

It just wasn’t a happy news kind of day for some folks in the football world yesterday.

  • Rich Rodriguez may be about to learn that a jury of his peers isn’t all it’s cracked up to be. You can almost sense he’s about to be on the butt end of something akin to that scene in The Verdict where the jury asks the judge if they’re limited in awarding damages to the amount that was sought in the complaint. Coach, this is truly a situation where discretion is the better part of valor. Settle, man, settle.
  • Meanwhile, they’re packing heat at depositions in the Reggie Bush lawsuit. Sounds bad, but on the bright side, that could open up some endorsement opportunities for ol’ Reggie.  (“Smith & Wesson? It’s as good at protection as my offensive line!”)
  • And for some reason, Michael Adams has decided now is a good time to pick at a scab and reopen a wound. I have no idea why, but given the source, I’m sure whatever the motivation, it’s petty. Hey, at least no one is making fun of his playoff proposal now!
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7 Comments

Filed under College Football, It's Just Bidness, Michael Adams Wants To Rule The World

7 responses to “Why can’t we all just get along?

  1. macjont

    A jury of his peers? It’s highly unlikely that the questions presented in the RR vs WVU lawsuit are ones for the jury. Unless, of course, the trial judge finds that the $4million “buy-out” is an unenforceable “penalty.” In that case the question of damages may go to a jury — and WVU will have to prove them. Good luck!

  2. mac, you sound like you know something about what’s going on there. If what you say is the case, why fight so hard to maintain the suit in federal court?

  3. macjont

    In an attempt to shed some light on a problem that has raised great passion on both sides, let’s take a dispassionate look at the problem presented by the “buy-out” clause in Rich Rod’s contract.

    Take a look at the contract absent such a clause. Simply put, it is a contract for personal services. Now if Rich Rod, while under such a contract resigns (as he did), and his resignation is found to be a breach of his contract, WVU must attempt to mitigate any damages resulting from the resignation (“breach”) by going out and hiring another coach to perform those services. WVU did that. If in hiring Rich Rod’s successor WVU was required by the market to pay more for the services of Rich Rod’s successor than they would have paid for the services of Rich Rod, then WVU clearly has been damaged at least by the differential they are required to pay. If WVU is acquiring the services of Rich Rod’s successor for less than they would have paid Rich Rod, or the identical amount, arguably WVU has suffered no damage.

    Query: Has WVU entered into a contract to pay Rich Rod’s successor more than they would have paid Rich Rod, the same as they would have paid Rich Rod, or less than they would have paid the villain?

    If they are paying Rich Rod’s successor the same as or less than they would have paid Rich Rod, are there some other measurable damages WVU sustained?

    If these damages are impossible to ascertain, did the “buy-out” figure meet contract requirements for enforceability, or was (is) it an unenforceable penalty.

    Consider the following contract rules:

    B. Liquidated Damages vs. Penalty Clauses
    The distinction between penalties which are unenforceable and “liquidated damage clauses” that are enforceable
    1. Rest 2nd §355: Punitive damages pp 159-§356: Liquidated damages and penalties:
    (1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty
    a. Kemble v. Farren: Liquidated damages
    b. Wessenaar v. Towne Hotel: “The overall single test of validity is whether the clause is reasonable under the totality of the circumstances”
    -(1) Did the parties intend to provide for damages or for a penalty?
    -(2) Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of contract?
    -(3) Are the stipulated damages a reasonable forecast of the harm caused by the breach? Awarded liquidated damages to buy out the rest of his contract as stipulated
    3. UCC §2-178 p.145
    a. Lake River Corp v. Carborundum Co.: “Penalty clause may discourage efficient as well as inefficient breaches of contract” Compensatory damages should be sufficient to deter inefficient breaches. If the estimate of damages greatly exceeds what a reasonable upper estimate is likely to be then it is a penalty not a liquidated damages clause

    Another view:

    3. How to Determine If a Provision Will Be Enforced
    Ask: (1) When contract was made, was it clear damages would be difficult to estimate? (2) Was amount set as damages a reasonable estimate? If either answer is “no,” provision will not be enforced.

    Not being licensed to practice law in West Virginia, I am not certain how West Virginia law treats the problem of damages in the case of the breach of a personal services contract, and in particular a liquidated damages clause such as that in Rich Rod’s contract. In any event, before one gets caught up in the shouting that has surrounded the Rich Rodriquez episode, a sober look at this case in light of the applicable legal rules would be worth pursuing.

  4. mac, thanks for that. I did have some awareness of the issues involved with enforcing these types of clauses.

    Cautionary notes aside, it’s not like WVU hasn’t already been down this road with the basketball coach that jumped to Michigan. I believe he settled for $1.5 million with WVU, so I have to presume there’s some teeth to the provision.

    But again, why did RR maneuver to keep the case out of state court?

  5. NM

    Thanks for the legal info, mac. I’ll be in law school next year, so maybe soon I’ll understand it all ;-)

    That said, couldn’t WVU estimate “damage” in light of the fact that RR is a great coach, while we don’t know if the new guy is — so the on-field product, and consequently merchandising, donations, reputation, etc., are harmed? (Though I’m not sure I’d want the public record to reflect lack of confidence in my new coach!) A couple of 2-10 years could easily amount to $4M or more in actual damage to the WVU bottom line, not to mention the incalculable benefit to the overall university’s reputation from having a nationally-known football team.

    Plus, I assume they spent some money on a coaching search that they wouldn’t have had to do otherwise, so that adds on top.

  6. macjont

    Senator

    Why not state court? Simple: elected judges (state court) vs appointed judges (for life, fed court). I don’t mean to impugn the integrity of your judges, but can you imagine the social and political pressure in a charged case such as this? I think to maintain even the appearance of impartiality, they should consider asking some judge to visit from some distant state (Alaska?) to handle this one. I know, it’s not going to happen. But, unless the fire burning around this matter subsides, it will take a paragon of virtue to resist the pressure, implied if not express.

    (By the way, our judges in Michigan are also elected. So this is not a shot at West Virginia.)

  7. macjont

    NM

    Congratulations on going to law school. (I think? Looking back over 30 years, sometimes I wonder).

    By the way, if you really get a handle on the somewhat contradictory notion of an enforceable liquidated damages clause (sometimes called a stipulated damages clause), please share it with the rest of us. It is the contradiction buried within the test that makes these cases problematic and sometimes difficult to predict.

    Your observations on WVU’s potential damages are acute, as was your comment on the impact on your new coach in making those claims. Not a real confidence builder, is it?