Rutgers University has apparently decided to fire head basketball coach Mike Rice, after ESPN aired secret video footage of the coach's behavior during practice sessions in his first two seasons in Piscataway. Athletic Director Tim Pernetti, who hired Rice shortly after taking the helm at Rutgers, suspended and fined the coach back in December, when he first learned about the tapes, which show Rice throwing basketballs at players' heads, and using excessive profanity and gay slurs.

After ESPN aired the video on national television, public outcry erupted for the coach's dismissal. The National College Players Association issued a statement calling for Rice to be fired; reportedly, LeBron James and his Miami Heat teammates were angered by the coach's behavior as well. Even NJ Governor Chris Christie weighed in on the issue (no pun intended), saying that he was "deeply disturbed" by the way the coach conducted himself.

Regardless of whether Rice's behavior was cause for termination, it looks as though he was punished twice for the same conduct. Again, the video footage was filmed during the coach's first two seasons at Rutgers, between 2010 and 2012. In December, AD Tim Pernetti suspended Rice for three games, and fined him $50,000. Since then, there have been no new reports or allegations of misconduct by the coach. So, in essence, he was fired for the same thing for which he was previously suspended and fined. In constitutional law, that's called double jeopardy, though I don't believe that that has much, if any, bearing on employment law. Even if firing Rice was the right thing to do, from a moral perspective, or for public relations, Rutgers is still obligated to honor the coach's employment contract (which I have not seen).

The contract probably allows the university to fire the coach for cause, and it's tough to argue that what he did wasn't cause for termination. But it's hard to imagine that the contract would allow the university to discipline the coach twice for the same conduct. If I were Coach Rice, I'd be speaking with an experienced contracts attorney. Don't get me wrong, it's highly unlikely that he'll get his job back, but there's a strong argument that Rutgers should have to buy out the contract, or, at very least, return the $75,000 he lost as a result of the suspension and fine they imposed on him in December. Rather than firing Rice for the same thing they previously fined and suspended him for, Rutgers would've been better off to fire the coach for his performance—or lack thereof—the Scarlet Knights failed to finish above .500 this past season, with an even worse 5–13 record in the soon-to-be-defunct Big East Conference.

The 43-page complaint is available here (PDF). To be fair, I must admit that I haven't had time to read the whole complaint yet, but I did see trial attorney Max Kennerly's (@MaxKennerly) detailed analysis over on his Litigation and Trial blog (4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground). In a nutshell, Kennerly thinks there are issues with standing to bring the lawsuit.

Because I haven't done the research, I'm not in a position to agree or disagree, however, I agree wholeheartedly with Max's final point, which goes to the merits of the case: 

[A]ntitrust cases are increasingly difficult to win, and courts have generally sided with the NCAA on issues relating to sanctions.

That is not to say that I agree with the result itself, only that I agree that the Commonwealth will probably lose. Before the suit was filed, I mentioned that I was "intrigued," and that is because I like to examine the way other attorneys deal with peculiar circumstances that make it difficult to get their clients the relief they want. So, with that in mind, I will be watching the way this case develops.

EARLIER

Pennsylvania Governor Tom Corbett has scheduled a press conference today in State College. According to Good Morning America's Josh Elliott (@JoshElliottABC), he's planning to file a lawsuit against the NCAA, over the $60 million fine it levied against Penn State as a consequence of the Jerry Sandusky scandal.

This is an intriguing idea to me, so I poked around a little online, but I didn't find anymore details on the suit. My first thought was that the commonwealth of Pennsylvania was going to go after the NCAA for unjust enrichment—receiving a benefit for which they bestowed nothing in return—and although I like the concept, I'm not confident that it's a winner. There could be an antitrust claim there as well, but again, it seems like a stretch.

The theory behind the suit is likely to be that since Penn State is a state institution, the monetary penalty demanded from them is ultimately being paid by the taxpayers, who aren't a party to any contract or franchise agreement with the NCAA. This theory could support either a claim based in contract (e.g. unjust enrichment) or antitrust. Sometimes, though, a lawsuit like that is used as a strategic, posturing device, to influence future behavior and/or legislation, rather than to win a pile of cash.

If the suit is filed today in U.S. District Court for the Middle District of Pennsylvania, as is rumored, then I should be able to get a copy of the complaint, which I'll post here later.

Photo Credit: Rick Smith/Flickr

I'm gonna go out on a limb, and say that Ohio State Football Coach Urban Meyer didn't get his new $26M contract from legalzoom.com. It has nothing to do with the fact that it's a high-dollar contract, either. The reason I know that the contract was not created from some computer database is that the terms of the contract are tailored to the specific circumstances that are important to the contracting parties.

I'm not saying there's anything wrong with Legal Zoom. If you need a will, and you have no children or substantial assets, I'm sure that whatever they have may suffice. If you need a simple power of attorney, a bill of sale for that old refrigerator you're selling out of your basement, or maybe even an operating agreement for your single-member LLC, then I could see using Legal Zoom. But I wouldn't trust them with a document that has the possibility of affecting another person's livelihood, or the potential to be litigated.

Last November, Urban Meyer shocked the college football world when Ohio State introduced him as their new head football coach in the wake of the Tattoo-gate scandal, which cost the Buckeyes several players, including quarterback Terrelle Pryor, and once-beloved coach Jim Tressel. Meyer won two national championships at the University of Florida, and then resigned, citing health conditions, before essentially coming out of early retirement to take the job in Columbus. Although Meyer's $4.4M annual compensation makes him far and away the highest paid coach in the Big Ten Conference, the brilliance of his contract isn't reflected in that number.

When Ohio State released the details of Meyer's contract last week, we learned about a special provision that—if the NCAA levies more sanctions against the school arising out of the Tressel-ball era—allows Meyer to get out of the deal, AND still pays him $1.5M per year for the remainder of the six-year term. That contractual provision is essentially an insurance policy for Urban Meyer, so he doesn't get stuck living in Columbus, Ohio, and coaching a dead-end team because of what happened during Jim Tressel's watch. This type of a contract clause can't come from some antiquated legal form. It can only be the product of a skilled contract drafter, someone who has taken the time to understand the parties' true interests and objectives, which many times are a lot more complicated than dollars and cents.

You might think that you have to make Urban Meyer money to be able to get a contract that good, but you'd be wrong. Before you enter into any agreement for employment, or to buy or sell anything of significant value, it's worth the cost of a one-hour consultation with an attorney to discuss what's on the table, and address any potential issues or concerns that are on your mind. At the end of that consultation, the attorney will either tell you that you'll be fine with the basic contract, or what the pitfalls lie ahead in relying on a standard document. In most cases, it's like the old adage, pay a little now, or pay a lot later: If you and a buddy enter into a business deal based on some chicken scratch on a cocktail napkin, if and when things go south, you could find yourself in the middle of a contentious (expensive) lawsuit.

NB: The above statements are not intended to be construed as an endorsement of any online or other provider of legal documents or forms.

Photo credit: Brooke LaValley, Columbus Dispatch

Earlier:

University Paid Nearly $142K in Football Players' Legal Fees

Will NCAA Sanction Tressel If They Determine He Withheld Information

Consequences If Buckeyes Break Promise To Return

Last week, the League fired longtime grievance arbitrator Shyam Das (the guy who cast the deciding vote that overturned National League MVP Ryan Braun's 50-game suspension for testing positive for performance-enhancing drugs last month) after allowing a second player to use the so-called chain-of-custody defense. The League was certainly within its right to remove Das, who "served at the pleasure of" both MLB and the Players' Association—either side was free to remove Das, at any time, with or without cause, upon written notice. But is the League's action a sign of something more significant?

 What's happened here is that MLB removed a judge from the bench because of a philosophical disagreement—i.e. the League believes that their "independent arbitrator" should take a more relaxed view of pillars of the American justice system like the Rules of Evidence.

Alfonzo's grievance challenging his suspension raised issues that were nearly identical to those resolved in the arbitration involving Ryan Braun. It is not anticipated that any other future cases will be impacted by the circumstances raised in the grievances of these two players.

That was MLB's statement, after announcing Das's termination, and the fact that they'd reached "an agreement" with the Players' Association regarding Eliezer Alfonzo's alleged second positive drug test. Whether or not Alfonzo is suspended makes little, if any difference—he was designated for assignment by the Colorado Rockies (effectively cut from their roster) and sent to Triple-A. What's troubling, however, is the League's declaration, that the evidence issues in Braun's and Alfonzo's arbitration hearings will never be at issue again.

This type of situation is precisely why the founders of our country—in the U.S. Constitution—gave federal judges life tenure. The underlying theory of life tenure is that judges will be true to their own consciences and moral convictions, without fear of reprisal for rendering an unpopular decision. Baseball's collective bargaining agreement also had a provision with the same intent (described by attorney Craig Calcaterra in his NBC Sports blog Hardball Talk), but it seems that it failed in this case.

Although the effect of Das's removal is limited to baseball, it represents a microcosm of judicial politics in the United States, which has been a hot-button issue in states such as Mississippi, New York, New Jersey, and Ohio, and subject of the realistic fiction in books by John Grisham. N.B. read Grisham's The Appeal for a creepy tale about a tort reform group's influence on judicial elections, which results in…sorry, you'll have to read the book to find out how it ends (or just read the Wiki-spoiler review).

Earlier:

Braun Decision Affirms Fact that Appeals are Crucial to our System of Justice

While that case is still getting started, a Bucks County, PA firm filed a class-action lawsuit against the Philadelphia Flyers owner, Comcast Spectacor, on behalf of all Flyers season-ticket holders. The basis of the suit is that the team misled season ticketholders by offering them tickets to all 41 regular-season home games, but then withholding tickets to the Winter Classic—which, by definition is a regular-season home game.

Comcast has chosen to label the suit as "frivolous," however, a Philadelphia small-claims court already awarded another season ticketholder $1,300 in damages, for essentially making the same allegations. An attorney from Stern & Eisenberg, who filed the class-action suit in Mercer County Superior Court argues that if the claim was so frivolous, why didn't Comcast appeal the decision? 

If the case was so frivolous, why didn't Comcast Spectacor choose to use the appeals process and fight it tooth and nail? This is a team who tried to get as much money as they could. That's their right as a business. But they angered a large part of their fan base in the process. They gave customers no choice.

This was a regular-season game, in Philadelphia, on regulation ice. It should have been a part of the 44-game package that fans paid for.

A reporter asked why Stern & Eisenberg decided to file the class-action suit in New Jersey, and although there could be a number of reasons behind that, the most compelling one has to be that New Jersey's consumer protection laws are some of the toughest in the country, and so long as one of the named plaintiffs is a resident of Mercer County, New Jersey, jurisdiction over an out-of-state defendant is proper.

Credit:

Frank Seravalli (@DNFlyers) Flyers beat writer for the Philadelphia Daily News.

Earlier:

Perpetrator of Cheesesteak Attack has Rap-sheet Longer than Richie Aprile

Rangers Fan Beaten Outside of Geno's Steaks: Is it His Own Fault for Eating a Misteak?

Till now I have purposely avoided concerning myself with the day-to-day minutiae of the ongoing labor negotiations between the National Football League and the Players' Association. After all, there's going to be a deal. The only question(s) is what will the deal look like, and when will they get it done. The league's current CBA (collective bargaining agreement) expires in a little over two weeks. If the CBA expires, all that means is that there's no agreement in place. Could there be a lockout (owners refuse to keep the status quo)? Sure. Could there be a strike (players refuse to play without a new agreement)? Sure. But will there be? Nobody, including God—and those at ESPN who think they are—knows the answer.

This morning on Mike & Mike, I heard an ESPN columnist discussing the complaint that the NFL filed yesterday with the National Labor Relations Board (NLRB) against the Players' Association. He then proceeded to compare the current NFL labor situation to the 1994 Major League Baseball strike, which is an utterly ridiculous proposition. Unfortunately, I didn't catch the columnist's name. 

Regardless of whether he really believed what he was saying, or whether he just didn't do his homework, making that kind of statement this early in the game is not only premature and reckless, but there is no good that can come from it. All it will do is make football fans uneasy and uptight. Lest we forget how damaging the MLB strike was to the game of baseball. It took years for baseball to earn its way back into America's family rooms; of course, after that the game's popularity suffered again after the steroid scandal erupted. But here's why the two situations are completely unrelated:

First, in the 1994 MLB labor dispute, it was the players that filed an NLRB complaint against the owners, not the other way around, as is the case today. Second, the players didn't file that complaint until after they had already been on strike for roughly six months, and didn't do so until Congress and President Clinton stepped in to try to end the strike. Here, the current CBA hasn't even expired, and even if/when it does, there are six months between that date and the start of the next NFL season.

I don't believe that an NFL strike/lockout is out of the question, but given the commercially-driven attitude of Roger Goodell and the new, No Fun League, and the amount of money that stands to be lost as the result of any work stoppage, I don't think that a strike or lockout is likely. Nevertheless, if the season were delayed because the dispute remains unresolved, as fans we could all luck out, by being spared the Chinese torture of having to watch the NFL preseason. 

For a more in-depth analysis of the substantive issues and applicable law relating to the NFL's complaint, check out this post at www.laborrelationstoday.com. 

Regardless of whether you liked the teams or the outcome of last night's BCS National Championship game, you have to admit how much better the championship is now that it's back on ABC's family of networks. During the three years that Fox carried the title game, the coverage was dreadful. The production was bad, the audio was bad, and worst of all was the play-by-play coverage of Thom Brennaman.

Brennaman is a baseball guy, the son of long-time Cincinnati Reds announcer Marty Brennaman. Thom also went to Ohio University, which is almost an anti-football college. At some point he started dabbling in NFL games, after Fox picked those up in the late '90s. And then out of the blue, Fox hired him to be the voice of the BCS in 2006. What business did Thom Brennaman have calling bigtime college football games?! Furthermore, what experience did Fox have broadcasting them, and why did they appoint a college football outsider to such a crucial role in broadcasting?

I thought maybe it was just me—that Brennaman rubbed me the wrong way—but apparently not. In the 2009 title game in which #2 Florida beat #1 Oklahoma, 24–14, Brennaman's bias toward Florida QB Tim Tebow was so obnoxious that it drew criticism from the media at-large: "Brennaman was so far over the top in his pro-Tebow hyperbole on Thursday that the game became darn-near unwatchable unless the volume was off," wrote FanHouse's Chris Burke.

Bleacher Report ran a post last week, called BCS: 15 Reasons We're Glad It's on ESPN, Not Fox.

In 2009, we were reminded by Thom Brennaman how great a person Tim Tebow was. He took every opportunity to gloss Tebow as the second coming.

I can only imagine that if Fox had the rights this season, Thom Brennaman would pick a new favorite. We would then be forced to hear how great Cam Newton is or what LaMichael James might be thinking while playing with such talent.

I grew up watching college football on ABC. Dick Enberg, Brad Nessler, Brent Musberger, and of course, Keith Jackson. Jackson's iconic delivery will forever resonate in my ears as the voice of college football. But Jackson notwithstanding, my perception of ABC's sports productions is that they always presented the college game in a dignified manner. Fox, not so much.

Fortunately, Disney (parent company of ESPN, ABC) is doing pretty well, because they were able to pony up half a billion dollars to reclaim college football's January finale ($125M/yr., 2011–14). Fox had been paying about $82M annually for the 4 games it broadcast in each of the 2006–09 seasons. Fox balked at ESPN's offer, and didn't feel they needed to match it because of the fact that ESPN is a cable network, which reaches 16 million fewer viewers than broadcast networks. Being on cable apparently didn't hurt the BCS last night: Its 16.1 Neilsen rating was the highest in the history of cable television, and higher than the 2005 (USC def. Okla., ABC) and 2008 (LSU def. Ohio St., Fox) title games.

Rest assured, beginning with the upcoming college football season, through 2014, ESPN will carry all of the BCS games. Maybe Thom Brennaman can take over Ted Williams' post collecting donations along I-71. On second thought, Williams has a better voice.

Generally speaking, a valid contract has three requirements:

(1) An offer;

(2) Acceptance;

and

(3) Consideration (this is just a fancy word that means that the parties have to exchange, or promise to exchange something of value).

In the circumstances with the suspended Buckeyes (see Consequences, Jan. 5), Coach Tressel offered to let them play in the Sugar Bowl if the players promised to return to the team in 2011 (and not go to the NFL). The players accepted. The consideration is the players' promise to forgo the NFL draft this spring, and to serve whatever suspension the NCAA passes down.

In this case, there wouldn't be much difficulty proving that the players and the coach made this agreement: Tressel went on national TV and discussed the deal in detail, and none of the players spoke up to object (this is known as a tacit agreement). Furthermore, members of the media asked some of the players, directly, about their promise(s) to return to Ohio State next year, to which the players each gave an affirmative response.

Breach of contract occurs when one party doesn't honor his contractual obligation. In reality, people breach contracts everyday, but it doesn't always make sense to sue. There are two reasons for this:

(1) Even if you successfully prove that the other party breach the contract, you are only entitled to the damages that you can prove (In other words, the court won't award you a lot of money simply because the other guy acted like a douchebag.);

(2) Regardless of whether you win or lose your contract case, in almost every circumstance you will still have to pay your own attorney. So unless your damages are significant, and you're pretty sure you can prove them, it might not be worth it to file suit.

Turning back to the Buckeyes' promise to return in 2011—if the players reneged, and Ohio State sued them, what are the university's damages? This is what attorneys refer to as speculative damages. But for the sake of argument, let's suppose that Ohio State claims that the players' breach caused the university to lose millions in lost ticket sales, endorsements, and broadcast royalties. The players would counter by saying that if they hadn't played in the Sugar Bowl, Ohio State would've lost, and they would've lost even more than what they lost as a result of the players' breach. And they'd be right.

As Rob Oller pointed out, what would an NFL team think about a player who reneges on a promise to his school under those kinds of circumstances?

Last night, the Ohio State Buckeyes beat the Arkansas Razorbacks 31–26 in the Allstate Sugar Bowl. The games's MVP was junior quarterback Terrelle Pryor, who, along with four other Buckeyes, was suspended by the NCAA on Dec. 23, 2010 for allegedly receiving improper benefits (NCAA Press Release pdf). The so-called improper benefits were cash proceeds from the sale of memorabilia items, including their Big Ten Championship rings, which the five players admitted to selling, for between $1000 and $2500.

But because the NCAA found that "it was reasonable at the time the student-athletes were not aware they were committing violations," a loophole in the rules allowed all five Buckeyes to play in the upcoming bowl game. "The policy for suspending withholding conditions for bowl games or NCAA championship competition recognizes the unique opportunity these events provide at the end of a season, and they are evaluated differently from a withholding perspective."

ESPN-nation erupted, over what the public perceived as the NCAA giving Ohio State preferential treatment. Then, on Dec. 30—the day after the Buckeyes returned from their 4-day x'mas break—Jim Tressel announced that he had requested verbal commitments from each of the suspended players, to return for their senior seasons at Ohio State if allowed to play in the Sugar Bowl. All five players agreed, which seemed to quiet much of the public outcry. Columbus Dispatch's Rob Oller called Tressel's move, "a masterful flanking maneuver that puts him back in charge and quiets critics who have questioned his leadership."

But Tressel's deal didn't satisfy everyone; the new topic du jour was speculation over whether those five players would actually keep their promises to return. Critics argued that if they decided not to honor their promises, and instead declared for the 2011 NFL Draft, then those players wouldn't have to suffer any consequences for their impermissible conduct. Oller even referred to the players' agreement as "nonbinding." Although I believe it would be a supreme waste of time to, say, try to enforce the players' promises using judicial means—not to mention, a public relations nightmare—I wouldn't be so quick to dismiss the players' promises as nonbinding.

Some will inevitably refer to Jim Tressel's gentleman's agreement as his deal with the devil, especially given the way all five players contributed immensely to the Buckeyes' Sugar Bowl win. Prior to last night, the Buckeyes had a 32-year winless streak against SEC football teams in bowl games. This morning, I bet that some of those same fans who criticized Tressel for his deal, are silently rejoicing.

Next—Part II: What is a contract?