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Friday, December 14, 2007
Leaving the Falcons' Nest: A Tort in the Making?

The news that Bobby Petrino left the Atlanta Falcons for the Ivory Tower at Arkansas ranks as the piece de resistance of a year of turmoil for the team. With Michael Vick gone, the team sank to a 3-10 record, and Petrino, like a rat on a sinking ship, decided to bail out -- despite a five-year $24 million contract.

To add more acrimony, team officials claimed that Petrino was negotiating with Arkansas without permission, a breach of etiquette, to say the least. According to the New York Times, Petrino's rationale for leaving was because his "family was struggling" with the team's losing season. For almost $5 million per season, that's a stress that many families can live with.

But what can the Falcons do? The NFL has no jurisdiction over Arkansas, but team owner Arthur Blank has recourse in the courts: the venerable claim of tortious interference with contract. Although minor differences may exist from state to state, the following elements must be found:

(1) The existence of a contractual relationship or beneficial business relationship between two parties.
(2) Knowledge of that relationship by a third party.
(3) Intent of the third party to induce a party to the relationship to breach the relationship.
(4) Damage to the party against whom the breach occurs. (Source: Wikipedia)

I think that a good case can be made. The key requirement is (3) and I think that may not be that difficult to prove. If Arkansas officials knew about Petrino's unhappiness and induced him to leave for the confines of Fayetteville, they exercised unethical and tortious conduct, along with bad faith. Damages -- finding a replacement, dealing with the negative effect on the team, a possible loss of fans and ratings -- may well be shown.

As quarterback Joey Harrington said: "He [Petrino] preached team and he preached family and then he quit on it. . . He lied to us." To Mr. Blank, who was quoted as being "betrayed" by this act: don't get mad, get even.


Didn't the Falcons perform in the same manner as Arkansas, when they hired Petrino away from his 10-year contract with Louisville?

Blogger SkeptiSys -- 12/14/2007 7:27 PM  

It wasn't exactly the same. Louisville gave Atlanta permission to talk to Petrino while he was under contract. Arkansas never sought nor received permission from Atlanta. The official line is that Arkansas waited until Petrino "resigned" on Tuesday morning before negotiating a contract later that day. But there was almost certainly contact between Arkansas and Petrino (or Petrino's agent) well before that, as evidenced by Jerry Jones's call to Atlanta owner Arthur Blank a week ago inquiring about permission for Arkansas to talk to Petrino.

Blogger Skip -- 12/15/2007 10:26 AM  

Since it's a state school, can it be sued for monetary damages or would the Alden case / sovereign immunity apply?

Do states normally just consent?

Thank you for helping me study con law.

Anonymous Anonymous -- 12/15/2007 4:39 PM  

What about a basic claim for breach of contract. Damages or negative injunction? Injunction against Arkansas (Fairbanks case)

Anonymous Anonymous -- 12/15/2007 6:33 PM  

A basic breach of contract claim would make sense, except that projecting damages is very difficult in personal services contract breach cases. I did a law review article many years ago about the difficulties of courts to apply actual damages or even consequential damages because of the lack of forseeability. Regarding the injunction, I'm not sure that a court would grant it, since Arkansas is not direct competitor to an NFL team. Also, one has to show the coach is "unique" which is harder for some courts than others. The tort action frees up more damages, and opens up the possiblity of a jury rendering punitive damages.

Blogger Mark Conrad -- 12/15/2007 8:23 PM  

I have a different take on this entire issue. Tortious interference, which is difficult to establish generally, is going to be more difficult to establish against Ark. Who contacted who? Judging by Petrino's track record over the past 5 years (his seeking a different coaching job each year), it doesn't look good for the Falcons. Also, courts are generally hesitant to enforce these claims in the employment realm because it impedes a free market for employee services.

I acknowledge the Fairbanks case, but that was decided almost 30 years ago, prior to the onset of heavily negotiated buyout and liquidated damage clauses. It would be interesting to know what Petrino's contract with Atlanta provides in this regard. And whether it covers Petrino leaving for a college coaching position?

Blogger Rick Karcher -- 12/16/2007 7:12 AM  

But courts will recognize the one sidedness of these contracts. Coach quits no harm no foul everyone parts ways. Coach gets fired team still pays. I dont think there was a buyout in the contract because there is an article quoting Petrino's agent Russ Campbell as saying they were not going to leave because Blank threatened legal action (Blank denies this). Moreover, I speculate that coaches always take a hard stand that they are not leaving right before they quit in order to establish they were not working with other teams while under contract. Then they resign and make deals.

Anonymous Anonymous -- 12/16/2007 8:10 PM  


When a coach quits in the middle of the contract term, it's not that there is "no harm no foul and everyone parts ways". Coaches contracts are not "one-sided" agreements, and calling it a resignation doesn't change the outcome.

Petrino terminated his contract early with the Falcons, and the question is what recourse do the Falcons have against Petrino. A liquidated damages/buyout clause in a contract answers that question (and the new team or school typically pays the buyout, i.e. Michigan is paying the $4M buyout in Rodriguez's WV contract). If Petrino's contract with the Falcons does not have such a provision, then the question is what are the damages, and who knows what that is or whether the Falcons would even pursue it (they have a duty to mitigate, i.e. find another coach, which may result in little or no damage).

Blogger Rick Karcher -- 12/17/2007 8:26 AM  

See Norhteastern University v. Donald A Brown 2004 WL 616225 (2004) Injunction granted for non-compete plus liquidated damages.

Anonymous Anonymous -- 12/17/2007 4:18 PM  

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