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Monday, April 07, 2008
slavery and liquidated damages clauses

Marvin A. Robon, one of University of Michigan head football coach Richard Rodriguez’s attorneys, made an astonishing claim in Morgantown, WV, during hearings being held there in connection with West Virginia University’s lawsuit against its former head coach. Robon, complaining the Rodriguez’s $4 million dollar buyout clause is “outrageous” and “just not fair” stated:

“It’s like back before the Civil War when slaves had the right to buy their freedom. A penalty of $4 million is almost like a slave from Africa trying to buy his freedom in America.”

Robon (pictured above) continued:

“I think it’s an outrageous amount. It’s just not fair and it’s not related to any damages the university is suffering.”

Robon has badly miscalculated on several fronts here. First, as Prof. Karcher discussed on this blog yesterday, buyout clauses in head coach contracts are now common place. It is the rare instance in this day and age that a new football or basketball head coach at a NCAA member institution does not sign a contract that includes a very stiff liquidated damages clause. Tom Crean just agreed to a laddered $3 million dollar buyout clause with the University of Indiana. $4 million may be outrageous to Robon, and to him “just not fair,” but it is market and the amount is not uncommon. Rodriguez agreed, upon leaving WVU, to a $4 million laddered buyout clause with the University of Michigan.

Second, in the United States of America, contractual terms agreed between parties at arm’s length remain a fundamental precept of our law. We hallow contracts in the United States. An American can contract away his or her constitutionally protected due process rights. We support, encourage and enforce contract terms that parties enter into fairly between one another. Rodriguez signed a contract that included a $4 million dollar liquidated buyout clause. West Virginia University committed in that same contract to a damages clause, where it would pay Rodriguez several million dollars if it terminated Rodriguez prior to the completion of the contract.

Last, and most egregious, Robon desecrates the memory of those who have battled against slavery and its remaining vestiges in our nation. Think Martin Luther King, Jr., Frederick Douglass and Harriett Tubman to name three. Robon trivializes the dark period of slavery in United States history and the memory of those who fought so valiantly for equality under the law. Think Thurgood Marshall, Charles Hamilton Houston and Constance Baker Motley to name three. Robon, apparently in an earnest moment, compares Rodriguez’s lucrative contract ($2 million per year) entered into with West Virginia University and its attendant buyout clause, freely negotiated at arm’s length between attorneys for both parties, to SLAVERY. Seriously?

Our United States of America continues to struggle with racial conflict and inequality. A white lawyer, representing a well paid head coach of a college game, compares an arms-length negotiated contract term and that coaches attempt to circumvent that clearly negotiated term, to buying his freedom like a slave.

The sordid Rodriguez saga has grown even nastier.


Now everyone is playing the race card!

Anonymous Anonymous -- 4/07/2008 6:10 AM  

I assume that this action is to try and get WVU to settle .... does Rodriguez have any chance to win?

I'm hoping that WVU does not settle, it would set a horrible precedent - we would now have coaches who negotiate to receive liqidated damages when none are forthcoming (Samson) and reduce those that are there (Rodriguez).

Anonymous Glenn -- 4/07/2008 7:01 AM  

And while I'm at it, does the fact that Rodriguez agreed to a buyout clause, for the same amount, in his new contract with Michigan have any bearing whatsover on his current claim?

Anonymous Glenn -- 4/07/2008 7:03 AM  

I agree with all of the above, though I'm not sure the contract aspect would resonate in other circumstances. One cannot, for example, contract to become a slave! This contract, however, does not even come close, and the law provides protections to ensure that it does not (including anti-penalty rules, bankruptcy, and the abolishment of debtor's prison).

Anonymous Michael Risch -- 4/07/2008 7:15 AM  

Why not just try to attack it as an unenforceable liquidated damages clause? Seems to me that a $4 million "buyout" acts as a penalty more than any reasonable estimation of damages that a school will suffer?

Anonymous Anonymous -- 4/07/2008 8:36 AM  

If I'm reading the blog posting correctly, RichRod agreed to a buyout provision at Michigan that is roughly identical to what he had at West Virginia. I think that will make for a fascinating cross-examination if he gets the chance to testify about how West Virginia enslaved him.

Blogger Mark -- 4/07/2008 9:41 AM  

On several levels, Samson miscalculated. I'm sure that, in his mind, he felt, I need some super-egregious comparison so that I can shock and awe this jury. It is being tried after all in Monongalia County Circuit Court, right in the heart of Mountaineer Country. However, he should have thought of something different. First, this is the most controversial statement that could have been made. Second, has anyone seen the demographic in Mon. County?
I agree that this will make for a wonderful cross examination. Coach Rod has now buried himself in such negative media attention that he may not be a coach at Michigan for very long, as I'm sure they don't want that type of negative attention.

Anonymous Travis -- 4/07/2008 10:37 AM  

Slavery? Definitionally, a slave cannot be one revered by an entire community and paid millions for services rendered per his contract. It really does a disservice to all to attempt a bizarre association between a millionaire coach who chose to break his contract and now refuses to pay for the damages he caused with the terror of slavery. The disservice is particularly pronounced when it comes just hours before the anniversary of the murder of Dr. King. Further, any argument that such a buyout clause is akin to slavery is more puzzling when Mr. Rodriguez accepts another term of slavery (via a similarly “outrageous” 4 mil buyout at Michigan!). I imagine he is stuck with his ridiculous defense because he has little else. It had to be difficult for Atty Robon to create a soundbite that wasn’t asinine. But, if Mr. Robon conceived this analogy prior to his appearance, a search for more astute counsel has likely begun.
It may be difficult to argue that the liquidated damages clause operates as a penalty where the damages cover loss coach, loss of staff, loss of players by a program is in transition, loss of the reputation of the program, possible loss of bonuses paid to the Univ. for Bowl appearances, loss of donations by proud alumni, licensing, and so much more.

Blogger LT -- 4/07/2008 10:55 PM  

The previous comment has it right -- Rodriguez's best argument is that the buyout acts as a penalty. He might have a good argument here. Does $4 million really bear any reasonable relation to provable damages? I would guess not. That's why I think the case will settle.

Anonymous Anonymous -- 4/09/2008 9:38 AM  

I'm still having a hard time understanding how RR has any leg to stand on, aside from his ridiculous analogy with slavery. He entered into a legally binding contract which specified a buyout clause. He knew it going into it. How in the world does he have a viable claim? This is preposterous.

Anonymous Anonymous -- 4/09/2008 1:55 PM  

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