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Tuesday, December 08, 2009
Cincinnati vs. Notre Dame

Yesterday, the New York Times reported that Notre Dame is interviewing Cincinnati's Brian Kelly today to see if he is interested in their coaching vacancy. Tell it like it is. Notre Dame is soliciting Kelly to breach his contract with Cincinnati. Here you have a university that has made a substantial investment in a coach based upon his express contractual commitment to stay for a period of years in order to develop a successful program, and a coach who is going to speak to another school about leaving at a time his players are preparing for the biggest game of their lives in a few weeks.

It is mind-boggling that the NCAA and its members allow this tampering to occur. If it is in fact true that 85% of bowl-subdivision university presidents feel that coaches' compensation is "excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability," then they should seriously consider adopting a no tampering policy similar to the NFL's policy. In the meantime, Cincinnati owes all of the current and prospective student-athletes, as well as the taxpayers (because Kelly's salary is funded by tax exempt revenue), to enforce its contract and prevent Kelly from going to work for a competitor.

In my law review article that was just published, I discuss how college head coaches today meet the "unique skill" element for a negative injunction to prevent the coach from working for a competitor school. Indeed, there are striking similarities between today's college head coaches and professional athletes applying the court's rationale in the seminal case of Philadelphia Ball Club v. Lajoie:
The court below finds from the testimony that “the defendant is an expert baseball player in any position; that he has a great reputation as a second baseman; that his place would be hard to fill with as good a player; that his withdrawal from the team would weaken it, as would the withdrawal of any good player, and would probably make a difference in the size of the audiences attending the game.”….He has been for several years in the service of the plaintiff club, and has been re-engaged from season to season at a constantly increasing salary. He has become thoroughly familiar with the action and methods of the other players in the club, and his own work is peculiarly meritorious as an integral part of the team work which is so essential. In addition to these features which render his services of peculiar and special value to the plaintiff, and not easily replaced, Lajoie is well known, and has great reputation among the patrons of the sport, for ability in the position which he filled, and was thus a most attractive drawing card for the public.
We have the further fact that the contract has been partially executed by services rendered, and payment made therefor, so that the situation is not now the same as when the contract was wholly executory. The relation between the parties has been so far changed as to give to the plaintiff an equity, arising out of the part performance, to insist upon the completion of the agreement according to its terms by the defendant….The plaintiff has so far performed its part of the contract in entire good faith, in every detail, and it would therefore be inequitable to permit the defendant to withdraw from the agreement at this late day.
The defendant sold to the plaintiff, for a valuable consideration, the exclusive right to his professional services for a stipulated period, unless sooner surrendered by the plaintiff, which could only be after due and reasonable notice and payment of salary and expenses until the expiration. Why should not a court of equity protect such an agreement until it is terminated? The court cannot compel the defendant to play for the plaintiff, but it can restrain him from playing for another club in violation of his agreement.


Rick, until a "hero" steps forward and says enough is enough, coaches and their agents are going to milk a system that is clearly in their favor. Until a college president takes a stand, or until an athletic diretor actually seeks to enforce a contract (e.g., injunction) there is nothing any of us can do. The NCAA does not want to change the status quo unless it involves women, confederate flags, native american names, or non-white issues and you know that.

Anonymous Anonymous -- 12/08/2009 8:11 AM  

In this case, I can't feel too badly for Cincinnati, since it would never have had Kelly itself had it not persuaded him to break his contract with Central Michigan, who in turn wouldn't have landed Kelly had he not agreed to leave Grand Valley State prematurely.

Blogger Nathaniel Grow -- 12/08/2009 8:32 AM  


There is already precedent for it, in which schools have sought and obtained negative injunctions. I don't agree with your last statement.


You raise an interesting point. But I don't really feel too badly for Cincinnati either. I guess I feel bad for student-athletes (and recruits signing LOIs) who are committed and bound to stay, but the system allows their coaches to freely leave whenever they feel like it, which really doesn't make sense conceptually from a league/competitive balance aspect.

Blogger Rick Karcher -- 12/08/2009 9:13 AM  

Have these negative injunctions (precedent) had any positive impact at all?

Anonymous Anonymous -- 12/08/2009 9:51 AM  

The impact, whether positive or negative, would depend upon which party's perspective you are viewing it from.

The negative injunction essentially provides a remedy for the non-breaching party (the school) because it requires the coach to make a decision -- either stay or try to work out a settlement with the school.

I also think public policy supports enforcement, in that society has an interest in adherence to contractual obligations.

Blogger Rick Karcher -- 12/08/2009 11:08 AM  

Sorry for the long response here: Could not agree more: public policy and the moral responsibility to keep and enforce contractual obligations. Simple concept and is arguably the most important force in maintaining society from complete chaos. My thought is that if the NCAA is not willing to get involved (which it won't, but it should), and the college presidents tell the world they are "powerless" as you've discussed in previous posts (and won't get involved, but should), and the A.D.'s fail to offer contracts more favorable to the colleges, and the courts have proven ineffective in stopping this behavior, negative or positive injunction or not, and coaches and A.D.s continually "settle," then we are left with merely an academic discussion about how life should be, rather than how it is. Anyone with a moral compass knows that the annual rite of passage of coaching changes involving one breach of contract after another (and in some cases, "in your face" breaches) is "wrong." Whatever happened to the sanctity of a contract? Meanwhile, the rest of us just sit back, write, complain, yet remain powerless to change this system. That is, indeed, unfortunate. And especially unfortunate for the student-athletes...

Anonymous Anonymous -- 12/08/2009 11:49 AM  


I agree that the real losers in all of this are the student-athletes. Of course, the student-athletes are going to be hard pressed to enforce the coach's contract in court, so it really comes down to the universities. In a case like that involving Brian Kelly, I'd think that Kelly/ND would have a pretty good unclean hands defense in the event that Cincinnati ever actually sought an injunction.

My apologies if this rehashes any of your argument in the article, as I haven't had a chance to read it yet (but look forward to doing so).

Blogger Nathaniel Grow -- 12/08/2009 1:04 PM  


Unclean hands wouldn't be a defense in the context you are raising it. Typically, the defense only applies when the conduct relates to the controversy/parties in issue. The fact that Cincinnati hired Kelly away from CMU years ago wouldn't relate to the controversy in issue between Kelly/ND and Cincinnati (see, e.g., the New England Patriots v. Univ. of Colorado case).

Blogger Rick Karcher -- 12/08/2009 1:34 PM  

1. Isn't the policy against indentured servitude (which is an overstatement of but not altogether different from continued employment enforced by injunction) at least as strong as the policy in favor of enforcement of contract? Coaching contracts have buyout clauses in them for a reason, which is to provide some teeth to the contract without imprisoning the employee. (Again I realize I'm being melodramatic.) If these schools are so loath to pay the big bucks necessary to attract top coaching talent, the buyouts that they have to pay should significantly impede movement.

2. Do you believe that a school should not be allowed to fire a coach? If not, why is that breach of contract any more objectionable?

3. My impression was that Lajoie has hardly been followed at all in the hundred or so years since it was proclaimed. Do we really want our judges deciding who is uniquely skilled? Are judges (or arbitrators more likely, given the time constraints) able to decide based on any reasonable evidence that Brian Kelly is irreplaceable but Art Briles (for example) is not? That Adrian Peterson can't hold out for a new contract but Pierre Thomas can?

4. Analogizing to the tampering rules in the NFL is somewhat misleading. Coordinators and other assistant coaches are allowed to interview with other teams for promotions. (I know there are rules for Super Bowl coordinators on interviewing during the bye week, but to my knowledge there are no other restrictions for other coaches after the season ends.) It's true that teams don't hire head coaches from one another, but I'm not sure that's a matter of tampering rules. In the NFL, all teams are equal, at least in principle. It's bizarre to imagine the Dallas Cowboys hiring Jack Del Rio from the Jaguars (even recognizing the reputation disparity between those teams). But the "big time" programs have intrinsic advantages - larger budgets, better facilities, more attractive locations, all of which enable better recruiting. A coach, no matter how good he is, probably has a glass ceiling at a place like Cincinnati that no NFL coach faces. The fact that undefeated Cincinnati and TCU are not in the championship game, and that similar situations have recurred throughout the BCS era, clearly speaks to that. It seems fair that, if he earns it, a coach can move to a place where the sky is the limit.

Anonymous Tim Gerheim -- 12/08/2009 3:38 PM  


1. It's very difficult to argue "indentured servitude" when you look at the compensation made by today's coaches. Moreover, they are not at will employees; i.e. they are not "free agents" like professional players after the expiration of their contracts. Many coaches' contracts do not contain liquidated damages clauses, for example Brian Kelly's does not. But you're right, to the extent there is such a clause, it tends to impede movement and perhaps more importantly, gives the non-breaching party a remedy.

2. When a school fires a coach (without cause), the coach is entitled to salary owed for the remainder of the contract term. And therein lies the problem; it's a one-way street (absent a liquidated damages clause).

3. No. The Lajoie has in fact been followed numerous times. There are lots of cases from the 60s and 70s (before everything got ironed out in the CBAs). But if you want a more recent case (from 1990), check out Boston Celtics v. Shaw. And judges have routinely held that professional athletes meet the unique skills test, regardless of how good they are.

4. There are certainly the "have" teams and the "have not" teams in professional sports just as in college sports. I think you have certain norms in any industry. The "coaching carousel" norm in college basketball and football is the result of absolutely no effort whatsoever to try to stop it. All it takes is for a small handful of schools to prevail on a negative injunction until coaches and the soliciting schools say, maybe we can't do that. Until that (or a no tampering policy) happens, they will continue to do it.

Blogger Rick Karcher -- 12/08/2009 4:37 PM  

For a new paper rejecting the Thirteenth Amendment arguments against specific-performance of employment contracts (which is a version of what Rick is arguing for), see this from Nathan Oman:

Blogger Howard Wasserman -- 12/08/2009 8:36 PM  

"All it takes is for a small handful of schools to prevail on a negative injunction until coaches and the soliciting schools say, maybe we can't do that. Until that (or a no tampering policy) happens, they will continue to do it."

Pretty much sums it up, but forget the no tampering policy--the NCAA will never do it on its own.

Anonymous Anonymous -- 12/08/2009 9:23 PM  

The Thirteenth Amendment isn't really the issue with negative injunctions because it isn't requiring the coach to work for the school or work for anybody. The coach has breached and the primary issue then becomes the school's damages. If there is a liquidated damages clause, it answers the question. If not, the problem becomes how to determine the school's damages, which are extremely difficult (if not impossible) to ascertain. Because the coach meets the unique skills test (and it is very difficult to argue that today's coaches don't meet that test), the school is entitled to the negative injunction.

All the misgivings associated with court intervention (i.e. judicial resources, oversight, etc.) should not be a concern here, because the reality is that it is a very quick judicial determination with no oversight. As I said, it just shifts the burden to the coach to either stay put or try to work something out with the school (which then essentially operates as a liquidated damages clause that is negotiated post-breach).

Blogger Rick Karcher -- 12/09/2009 7:47 AM  

I find it difficult to get too worked up about this issue. Other than possibly the players left behind, there are no injured parties. As others have mentioned, schools could negotiate buyouts in advance. See Rich Rodriguez & West Virgina. It simply is a matter of bargaining power. When Cincinnati approached Kelly from C. Mich, it had most of the power -- just as now Notre Dame has more power than Kelly. Once the school selects a coach, then the power becomes more even depending on the terms the coach is able to negotiate. If the coach can negotiate a deal that does not contain a buyout, then good for him. The system only favors coaches to the extent the coaches are succesful on the field. Lower profile schools know that they are stepping stones, but they can protect themselves.

Anonymous Jerry -- 12/09/2009 12:49 PM  


You raise an interesting point, but with all due respect, it's not really one that adds anything from a legal standpoint.

To answer your first point, the injured party is the school (the non-breaching party).

Moreover, there is nothing in the law that says, "if a contract doesn't contain a liquidated damages clause, the non-breaching party has no recourse." That would be a terrible rule from a policy standpoint.

Blogger Rick Karcher -- 12/09/2009 3:19 PM  

What about the possibility of a student-athlete(s) arguing that they are intended third-party beneficiaries of the contract between the coach and university, and thus seeking to stop a coach from jumping ship from that angle?

Anonymous Bill -- 12/09/2009 8:28 PM  

Third party beneficiary argument: very creative! Who would be willing to pursue it, however? Has anyone? Even so, what would the damages be and wouldn't the issue be "moot" once it works its way through the legal system?

Anonymous Anonymous -- 12/10/2009 7:43 AM  


To the extent that we can call the university the injured party because it is the non-breaching party, then it still is hard to get worked up about this. They previously induced a similar breach by the same coach with his former team. Also, I'm not even sure we can call this a breach. Contracts in lots of industries are interpreted according to cutomary practice in the industry. It is customary in college for coaches to climb the ladder from lower profile to higher profile schools. Many contracts contain specific clauses to let coaches out or prevent them from going to specific competitors, such as another school in the same conference. I don't know the terms of Kelly's Cincinnati deal, but the school is hardly injured. They will just go out and induce the next up-and-coming Division 2 coach to breach his agreement.

Anonymous Jerry -- 12/11/2009 10:31 AM  


Courts don't determine breach based upon what is customary in the industry. [If that were true, a contract would serve no purpose.] Sometimes courts will look to industry custom when terms are ambiguous or not defined in the contract -- for example, price, time for delivery, etc.

Blogger Rick Karcher -- 12/11/2009 1:33 PM  

If this were really a breach that Cincinnati was concerned about, then they could enforce the agreement. Obviously, they could not force Kelly to coach the team, but the could force him from going to a competitor. This happens all the time in other industries. Corporations can protect themselves by preventing former employees from going to competitors. We all learned in our first year contracts class that there are such things as efficient breaches. People and firms breach agreements every day and the "injured" party has a remedy. If Cincinnati did not negotiate a remedy or is unwilling to enforce its right to a remedy, why shold anyone care? Next time they poach a coach from a lesser school, they can do what West Virginia did. I already hear that they are looking at coaches from Univ of Houston and Temple. Temple just had its first winning season in a generation. Will Cincinnati respects Temple's contract with its coach? Should we call Temple a "victim"?

Anonymous Jerry -- 12/11/2009 3:25 PM  

This comment has been removed by the author.

Blogger pcbro2 -- 12/11/2009 11:20 PM  

first I'll pose a question, what are the legal ramifications if any if he had done as players (Iverson and Favre) have started to do which is to retire in order to get out of a contract only to unretire as soon as a preferred suitor comes along?

and I believe from a policy perspective the players are definitely an injured party (though not entirely from a legal perspective unless the intended third party beneficiary argument holds.) They were sold a bill of goods that this team would have Kelly as the coach, and I'm sure he made that clear when he recruited the players (you wouldnt get recruits if your pitch was i may leave if i get a "better" job offer). After hearing the players comments today I'm glad they're upset and angry and hopefully it helps them play with even more emotion v Florida. Should be an interesting game.

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