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Tuesday, July 27, 2010
Tennessee Titans sue USC and Lane Kiffin for Inducement of Breach of Contract and Tortious Interference

Marcia Smith of the Orange County Register has the story on the lawsuit and interviews me and Lewis & Clark Law School professor Tung Yin about it.

The gist of the lawsuit: the Titans allege that USC and its new coach, Lane Kiffin, "maliciously" lured away running backs coach Kennedy Pola to become the Trojans' offensive coordinator.

The alleged malicious part is that Pola's contract with the Titans required written permission from both the Titans team president and its general counsel for him to take another job. He didn't get the permission, and the Titans claim USC and Kiffin knew about the permission requirement. Now the Titans don't have a running backs coach with a week to go before training cap.

Here is an excerpt from Smith's story:
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"It's a funny lawsuit that could have been avoided if Kiffin had made the customary courtesy call before talking to Pola," said Lewis & Clark Law School professor Tung Yin. "The harm that they (the Titans) are also alleging also probably wouldn't have been an issue if the hiring happened two or three months ago and not left the Titans without a running backs coach a couple days before camp opens."

This is the latest controversy for Kiffin, who left his University of Tennessee head coach job and a trail of secondary NCAA violations and rubbed-the-wrong-way peers after the 2009 season to become the USC coach. Titans coach Jeff Fisher, a USC alumnus who hired Pola in February, expressed dissatisfaction with Kiffin's methods that neglected the terms of Pola contract, which ran at least through Feb. 14, 2011.

"There is a tradition of coaches changing teams for promotions, even when their employment contracts contain language that technically limits their ability to change teams,..." said Vermont Law School professor Michael McCann. "The Titans have to be careful here. If the Titans develop a reputation for not letting assistant coaches take on other jobs, it may hurt their chances for hiring top assistant coaches."

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To read the rest of Smith's column, click here. To read the complaint, click here.

I have 5 other points:

1) I think it would be interesting to find out how common the alleged clause requiring Pola to obtain written permission is in the contracts of Titans' assistant coaches and, if it is common, whether the team has enforced it with other departing coaches. Or, if its unique to Pola's contract, why did the team insist on having it with him?

2) Although the facts of this case are different, there was the recent case in New York involving James Madison University engaging in tortious interference by hiring away basketball coach Matt Brady from Marist College without obtaining the proper permission from Marist. Marist won the case. While that case is in a different jurisdiction, does not concern a position promotion (as Pola, now an offensive coordinator as opposed to mere running backs coach, is getting with USC), and probably involves different contractual language, perhaps the Titans nonetheless feel emboldened by the outcome of that case.

3) I assume Pola isn't being sued himself for breach of contract because the Titans do not believe it is financially worth it, or because they still like him as a person, or because they do not want to develop a reputation for suing departing employees who leave the team for a promotion.

4) While this lawsuit is unlikely to prevail, the Titans are sending a message that other teams probably agree with: don't poach coaches right before the start of training camp.

5) If this dispute were between the Titans and another NFL team, rather than with a college team, we wouldn't see a lawsuit -- we'd see Commissioner Goodell resolve it, internally (like when Commissioner Tagliabue resolved the dispute between the Jets and Patriots when the latter hired Bill Belichick away -- the Jets got a first round pick, the Patriots got what turned out to be one of the best coaches of all time).


Will Pola be staying with the Titans even though he has obviously abused their trust?

Anonymous ciano&stitch -- 7/27/2010 9:30 AM  

Thanks, Ciano. I agree that the Titans probably feel like Pola breached their trust (especially with training camp about to start), but I can't see Pola returning to the Titans.

For one, I would be stunned if USC terminates its contract with Pola because of the lawsuit. Second, even in the unlikely event that the Titans succeed in suing USC (or in obtaining a settlement), I think USC will stick by Pola.

Blogger Michael McCann -- 7/27/2010 9:35 AM  

3 thoughts: 1) This is different than Brady because there is no luring of recruits away like he did; 2)Even if the Titans demonstrate all the elements of this tort, what are their damages? Seriously--NONE; 3) Could this REALLY be a way to simply smear Kiffin for what he did to Vols by finding that opportunity to go after him?

Anonymous Anonymous -- 7/27/2010 9:50 AM  

Thanks, Anonymous.

Good point about the recruiting difference between this case and Marist.

In terms of damages, the Titans claim that the disruption caused by Pola's sudden departure with training camp right around the corner was disruptive to their business and puts them at a competitive disadvantage. I know some courts liberally define what can constitute damage -- perhaps the Titans get a creative judge in this case (in the unlikely event it goes to trial).

In terms of smearing Kiffin, I see the plausibility of that, but why would the Titans -- a pro team, obviously, and one that possibly competes with the Vols for media attention -- care about what Kiffin did to the Vols?

Blogger Michael McCann -- 7/27/2010 11:14 AM  

Yes, assuming they can prove a competitive disadvantage and then put a dollar number to it, you would be correct if it is liberally interpreted (and thanks for pointing that out). As far as the smear, it's not the Titans who care: it's the lawyers who brought the suit (Tennessee alumni)who are bringing that into the fold out of spite but are couching it as a point of similarity to show "pattern." Remember we are talking about the rabid, foaming at the mouth SEC fans here who still feel betrayed by their former "messiah."

Anonymous Anonymous -- 7/27/2010 11:21 AM  

All good points, Anonymous, thanks. The subtext to this lawsuit is pretty intriguing.

Blogger Michael McCann -- 7/27/2010 11:22 AM  

You are welcome! I'm confident that you are well-versed on the legal issues here, I'm just pointing out that there's more to this story than just law :)

Anonymous Anonymous -- 7/27/2010 11:24 AM  

To add to the "smear" possibility: Paragraph 18 details Kiffin's stint as head coach at UT, his jumping to USC, and his taking several UT assistants with him, all as showing a course and pattern of conduct of interfering with assistants' contracts.

Is offensive coordinator in college (even at a big-time program such as USC) a "promotion" from position coach in the NFL? And does it matter? It seems to me the issue in Marist was about recruiting contacts, not changing jobs.

Finally, expect USC to get this case out of Tennessee state court and into federal court. And expect Tennessee to argue that Kiffin (who allegedly still owns property in Tennessee) is still a Tennessee citizen. I think I have my civ pro exam . . .

Blogger Howard Wasserman -- 7/27/2010 3:46 PM  

Yes. This past week you guys have all kinds of exam questions: civ pro (Kiffin); intentional interference with a contract (Kiffin); agency (Kansas State, USC/Bush); breach of contract (Marist); title ix/employment (Quinnipiac)...its out of control!

Anonymous Anonymous -- 7/27/2010 3:53 PM  

Question for Howard (has nothing to do with this post): Do you know much about the constitutional issues related to college coaches at public universities who decide to exclude the "press" from watching or reporting? If state university has a football team, for example, can the coach legally exclude the press from attending the practice? Sorry about asking here, but just a thought...

Anonymous Anonymous -- 7/27/2010 3:58 PM  

Random thought, I apologize if this has been mentioned: Jeff Fisher (head coach of Titans) is a USC alum...

Anonymous Anonymous -- 7/27/2010 5:30 PM  

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