Question for BN lawyers: why not breach of contract?
by classof67 on Feb 13, 2010 3:46 PM PST
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PrintI've been following the discussion about one and dones for quite awhile and have come to wonder about something:
An 18 year old signs on with a university to obtain a 4 year guaranteed scholarship in return for his/her playing for that school's team (whatever the sport may be). If he turns out to be a loser, can't play as well as everyone expected, doesn't try hard, just goes through the motions, well there's nothing the U. can do about it. Player can sit on the bench for 4 years but he still gets his free 4 years of education. But reverse the situation somewhat -- player is good enough to go pro and decides to call it quits with the U. In that case again, nothing U. can do about it.
Now it seems to my untrained (in the law) mind, this is unfair to the U. I would think that if there is a "deal" or contract that is binding on one side for 4 years regardless of the level of performance, then it should be equally binding for the same term on the other side of the contract.
So why is it a players scholarship cannot be yanked (save for moral turpitude or something like that), but the player can break it any time?
Am I just wrong in thinking that the 4 year scholarship arrangement that is set up between the player and the U. is not really a contract? What's the deal, lawyers among you out there?
This is a FanPost and does not necessarily reflect the views of BruinsNation's (BN) editors. It does reflect the views of this particular fan though, which is as important as the views of BN's editors.
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National letter of intent
guarantees only one year of scholarship, which is renewed every year – not a guaranteed 4 years of education. Some Bruins fans may remember Andrew Baumgartner, a walk-on WR who played under Dorrell – he earned his way into a scholarship, but “lost” it his senior year, I believe. Baumgartner was a walk-on who was fortunate enough to receive scholarship money for several seasons but it was not guaranteed to last throughout the duration of his NCAA career – you can’t slack off and still keep getting money for college.
If anything I think the relationship between universities and SA’s are slanted towards the schools, especially when it comes towards the National Letter of Intent (which is not even necessary to sign for a scholarship). NLI serves to protect the school as they have players who are “committed” to attend there – if not for that, then they wouldn’t know who would accept scholarships and who would not. It’s like when a school offers letters of acceptance to non-athletes, they don’t know who’s coming or not so they play the statistics and offer more than they have space for, and hope that the incoming class fits.
A player who signs a NLI commits to a university for one academic year and he cannot play elsewhere unless he is released from his agreement. If something happens, like your coach skips town, then you are still bound to the NLI since it is to the school and not to the athletic program. If you want to transfer then you have to sit out another season, so you’re basically penalized two seasons. Coaches that skip town are given no penalty – you can go one and done with no penalty, as Tennessee fans have found out. NLI also doesn’t necessarily guarantee a scholarship, as if the student-athlete cannot quality academically then the NLI may be voided and the school can go out and give that scholarship to someone else.
With the rise of recruiting and teams looking for coaches who are skilled recruiters, more and more kids are getting screwed over because they commit to a coach and not to a program – any prospective student athlete needs to consider the pros and cons of attending a certain university WITH and WITHOUT sports in order to make a good decision in today’s NCAA.
right, exactly
quick clarification, though – it was my understanding that a player can be released from their NLI by a school prior to enrolment (e.g. in the event of a coaching change after you sign your NLI but while you are still a senior in high school), and play immediately for another school. Is that correct?
by britishbruin on Feb 13, 2010 4:22 PM PST up reply actions
Correct
As long as he has not enrolled in classes, a school’s release is all he needs to be able to go elsewhere and play immediately.
For everything UCLA baseball, visit my UCLA baseball twitter.
by Ryan Rosenblatt on Feb 13, 2010 4:33 PM PST up reply actions
One additional thing
The NLI is not organized by the NCAA, but by some commision that the NCAA loosely oversees.
More info here
Bob O. (Signholder #3)
I've never seen the contract
and I’m not sure there actually is a contract. When I enrolled at UCLA, I don’t think I had a contract. I know I didn’t get a scholarship.
The school offers scholarships to non-athletes, too. Is that a contract? I don’t know. What if the kid takes the scholarship money, but doesn’t attend school, or just goofs off. Is he in breach of a contract? Does it man he has to pay anything back?
generally speaking
Most scholarships have performance requirements (keep a certain GPA, etc) in order to keep the scholie. Even if you have a 4-year guarantee, there’s a risk of losing it if you don’t keep your grades up.
I had some cousins come from abroad to study at US institutions. Given the extremely high cost of education for foreign students, they were basically working with the expectation that losing their scholarship meant not being able to complete their education.
Go Bruins!
also
I’m not of any legal mind, but when I chose to attend UCLA, I was asked to put down a deposit on enrollment. In my mind, that meant while there was a contractual obligation to attend the university, the penalty for breaching the contract was the loss of the deposit. I know one of my friends did that – didn’t get into UCLA, put down a deposit on UCSD, got into UCLA on appeal, and went there, losing his SD deposit.
I don’t know how it affected our NCAA eligibility though. :P
Go Bruins!
Then why do schools keep some real losers on the roster for 4 years....
Especially when there might be some real talent looking for a scholarship. If its a year to year thing, why keep a bad sophomore (jr or sr) when the scholarship could go to a better prospect? Is it simply a question of honoring a committment; an ethical kind of thing? If that’s true, then I would think schools like SuC would be dumping average to poor players all the time and bringing in more freshman.
Ethics, or maybe a necessity of recruiting
While the NLI and the following scholarship agreements are only year-to-year, the recruiting process is predicated on the player having a spot on the team (and his scholarship) for 4-5 years. I imagine that a coach that began a policy of stripping scholarships from players not performing up to standards would be at a strong disadvantage in future recruiting.
The other way to approach this is to say that schools already do, in effect, drop subpar scholarship players from the team by “encouraging” players to transfer to another college, usually one with a lesser football program. It is not likely that a coach would actually strip a scholarship from a player not leaving the team, but telling a player that he has little or no chance at playing time in the future on (this) team is a way of freeing up a scholarship.
formerly bruinhoo
Let me take a stab at it
Correct me if I’m wrong but wouldn’t such a K be illusory? The school is going to guarantee an education (or a scholarship more precisely) for some standard of play? What is an “education” and isn’t that something that has a lot to do with the player himself? What standard of play is required in return? Seems pretty heavy for an 18 year old kid, which is the minimum age because any K entered into by an infant (that is, one who has yet to attain the age of 18) is voidable by that person unless for necessities of life and therefore enforced in quasi-contract.
This leads to the next point, such a contract is probably unconscionable. I know, I know, these kids are pretty sophisticated when it comes to this sort of thing but I hardly think that an 18 year old kid and his cadre of hangers-on as advisers would ever make a contract between he or she and a university an “arms length deal.”
Lastly, in order to get performance, the university would have to seek damages in equity for specific performance. The court isn’t going to do this because they do not like personal services contracts. They also don’t like having to supervise the situation making sure the parties play ball. The best the university could hope for is to enjoin the player (that is if his talents are unique enough) from joining the pro team.
I am not a lawyer and the information I have supplied here is for informative purposes only.
*I* ran over George Tirebiter.
Someone sounds like a law student
That answer is so K-101, it has to be from a current, or aspiring law student. Real attorneys are way more jaded than this. :)
by Bellerophon on Feb 14, 2010 12:16 AM PST up reply actions
Oh don't worry
After the bar, I’m going to drink so much that all of this sort of crap is permanently erased from my mind without the possibility of ever returning.
*I* ran over George Tirebiter.
by Bruins102NCAA on Feb 14, 2010 12:31 AM PST up reply actions
You're mixing your remedies just a tad
“… damages in equity for specific performance …”
“Damages” is money, and damages is a legal remedy, not an equitable remedy. Specific performance is an equitable remedy, and you don’t get damages in specific performance, you get, interestingly enough, specific performance of something your obligated to do by contract (generally it’s to convey a piece of real property always called “Blackacre.”)
I have not seen a lot of evidence that courts “do not like personal service contracts.” As I recall, the law will not force one person to perform services for another, but will prevent that person from performing those services for another. Which is why when Manny wanted out of Boston, he didn’t just leave and go sign with the Dodgers, he did the “Oh, that’s Manny just being Manny” routine until they couldn’t take it any more. To put it into a little perspective, Johnny Fontaine had a personal services contract that he couldn’t get out of until Don Vito and Luca Brasi made the guy an offer he couldn’t refuse.
The Senior Partner
You’re right of course. Should have said “seek a remedy…”
Don’t worry, I’ll make sure the memo is proofed before I submit it :)
*I* ran over George Tirebiter.
by Bruins102NCAA on Feb 14, 2010 1:13 PM PST up reply actions
I've never been a senior partner
I’ve been a partner, and I’m getting more senior every day. But never a senior partner.
I just had an eye-opening experience. One of the lawyers on the other side of a case I’m working on has a bar number more then 200,000 higher than mine. Two. Hundred. Thousand. There have been 200,000 lawyers admitted since I was. There are lawyers getting admitted who weren’t even accepted into law school when I semi-retired. And they’re all smart. I’ll bet this young lady probably knows exactly where Blackacre is, how many peppercorns were necessary for a downpayment, and has the home addresses of both Paul Plaintiff and Dan Defendant.
A peppercorn for your consideration
You have to love the maxims of the law. Always easy to remember because they are like commands from on high.
So, you are a California lawyer and not one from Florida? Unless, if I take your meaning correctly, there are a lot of lawyers in Florida.
Bad part about all the lawyers in CA is that we have the hardest bar in the nation. 3 days, 3 hours of essays, 1 performance test for day one, 200 MBE questions for day two, and 3 hours of essays, 1 performance test for day three. If you haven’t taken the MPRE yet, you need to do that as well—I’m not sure when in relation to the rest of it because I already took it. Our MPRE is the hardest in the nation but the passing score is tied with those goody goodies in Utah. CA is thinking about raising it again to a scaled score of 100. When I started law school it was 76. When I took it, it was 84 or somewhere around there.
Oh well, back to bar study. GO BRUINS!
*I* ran over George Tirebiter.
by Bruins102NCAA on Feb 14, 2010 3:59 PM PST up reply actions
My favorite equitable maxim is at California Civil Code section 3537:
“Superfluity does not vitiate.”
I think you’ll agree that California nailed it on that one. How many times have you seen superfluity? Lots of times? Have you ever seen it vitiate, or even try to vitiate? You’re darn right you haven’t. And that’s because suprfluity simply does not vitiate. Never has, never will. You might think it vitiated, but if you check, you’ll see that it did not and that’s because it does not.
I’m not sure what you mean by “MBE” and “MPRE.” I think my class was the first to take the multi-state bar, which was either a day’s worth or a half day’s worth of multiple-guess questions. I typed my exam, because I heard that typers averaged 3 points more than writers. The bar review guys always said outline for 20 minutes before you write, but in my room there were always guys who started immediately, making me think that I was totally out of it. I remember also that on the last day, I finished my last question with about five minutes to spare. It had some civil pro issues in it, and the summer before I had clerked in a law firm and had done a motion to quash for improper service and I really knew that. So I just added that although it hadn’t been mentioned in the question, if we assume, blah, blah, blah. Then I gave them five minutes of everything I knew about that.
Somehow I think the bar exam is harder now than it was 200,000 lawyers ago.
MBE and MPRE
MBE = Multi-State Bar Examination, or a 200 question multiple choice exam on 6 areas of law. Contracts, Real Property, Evidence, Con Law, Criminal law (and procedure), and Torts. Only 190 questions count, 10 are test questions (like the LSAT section for question try-outs on future exams).
MPRE = Multi-State Professional Responsibility Examination, or your basic ethics test. I think it was 100 questions on this subject.
Anyhow, I have been told that the California test has gotten harder as they are trying to reduce the number of lawyers practicing in the state and use the exam as a means to accomplish this. Too bad for me but I think I’ll do okay.
*I* ran over George Tirebiter.
by Bruins102NCAA on Feb 14, 2010 7:11 PM PST up reply actions
Aren't the stats still about two-thirds passing the first time?
I didn’t have to take a professional responsibility exam, and I’m glad of that. Another reason why I think that I wouldn’t pass the bar if I took it now.
Not sure
But it’s pretty good % for an ABA school, for which I’m happy.
*I* ran over George Tirebiter.
by Bruins102NCAA on Feb 14, 2010 9:15 PM PST up reply actions
Recently saw a shirt that read ...
“I own Blackacre!”
Thought it was funny as hell.
Only someone who knows who Mrs. Palsgraf was would think that's funny.
I happen to know why she was (her first name was Helen), and I think it’s funny.
All I know is,
say one word about “unborn widows” and I’m taking myself and all lives-in-being with me on the first Peerless outta here.
The Mad Bruin
Schrodinger's Cat d/b/a Palsgraf's Box
Immediately prior to filing a negligence claim, the unknown contents of a box are simultaneously:
(a) the proximate cause of injury; and
(b) the basis of a duty.
(please forgive the joke, I was a physics undergrad who somehow ended up in law school)
That's exactly what plaintiffs' lawyers try to prove
and what defense lawyers try to disprove and what courts of appeal decide. Then everyone watches the Supremes pontificate.
And you’re right on the money. The late Steve Finz started his MCLE tapes by mentioning that the concept of a “duty” is just a shorthand way that judges say that a particular defendant should or should not pay a particular plaintiff when a particular type of injury happens in a particular kind of way. Remember Dillon v. Legg? Thing v. LaChusa? Those were “zone of emotional danger” cases. There’s no question about the existence of that duty now, but there sure was then. I had Borer v. American Airlines – do kids get loss of consortium damage when mom is negligently injured and no longer is the loving mom she was before the accident? Or to put it another way, did the judges should this particular defendant pay this particular plainitff for this particular injury which happened in this particular way.
The seminal case on this (in my opinion) is Biakanja v. Irving. There are six things that judges have to find before there’s a duty owed. Or the way Biakanja works now is that when judges think there out to be a duty owed, then they have to explain how the facts fit perfectly into the six Biakanja factors.
One more appropos maxim:
I guess you could say that Ben Howland has a tendency to purchase barron cows.
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