I would like to discuss this whole concept of “rescinding an offer” or having an “un-committable offer” as some would call it.
I know the coaches have a very difficult time managing this whole recruiting process. It’s got to be incredibly hard to navigate when you have kids de-committing last minute (see Nukeese and Marselis last year) and when you have only a fixed number of available slots. I get that. I also understand that recruiting will make or break a program and thus it has a direct impact on a coach’s livelihood, on his ability to provide for his children. This is not to be underestimated. It’s a big deal.
BUT, there is something that just plain stinks about telling a kid that he has an offer to join your program and then pulling the chair out from under him when he and his family make that very important decision to entrust the next 4 or 5 years of their lives to that institution. My understanding is that often times these “offers” are made in writing (this is what was reported about the QB whose offer was pulled at Georgia and whose high school has subsequently banned Georgia).
I am frankly surprised that these coaches can commit this breach -- which seems like a contractual breach to me, but at the very least is a breach of trust and is neither moral nor ethical -- without any repercussions. I guess the kids and their families figure it’s not worth the trouble or attention to try and litigate this. But I am still shocked that we don’t hear more from these distraught kids and their parents when this happens.
As much as we vilified Nukeese for bailing on us last minute we are giving our coaches a free pass when they do this. Nobody is a bigger Urban Meyer fan than me, but you have to call a spade a spade. This practice is just not right. And maybe the answer is that it’s the nature of the business that is big time college football and maybe everybody else is doing it too…but it doesn’t make it right. I am not sure what if anything can be done about this, but I think the issue merits deeper thought.
Thursday, July 23, 2009
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11 comments:
That post is the best evidence of how going to lawschool fucks the way you look at things forever.
By the way, no one attempts to litigate this issue because, even if it's breach of contract, none of the kids would ever be able to prove and/or recover damages.
Go litigate.
Go Gators.
I thought about the damages point and that seems right although you would figure that either (i) people would be pissed off enough to sue just to lash out at the program, and (2) that the desire to avoid the bad PR might lead some programs to settle outside of court (hence making the ability to recover damages point moot). Then again, the pool of aggrieved folks here isn't necessarily the most learned or legally informed.
Interesting post Cua,I had no
idea.
Thanks, Gatorface. But, the post was WSG's. And you're right, it is interesting.
This is a great topic and I would be surprised if, in some circumstance, the question hasn't arisen of whether a school, coach, or student breached a binding agreement by not going to the school or by the school not giving the student his promised place.
As WSG pointed out, the legal savvy of most of the students placed in these situations is likely limited at best, as is also their access to counsel. But that's probably not the case with the universities. I don't know of any university taking legal action against a student for that student failing to live up to his LOI or any other promises to attend or not attending in fact. Would probably look mighty bad for a school to do that, and what would they stand to gain? A player who doesn't want to play? Not to mention the adverse PR to other potential commits, their families, and high school coaches. It's not in the school's interest whatsoever to litigate a student's breach.
But, that's not the case for a student.
A student would benefit greatly from suing an institution who promised him a place at the proverbial table and then didn't make good on that promise. As WSG correctly points out, many students' families are willing, and often do, uproot themselves and move to the area of the university that the student plans to attend. If not, they at least make some plans to do so, be that quitting a job, not taking nor seeking a promotion, not taking trips to other schools courting the student, or taking trips which cost money to the potential school, and other hidden costs a family incurs in coming to an agreement with a prospective university. These costs, to the best of my knowledge, may be recoverable, but are likely not as they are made in anticipation of the agreement. But they may be used to prove damages, perhaps. I don't know.
But, if a school led a student to believe that the student would be permitted to attend and play at the university without telling that student that the offer to do so was provisional, and that student relied on the university's statements, and the university knew about the student's reliance, then I imagine that the school would be estopped from not coming through on their promise. This, at the very least, would give rise to an actionable claim by the student.
UF's offer to the students does contain some language that would lead me to believe that the offer is not an offer at all since it cannot be accepted. It might be an illusory promise because the university is not not giving up anything in consideration for the student's commitment. That may not be fair because the student can decommit at any time, thus making the student's promise to attend an illusory promise as well. As I'm sure some of you remember from law school (and lucky you if you have no idea what I'm talking about), that an offer can be revoked any time prior to acceptance. But in this case, the offer is likely not an offer because it doesn't create the power of acceptance in student.
Since both parties can, it would seem, back out of the agreement at any time, a contract isn't formed and therefore cannot be enforced, so any costs incurred in anticipation of the agreement may not be recoverable.
It would be very interesting to know at what point both parties form an enforceable agreement. Signing day? After then? Both parties at some point to give up things in consideration of the other's consideration. The student gives up other opportunities in other schools, and the school gives up money and a slot in the team's roster.
This is a great subject to learn more about and I'm sure there's literature on this somewhere. If not, there should be.
Good work, WSG.
It's all in the game. The game's out there, and it's play or get played. That simple.
There has to be case law on this issue.
Go Westlaw.
Go Gators.
Good post WSG. It's an interesting topic, and I'm surprised we don't hear more about it. But, as our friend Omar states above, and as you somewhat allude to in your post, it's all in the game.
Notwithstanding, I agree that there’s something not right about this type of thing. It's a potentially sh*tty situation for the kid and/or the school. In the Georgia QB example, apparently the team knew for some time that they were going to rescind the kid’s offer, yet they allowed him and his family to travel to Athens (I think the kid lives in Alabama), and when he arrived, that’s when they informed him that they pulled his offer. Dick move.
On the issue of whether this is a contractual breach, I would be surprised if the written offers can be deemed binding obligations. I’m sure that the University’s in-house legal department/outside counsel has perfected these offer documents, and the coaches know (or should know) what they can and cannot do. From a practical perspective, the lawyers could include language stating that the “offer” is simply a brief summary of terms/conditions that will be included in the eventual agreement to be signed by the player and the school, and that the offer should not under any circumstances be deemed a contract.
It would be helpful to have more specific information regarding the offer/LOI process.
I asked other folks on the Rivals gator main board to shed some light and it's a bit technical (and could be completely wrong) but here is what they said. The offer letters though written aren't signed and the parties can only execute on national signing day. Thus, either party is free to back out until NSD in February. According to the poster, there is no acceptance since it's not a valid offer because it's not signed (and as we know you need offer and acceptance for a valid contract). Who knows if this is true but it would explain why Meyer and all the other coaches are all very nervous on NSD about getting the faxes with the signed letters back.
Either way, my broader point was not in the technicality surrounding this issue (i.e. is it a breach of contract or not) but rather on the fact that it's fucked up that this goes on. And although I get why it happens, it just doesn't seem right.
I agree with "5 is better than 3"...it would be very easy to draft around any firm commitment in the letter.
For example, I doubt that Brandon Spikes's mom would have picked up on any drafting subtleties in a letter handed to her by a head coach of a major college football program. Makes the whole thing even more sleazy if that's how they are getting around it.
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