It seems that we could get to the heart of the issue with either of two documents:
- Pastner's original contract from May 2009
- Pastner's extension from March 2011

If those documents - presumably negotiated and signed by R.C. Johnson - don't have an offset clause, then it's not surprising that the extension from March 2013 doesn't have one either.

If those first two contracts do contain an offset clause, and Raines/Lipman/Bowen allowed it to be removed in the 2013 extension, that's a totally different story. Who suggested its removal? What was the basis for that decision?

Does anyone have a copy of those documents handy?
If so, can you share them here?
If not, we'll need to brush up on our FOIA skills. Although I assume the request mentioned in yesterday's article will address some of these documents.

A good point was made in one of the other threads. For the offset clause to be effective, you have to have someone willing to hire JP. No one has exactly been beating his door down. The auto-extension piece is the much more damaging part at this point.

Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

(03-23-2016 12:55 PM)RekeHavoc Wrote:  A good point was made in one of the other threads. For the offset clause to be effective, you have to have someone willing to hire JP. No one has exactly been beating his door down. The auto-extension piece is the much more damaging part at this point.

That's true, but the implication is that the lack of an offset clause was caused by a conflict of interest from Bowen.

If no such clause existed in prior agreements with Pastner (agreements that pre-dated Bowen), then that "charge" can be put to rest.

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

I don't think many if any believe Bowan was involved in collusion with JP's agent. I think the familiarity with JP's agent may have had Bowen not pay enough attention to detail on the proposed contract.

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

(03-23-2016 04:19 PM)Tiger87 Wrote:  

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

Yeah.

It also shows that it isn't "unprecedented" which is what the agent noted.

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

There doesn't need to be specific offset mitigation language though, correct? The fact that Pastner's payments are deemed liquidated damages skirts the common law duty to mitigate. Since Cal's payout is not a "liquidated damages" award, there still exists the common duty to mitigate. That may be what you're saying, I'm just going through the legal progression out loud.

(03-23-2016 04:19 PM)Tiger87 Wrote:  

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

Well, Cal's "buyout" is lacking the liquidated damages language, so the contracts are very different.

Looks like the big boys need another scapegoat. Hopefully they never have to look into a mirror

(03-24-2016 11:29 AM)MemphisCanes Wrote:  

(03-23-2016 04:19 PM)Tiger87 Wrote:  

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

Well, Cal's "buyout" is lacking the liquidated damages language, so the contracts are very different.

But the duty to mitigate generally applies when a breach occurs or the employee/plaintiff is claiming wrongful termination.

In Cal's contract, it is agreed that the University can fire him without cause, but if they do they owe him the remainder of the pay of the contract. It's an agreed upon principle.

So, since there is no "wrongful termination" suit that needs to be filed for Cal to recover the rest of his agreed upon salary, the matter would never go to court.

The nuance would be if Cal's contract, say, was for 5 years at $2 million. Period. With only certain behavioral stipulations listed as grounds for termination. Then, after going to the NIT, the University decides to can him with 3 years left on his contract.

He then sues for the remaining 3 yrs x $2 million. THEN the University requires that the sum be reduced from his duty to mitigate.

(03-24-2016 11:55 AM)salukiblue Wrote:  

(03-24-2016 11:29 AM)MemphisCanes Wrote:  

(03-23-2016 04:19 PM)Tiger87 Wrote:  

(03-23-2016 01:47 PM)salukiblue Wrote:  

(03-23-2016 01:33 PM)BrianJ Wrote:  Here's a start:
Pastner's 2013 contract - https://s3.amazonaws.com/s3.documentclou...ntract.pdf
and
John Calipari's contract, including most extensions and the original document - http://images.usatoday.com/sports/graphi...his_bb.pdf

Does anyone see any explicit offset/mitigation language in Calipari's contract?

Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

Well, Cal's "buyout" is lacking the liquidated damages language, so the contracts are very different.

But the duty to mitigate generally applies when a breach occurs or the employee/plaintiff is claiming wrongful termination.

In Cal's contract, it is agreed that the University can fire him without cause, but if they do they owe him the remainder of the pay of the contract. It's an agreed upon principle.

So, since there is no "wrongful termination" suit that needs to be filed for Cal to recover the rest of his agreed upon salary, the matter would never go to court.

The nuance would be if Cal's contract, say, was for 5 years at $2 million. Period. With only certain behavioral stipulations listed as grounds for termination. Then, after going to the NIT, the University decides to can him with 3 years left on his contract.

He then sues for the remaining 3 yrs x $2 million. THEN the University requires that the sum be reduced from his duty to mitigate.

It's not a wrongful termination claim, it would be a breach of K claim (as the employment is controlled by the contract).

As you correctly state, the common law duty ti mitigate applies to both contract claims and employment claims. It never has to be explicitly listed in the contract for it to apply. The way to get around it is to: 1. include a clause that says there is not duty to offset or to mitigate, wherein the parties specifically agree to not follow the common law; or 2. label the payment owed by the University as "liquidated damages", which the Appellate Courts have deemed amounts that are not affected by the duty to mitigate.

Everything I've read seems to indicate that a firing without cause, even if the parties agree that the University owes the entirety of the contract, triggers the firee's duty to mitigate. It's the liquidated damages language, not the language that says the University owes the entire contract amount (which is a bit redundant), that avoids the duty to mitigate.

(03-24-2016 12:09 PM)MemphisCanes Wrote:  

(03-24-2016 11:55 AM)salukiblue Wrote:  

(03-24-2016 11:29 AM)MemphisCanes Wrote:  

(03-23-2016 04:19 PM)Tiger87 Wrote:  

(03-23-2016 01:47 PM)salukiblue Wrote:  Nope.

Cal had liquidated damages if HE left, but if Memphis cannned him, the U was responsible for payments. (Paragraph 16, page 17 (42 of 50))

It does appear that way. So the absence of buyout/offset language goes back to Cal. If so, that would show a lot to people claiming the current contract is the "worst" and "unheard of". It's not the contract - it's the giving of the contract to an unproven.

Well, Cal's "buyout" is lacking the liquidated damages language, so the contracts are very different.

But the duty to mitigate generally applies when a breach occurs or the employee/plaintiff is claiming wrongful termination.

In Cal's contract, it is agreed that the University can fire him without cause, but if they do they owe him the remainder of the pay of the contract. It's an agreed upon principle.

So, since there is no "wrongful termination" suit that needs to be filed for Cal to recover the rest of his agreed upon salary, the matter would never go to court.

The nuance would be if Cal's contract, say, was for 5 years at $2 million. Period. With only certain behavioral stipulations listed as grounds for termination. Then, after going to the NIT, the University decides to can him with 3 years left on his contract.

He then sues for the remaining 3 yrs x $2 million. THEN the University requires that the sum be reduced from his duty to mitigate.

It's not a wrongful termination claim, it would be a breach of K claim (as the employment is controlled by the contract).

As you correctly state, the common law duty ti mitigate applies to both contract claims and employment claims. It never has to be explicitly listed in the contract for it to apply. The way to get around it is to: 1. include a clause that says there is not duty to offset or to mitigate, wherein the parties specifically agree to not follow the common law; or 2. label the payment owed by the University as "liquidated damages", which the Appellate Courts have deemed amounts that are not affected by the duty to mitigate.

Everything I've read seems to indicate that a firing without cause, even if the parties agree that the University owes the entirety of the contract, triggers the firee's duty to mitigate. It's the liquidated damages language, not the language that says the University owes the entire contract amount (which is a bit redundant), that avoids the duty to mitigate.

But why would someone file a breach of k claim if the U was obligated to pay the amount?

I could be wrong, but isn't a duty to mitigate a defense? If so, if there is no suit filed in the first place, the U can't file a suit based upon a defense to a suit that wasn't filed.

I guess, the U would have to REFUSE to honor the initial duty to keep paying, the ex-employee THEN sue, and then the U assert the defense.

But, the fly in the ointment is the U is in breach (if they choose not to pay) the 1st day of the next month after they fire him. If he sues for breach THEN, there is no way the U can demand a mitigation. Perhaps, they then settle with a mitigation agreement.

That type of employment is far different from typical breach/mitigation issues that have made their way through the system it seems.

(03-24-2016 12:43 PM)salukiblue Wrote:  But why would someone file a breach of k claim if the U was obligated to pay the amount?

I could be wrong, but isn't a duty to mitigate a defense? If so, if there is no suit filed in the first place, the U can't file a suit based upon a defense to a suit that wasn't filed.

I guess, the U would have to REFUSE to honor the initial duty to keep paying, the ex-employee THEN sue, and then the U assert the defense.

But, the fly in the ointment is the U is in breach (if they choose not to pay) the 1st day of the next month after they fire him. If he sues for breach THEN, there is no way the U can demand a mitigation. Perhaps, they then settle with a mitigation agreement.

That type of employment is far different from typical breach/mitigation issues that have made their way through the system it seems.

I see it as follows (hypothetically):

UM: Cal, you're being terminated without cause.
Cal: Well, alright, keep the checks coming.
UM: We will, let us know when you're hired again and we'll offset what we're paying you.
Cal: You can't do that.
UM: Sure we can.

::Cal files lawsuit::

UM would use Cal's duty to mitigate as a defense (not a complete defense), though. Of course, any trial would be years away. At that time, either Cal has found another job or he hasn't because he hasn't tried. UM either uses his new salary as a basis for the offset, or if he isn't employed, must prove what he could have made had he made reasonable efforts to become employed.

It's basically the same way it plays out in wrongful termination or other employment suits. It would likely be settled with both parties keeping these defenses/offsets in mind.

(03-24-2016 12:57 PM)MemphisCanes Wrote:  

(03-24-2016 12:43 PM)salukiblue Wrote:  But why would someone file a breach of k claim if the U was obligated to pay the amount?

I could be wrong, but isn't a duty to mitigate a defense? If so, if there is no suit filed in the first place, the U can't file a suit based upon a defense to a suit that wasn't filed.

I guess, the U would have to REFUSE to honor the initial duty to keep paying, the ex-employee THEN sue, and then the U assert the defense.

But, the fly in the ointment is the U is in breach (if they choose not to pay) the 1st day of the next month after they fire him. If he sues for breach THEN, there is no way the U can demand a mitigation. Perhaps, they then settle with a mitigation agreement.

That type of employment is far different from typical breach/mitigation issues that have made their way through the system it seems.

I see it as follows (hypothetically):

UM: Cal, you're being terminated without cause.
Cal: Well, alright, keep the checks coming.
UM: We will, let us know when you're hired again and we'll offset what we're paying you.
Cal: You can't do that.
UM: Sure we can.

::Cal files lawsuit::

UM would use Cal's duty to mitigate as a defense (not a complete defense), though. Of course, any trial would be years away. At that time, either Cal has found another job or he hasn't because he hasn't tried. UM either uses his new salary as a basis for the offset, or if he isn't employed, must prove what he could have made had he made reasonable efforts to become employed.

It's basically the same way it plays out in wrongful termination or other employment suits. It would likely be settled with both parties keeping these defenses/offsets in mind.

I would see it as:

UM: Cal, you're being terminated without cause.
Cal: Well, alright, keep the checks coming.
UM: We will, let us know when you're hired again and we'll offset what we're paying you.
Cal: Sure (to himself: "whatever")

At that point Cal is just cashing checks. Maybe at some point the U contacts him and says "Yo, John, you ever gonna get a job again?" and he say's "Ehhh, we'll see."

At that point then I guess the U stops payments and then he has to sue.

But it's much more convoluted than a typical case where an employee is canned, isn't paid, sues for breach, goes to court, court rules in plaintiff's favor, then assesses damages based upon former earnings and duty to mitigate.

But I see where you are coming from.

(03-24-2016 01:10 PM)salukiblue Wrote:  

(03-24-2016 12:57 PM)MemphisCanes Wrote:  

(03-24-2016 12:43 PM)salukiblue Wrote:  But why would someone file a breach of k claim if the U was obligated to pay the amount?

I could be wrong, but isn't a duty to mitigate a defense? If so, if there is no suit filed in the first place, the U can't file a suit based upon a defense to a suit that wasn't filed.

I guess, the U would have to REFUSE to honor the initial duty to keep paying, the ex-employee THEN sue, and then the U assert the defense.

But, the fly in the ointment is the U is in breach (if they choose not to pay) the 1st day of the next month after they fire him. If he sues for breach THEN, there is no way the U can demand a mitigation. Perhaps, they then settle with a mitigation agreement.

That type of employment is far different from typical breach/mitigation issues that have made their way through the system it seems.

I see it as follows (hypothetically):

UM: Cal, you're being terminated without cause.
Cal: Well, alright, keep the checks coming.
UM: We will, let us know when you're hired again and we'll offset what we're paying you.
Cal: You can't do that.
UM: Sure we can.

::Cal files lawsuit::

UM would use Cal's duty to mitigate as a defense (not a complete defense), though. Of course, any trial would be years away. At that time, either Cal has found another job or he hasn't because he hasn't tried. UM either uses his new salary as a basis for the offset, or if he isn't employed, must prove what he could have made had he made reasonable efforts to become employed.

It's basically the same way it plays out in wrongful termination or other employment suits. It would likely be settled with both parties keeping these defenses/offsets in mind.

I would see it as:

UM: Cal, you're being terminated without cause.
Cal: Well, alright, keep the checks coming.
UM: We will, let us know when you're hired again and we'll offset what we're paying you.
Cal: Sure (to himself: "whatever")

At that point Cal is just cashing checks. Maybe at some point the U contacts him and says "Yo, John, you ever gonna get a job again?" and he say's "Ehhh, we'll see."

At that point then I guess the U stops payments and then he has to sue.

But it's much more convoluted than a typical case where an employee is canned, isn't paid, sues for breach, goes to court, court rules in plaintiff's favor, then assesses damages based upon former earnings and duty to mitigate.

But I see where you are coming from.

It's like that, but with millions of dollars instead of thousands, so attorneys for both sides would probably come to some agreement in which UM pays (but perhaps only pays the amounts they think that they owe), Cal accepts but reserves right to sue for the entire amount down the road.

The University certainly can't argue that they owe him nothing, so the argument is over when it's reasonable to expect him to get another gig and how much he'd be paid.