So whenever a coach’s contract is terminated the press always says he (or she) was “fired”, or “dismissed”. In my business if we used that type of terminology with regard to contracted workers we open ourselves up to the potential of a lawsuit for back benefits, as we would have labeled them as an employee. I hope Rice is smart enough to refrain from that choice of words. I notice that JK did say that “we parted ways”. Just an observation.

(11-28-2017 10:38 PM)WeatherfordOwl Wrote:  So whenever a coach’s contract is terminated the press always says he (or she) was “fired”, or “dismissed”. In my business if we used that type of terminology with regard to contracted workers we open ourselves up to the potential of a lawsuit for back benefits, as we would have labeled them as an employee. I hope Rice is smart enough to refrain from that choice of words. I notice that JK did say that “we parted ways”. Just an observation.

For a number of reasons, Rice does not need to agonize over the terms used in a press conference.

First, Rice coaches are employees, not independent contractors, by every conceivable measure. The terms used in the press conference don't affect that.

Second, the coach's contract is not terminated; rather, the coach's employment is terminated, in accordance with the provisions for doing so in the employment contract.

Don't conflate having a contract with being an independent contractor. Most employees in most companies have employment contracts, but employees by definition are not independent contractors.

in sum, Rice does not need to worry that its coaches might be construed as employees -- that is what they already are.

I am familiar with terms of employment, which all employees must acknowledge with a signature. They are one sided. It sort of sounds to me like all, or most, University “employees” are actually contracted agents of the university, having signed non-disclosure and other loyalty and behavioral contracts. It does give the university legal coverage to dismiss for convenience, although I am sure that most of these contracts do not have the kind of termination clauses that coaches contracts have. And the university doesn’t necessarily have to deal with Labor Dept oversight and union representation issues.

(11-29-2017 08:22 AM)WeatherfordOwl Wrote:  I am familiar with terms of employment, which all employees must acknowledge with a signature. They are one sided. It sort of sounds to me like all, or most, University “employees” are actually contracted agents of the university, having signed non-disclosure and other loyalty and behavioral contracts. It does give the university legal coverage to dismiss for convenience, although I am sure that most of these contracts do not have the kind of termination clauses that coaches contracts have. And the university doesn’t necessarily have to deal with Labor Dept oversight and union representation issues.

You seem to be under the impression that a person with a contract is not really an employee. Why do you think that?

I am not a lawyer, but does the history and tradition of the coaching profession come into play in termination scenarios, in addition to the particulars of employment law and the terms of the contract? i.e. the nature of coaching at this level is the reasonable expectation of being fired based on poor results. Does that come into play in a common law sort of way?

(11-29-2017 09:52 AM)I45owl Wrote:  I am not a lawyer, but does the history and tradition of the coaching profession come into play in termination scenarios, in addition to the particulars of employment law and the terms of the contract? i.e. the nature of coaching at this level is the reasonable expectation of being fired based on poor results. Does that come into play in a common law sort of way?

Well, I think you could sort of say that.

Let's assume for the sake of argument that a coach was aggrieved by his being relieved of his duties, headed immediately for his lawyer's office, and said that he wanted to sue the school that just let him go. The first thing the lawyer is going to ask is whether the school followed the contract.

The coach says, "Yeah, I had one year left and they're paying me for that year (or whatever the buyout terms happen to be), but here's the deal: Now I have this stigma of being 'fired' - no matter that the contract's being honored, everybody knows they fired me because I didn't resign. I would have kept up my end of the contract if they had let me. So I was fired. And on top of that, they talked in the press conference about how we didn't win enough games, so they're basically telling the world they fired me for being a bad coach."

The lawyer is then going to ask, "Well, did they say anything about you that was untrue?"

"Well, not really. I mean, our record was what it was. They didn't cite any other reason for firing me, and in fact, they said I did well in every other aspect of my job."

"Well, Coach, I sympathize with you, but I'm afraid you don't have a case. It is true that even if they honor the contract, we could still sue them if they defamed you, which is defined as saying something to another person about you that's false and that causes you damages. But you just told me they didn't say anything that was false."

"But I think it's false to effectively brand me in public as being a poor coach, when I wasn't a bad coach, I just didn't win enough games to satisfy them."

"Well, Coach, the problem there is that any jury, and especially a Texas jury, is going to understand that it's part of a coach's job -- a hugely important part -- to win games. So technically it wouldn't even be 'false' to state that a coach who didn't win enough was a 'poor' or 'bad' coach."

"But what about when I go to apply for other jobs now? When they ask me why I left my previous job, I'm going to have to say I was fired for poor performance, and then I'll never get hired again."

"Well, there's a lot of problems there. First of all, yes, there is a legal theory called 'compelled self-publication,' which means that if someone like an employer tells you something about yourself that is false, but you're in a situation where you're going to have to repeat that false statement to a third party, such as in a subsequent job interview, then the original speaker can be deemed to have 'published' that defamatory statement about you to that third party even though it was you that actually did the publishing. But Texas doesn't recognize that theory, for starters. And even if they did, it's really not true that you were 'fired,' you were just relieved of your duties and they honored your contract. And even if that could be characterized as a firing, and thus a firing for 'poor performance,' well, as I told you earlier, I doubt a jury would see that as a false statement anyway, since failing to win games *is* poor performance by a coach, as most people understand it. And finally even if we could get past all those hurdles, how are we going to show damages? Coaches get hired all the time after being fired for not winning enough. You know the old saying: 'There's only two types of coaches, them that's been fired and them that's gonna be.' It's part of the profession, and it's not likely to prevent you from getting another job, and people know that, too."

"Okay, fine, I might get another job, but my feelings have still been hurt. Can't I sue them for that?"

"Yeah, well, the catch there is that while a false statement about you that is obviously going to injure you in your business, trade, or profession can give rise to damages for mental anguish without the need to first prove economic harm, for all the reasons we've already gone through, no such statement was made about you. They didn't say anything false, they're not making you say anything that was false, and it's not likely to injure you in your business, trade, or profession because everybody knows that coaches getting fired for losing is an accepted part of the profession and it happens to even the best coaches - the Hall of Fame is full of fired coaches."

"Okay then, but I thought I heard once about an assistant coach who sued after he was fired by the new head coach who wanted to bring in his own guys. I would've thought that it was also an 'accepted part of the profession' that new coaches can clean house if they want, and yet this guy won his case, right?"

"Nice memory, Coach. Joe Moore did in fact sue Notre Dame after new coach Bob Davie refused to keep him on staff when he was hired to replace Lou Holtz. Davie said he fired Moore, who was 65, because he wanted new blood in the position, a guy who was going to stick around for more than just a couple more years; Moore said he was fired because of his age -- there's a federal law that protects employees over 40 from being fired because of their age. It all went to a trial, and yes, the jury found for Moore. By the way, Moore brought defamation claims, too, but they were tossed out. So, do you have any reason to believe that your age played any role in what happened?"

"Honestly, not really. I do believe it was just the lack of wins."

"Then I'm sorry, I'm afraid you're out of luck."

"Well, #&*%#$!"

"I'll send you my bill."

The instructive part of the Davie anecdote is that, particularly in an at-will employment state, don't tell anyone why you fired him/her. In the case of any coach, the employment would almost certainly be pursuant to a contract which would pre-empt the at-will rules. But still, the less you say about why your fired someone, probably the better. In an age were age discrimination is actionable, "wanted new blood" is a really stupid thing to say.

As far as the instant situation, nobody is going to consider hiring David Bailiff without knowing full well about 5-7, 3-9, 1-11. And quite frankly, anybody knowledgeable is going to assume a priori that he was fired for losing. So in that context, it's hard to see how firing him for losing, or telling him that he was fired for losing, could constitute any form of defamation. And since those wins and losses are public record, it is probably in David's best interest for a prospective employer to conclude that it was because of losing.

(11-28-2017 10:42 PM)georgewebb Wrote:  

(11-28-2017 10:38 PM)WeatherfordOwl Wrote:  So whenever a coach’s contract is terminated the press always says he (or she) was “fired”, or “dismissed”. In my business if we used that type of terminology with regard to contracted workers we open ourselves up to the potential of a lawsuit for back benefits, as we would have labeled them as an employee. I hope Rice is smart enough to refrain from that choice of words. I notice that JK did say that “we parted ways”. Just an observation.

For a number of reasons, Rice does not need to agonize over the terms used in a press conference.

First, Rice coaches are employees, not independent contractors, by every conceivable measure. The terms used in the press conference don't affect that.

Second, the coach's contract is not terminated; rather, the coach's employment is terminated, in accordance with the provisions for doing so in the employment contract.

Don't conflate having a contract with being an independent contractor. Most employees in most companies have employment contracts, but employees by definition are not independent contractors.

in sum, Rice does not need to worry that its coaches might be construed as employees -- that is what they already are.

If this is shorthand for a written employment agreement that limits an employer's right to fire an employee and sets the terms of compensation in the event of different types of terminations, then it is not accurate to say that most employees in most companies have employment contracts.

It would be closer to accurate to say that many employees in many companies are hired with offer letters that set out some general terms of employment -- start date, title, pay, benefits offered--but that also that state that the employee is employed at will.

In Texas, there is a presumption of at will employment. To override that, there must be an agreement that limits, in a special and meaningful way, the employer's right to terminate.

(11-29-2017 03:13 PM)kinderowl Wrote:  

(11-28-2017 10:42 PM)georgewebb Wrote:  

(11-28-2017 10:38 PM)WeatherfordOwl Wrote:  So whenever a coach’s contract is terminated the press always says he (or she) was “fired”, or “dismissed”. In my business if we used that type of terminology with regard to contracted workers we open ourselves up to the potential of a lawsuit for back benefits, as we would have labeled them as an employee. I hope Rice is smart enough to refrain from that choice of words. I notice that JK did say that “we parted ways”. Just an observation.

For a number of reasons, Rice does not need to agonize over the terms used in a press conference.

First, Rice coaches are employees, not independent contractors, by every conceivable measure. The terms used in the press conference don't affect that.

Second, the coach's contract is not terminated; rather, the coach's employment is terminated, in accordance with the provisions for doing so in the employment contract.

Don't conflate having a contract with being an independent contractor. Most employees in most companies have employment contracts, but employees by definition are not independent contractors.

in sum, Rice does not need to worry that its coaches might be construed as employees -- that is what they already are.

If this is shorthand for a written employment agreement that limits an employer's right to fire an employee and sets the terms of compensation in the event of different types of terminations, then it is not accurate to say that most employees in most companies have employment contracts.

What makes you think "employment contract" necessarily implies "limits an employer's right to fire"? Employment contracts can cover other terms and while still keeping the employment at-will; the latter doesn't mean it's not a contract.

Why are we having this discussion when there is no evidence of a contract dispute between Rice & Bailiff.

(11-29-2017 04:11 PM)ExcitedOwl18 Wrote:  Why are we having this discussion when there is no evidence of a contract dispute between Rice & Bailiff.

I don't know -- I'm not sure what exactly prompted the original question.

(11-29-2017 04:11 PM)ExcitedOwl18 Wrote:  Why are we having this discussion when there is no evidence of a contract dispute between Rice & Bailiff.

Welcome to the Rice Board. It's always good to have new contributors here!

(11-29-2017 04:12 PM)georgewebb Wrote:  

(11-29-2017 04:11 PM)ExcitedOwl18 Wrote:  Why are we having this discussion when there is no evidence of a contract dispute between Rice & Bailiff.

I don't know -- I'm not sure what exactly prompted the original question.

See the first post, mine, in this thread. It was a casual observation of mine that media always seem to use terms such as “fired” when referencing a decision by an athletic director to make a coaching change. I don’t think the term is exactly appropriate or fair to either the coach or the school. “Dismissed” is better, but “relieved of coaching duties” or “terminated the coach’s contract” is much more accurate and does not imply anything about the coach’s job performance or success. I appreciated JK’s reference to Rice having “parted ways” with coach Bailiff.

(11-29-2017 09:25 AM)georgewebb Wrote:  

(11-29-2017 08:22 AM)WeatherfordOwl Wrote:  I am familiar with terms of employment, which all employees must acknowledge with a signature. They are one sided. It sort of sounds to me like all, or most, University “employees” are actually contracted agents of the university, having signed non-disclosure and other loyalty and behavioral contracts. It does give the university legal coverage to dismiss for convenience, although I am sure that most of these contracts do not have the kind of termination clauses that coaches contracts have. And the university doesn’t necessarily have to deal with Labor Dept oversight and union representation issues.

You seem to be under the impression that a person with a contract is not really an employee. Why do you think that?

In the late ‘90’s when Vizcaino vs. Microsoft came up I was in supervision and management at General Dynamics Fort Worth. We, like Microsoft, also had a lot of temporary (read as “contract”) workers embedded with regular employees in our work groups. There were valid reasons for that at the time. So as supervisors we were schooled carefully about how to prevent inviting lawsuits by those contractors for back benefits, or their equivalent value. I seem to be misremembering the issues. If you Google the case it turns out that the real issue was with Microsoft treating their independent contractors like regular employees but not providing the same benefits and stock buying opportunities. In Rice’s case with coaches, I am pretty sure they have no choice but to treat the coaching staff as regular employees, notwithstanding the fact they also have some sort of performance contracts with them as well.

You are confusing the word “contract” with the status “independent contractor”. It is the independence that is key, not the presence or absence of a contract.

(11-29-2017 09:46 PM)georgewebb Wrote:  You are confusing the word “contract” with the status “independent contractor”. It is the independence that is key, not the presence or absence of a contract.

Right. I tried to say that. I had to review the reports of that case to correctly recollect the issues. I am still at the previously referenced location although it is a different company now. BIG aerospace. The vast majority of true employees do not have any sort of contract. We have annual objectives (broadly written) and receive evaluations. System is very loose in my opinion which allows the company to maintain documentation consistent with their merit raise and career advancement decisions. Convenient. Our VPs (constantly increasing population, it seems) are on contracts and can be terminated for pretty much any reason with only the termination clause in the contract as repercussion. They have unique benefits and remuneration opportunities, as one might imagine.

Quote:Why are we having this discussion when there is no evidence of a contract dispute between Rice & Bailiff.

Because we are Rice geeks

(11-29-2017 10:32 PM)WeatherfordOwl Wrote:  

(11-29-2017 09:46 PM)georgewebb Wrote:  You are confusing the word “contract” with the status “independent contractor”. It is the independence that is key, not the presence or absence of a contract.

Right. I tried to say that. I had to review the reports of that case to correctly recollect the issues. I am still at the previously referenced location although it is a different company now. BIG aerospace. The vast majority of true employees do not have any sort of contract. We have annual objectives (broadly written) and receive evaluations. System is very loose in my opinion which allows the company to maintain documentation consistent with their merit raise and career advancement decisions. Convenient. Our VPs (constantly increasing population, it seems) are on contracts and can be terminated for pretty much any reason with only the termination clause in the contract as repercussion. They have unique benefits and remuneration opportunities, as one might imagine.

Ok I see what you’re saying. Good posts.