(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."