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Firing Pflugrad, O'Day Will Cost UM at least $147,000
- Thread starter Ursa Major
- Start date
goatcreekgriz
Well-known member
PR: I was not talking about an email. The original contract requires a writing for modification. Since the original contract had not expired, and there is no novation, the arbitration clause stands until the existing contract is modified in writing or it expires. We'll have to disagree on this one.
Ranco: There is no indication in the opinion that the entire contract was invalidated, and the issue probably was not even presented. There is no reason to construe an invalid contract, and the Brown case is a pretty straightforward opinion on statutory interpretation. The rest of the contract (whatever provisions it had) presumably was enforceable. I like a good plaintiff's case as much as anyone, but I would rather defend this one. Again, we'll have to disagree.
I have work to do, so I'm done riding this dead horse.
Ranco: There is no indication in the opinion that the entire contract was invalidated, and the issue probably was not even presented. There is no reason to construe an invalid contract, and the Brown case is a pretty straightforward opinion on statutory interpretation. The rest of the contract (whatever provisions it had) presumably was enforceable. I like a good plaintiff's case as much as anyone, but I would rather defend this one. Again, we'll have to disagree.
I have work to do, so I'm done riding this dead horse.
So I'm at section 11 Part A talks about death so it must be part B:
b. University may terminate this Agreement without cause for any reason upon written
notice to Coach. If the University terminates this Agreement without cause, it shall pay the
Flead Football Coach, as liquidated damages, the lesser amount of either twelve (12) months salary and
benefits OR an amount equal to that portion (pro rata) of the Coach's salary and benefits
remaining unpaid under this Agreement if fewer than twelve (12) calendar months remain
prior to this Agreement's expiration. Unless otherwise agreed upon in writing by the parties,
the liquidated damages will be paid in equal monthly installments until the end of the term
of this Agreement. Any amount of gross income paid or promised to be paid to Coach for
other employment of any kind, shall be offset against the amount to be paid by the
University as liquidated damages. This amount will be in lieu of any and all other legal
remedies available to Coach.
What makes it at will if they pay him to the end of the term???? Without cause could include cancelling the football program not much of a need then....
b. University may terminate this Agreement without cause for any reason upon written
notice to Coach. If the University terminates this Agreement without cause, it shall pay the
Flead Football Coach, as liquidated damages, the lesser amount of either twelve (12) months salary and
benefits OR an amount equal to that portion (pro rata) of the Coach's salary and benefits
remaining unpaid under this Agreement if fewer than twelve (12) calendar months remain
prior to this Agreement's expiration. Unless otherwise agreed upon in writing by the parties,
the liquidated damages will be paid in equal monthly installments until the end of the term
of this Agreement. Any amount of gross income paid or promised to be paid to Coach for
other employment of any kind, shall be offset against the amount to be paid by the
University as liquidated damages. This amount will be in lieu of any and all other legal
remedies available to Coach.
What makes it at will if they pay him to the end of the term???? Without cause could include cancelling the football program not much of a need then....
tnt said:
Jeez, look at the Yellowstone Club case and the summaries provided above. That case decides exactly the question you are asking and says that kind of employment contract is tantamount to termination at will and thus allows the employee to make claims for wrongful termination. As Ranco is saying, if these guys weren't terminated, they'd still be the coach and AD.
goatcreekgriz said:
I understand your points, but I wonder if it was a new 3-year contract and thus not a modification. This would bolster Pflu's argument. If Pflu wasn't being represented by counsel in the new or extended contract negotiations, I'm not so sure a court would hang him on this "fine print", especially a MT court.
PlayerRep said:
AllWeatherFan said:
Yup I've read 'em Dunno, do they still have their employee benefits? How long was Pflu's probationary period anyway? Of course 3 I allows the president to specify duties as well (not which duties. A guy gets a check, gets his benis, hes's an employee.
goatcreekgriz
Well-known member
PR: I would be reluctant to use the "fine print" strategy, which would probably require a sworn declaration or affidavit, for at least two reasons that jump to mind: (1) with an annual compensation package of roughly $200K, which is more than any elected Montana official including any judge weighing the sworn statement, there would serious credibility concerns; and, (2) keep in mind that part of the job is to read, understand, and follow NCAA, Big Sky and University regulations (as well as perform duties assigned by the President), so any argument based upon failure to read or understand the "fine print" in a relatively simple contract provision may help prove UM's case (assuming good cause includes failure to satisfy regulations or perform duties assigned by the President). The practical implications of such a strategy might hurt the case more than help the case. I could be all wrong, but expedient immediate positions often have long-term adverse effects.
PlayerRep said:
Different set of facts, Player. The Yellowstone Club case had a 90-day mid-term buyout clause or something. Would the Court view a 12-month mid-term buyout in the same light? Who knows?
In any event, I think that would only be an issue if there was a mid-term buyout. I'd guess in this case the University is prepared to honor the contracts by paying these folks' salaries and benefits through the term. I don't think the Court would go so far as to rule that the University had to allow them to perform their job duties through the term of the contract. As long as they're paying them, they can have them sit at a table all day long and play tiddly-winks. Or they can put them on paid leave.
Of course, that doesn't answer the more detailed questions regarding Pflugrad's alleged verbal contract extension or O'Day's notice provision, but these are garden variety contract law issues.
AllWeatherFan said:
Would this be the best case to be the first case establishing employment through promissory estoppel? Keil v. Glacier Park, Inc., 614 P.2d 502, 188 Mont. 455 (Mont. 1980). is the closest. But the elements in that case were (1) a promise clear and unambiguous in its terms;(2) reliance on the promise by the party to whom the promise is made; (3)reasonableness and foreseeability of the reliance; and (4) the party asserting the reliance must be injured by the reliance.
Its hard to see how ALL the elements of a contract could be clear in a verbal agreement ... The old TACO thing, Terms Agreement Consideration and Offer......
Jesus, tnt, I hope you're not asking me that question! 
goatcreekgriz
Well-known member
Taco Tuesday is coming, on Tuesday. Something we can all agree on.
AllWeatherFan said:
Nope, very similar set of facts. 3-year contract. Terminable at anytime with paying of severance provided in the contract. Held not to be a contract with a term, as required by the statute, since the employee could be terminated at will. Unanimous decision by the MT Sup Ct.
" 2 Leonard Brown was hired by the Yellowstone Club as director of retail sales and rentals of ski-related goods. Brown and the Club entered an employment agreement that employed Brown for a term of three years. The agreement also provided that the Club (or Brown) could terminate Brown's employment at any time, without cause. After about six months, the Club terminated Brown's employment, without cause."
"¶ 7 On April 22, 2010, the Club terminated Brown's employment, with no stated cause, and offered a severance payment as provided in the Agreement. Brown refused to execute a release of claims and filed an action under the Wrongful Discharge from Employment Act."
"¶ 9 The issue in this case is whether an employment contract for a specified term (here, three years) that also allows the employer to terminate the employee at will, for no cause, is a contract for a “specific term” under the exception provided in § 39–2–912, MCA...."
"Para 10 ... A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment."
Correct me if I'm wrong, but the Yellowstone Club case involved a 3-month severance, and this case involves a severance four times that amount. I call those different facts. Maybe the Court would still see it as at will employment, but I believe they'd distinguish the cases.
But I won't beat this dead horse.
But I won't beat this dead horse.
Do you know what a lawyer uses for birth control? His personality.
AllWeatherFan said:
The MT Sup Ct didn't care about the amount of the severance or discuss it. The Court focused on the statute that says that an employment contract doesn't have a definite term if the employer can terminate the employee before the end of the term--and if not a contract with a definite term, then the employee can make a claim for wrongful termination. See the below quote from the opinion. Giving the clear wording of the opinion, I can't imagine that a lower court is going to rule contrary to a recent (fall 2011), clear and unanimous opinion of the supreme court. I also can't imagine the supreme court in effect reversing itself over such a recent opinion. Speaking only for me, as they say. Note that O'Day's severance would be only about 3 months, if his contract hasn't been renewed for another year (which I believe it has).
"A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment."
A lot of gobbly-gook to say that non-renewal is okay. And if the contract is fulfilled ( salary paid on time benefits kept in tact etc.its not a discharge) Pflus contract allows the President to assign jim any duties as he sees fit. A severenc package is different. FWIW Pflu can't take a new job either until the end of Dec.
