grizpack said:
I am all for the early signing day. That would solve a lot of the problem. "Willing to commit to this kid? OK - Sign here. It is binding on both of us." Let them sign as soon as they "commit". Then both sides have to live with it.
For starters, don't overestimate "signing day" regardless of when it is, or "signing anything" under these circumstances. For starters, until spring ball starts, there's no consideration. Kid isn't getting scholarship yet, University hasn't delivered play or position. These are entirely executory contracts. There are no damages for breaches of executory contracts.
So, if you move it up, then what?
And if the kid then takes another offer afterwards, sue the kid, right? Think the Board of Regents or the Legislature is going to waste money on those lawsuits?
How far do you think that would make it in court: "
Rob Ash, Montana State University, the State of Montana vs. Joey Smith, 17 year old."
A 17 year old signing a "personal service contract" that is binding, and is drafted by MSU's high-powered lawyers. Seriously? Sounds like a nice "attorney relief act" for a new class of attorneys to represent 17 year old kids in contract negotiations with college teams.
For starters, "personal service contracts" are not subject to specific performance. Slavery and indentured servitude were abolished "some time ago." So, as a matter of law, a kid signing of these pieces of garbage can't be forced to play. Ironically, the University might still be forced to provide a scholarship. Be careful what you ask for.
So, what's the permitted remedy? Well, "liquidated damages." Liquidated damages can be agreed upon by the parties in a contract only when they are 1) reasonable and 2) can't be determined by the results of the breach.
Such contract damages cannot be speculative, nor can they be unconscionable. What's more speculative than college football? What can a University reasonably claim it loses when a 17 year kid "breaks" his contract?
"Unconscionability involves two-prong determination: whether clause fits doctrine of contract of adhesion such that weaker bargaining party had no meaningful choice regarding acceptance of provisions and whether contractual terms are unreasonably favorable to drafter, usually the party with superior bargaining power."
So, what is the reasonable "liquidated damage" that a 17 year old should have to pay to Rob Ash for breaching his contract? That ought to be worth two years of litigation all by itself. And I guarantee that Rob will lose the lawsuit. And, since money damages are all that can be obtained, how good is that? How satisfying is that? Joey Smith owes MSU, what? $150.00? $10,000? $175,000? Will parents have to co-sign so that MSU can take away people's homes to satisfy Rob Ash's desire for vengeance?
Of course the whole point is to remove the element of choice from the 17 year old kid, in favor of the University's power to compel the kid to play football on its terms. It seeks to limit the market. These are contracts in restraint of trade in the first place, and contracts of adhesion in the second place; cartel contracts designed to limit the ability of 17 year olds to obtain their best market value. How noble is that? Nobility aside, they are already illegal.
And for a kid that is not getting a scholarship, what's the consideration for the contract? The coach's peace of mind; his element of control?
Under the Consumer Protection Act, the "party with the superior bargaining power" may, if it loses the case, be assessed with treble damages and attorney fees.
I cannot imagine much more of a can of worms than what Ash is proposing in his fit of spite and pique.