Quote:
Originally Posted by nikuman
That makes complete sense - most of the stuff I've done is in context with M&A transactions and revolves around key employees. I usually just call up the employment people and make them deal with those issues.
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A couple comments (generally, not to you specifically). First, I don't think that a head football coaching job at a major university has an analogy to anything any of us do unless we negotiate contracts for head football coaches at major universities. I just don't think there is really an analog to this.
Second, this is a personal services contract, right? So forget about the proof issues for a second and assume that you have some kind of parol agreement. When KW renigs on it, what part of the agreement can BYU enforce? The only thing I can think of is a non-compete which would keep him from coaching at a MWC school unless he has already been paid.
So I guess my question to K-dog is, when you say the terms of the contract were agreed to did you include a non-compete in that? If you didn't, since your obviously not talking about a contract that can be specifically enforced (13th amendment and all), aren't you missing a material term and hence no mutual assent?
Last, if the parties go off to draw up a writing to reflect the deal, I would say that is pretty good evidence that the deal isn't complete. For example when I call opposing counsel and ask him to extend the discovery deadline, I follow it up with a letter which says "hey just confirming here is what we agree to." The agreement is complete. If I don't send the letter, the agreement is still complete.
But I have negotiated many, many things where the material terms are thought to be in place and the deal breaks down or nearly breaks down over what I think is minutia. If BYU sues KW on the parol agreement, I'm arguing that the negotiations are nothing more than an agreement to agree. Everyone involved contemplates that this deal is put in writing and not done until signed.
Now if you are making a moral argument that KW shouldn't conduct hardball negotiations with the church, then I guess I can at least see it even if I can't agree with it. I would say that if you are going to play a big boys game you can't cry when you get roughed up a little. In the end, as many have said, each school probably walked away with the best coach for them.
Sorry for the long ramble.