By Donald Chance Mark, Jr.
A recent appellate court decision in Minnesota has affirmed a trial court’s jury verdict holding basketball coach Tubby Smith and the University of Minnesota responsible for damages caused to Jimmy Williams. Williams, a long-time assistant coach, was awarded in excess of $1.2 million in May of 2010 for the treatment he received when he was offered a job as an assistant coach on the staff being assembled by recently hired head coach Tubby Smith. The offer was subsequently withdrawn, based on NCAA infractions that had occurred 25 years earlier when Williams was an assistant for then head coach Bill Musselman.
During Williams’ 38 year career, he developed a reputation as an outstanding recruiter. He was recognized by Basketball Magazine as having recruited a “Top Ten Class” in the nation eight times, and twice recruiting the “Best Class” in the nation. In addition, he was acknowledged as being one of the best big men coaches, having worked with and helped develop Kevin McHale, Mychal Thompson and Kevin Garnett, among others. He has coached at least 36 players that have played in the National Basketball Association, including 15 first-round picks.
After Smith was named head coach at Minnesota on March 23, 2007, he immediately set out to name a staff. His desired choices were his son, Saul Smith, Ron Jirsa and Jimmy Williams. Smith informed the athletic director of his intentions and was advised that “those were your calls.” The offer was made by Smith to Williams over the telephone; Smith even offered to call coach Sean Sutton at Oklahoma State, where Williams was working, to advise of the hiring.
Details were confirmed and agreed upon concerning the length of the contract and the amount and terms of compensation. Plans were also discussed to meet later that week to begin recruiting together. Based upon the telephone offer, Williams immediately called coach Sutton and advised him of his acceptance of the University of Minnesota position. Sutton expressed his disappointment and requested that a written resignation be delivered to him the next day; Williams complied, and shortly thereafter Sutton filled the position vacated by Williams. Williams also contacted family and friends to advise of his acceptance of the job offer, and he contacted his realtor and had his house placed on the market for sale.
Arrangements were also made by the University of Minnesota that indicated the hiring was accomplished. A Memorandum of Agreement was prepared for Williams to sign that included the terms of employment, including compensation; arrangements were made for securing temporary housing, personal transportation and the usual university identification badge.
Because of the well recognized industry practice of head coaches hiring their own staff, Williams had no reason to expect that he would not be on a recruiting trip with Smith by the end of the week. For as long as Williams had been coaching, he had always been hired by the head coach, without even the mention of the coach needing to obtain approval from another source.
Subsequent to the job being offered by Smith and accepted by Williams, however, Smith stated for the first time that the athletic director must “sign off on (the) hiring.” Smith added that he did not expect final approval to be a problem. Smith also called Williams later to discuss details of the upcoming recruiting trip. Only later did Williams learn that the athletic director had disqualified him from coaching at the University of Minnesota, based upon recruiting violations that had occurred 25 years earlier. Williams’ attempts to speak directly with the athletic director were refused. Williams was never given the opportunity to address the violations that had occurred during the tenure of head coach Bill Musselman or the flawless record he had with the NCAA for the subsequent 25 years. Smith also acknowledged, in his trial testimony, that he was aware of both Williams’ record as a coach and as a person of integrity. Notwithstanding this information, Williams was not permitted to proceed with the job he had been offered and had accepted.
Williams subsequently brought a lawsuit in Hennepin County district court in Minneapolis, Minnesota against Smith and the University of Minnesota. Trial began on May 13, 2010, and on May 26, 2010, the jury rendered a verdict awarding Williams $1,247.293.00 in damages. The jury found that Smith had negligently misrepresented his authority to hire Williams, that Williams relied on the misrepresentations, and that the misrepresentations caused the aforementioned damages. The trial judge subsequently ruled that Smith was acting in the course and scope of his employment when he made the misrepresentations, and, accordingly, the university was responsible for his behavior and liable for the damage award. The court also granted a post-trial motion by the university, reducing the verdict to $1 million, based on a statute that limits the amount of damages that can be awarded against the university.
Williams presented trial testimony from former U.S. Congressman Jim Ramstad, who testified to his character and integrity. Coaches Eddie Sutton, Sean Sutton, Jim Dutcher, James Dickey and Jim Brandenburg testified not only as to Williams’ abilities as a coach, but also to the industry practice of head coaches having the ability and authority to hire their own staffs.
The university subsequently brought motions to overturn the jury’s verdict. The trial court denied all the motions, save for the reduction of the award to comply with the Minnesota Tort Claims Act. The university then appealed to the Minnesota Court of Appeals. In a decision filed on October 17, 2011, the Minnesota Court of Appeals affirmed the jury verdict and the trial court’s subsequent rulings. Following this decision, the university and Smith appealed to the Minnesota Supreme Court. Oral argument was conducted before the Court on May 3, 2012, and a decision is expected before the end of the year.
The Court of Appeals concluded in part:
“Here, Smith was clearly providing information for the guidance of Williams; Smith discussed salary structure and a first assignment while misrepresenting his authority to hire Williams, and even volunteered to contact Williams’ employer to tender resignation on Williams’ behalf. Additionally, even after Smith realized that he did not have the final authority over the hire and conveyed as much to Williams, Smith furthered the misrepresentation by continuing to discuss the upcoming recruiting trip that Williams was assigned to make. This was an extensive misrepresentation. Based on the specific facts of this case, we conclude that Smith owed a duty of care to Williams in conveying information during the hiring negotiations.”
Lessons Learned
What can be learned from this experience? Clearly, that the traditional verbal offer and a handshake practice between head coaches and assistants will change. While the law recognizes oral contracts, it is always better to get something in writing. Notwithstanding the need to act quickly, particularly given the pressures of recruiting, coaches should give thought to whether they can afford to rely solely on a verbal representation of employment.
Coaches who are involved in an interviewing process should determine early on who has the authority to hire. Is the potential hiring subject to approval by a higher authority? Is that authority the athletic director? The board of trustees? The college president? While each college or university may have a somewhat different process, it would be wise for the job candidate to have a full understanding of that process before making a commitment that could have detrimental consequences.
In addition to becoming acquainted with the hiring process of the institution conducting the interview, it is necessary to make a determination as to who ultimately has hiring authority. Is the relationship between the head coach and the athletic director, for example, such that the head coach can truly make the hire as opposed to simply make a recommendation? Coaches and athletic directors who have worked together for a long period of time have likely established a trust relationship that will allow the coach broader authority than if the relationship were newer or untested.
Finally, it is wise for a candidate to not give up his or her current position until there is certainty of the new position. Many things can occur to change the circumstances that might alter an agreement before it is promulgated. Before undertaking steps that can be detrimental to a career and a personal life, it is important that both the candidate and the prospective decision-maker have jointly agreed on the new employment relationship.
If someone with the experience and history of success of Jimmy Williams can be misled, all others would be wise to ensure there is a mutual hiring before taking steps that will alter their lives.
Donald Chance Mark, Jr., is a founding member of the Minnesota-based law firm, Fafinski Mark & Johnson, and has more than 35 years of experience handling general litigation, aviation litigation, products liability and other commercial litigation, and medical malpractice defense matters. He represents Jimmy Williams in Jimmy Williams v. Tubby Smith and the Board of Regents of the University of Minnesota.
