By Robert J. Romano, Esq.
A few weeks ago, Boston College athletic director Gene DeFilippo fired head football coach Jeff Jagodzinksi after he interviewed for the head coaching vacancy with the New York Jets. True, Coach Jagodzinski was warned by Mr. DeFilippo prior to meeting with the Jets that such action would occur. But, this brings up an interesting issue; what could Boston College have done if Coach Jagodzinski was offered and eventually accepted the head coaching position. Or in other words, what, if any, remedies are available to colleges and universities when a coach, who is currently under contract with their institution, breaches and leaves for the “greener pastures” of the National Football League.
The typical legal remedies in a breach of contract matter are money damages, either through restitution, consequential damage or damages specified in a liquidated damages clause, or rescission of the contract. If, however, the legal remedy is inadequate, a party may seek specific performance of the contract if services are determined to be unique.
However, in a scenario like Boston College’s, specific performance is not an available remedy since it is a well-established tenet of contract law that, with few exceptions, employers cannot obtain specific performance of a personal service contract. See, Nicholas v. Pennsylvania State University, 227 F.3d 133, “In general, specific performance does not lie to enforce a provision in a contract for the performance of personal services”, and Mitchell-Huntley Cotton Co., Inc. v. Waldrep, 377 F. Supp. 1215, “A court will not compel performance of services of a strictly personal nature”.
Courts have refused to grant specific performance on personal service contracts due to the undesirability of compelling the continuance of personal association after disputes have arisen and confidences and loyalties have disappeared.
The courts have articulated three distinct reasons for the existence of the rule. First, and most importantly, such would constitute a violation of the Thirteenth Amendment’s prohibition against involuntary servitude. In effect, it would be an invasion of one’s constitutional liberty to compel him or her to work for or to remain in the personal service of another.
Second, in view of the peculiar personal relation that results from a contract of service it would be inexpedient from the standpoint of public policy to attempt to enforce such a contract. Specifically, where one of the contracting parties is to act as the confidential agent of the other, it is necessary, not only for the parties, but for the sake of society at large, that there should be entire harmony and a spirit of co-operation between the contracting parties.
Third, it is inconvenient and almost impossible for a court to conduct and supervise the operations incident to and requisite for the execution of a decree for the specific performance of a contract that involves the rendering of personal services.
So, with regards to specific performance, a court will not force an individual to work or provide services against his/her will. However, because most sports contracts involve individuals who possess unique and particular skills, a court may be inclined to allow a party to enjoin a coach or athlete from joining another team. Sports organizations or colleges and universities can acquire injunctive relief that would prohibit the coach or athlete from acquiring similar employment at another organization.
One of the initial cases were the use of injunctive relief was used in the sports context was Philadelphia Ball Club v. Lajoie, 51 A. 973 (1902). Here, the court allowed the Philadelphia Ball Club to enjoin future Hall of Famer, Napoleon Lajoie, from playing baseball for another team finding his services as a second baseman were of a unique character that would render them of peculiar value to the Baseball Club. The court held that because of this “uniqueness”, a team has a right to enjoin a player from playing for another team during the term of the contract.
Additionally, in 1979, the New England Patriots obtained injunctive relief against the University of Colorado and Coach Chuck Fairbanks. This occurred when Coach Fairbanks breached his contract with the Patriots to take the head coaching position with the University of Colorado. To prevent Coach Fairbanks from leaving, the Patriot organization obtained a court order prohibiting the University of Colorado from entering into a coaching contract with Coach Fairbanks. New England Patriots Football Club Inc. v. University of Colorado, 592 F.2d 1196, (1979).
Courts, in an effort to determine whether to grant injunctive relief in “sport” situations, look for the following factors: a) the moving party‘s likelihood of success on the underlying action, b) that the moving party will be irreparably harmed if the injunction is not granted, c) equities favor the party seeking relief, and d) the services of the player or coach are unique, extraordinary and of such a character that it would be impossible to replace him or her.
Although this may not seem like an exceptionally hard burden for the moving party, especially since most contracts provide for the fact that the player or coach brings with him/her “skills that are unique and extraordinary”, courts have issued such relief sparingly. Their reluctance increases when the court feels that the moving party has unclean hands, that the contract is unconscionable, or the contract lacks mutuality of interest.
Robert J. Romano is the founding partner of THE ROMANO SPORTS AGENCY, which specializes in representing NCAA and Professional League Coaches in all aspects of contract negotiations. For more information, visit his web site at www.romanosportslaw.com, or contact him at rjr2128@columbia.edu
