Duke Successfully Diffuses Golfer’s Breach of Contract Claim

Jul 31, 2009

A federal judge from the Middle District of North Carolina has granted Duke University’s motion for judgment on the pleadings, effectively dismissing the breach of contract claim brought by the son of former Presidential candidate Rudolph Giuliani.
Plaintiff Andrew Giuliani had argued that school officials, who have since left the school, had made certain promises to him that went unfulfilled, such as lifetime access to Duke’s state-of-the-art training facilities and “the opportunity to compete with his teammates to earn spots in the most competitive golf tournaments against the most competitive players in the NCAA,” if he enrolled at the university.
Duke claimed in response to the lawsuit that Giuliani “squandered [the opportunity] through his own conduct.” The school claimed he allegedly “flipped a putter, broke a driver, gunned his car engine in a golf course parking lot, and threw an apple in the face of one of his teammates.” This behavior led to his suspension.
Giuliani and his parents ultimately hired a lawyer and sued, drawing the ire of Duke’s lawyers. “Indeed, through his lawyer, Giuliani demanded not only reinstatement to the team, but also guaranteed playing time,” Duke’s lawyers claimed in their answer. “He also demanded that any future coaching decisions about him be preapproved by ‘a designee within the general counsel’s office.”
In reviewing Duke’s motion, the court revisited the plaintiff’s argument that “a valid contract was created when he accepted Duke’s offer to play varsity golf.” Giuliani’s argument rested primarily on terms with four student-policy manuals. The court was unmoved.
“Non-binding student policy manuals are not binding contracts,” wrote the court, citing Love v. Duke Univ., 776 F.Supp. 1070, 1075 (M.D.N.C.1991), aff’d, 959 F.2d 231 (4th 1992) (Duke’s academic bulletin was not a binding contract). “Therefore, Plaintiff’s reliance on four student policy manuals as evidence of a contract is a swing and a miss. Plaintiff argues that Love does not control because it was decided before Ryan v. Univ. of N.C. Hosps., 128 N.C.App. 300, 494 S.E.2d 789 (N.C.Ct.App.1998), disc. rev. improvidently allowed, 349 N.C. 349, 507 S.E.2d 39 (N.C.1998). This would be true if Ryan contradicted Love, but it does not. In Ryan, a medical resident signed a written employment contract that expressly included by reference a student manual. Ryan, 494 S.E.2d at 790. The Ryan court sustained a breach of an ‘educational contract,’ but limited its review to ‘an identifiable contractual promise that the University failed to honor.’ Id. at 790-91. Thus, Ryan did not contradict the basic rule articulated in Love that a non-binding student policy manual, without more, is not a binding contract.
“Plaintiff also contends that because the Ryan court ‘relied extensively on Ross v. Creighton Univ., 957 F.2d 410 (7th Cir.1992),’ this court should consider the Seventh Circuit’s holding. Ross serves as a putter, however, where Plaintiff needs a sand wedge to get out of the hazard. In Ross, the plaintiff was a scholarship basketball player who was recruited by Creighton University despite its knowledge that he was not educationally prepared for college academics. Id. at 411. Plaintiff alleged that Creighton had breached an identifiable promise to provide specific educational services in exchange for his playing basketball. Id. at 417. The court addressed the limited question of ‘whether the University had provided any real access to its academic curriculum at all.’ Id. Ross cautioned, however, against broad application of its holding: ‘We agree — indeed we emphasize — that courts should not take on the job of supervising the relationship between colleges and student-athletes or creating in effect a new relationship between them.” Id. (internal quotations omitted). This court, following Ross’s caution, declines to supervise the relationship between Plaintiff and Duke.”
The court also found that “reliance on the four student policy manuals as binding contracts is also impermissible because they can be unilaterally altered at any time. See Brooks v. Hackney, 329 N.C. 166, 404 S.E.2d 854, 857 (N.C.1991) (a contract without sufficiently definite terms is unenforceable); Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692, 695 (N.C.1974) (alleged contract that leaves terms open for future agreement is not enforceable). All of the manuals upon which Plaintiff relies have provisions allowing unilateral changes.”
The court concluded that the plaintiff “has failed to satisfy the first element of a breach of contract claim: existence of a valid contract. Accordingly, the defendants are entitled to a judgment on the pleadings.”
The court also found for the defendants on whether they breached the implied covenant of good faith and fair dealing. “(W)ithout a contract there is no implied covenant of good faith and fair dealing. Plaintiff states that ‘[i]n order to prevail on this claim at this stage, Defendants must convince the Court that no conceivable agreement exists between a student and university.’ Id. The issue presented to this court at this stage is not whether students and universities can conceivably enter into agreements, but whether Plaintiff and Defendants entered into the specific agreement to play golf described in the complaint. Because Plaintiff and Defendants do not have a valid contract, the covenant of good faith and fair dealing does not arise.”
Meanwhile, the tortious interference with a contract claim fell short because under North Carolina law, a plaintiff must show, among other things, that a valid contract between the plaintiff and a third person, conferring upon the plaintiff some contractual right against the third person, exists. This element was not satisfied, according to the court.
The plaintiff’s promissory estoppel and declaratory judgment claims also came up short, primarily because there was no valid contract.
Giuliani v. Duke University and Orrin Daniel Vincent III; M.D. N. C.; No. 1:08CV502.
Attorneys of Record: (for plaintiff) Robert C. Ekstrand, Ekstrand & Ekstrand, LLP, Durham, NC. (for defendants) James Donald Cowan, Jr., Dixie Thomas Wells, Ellis & Winters, LLP, Greensboro, NC, James P. Cooney, III, Womble Carlyle Sandridge & Rice, PLLC, Charlotte, NC.


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