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Question 1

(a). The employee has self-reported as is required of him, which is a positive aspect. As an employee, coach Crean is supposed to adhere to the contract terms, rules, and regulations to safeguard his employment. The university can fire coach Crean, and this can be supported by arguing that the coach’s conduct of reckless driving was irresponsible and violated the University’s mission of discipline. The fact that he was charged for this offense amounts to indiscipline and irresponsible character. The University can, therefore, argue that he is a negative role model to the student, especially members of the male basketball team he coaches, for they are young people whose conduct can significantly be influenced by their instructors’ actions.

Article 6.02 subsection b (5) can be presented by the University and used against Crean. This clause, however, if read in full, says “minor traffic offenses” are not enough for the university to terminate employment. Should the university decide to highlight the coach’s traffic law violation as the bases for termination, the defense can demonstrate that it is a minor traffic offense and use Article 6.02 subsection B (2) of the contract to support the assertion. Subsection b (5) opines that if the University employee’s actions are found prejudicial to the Athletics Department, and if this violation according to the University creates a negative image of the University, then the employee can be relieved of his duties. The defense can still quash subsection 5 should the university use it against on reckless driving charge. Whereas the act amounts to a violation of the university’s image considering that the coach is the image of the university, it still remains a minor traffic offense that cannot cost the coach his job according to contract.

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The University may have stronger argumentation than the defendant; however, it is the defense’s duty to safeguard the client’s interest at any given time by using the plaintiff’s weakness and clearly articulating every clause that may be used for the defense. To prepare for this case, the following information is needed.

In the coach’s defense, our team can argue that while the coach was outside the University, he was a private citizen but not a representative of the University. The defense would need to specify that there are certain occasions when the coach’s actions equal to those of the University, such as holding promotions, participating in competitions, or performing tours or practice of the basketball team outside the University. Under these particular circumstances such details as the coach’s dress code, type of vehicle, etc. are relevant to the University’s image, especially if clothes or vehicle is branded Bearing this information, the defense can argue that, as the coach was not representing the University, due to the fact that he was not accompanied by his assistants, he was not wearing his coaching uniform, he was not using the University branded vehicle when he was over speeding, he did not declare during his arrest that he represents the University, he was, therefore, arrested as Mr. Crean, but not as IU basketball head coach.

(b). There certainly is a problem should coach decide to resign on 31st December and begin coaching North Carolina on 1st January. The employment contract terms states that in the event that an employee decides to leave before the ordinary expiration date specified in the contract, he/she can perform so by handing in a thirty (30)-day prior notice in writing to the University notifying them of his resignation. In this notice, according to the contract, the employee is obligated to inform the University about his employment plans following his decision to quit. The coach will not have time for the 30-day prior notice that he is supposed to present. This means that should coach decide to leave, he can be sued and the University would claim liquidated damages for breach of the contract.

This is a difficult decision for Coach Crean to make. It requires a deep analysis of benefits of him leaving and cost of such action. The liquidated damages amount to six million dollars, with three million payable in first three years, two million payable between fourth and fifth year, and one million between sixth and tenth year. It is the abovementioned expenses and the offered ten million dollar that he should choose between. It is advisable that he should consider the clauses in the new offer and other important details, such as contract period and other benefits. This should be compared to the present contract with IU, and then the coach should decide on which benefits outweigh.

Question 2

Under the contract, Article 6.02.E, IU can at any given time terminate the employment contract without cause before the expiration of ordinary date of the contract as stated therein. However, it is important to notify that the IU is required to present a written notice to the coach informing him/her on the decision. Another important aspect concerns the fact that, according to this Article, the notice (written) shall take effect no earlier than the day it is composed or ten days after the receipt of the notice by the coach.

It is expected, according to this contract, that the employee shall within thirty days pay the liquidated damages starting from the day that he/she ceased to be an employee. It, therefore, means that if Crean decides to leave based on available information on the intent to remove him, he should be prepared to pay the liquidated damages within thirty days after handing in a letter of resignation.

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On the other hand, if the Hong Kong team decides to hasten the process (although this is provided by the indicated facts), then within fifteen days the liquidation damages should be covered by the third party, or Hong Kong basketball team in this particular case.

It is the decision of the IU to relieve Crean of his position; therefore, Section 6.02.E will be applied. Under this clause, the University is obligated to pay the employee the lesser of his basic salary for the remainder of the contract period. Another option available to the University is to pay three million dollars in installments (monthly) after the necessary statutory deduction, such as withholding taxes, is made. By the time the University decided to terminate Crean’s contract, his basic salary has amounted to fifty thousand dollars per month; moreover, the coach has other benefits, such as medical insurance, automobile, and many others. He is also entitled to outside marketing and promotional incomes, as outlined in Section 4.05.

Section 6.02 (G) provides the employee with an opportunity to seek other employment without an obligation to mitigate university’s base salary. The clause outlines certain opportunities that the coach can pursue in order to obtain comparable employment to that of the head coach; they include a media commentator, a coach or an assistant coach, a men’s basketball coach at division I of college or university. However, it should be taken into consideration that after finding an equivalent position, for the purposes of Provision G of Section 6. 02, the University will only be obligated to offset and reduce total compensation received by the employee from such position in comparison to salary continuation without including employee benefits. This means that during the period when Crean is entitled to his terminal benefits, he will receive a monthly earning of $50,000 (600,000 (Annual basic salary / 12 months); however, when he gets the Hong Kong coaching job, this amount will be calculated as New annual salary/ 12 months. IU will pay Crean (the difference) if new Hong Kong’s contract income is below $50,000, which he is supposed to receive. This means that the coach is supposed to maintain communication with the University for the period of first three months and sixth months after leaving in order to notify it of all compensation payments received by him in person or his affiliate during the abovementioned periods.

Under section 6.02.H, the coach may lose his right to terminal benefits if he fails to sign a Release form, and this form’s contents may vary from time to time. Therefore, it may be stated that his terminal dues are payable on the condition that he signs the Release form, and this condition substantially affects the terms of offer and acceptance. This clause can be regarded as coercion, because as an employee, the coach is legally entitled to his terminal dues, but they are provided under certain conditions, failure to meet which may release the University from any payments.

Question 3

1. Concerning the coach’s involvement in professional wrestling, the university cannot do anything to prevent him from such activity. The only means that the university can apply is to make it unattractive for the coach to continue participating in the game. This can be achieved by enforcing section 4.05 subsection B (4) of the contract. According to this clause, the employee is supposed to obtain from the Athletics Director a prior approval in writing before entering into any agreement that earns the coach an income either directly or indirectly. If this clause is applied, it would mean that whatever the coach earns at his professional wrestling matches has to share with the university. This would make part-time wrestling unattractive to the coach.

2. On the question of hiring an assistant coach, three points emerge. The first one concerns the authority to hire. Under article 8 section 01, the coach has the authority to recommend hiring an assistant coach for the men’s basketball team to the Director of Athletics. On the basis of the above section, the coach has no power to hire an assistant coach on his own.

The second point about this issue is to whom the coach should report should he have a recommendation for hiring an assistant coach, and the answer is to the Director of Athletics, whose approval is required first. The decision to address the President directly was misguided and not supported by the contract. This, therefore, means that the coach did not follow the correct procedure when handling the matter.

Regarding the legality of assistant coach hiring, the coach acted in contravention of the contract he signed, for the university does not approve of hiring the assistant coach. The fact that the coach has discussed the issue with the President and received approval to hire an assistant may be raised by the coach; however, the Athletic Director/ UI can argue that the procedure of hiring was not followed, thus making the process null and void.

With reference to assistant coach’s moving from Rhode Island and buying a new house, this fact should be of serious concern to the university. The onus, however, shall be on the complainant (Assistant coach) should he decide to file a case claiming damages for moving and not getting the job, as to how the university is liable. Due to the fact that the case does not indicate whether the assistant coach had signed a contract or not, this should be an area for the university to explore. There was no contract between the university and the litigant (should he chose to file a case), and, therefore, the university is not in a predicament with the assistant coach for refusing coach Crean’s approval. Nevertheless, to the coach’s Crean point of view, the University bears the responsibility. Although it is the Director of Athletics who should approve hiring of an assistant coach, Crean went to the President, who is obviously superior to the Director of Athletics. So, if coach Crean can prove beyond reasonable doubt that he received the President’s approval, he can claim that the appointment was ratified, and if that becomes the case, the university has legal responsibility to the assistant coach.

3. On the issue of NCAA investigating the basketball program for recruiting violation, Article 4.05.B.14 states that the coach’s employment may be terminated if the coach submits false documents, including those of recruit players, to the NCAA. Therefore, as this matter is not defined, should it be proved in the course of investigations that there are any violations, then the coach can be suspended without pay as investigations continue.

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As far as Article 6.02.C is concerned, if the university has any reason to believe that it has a cause to terminate the employment contract, the employer has the right upon writing to the employee to notify him/her of his/her suspension; otherwise, the university may preserve the payment until the investigations are complete and the employee is notified in writing to resume his/her duties.

4. Regarding the fact that Crean is not happy about two automobiles, Article 4.03. E states that the university shall provide the coach with two late models automobiles on a loan basis. This, therefore, means that the university is supposed to give a loan to Crean to purchase two vehicles to use during the contract terms. It should also be noted that the university is expected to ensure that the automobiles are mutually acceptable to both parties. The fact that Crean is not happy means that the university has to fulfill its obligation of ensuring that the vehicles are acceptable to the coach. The University should handle Crean’s demand for a new BMW and at least one-year old Chevy Suburban. If a new BMW is not possible, the university should negotiate a loan to the coach so that he gets a vehicle that is acceptable to the university. The coach should, therefore, remember that the university lends him money; however, concerning the choice of automobile, the coach’s opinion prevails.