KO - A tough spot to be in

[BlueDogs]

I thought it was shared equally.

Yes, I meant he will bear his half not the Union.

 

[Danzz]

The contract does not appear to distinguish between major and minor violations. If Ollie did it, any violation will do; if it was a player, coach or staffer, they have to show that he knew it was a violation and didn't do anything about it in a timely manner.

I see your point but an arbitrator may see it different since the arbitrator's job is to negotiate a settlement.

 

[huskyrob1]

KO is in a tough spot. As another poster indicated yesterday, he has about $2.3 million of more payments to his ex wife, if the “for cause” sticks, how does he tell a judge to modify down rather than take from his other assets?

Not a good place to be in and given his life style not something that will make the negotiating easier. It will be very hard for KO to settle for $3 million when his ex would get 3/4ths of it

That recruits mom probably gets a piece as well. Lol

 

[BlueDogs]

Read 10.6 in link above? Don't have time to screenshot it.

You need to start with Article 10 of KO's contract (specifically Section 10.1 (d) and (e) which incorporates by reference the collective bargaining agreement grievance provisions in a "just cause" termination. 10.6 uses a permissive ("may") in regards to the union going to arbitration. The problem is the grievance process in KO's contract is a personal contract right and I don't think the union can prempt or deny him the exercise of his right to recourse for a contract breach. I suppose it could be a bifurcated inquiry where the issue of "just cause" is arbitrated and the decision becomes dispositive on the issue of contract breach. But, an arbiter could decide to render an award on the whole matter (which I've seen before and the court will defer to the scope of the arbiter's jurisdictional determination unless there is express language limiting scope of what may be considered in controversy). The issue in my mind is both lawyers made a mess in different areas and it was not thought through very well....

 

[SouthBayHusky]

I see your point but an arbitrator may see it different since the arbitrator's job is to negotiate a settlement.

A lot of people mix this up. But, a mediator’s job is to get the sides to reach a settlement. That is, mediation is a non-binding process where the mediator try to get both sides to see the weaknesses of their case and pushes them to reach settlement. Conversely, an arbitrator acts like a judge in ruling on the contract dispute.

 

[ZenConn]

View attachment 29371

LOL!!! At first glance, those arms and hands reminded me of Han Solo being frozen in carbonite until I saw the other part ....

 

[huskymedic]

I see your point but an arbitrator may see it different since the arbitrator's job is to negotiate a settlement.

Arbitor is not a mediator... the Arbitor rules on contract language disagreements/interpretations. This will be about whether there was just cause to terminate or not. (see language in Arbitration thread towards end of thread).

 

[8893]

Is there a interval of time that the university must act to claim just cause?

I haven't scoured the CBA, but his contract has a provision that requires the University to provide him notice of a default and an opportunity to cure; I don't think it necessarily applies to "just cause" but other provisions may.

Arbitration is mandatory because that is the dispute resolution method in KO's contract.

It's not technically a union matter because the KO contract stipulates only that the dispute resolution provision in collective bargaining agreement applies. Since it is a personal contract between UConn and KO and the union is not a party to KO's contract, KO will have standing to require arbitration and the university likewise must use arbitration. It's a terribly constructed contract. He will bear the cost of arbitration.

Where do you see mandatory arbitration in Ollie's contract? I see an incorporation of the CBA procedures, which I believe has permissive language--not mandatory--and suggests the possibility of de novo judicial review instead (which, again, would be my clear preference).

 

[Chief00]

Really hard to feel even an ounce of sympathy to be honest.

KO being in a tough spot doesn’t make bringing this to a quick conclusion easier. When I let an employee go, I try to help them find a job. That’s the best protection against a lawsuit.

 

[Chief00]

Puts the donors in a tough spot. Our program is up in flames and the guy that lied to them needs their help to buyout the coach that drove it into the ground.

I think Dave has that covered. Fair or unfair there are categories of donors. Whoever, you are referring to - perhaps Dave did not need their help - so they may have misread things - I don’t know?

 

[BlueDogs]

I haven't scoured the CBA, but his contract has a provision that requires the University to provide him notice of a default and an opportunity to cure; I don't think it necessarily applies to "just cause" but other provisions may.

Where do you see mandatory arbitration in Ollie's contract? I see an incorporation of the CBA procedures, which I believe has permissive language--not mandatory--and suggests the possibility of de novo judicial review instead (which, again, would be my clear preference).

The just cause aspect comes of KO's contract- see the contract Sections I referenced above (I think 10.1 (e)). It says if termination is grounded in just cause, Section 13 of the Collective Bargaing Agreement applies.

As to the other point, courts routinely interpret arbitration provisions as mandatory and binding in the absence of express language otherwise. If a party were to commence a case in court, there is strong likelihood is would be removed by a moving party wanting arbitration. The reason is there is a strong preference to move cases out of the courts (judicial economy). But, Connecticut has a fairly unique prejudgment remedy process that does permit a PJR even if there is an arbitration required on the merits. I don't think the PJR route helps much in Ollie's case except that in a PJR a court must find that the applicant is more likely than not to prevail on the merits (its kind of a mini-trial) which results in interim relief such as an attachment of assets. The arbitration panel however is not bound by the court's preliminary finding, but it can influence it.

Finally, courts will jump through extraordinary hoops to avoid any de novo review of a case adjudicated in arbitration. Maybe a judge would take a run at it because it is a high profile matter and wants a little publicity.

I haven't spent enough time on these contracts to tease out the finer points. There is a referential defect though resulting from incorporated language that may vitiate the mechanics.

 

[SirHypeAlot]

I think Dave has that covered. Fair or unfair there are categories of donors. Whoever, you are referring to - perhaps Dabe did not need their help - so they may have misread things - I don’t know?

At the end of the day the money wants to see the program succeed. Differences will be put aside and the checks will be written. The quills are dipped in ink at this point -waiting on the signal

 

[8893]

The just cause aspect comes of KO's contract- see the contract Sections I referenced above (I think 10.1 (e)). It says if termination is grounded in just cause, Section 13 of the Collective Bargaing Agreement applies.

As to the other point, courts routinely interpret arbitration provisions as mandatory and binding in the absence of express language otherwise. If a party were to commence a case in court, there is strong likelihood is would be removed by a moving party wanting arbitration. The reason is there is a strong preference to move cases out of the courts (judicial economy). But, Connecticut has a fairly unique prejudgment remedy process that does permit a PJR even if there is an arbitration required on the merits. I don't think the PJR route helps much in Ollie's case except that in a PJR a court must find that the applicant is more likely than not to prevail on the merits (its kind of a mini-trial) which results in interim relief such as an attachment of assets. The arbitration panel however is not bound by the court's preliminary finding, but it can influence it.

Finally, courts will jump through extraordinary hoops to avoid any de novo review of a case adjudicated in arbitration. Maybe a judge would take a run at it because it is a high profile matter and wants a little publicity.

I haven't spent enough time on these contracts to tease out the finer points. There is a referential defect though resulting from incorporated language that may vitiate the mechanics.

Well aware of all of this and have litigated both sides many times, including the PJR in aid of arbitration. I disagree with your take on the language and what a court would do with it; and I believe there are at least a couple other remedies available to KO. But that’s not surprising and since neither one of us is getting paid to represent either side I will leave it there.

 

[August_West]

Well aware of all of this and have litigated both sides many times, including the PJR in aid of arbitration. I disagree with your take on the language and what a court would do with it; and I believe there are at least a couple other remedies available to KO. But that’s not surprising and since neither one of us is getting paid to represent either side I will leave it there.

 

[Ewekon]

Step up Bob Kaufman

 

[dennismenace]

You need to start with Article 10 of KO's contract (specifically Section 10.1 (d) and (e) which incorporates by reference the collective bargaining agreement grievance provisions in a "just cause" termination. 10.6 uses a permissive ("may") in regards to the union going to arbitration. The problem is the grievance process in KO's contract is a personal contract right and I don't think the union can prempt or deny him the exercise of his right to recourse for a contract breach. I suppose it could be a bifurcated inquiry where the issue of "just cause" is arbitrated and the decision becomes dispositive on the issue of contract breach. But, an arbiter could decide to render an award on the whole matter (which I've seen before and the court will defer to the scope of the arbiter's jurisdictional determination unless there is express language limiting scope of what may be considered in controversy). The issue in my mind is both lawyers made a mess in different areas and it was not thought through very well....

Thanks. Great post.

 

[BlueDogs]

Well aware of all of this and have litigated both sides many times, including the PJR in aid of arbitration. I disagree with your take on the language and what a court would do with it; and I believe there are at least a couple other remedies available to KO. But that’s not surprising and since neither one of us is getting paid to represent either side I will leave it there.

My point is KO will want arbitration and will have standing to get it. Otherwise, I agree.

 

[8893]

My point is KO will want arbitration and will have standing to get it. Otherwise, I agree.

Oh I agree he can get arbitration if he wants it; if I were representing him I would most likely advise him to opt for court instead.

The question for me--and I don't know the answer--is whether the commission of a "just cause" offense gives University the option to terminate him at any time of its choosing, even if it sits on it for months (or more) after its discovery of the offense(s) and awaits his season-end performance to exercise that option. To my mind, that creates an opening for the argument that the "just cause" offense was not the reason for the termination, and that poor performance, which is not grounds for termination (without pay) was the real reason. If there is a prior history of the University tolerating similar or worse offenses, that could also affect the analysis. I know the discrimination context is not directly applicable to strict contract analysis (and I don't want to go down the discrimination road), but I wonder if those circumstances couldn't form the basis for a claim by Ollie that the University breached the covenant of good faith and fair dealing by using the pretext of a technical "just cause" offense, on which it sat, to fire him for poor performance, which is not a fireable offense under his contract.

In other words, if the "just cause" offense(s) is/are the real reason they are firing him, why didn't they fire him when they first learned of the offense(s)?

If I was KO, I think I would rather have a judge and jury decide those issues than an arbitrator.

 

[intlzncster]

Oh I agree he can get arbitration if he wants it; if I were representing him I would most likely advise him to opt for court instead.

If I was KO, I think I would rather have a judge and jury decide those issues than an arbitrator.

Depends on whether or not there are things you don't want laid bare for public consumption.

 

[8893]

Depends on whether or not there are things you don't want laid bare for public consumption.

Could cut both ways.

 

[August_West]

Oh I agree he can get arbitration if he wants it; if I were representing him I would most likely advise him to opt for court instead.

The question for me--and I don't know the answer--is whether the commission of a "just cause" offense gives University the option to terminate him at any time of its choosing, even if it sits on it for months (or more) after its discovery of the offense(s) and awaits his season-end performance to exercise that option. To my mind, that creates an opening for the argument that the "just cause" offense was not the reason for the termination, and that poor performance, which is not grounds for termination (without pay) was the real reason. If there is a prior history of the University tolerating similar or worse offenses, that could also affect the analysis. I know the discrimination context is not directly applicable to strict contract analysis (and I don't want to go down the discrimination road), but I wonder if those circumstances couldn't form the basis for a claim by Ollie that the University breached the covenant of good faith and fair dealing by using the pretext of a technical "just cause" offense, on which it sat, to fire him for poor performance, which is not a fireable offense under his contract.

In other words, if the "just cause" offense(s) is/are the real reason they are firing him, why didn't they fire him when they first learned of the offense(s)?

If I was KO, I think I would rather have a judge and jury decide those issues than an arbitrator.

Could cut both ways.

Thank you.

Im no lawyer, I just beat them up on the Cesspool, but that is what Ive been trying to say here for days in a far less eleoquent, reasoned manner.

 

[8893]

Thank you.

Im no lawyer, I just beat them up on the Cesspool, but that is what Ive been trying to say here for days in a far less eleoquent, reasoned manner.

That's because you have a good gut.

 

[CL82]

Oh I agree he can get arbitration if he wants it; if I were representing him I would most likely advise him to opt for court instead.

The question for me--and I don't know the answer--is whether the commission of a "just cause" offense gives University the option to terminate him at any time of its choosing, even if it sits on it for months (or more) after its discovery of the offense(s) and awaits his season-end performance to exercise that option. To my mind, that creates an opening for the argument that the "just cause" offense was not the reason for the termination, and that poor performance, which is not grounds for termination (without pay) was the real reason. If there is a prior history of the University tolerating similar or worse offenses, that could also affect the analysis. I know the discrimination context is not directly applicable to strict contract analysis (and I don't want to go down the discrimination road), but I wonder if those circumstances couldn't form the basis for a claim by Ollie that the University breached the covenant of good faith and fair dealing by using the pretext of a technical "just cause" offense, on which it sat, to fire him for poor performance, which is not a fireable offense under his contract.

In other words, if the "just cause" offense(s) is/are the real reason they are firing him, why didn't they fire him when they first learned of the offense(s)?

If I was KO, I think I would rather have a judge and jury decide those issues than an arbitrator.

Interesting take. I guess it depends on the nature of the offense(s) whether Ollie would prefer a public or private(ish) resolution. What do you think of the University's inevitable counter argument that the terminating coaches at the end of the season is the industry standard which the contract could have, but did not, modify?

 

[8893]

Interesting take. I guess it depends on the nature of the offense(s) whether Ollie would prefer a public or private(ish) resolution. What do you think of the University's inevitable counter argument that the terminating coaches at the end of the season is the industry standard which the contract could have, but did not, modify?

I think that would also depend on the nature of the offense(s), and the extent to which the University has tolerated similar or worse from others without terminating them.

The more fact-intensive the better for KO imo, especially with a jury. If it is strictly a legal issue, I think it might be hard to get an AAA arbitrator to think outside the box.

 

[huskymedic]

As far as the timing, I still want to know what happened between when the NCAA was reported to be on campus on February 27th and the decision to begin the process to terminate for just cause 10 days later (other then the end of the season).

Thinking it was more than a coincidence when you fold in the previous reports of recruiting practices investigation and the revelation of Adams/Larrier summer practice issue. Did the NCAA path become clearer?