Promises to Keep? Coaches Tubby Smith, Jimmy Williams and Lessons Learned in 2012
Epstein, Adam, Lowenstein, Henry, Southern Law Journal
Contract law principles have remained relatively constant and stable for centuries, including fundamentals such as the implied duty of good faith when bargaining and freedom of contract generally.* 1 One of the fundamental principles in contract law is whether or not a promise made to another is legally enforceable in the first place.2 An unenforceable promise made to another, whether in the employment context or other transaction, is characterized as being a nudum pactum, often referred to as a non-binding, gratuitous or illusory promise that lacks the element of consideration to form a contract.3 Put differently, there must be a "this for that" or quid pro quo between the promisor and the promisee.4
On the other hand, once an enforceable promise has been established, thereby becoming the basis for an enforceable contract, it is generally not the role of courts to undo these agreements which are sometimes referred to as being sacred.5 This principle is characterized as pacta sunt servanda, translated as "agreements must be respected."6 In fact, the sanctity of upholding a legally binding agreement is found in the U.S. Constitution itself.7 8 A contract is intended to represent the intent of the parties, to ultimately serve as a tangible, written vehicle to memorialize the parties' mutual assent, and to define the boundaries and four-comers of the obligations and duties of the parties. It often times also addresses the possible consequences of actions outside those agreed boundaries in the form of agreed-upon or liquidated damages.9
The competing legal doctrines of nudum pactum and pacta sunt servanda collided at the University of Minnesota (UM) beginning in 2007 when UM was in the process of forming a new basketball staff.10 The primary purpose of this article is to explore the 2012 legal decision that stemmed from an employment-related fiasco when Coach Orlando Henry "Tubby" Smith first formed his staff at UM and asked a coach from Oklahoma State University (OSU) to join him as an assistant coach.* 11 Smith's offer, however, proved not to be a legally binding offer, at least according to the Minnesota Supreme Court, because Smith apparently did not have the authority to make the offer in the first place.
To make matters worse, Jimmy Williams, the assistant coach who accepted Smith's solicitation, was declared by the Minnesota Supreme Court majority to have been sophisticated enough to know that such offers of employment need bureaucratic approval before being relied upon at this level of college sports.13 After reading this decision, one must ponder the implications of this "sophisticated parties" test in employment offers at least as posed now in Minnesota.14
A study of the Minnesota Supreme Court decision 2012, Williams v. Smith, provides an excellent example for instructors particularly in the context of contract law, tort law and employment law. The case does not center upon whether or not an enforceable promise was made to Williams, but the decision focuses on tort law rather than contract law in its analysis. In fact, the court did not address whether or not a contract had been formed from the outset, whether the alleged offer (and subsequent reliance by Williams) constituted a breach of contract, or whether it even rose to the level of detrimental reliance, also known as promissory estoppel.15 This judicial decision focused instead on one issue only-negligent misrepresentation-the tort akin to fraudulent misrepresentation but without the intent to deceive.16 From the outset, the issue was isolated as to whether the court "...should extend the protection against negligent misrepresentation to prospective employees of the University of Minnesota..."17
This article is divided into three parts. Part II addresses the tort of negligent misrepresentation and how several states approach this tort in the statutory employment context. This includes a brief discussion of the employment-at-will doctrine as relating to negligent misrepresentation in pre-employment offers. …