Panic Street Lawyer: Jam on the Job, Part II

Sunday, 04 August 2013 06:00 AM Written by  Jay Hornack

20130804msclip contract150So let me get this straight …

Last week I observed that it was the opinion of a unanimous Supreme Court of Iowa that a female dental assistant could be legally fired by her male dentist employer because the employer (and his wife) found the assistant too attractive. Also, last week an Atlantic County, New Jersey Superior Court judge ruled that female cocktail servers could be legally fired by their casino employer because the business owner found the servers not attractive enough.

While these two state court decisions consistently held that neither situation constituted job discrimination “on the basis of sex,” I worry about one consistent message being sent by these (male) judges to girls and young women who are thinking of future careers: remember that employee appearance is still an employer trump card.

But the second analysis in my two-part PSL on summertime state employment law decisions is not the case of the so-called “Borgata Babes.” Rather, it is about a case involving a different exception to the common law employment at will doctrine: the existence of a written employment contract.

In the Court of Common Pleas of Portage County, Ohio

20130804wap genoford150Coach Gene "Geno" Ford. Associated PressAt the completion of his senior season at Cambridge High School (The Fighting Bobcats!), Gene A. “Geno” Ford was named Ohio Mr. Basketball in 1993 by the Associated Press. He ranks third in the history of Ohio high school boys basketball scoring, 34 points ahead of a certain 2003 graduate of Akron St. Vincent-St. Mary High School.

Ford’s first basketball-related job was as assistant men’s basketball coach at Ohio University, where he had played four years of college ball (he ranks fifth in OU career scoring). After brief stints as head coach of Division II and Division III programs, he became head men’s basketball coach at Division I Kent State University in Kent, Portage County OH in 2008 at age 33. Ford initially signed a four-year employment contract with KSU, and then in 2010, the university gave the coach a new 5-year deal (with a 50% annual salary increase).

Did Ford’s 2010 contract have a clause which only permitted Kent State to terminate his employment for “just cause?” Or did the contract have notice and financial protections for Ford which depended on whether a firing by Kent State was with or without “just cause?” These are the typical legal questions when an ex-employee sues an employer alleging a breach of a written contract. But in this court case, filed in April 2011, Ford was the defendant, not the plaintiff.

Kent State sued Ford for breach of contract after Ford left Kent after the end of the Golden Flashes’ 2010-2011 NCAA men’s basketball season to accept the head coaching job at Bradley University in Illinois. Although Ford still had 4 seasons left on his latest KSU contract, that university was not seeking specific performance. Instead, Kent wanted Ford to pay it “termination costs,” which under his contract was “the balance of the then-current total annual salary due for the remaining amount of the term” of the contract, less retirement deductions. Since Coach Ford’s yearly salary was $300,000, Kent was seeking liquidated damages equal to $1.2 million, less retirement deductions.

20130804 kentstate150Ford was in a bit of a jam, since his Bradley U contract only agreed to pay him an extra $400,000 towards KSU’s liquidated damages (on top of his new $700,000 annual base salary, that is). And this July 12, upon cross-motions for partial summary judgment, Portage County Common Pleas Judge John A. Enlow ruled that (1) Ford had in fact breached his employment contract when he never returned to KSU after signing the Bradley U contract and (2) Kent State was entitled to the stipulated damages of $1.2 million, less retirement deductions, from Ford.

This July 12 decision received limited sports media coverage, but some in the press predicted a nationwide impact on U.S. college athletic department hiring decisions. However, Judge Enlow held off deciding one other big summary judgment motion filed by Kent State, against defendant Bradley University -- although we only had to wait an additional twelve days for the proverbial other Nike Men’s LeBron X basketball shoe to drop.

20130804 bradleyuniversity150On July 24, Judge Enlow ruled that Bradley University had tortuously interfered with Kent State’s contract with Ford, despite the fact that Ford was given permission in March 2011 by Kent State to talk with institutions interested in his services. Judge Enlow has scheduled an October 7 trial start date on the issue of tort damages.

I have two concluding comments. First, forget being a BracketBuster – if an Ohio jury awards the $1.6 million in damages that KSU is seeking, small (approximately 5,200 undergrads) Bradley University’s athletic department might find that to be a budget buster.

Second, by my count, Kent State’s three victories last month evened the all-time series versus Bradley in men’s basketball at 3-3 (see page B20 here).

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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