Tosh and legal issues...lawyers around?

BearsLair72

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1:55p, 1/18/12

I have to liken this to business and I posted something earlier about this, but it seems the situation has changed as we now know. It seems that, if true, Tosh The Turncoat was actively recruiting for UW BEFORE he resigned. <br /><br />Now in business, let's say I worked for Oracle selling software and a day or two before I quit and take a job with SAP, I take my customer list and start calling all my accounts to tell them that I am leaving and that they shouldn't be buying Oracle, but rather should now be looking at SAP where I am headed in the next few days. I am doing this in collusion with my new VP of Sales who is telling me that this is what he wants done. If this happened, and it has, I would immediately expect:<br /><br />1. A legal injunction to cease and desist and an order to no longer contact my accounts as they are trade secrets.<br />2. A huge lawsuit by Oracle for damages.<br /><br />Isn't this the EXACT same situation? So, maybe a lawyer here can tell me why aren't we getting an immediate injunction and getting all the Boalties to sue the bejesus out of Sark and UW?<br /><br />:headbang

KoreAmBear

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In reply to BearsLair72 • 2:04p, 1/18/12

There is a lot of case law for the enforceability of non-compete clauses in commercial settings. Courts generally do not want to enforce these unless it's restricted in time and manner. Two problems with this situation. First, I doubt assistant coaches/recruiters have non-compete clauses embedded in their contacts (let me know if that's wrong). Second, courts will be loathe to assert jurisdiction where there is already an administrative jurisdiction that could rule on these types of issues (NCAA). Courts would want Cal to exhaust its administrative remedies first, if there are any private remedies in NCAA admin court. However, usually the NCAA acts sua sponte (on its own) not at the behest of another institution or else the SEC would be in NCAA admin. court every day. Bottom line, I doubt this is actionable.

mbBear

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In reply to BearsLair72 • 2:04p, 1/18/12

ColoradoBear

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In reply to KoreAmBear • 2:12p, 1/18/12

<blockquote><div class="name-said">KoreAmBear;683779 said:</div><hr>There is a lot of case law for the enforceability of non-compete clauses in commercial settings. Courts generally do not want to enforce these unless it's restricted in time and manner. Two problems with this situation. First, I doubt assistant coaches/recruiters have non-compete clauses embedded in their contacts (let me know if that's wrong).<hr></blockquote><br /><br />I get the idea of the non-compete, and have heard they are virtually unenforceable in CA -> but this seems like a separate issue - Tosh.HO is still UNDER contract with UC at the time he is working against UC; it's not that he had left UC, is not under contract with anyone, and then has to sit out a while before taking a new job as a non-compete would have him do. So is there any kind of enforceable breach of contract? which also opens up UW for interference?

KoreAmBear

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In reply to ColoradoBear • 2:17p, 1/18/12

<blockquote><div class="name-said">ColoradoBear1;683804 said:</div><hr>I get the idea of the non-compete, and have heard they are virtually unenforceable in CA -> but this seems like a separate issue - Tosh.HO is still UNDER contract with UC at the time he is working against UC; it's not that he had left UC, is not under contract with anyone, and then has to sit out a while before taking a new job as a non-compete would have him do. So is there any kind of enforceable breach of contract? which also opens up UW for interference?<hr></blockquote><br /><br />Yes, I guess you have a breach of the covenant of good faith and fair dealing in contracts (which is actually a tort), that I think is actionable under California law. But these are case by case determinations and I'm sure Tosh's lawyers F.Lee Bailey and Robert Shapiro (joking) will have some defenses to muddy up the circumstances.

GoCal80

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In reply to ColoradoBear • 2:18p, 1/18/12

Is this something in which the Pac12 commissioner might get involved?

calumnus

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In reply to GoCal80 • 2:22p, 1/18/12

<blockquote><div class="name-said">GoCal80;683816 said:</div><hr>Is this something in which the Pac12 commissioner might get involved?<hr></blockquote><br /><br />Yeah, I think it is something that the Pac-12 and the university presidents would be concerned about. I don't think the new TV contract brings us much prosperity if we just use the money to napalm each other.

SmellinRoses

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In reply to mbBear • 3:01p, 1/18/12

Yes, let's revisit on the 2nd.

PDXDuckFan

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In reply to ColoradoBear • 3:05p, 1/18/12

<blockquote><div class="name-said">ColoradoBear1;683804 said:</div><hr>I get the idea of the non-compete, and have heard they are virtually unenforceable in CA -> but this seems like a separate issue - Tosh.HO is still UNDER contract with UC at the time he is working against UC; it's not that he had left UC, is not under contract with anyone, and then has to sit out a while before taking a new job as a non-compete would have him do. So is there any kind of enforceable breach of contract? which also opens up UW for interference?<hr></blockquote><br /><br />Definitely don't do it before LOI day, if at all. It would be fairly easy to get some of your Lupoi signees to talk, though. Just explain to them how Tosh was being paid by the school you chose, how he was blatantly dishonest to the coach you chose, and how he actively was trying to sabotage the team you chose while still being paid by Cal.<br /><br />It's an interesting legal decision by Cal. Probably for the best to just let it go, though, and just kick UW's ass on the field as Lupoi finds out that recruiting California kids to UW for a pro-style offense/defense isn't the same thing as recruting California kids to Cal for a pro-style offense/defense.<br /><br />Actually, this reminds me of when UW stole Rick Neuheisel from CU in mid-January, 1999, and made him one of the highest paid coaches in NCAA football. 13 years later, they're on about their what, fourth do-over?

Looperbear

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In reply to BearsLair72 • 3:08p, 1/18/12

The claims are interference, unfair competition, maybe trade secrets. Tosh breached his duty of loyalty to Cal, recruiting for UW while employed at Cal, then took the contact information that he had acquired in the course and scope of his employment at Cal and used that information to help UW and Cal.<br /><br />Cal could go in and get a TRO against Tosh to prevent Tosh and those acting in concert with Tosh from contacting Cal's recruits. If Cal waits until after Signing Day, the horse has left the barn, at least for 2012's class.

Big C

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In reply to mbBear • 3:10p, 1/18/12

Looperbear

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In reply to PDXDuckFan • 3:16p, 1/18/12

<blockquote><div class="name-said">PDXDuckFan;683932 said:</div><hr>Definitely don't do it before LOI day, if at all. It would be fairly easy to get some of your Lupoi signees to talk, though. Just explain to them how Tosh was being paid by the school you chose, how he was blatantly dishonest to the coach you chose, and how he actively was trying to sabotage the team you chose while still being paid by Cal.<br /><br />It's an interesting legal decision by Cal. Probably for the best to just let it go, though, and just kick UW's ass on the field as Lupoi finds out that recruiting California kids to UW for a pro-style offense/defense isn't the same thing as recruting California kids to Cal for a pro-style offense/defense.<br /><br />Actually, this reminds me of when UW stole Rick Neuheisel from CU in mid-January, 1999, and made him one of the highest paid coaches in NCAA football. 13 years later, they're on about their what, fourth do-over?<hr></blockquote><br /><br />Was just talking to a Duck fan about the contrast with this situation and what JT did at Oregon. He refused to recruit any of Oregon's recruits.

SnoozerBear

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In reply to BearsLair72 • 3:16p, 1/18/12

<blockquote><div class="name-said">BearsLair72;683766 said:</div><hr> I take my customer list and start calling all my accounts to tell them that I am leaving and that they shouldn't be buying Oracle, but rather should now be looking at SAP where I am headed in the next few days.<hr></blockquote><br /><br />Its against the interests of the NCAA and the Pac-12 to allow recruits to be declared as some form of profit generating resource by some judge or the pac-12 commission.<br /><br />Its in no ones interest to touch this issue except for the Cal football program.<br /><br />If anything, this is a contractual issue between Cal and To$h. But from all indications, there were no clauses to prevent To$h's subsequent actions post departure.<br /><br />Bottom line is the program is not competitive enough compared to UW, and the blame rests somewhere between Tedford, AD, and the administration.

tequila4kapp

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In reply to Looperbear • 3:17p, 1/18/12

Proving damages may be a problem.

SnoozerBear

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In reply to tequila4kapp • 3:28p, 1/18/12

<blockquote><div class="name-said">tequila4kapp;683960 said:</div><hr>Proving damages may be a problem.<hr></blockquote><br /><br />Exactly, what kind of civil damages can you prove or claim? Rose bowl? How many sacks McCarthy was going to make? Ticket sales?<br /><br />There is no issue aside from the moral/ethic/loyalty standpoint.<br /><br />Just let it go. Hope that we can be smarter in assistant contratual agreements, and be more competitive in staff salaries.

Looperbear

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In reply to SnoozerBear • 3:30p, 1/18/12

<blockquote><div class="name-said">SnoozerBear;683994 said:</div><hr>Exactly, what kind of civil damages can you prove or claim? Rose bowl? How many sacks McCarthy was going to make? Ticket sales?<br /><br />There is no issue aside from the moral/ethic/loyalty standpoint.<hr></blockquote><br /><br />Don't need to prove damages, seeking injunctive relief (TRO/Preliminary Injunction).

SnoozerBear

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In reply to Looperbear • 3:33p, 1/18/12

<blockquote><div class="name-said">Looperbear;683999 said:</div><hr>Don't need to prove damages, seeking injunctive relief (TRO/Preliminary Injunction).<hr></blockquote><br /><br />Big picture here, more money in the pac-12 = more competitive environment = better coaches = better teams = better ratings = more money in the pac-12.<br /><br />No one has our interests, we are all we got. lol

march2397

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In reply to SnoozerBear • 3:35p, 1/18/12

Non-compete clauses are unenforceable in Cal except in connection with a sale of a business.<br /><br />Trade secrets are a different topic. Since recruits are known and even listed as verbals, I don't see any secrets violation.<br /><br />If Tosh breached his duty of loyalty to employer, you can fire him for cause. Satisfied?

PDXDuckFan

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In reply to Looperbear • 3:38p, 1/18/12

<blockquote><div class="name-said">Looperbear;683955 said:</div><hr>Was just talking to a Duck fan about the contrast with this situation and what JT did at Oregon. He refused to recruit any of Oregon's recruits.<hr></blockquote><br /><br />There was no bad blood at all when Tedford left for Cal, at least with my group of Oregon alumni and friends in life, and the vast majority of posters in various internet settings.<br /><br />I think the fact that Lupoi has yet to put out any sort of public statement tells me he is probably feeling some buyer's remorse, and he's young enough to be naive and think that what he did is perfectly acceptable, and how business works. I certainly understand Cal fans hating him now, but in a few months, or a few years, or 10 years, he'll understand why you're all outraged at him, and how what he did was ethically deplorable.

PDXDuckFan

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In reply to Looperbear • 3:41p, 1/18/12

<blockquote><div class="name-said">Looperbear;683999 said:</div><hr>Don't need to prove damages, seeking injunctive relief (TRO/Preliminary Injunction).<hr></blockquote><br /><br />Breach of contract/fraud would be a possibility if Lupoi really was recruiting for UW while still under Cal's employ.<br /><br />It would be tough to prove, though, and basically the word of Cal recruits versus a UW coach. The best-case scenario would be Lupoi ordered to give back some salary, but as posted earlier, it would be impossible to prove damages.<br /><br />I'm not sure it would be worth it to Cal to go after Lupoi, from an outsider's perspective, both monetarily and in terms of reputation. Hell, he just gave Cal all the ammo they need to recruit against him, anyhow, and you can't buy that type of information on a rival recruiter.<br /><br />That Lupoi apparently is being paid a bonus for each recruit is simply incredible to me as well. That can't be true, can it? That opens up an entire can of worms that could get real ugly, and real fast.

GoBearsBert

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In reply to calumnus • 5:32p, 1/18/12

<blockquote><div class="name-said">calumnus;683828 said:</div><hr>Yeah, I think it is something that the Pac-12 and the university presidents would be concerned about. I don't think the new TV contract brings us much prosperity if we just use the money to napalm each other.<hr></blockquote><br /><br />Better chance with commissioner and Pac-12 (or NCAA) "rules" than a courtroom.<br /><br />Even IF a legal action can be pursued (and as others have pointed out contracts may not be binding enough and damages hard to prove) it would have two major downsides:<br /><br />Short-term - even a TRO or some such can't prevent the 2012 class from changing their minds and going to another school. If anything it might make them more hostile to Cal. <br /><br />Long-term - Does Cal really want to be known as a program that sues coaches that take other jobs? THAT could do a lot of damage.<br /><br />No legal action possible, as I can see it. <br /><br />We have to suck this up...the best we can hope for is payback on the field, or via karma.

paul916

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In reply to GoBearsBert • 7:42p, 1/18/12

Most satisfying payback would be pointing at the scoreboard. My hunch is that Sark doesn't know jack about defense, and he knows it, almost to the point to panic (hence these sleazy moves). <br /><br />If we can put together a half-way decent offense, we can handle things on the field.