Wednesday, November 25, 2009

Are You Lionel Hutz in Disguise?

Imagine that you are a lawyer representing a defense contractor. Your client has a high-level executive who has not quite lived up to expectations. However, it would be somewhat costly to fire this executive. How do you advise the client to handle the issue? Well, if you're Clay Travis, you tell the client to admit to defrauding the government (regardless of whether the client committed actual, substantial fraud as opposed to de minimis violations) so you can fire the executive for cause. In the course of doing so, your client would expose itself to massive liability that would damage the ability of the executive's successor to do his job, not to mention the client's prospects to hiring a quality replacement in the first place. But hey, sometimes you have to destroy the village to save it, right?

I'm going to chalk Travis's suggestion up to Peyton Wuz Robbed Derangement Syndrome (hereinafter, "PWRDS") as opposed to the ramblings of an insane idiot. I've flipped through Travis's books at Borders before while my three-year old sampled the best of of The Backyardigans' offerings and they seem reasonably entertaining. (Clay's books, I mean.) Travis can write and he has some legal training. That said, his suggestion that Michigan trump up NCAA violations so it can fire Rodriguez for cause and negotiate a reduction in his buy-out is atrocious. He would have Michigan admit to major violations, thus practically guaranteeing that the NCAA will sanction the program for the first time. Michigan would be left in a spot where it would have to hire a successor while litigating with Rodriguez with probation hanging over the program.

Put yourself in Brian Kelly's shoes. Michigan wants you to replace Rodriguez. Are you chomping at the bit to take a job from a program that used meritless charges asserted by a sputtering newspaper and a columnist with an axe to grind to can another offensive guru who won big in the Big East? Are you dying to recruit at a program whose rivals are all telling prospects "Michigan is headed for probation and they are estopped from defending themselves against the NCAA. What does "estopped" mean? I dunno. I heard our lawyers use the term once."? Michigan would end up having to hire a second tier candidate, it would be on probation, and the football program would bleed revenue in a manner that would dwarf the savings from knocking Rodriguez's buyout down. There's a word for Clay's legal advice: malpractice.

Travis cites specifically to documentation that Rodriguez's staff allegedly didn't maintain. As it turns out, they did maintain the records. More importantly, the records in question are not required by the NCAA. Maybe Clay wasn't in 1L Contracts when the professor explained the concept of material breach, but Michigan cannot claim to be absolved of all of its contractual obligations to Rodriguez unless his committed a breach of the agreement that goes to its fundamental purpose. Committing major NCAA violations would be a material breach. Failing to maintain certain records that are only required as an administrative matter by the school? Good luck with that.

Finally, Travis cites to Kentucky fighting with Billy Gillespie to reduce his buyout as an example for what Michigan should be doing. Let's ignore the merits of firing Gillespie who, unlike Rodriguez, had pissed off everyone at Kentucky and was facing a player revolt. (Hereinafter, "Pulling a Doherty.") Travis's suggestion would be useful if Rodriguez were a fool and had not signed his contract like Gillespie. Rodriguez hasn't turned in sterling work in Ann Arbor, but I'm pretty sure that he hasn't had a frontal lobotomy. Thus, I'm confident that he signed his contract. Clay ought to save his sage legal counsel for a program whose coach has made NCAA violations a part of his "look at me!!!" recruiting strategy.

PS - Thanks for the sterling effort in the January 1998 Orange Bowl against Nebraska that cost Michigan the coaches' poll.


David M. said...

Well said. One super-nitpick: the expression is actually "champing" at the bit. Everyone gets this wrong.

Anonymous said...

You might also thank him for the actions of his coach (inspiration for the eponymous Fulmer Cup) around that time. Little Phil did all he could to help the 'huskers.

Anonymous said...

fwiw he signed his contract on October 24th