Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

                                      

I have lived in Dallas for quite some time, and had the opportunity to run the Dallas White Rock Marathon now known as the Dallas Marathon. The Dallas Marathon usually takes place in early December and is sufficiently spaced out from the other Texas marathons to prevent any conflicts or a situation where one marathon would draw runners from another. Generally the other "big city" marathons in Texas are Houston, San Antonio, and Austin. (No offense to the Cowtown Marathon in Fort Worth which I will be doing later in the month.)

This past week, the San Antonio Rock 'n' Roll Marathon announced that it was going to take place on December 8, the same date as the Dallas Marathon. A few folks in Dallas got upset over this and it turned out that there was actually a contract provision between the 2 marathons that prevented such a conflict. The provision provides that the San Antonio marathon:

shall refrain from sponsoring, producing, organizing, promoting, managing or conducting any marathons, half marathons, relays or other running events or events with a running component in the State of Texas from December 1 through May 31 each year for the life of our agreement…

Even though Dallas and San Antonio are 275 miles apart, marathon organizers were concerned runners would go to San Antonio instead of Dallas. One report estimated Dallas would lose 700 runners.

Things were ironed out and later last week it was announced the San Antonio marathon has moved its date from December 8 to November 17, 2013.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

                                               

Though this is slightly off topic, the Lance Armstrong imbroglio certainly provides some lessons for what constitutes an effective apology but more importantly what makes an effective witness during a trial or arbitration. I’ve written previously  about Lance’s legal and financial woes all of which culminated in his interview with Oprah Winfrey last week. While the motivations for that interview are unclear and there are numerous theories for why he "came clean" the interview was ultimately ineffective in starting the road back to redemption because he did not come across as sincere - you can't fake sincerity.  

Witness preparation can be a hit or miss process. There are some folks who are just naturally good witnesses. They answer questions effectively and plainly. Most importantly they come across as sincere. In high-stakes litigation significant amounts of money are put towards preparing those witnesses to testify whether it’s through a jury consultant, lawyers, or even public relations experts.

Lance Armstrong has assembled a public relations and legal dream team. Don't think for a minute that almost all the questions that Oprah asked weren’t considered by his team and answers rehearsed. Practice doesn't always make perfect.

Sincerity cannot be coached. True remorse cannot be coached. Though there were instances within the interview where Lance appeared somewhat emotional (specifically when he told his son not to defend him anymore) the vast majority of his answers seemed like they were being made simply because he got caught. Most people can forgive doping. Especially when it is in a sport that has been under the doping microscope such as cycling. Armstrong's battle is with the fact that not only did he dope and lie, he went on the offensive and ruined people's lives. 

The public, just like juries, are very good at smoking out insincere or bogus explanations. Ultimately only time will tell what the public makes of Lance’s mea culpa . No matter how much coaching there is or time invested in preparation, if there is no sincerity or remorse behind the apology or testimony, it will be evident. Many have described Lance’s discussion as a first step. It remains to be seen what the second step will be and whether he is actually capable of articulating an explanation and apology that people can identify with.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

                    

Two weeks ago, the United States Anti-Doping Agency produced its reasoned decision and literally thousands of pages of evidence outlining the doping practices of Lance Armstrong and his teammates.  That evidence included multiple affidavits from previous teammates of Lance that painted the picture of the most  regimented doping scheme seen in professional sports. If you think that Lance did not dope, you should probably stop reading. 

The evidence went beyond doping and painted Lance as a bully who attempted to intimidate potential competitors and ultimately potential witnesses.  The evidence indicates that not only was Lance doping but required his teammates to do so.  This picture of Lance is in stark contrast to the Cancer survivor and hero.  Most cycling fans were not surprised but ultimately the question became what would corporate sponsors do?  They are cutting ties with Lance.

Nike's press release is damming:

Due to the seemingly insurmountable evidence that Lance Armstrong participated in doping and misled Nike for more than a decade, it is with great sadness that we have terminated our contract with him. Nike does not condone the use of illegal performance enhancing drugs in any manner. 

Others followed suit including Anheuser Busch, FRS (the energy drink), Giro Helmets, and Trek  Bicycles.  Corporate American clearly no longer wants to be associated with Lance. Maybe that verdict is more telling than any other. 

So what are Lance’s options?  It’s actually pretty simple, (1) continue to maintain your innocence despite the overwhelming evidence against you; or (2) come clean. Coming clean is highly unlikely. To begin with, it would subject him to possible perjury charges because he has gone under oath previously and denied the use of performance enhancing drugs. That said, is law enforcement ready to go after another American athlete for perjury?  Probably not. 

America has a big heart. Coming clean is the only way for Lance to right his ship. He has put himself in the corner, which unfortunately he will have to live in for the rest of his life. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A society fails when it cannot protect its own children.  To me that is the bottom line from the tragedy at Penn State.  What occurred could have been prevented at so many different levels from the prosecutor to the assistant coach to the coach, there is plenty of blame to spread around.  The criminal justice system, civil justice system, and other investigations will sort through those facts and conclusions will be reached.

Joe Paterno apparently complied with "policy" by reporting what his assistant coach saw.  Employment lawyers are in the business of creating policy through employee handbooks and contracts that attempt to address all sorts of situations and legal issues.  The reality is that there is no handbook that can possibly address every scenario out there and we must rely upon the discretion and judgment of the individual executive or entry level employee to do the right thing.

We expected more from a man/coach/leader like Joe Paterno and he failed to live up to our expectations.  But we also must maintain high expectations for ourselves, co-workers, superiors, and subordinates as we navigate through our day to day lives.  It is incumbent upon employers to create an environment where employees can report wrongful conduct and it is incumbent upon employees to act when necessary.  It's a sad day for us all when complying with policy is all that is expected. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

After filing a lawsuit against Texas Tech and then being fired, Mike Leach relocated to Florida and continued with his breach of contract lawsuit.  The amended petition (or complaint from those outside of Texas) sheds a little more light on the facts giving rise to his firing and claims.  

Last week, the depositions of Leach, Craig James, and Adams James took place in Lubbock, Texas.  Coincidentally or not coincidentally, depending on your perspective, video of Leach's expletive fueled ripping of his players was released before the deposition. 

We'll keep you posted on developments in the case.  Leach is looking for money and odds are, like with 95% of all cases, the matter will settle.  No question that Leach is one of the more colorful coaches in football and no question that there are a few people at Tech that don't like him. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Joe Torre's recent memoir concerning his stint with the Bronx Bombers has prompted some in Yankee circles to suggest the need for non-disparagement clauses for players and managers.  Typically, non-disparagement clauses appear in settlement and severance agreements.  The idea is that in exchange for money a former employee will not bad mouth his or her former company. 

Here is an example from a settlement agreement:

Non-disparagement. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Defendant, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients.

The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

The above is couched to support the application for an injunction, hence the "irreparably harmed" language.  While wonderful in theory, (who wouldn't want to prevent an ex-employee from belittling the company) actually enforcing such an agreement is another matter.  As with any breach of contract claim, the plaintiff will have to prove breach and damages.  Proving damages in a non-disparagement case is akin to proving damages in a defamation case, both are difficult.   

Quantifying a damage number based upon a written or oral communication is cumbersome.  For that reason, some clauses attempt to tie a liquidated damage into any breach.  In order to enforce a liquidated damage clause in Texas, the court must find: (1) that the harm caused by the breach is incapable or difficult of estimation, and (2) that the amount of liquidated damages called for is reasonable forecast of just compensation (not punitive). 

Including a non-disparagement clause in a severance or settlement agreement is good practice, but enforcement of the clause is an entirely different matter.  Every effort should be made to ensure that the language defining "disparagement" is specific enough to remove all doubt as to whether the statements are actionable.  Whether an aggrieved party can quantify the the damage caused by the disparagement will be an uphill battle in most cases.

 

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

When University of Arkansas Coach Bobby Petrino suggested non-compete agreements for assistant coaches might be on the horizon, the irony was apparent. Petrino left Louisville for the NFL's Atlanta Falcons in December 2007 then bolted 13 games into his tenure with Atlanta for Arkansas. Nevertheless, Petrino was upset defensive coach Lorenzo Ward was leaving for South Carolina. Petrino's own contract restricts him from accepting employment with a South Eastern Conference school in the western division until 2012, but non-competes are not common for assistants. This week Petrino announced the hiring of a new assistant coach with no mention of a non-compete.

The enforceability of non-compete agreements varies from state to state. Would an assistant coach non-compete be enforceable in Texas? Texas non-competes must comply with Section 15.50 of the Texas Business and Commerce Code.

Typically an employment based non-compete is used to prevent former employees from using company trade-secrets in a competing venture. What would the trade secret be for a coach? Strategies and plays are evident during every game. There is no secret Coke-like formula, though I'm sure a creative lawyer could find something to hang their client's hat on for purposes of filing suit. Mark Cuban claimed former coach Don Nelson used Mavericks' secrets when the Warriors defeated his team in the first round of the 2006 playoffs.

For now, Petrino will have to get used to assistant coaches leaving. Of course, Lorenzo Ward didn't leave his team during the middle of the season.

• Email This
• Print
• Comments
• Trackbacks
• Share Link