The Akron Legal News

Judges find Court of Claims improperly assessed damages owed to former Kent State football coach

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 1, 2014

The Ohio Court of Claims must reconsider money owed to a former Kent State University football coach after the 10th District Court of Appeals found recently that it improperly assessed the damages portion of his case.

Case summary states that James Fleming started working for KSU in 2010 as the defensive coordinator of its football team. His contract was for 28 months and was set to expire on June 30, 2012.

That contract stated that Fleming’s starting salary would be $71,500 annually, but it also indicated he could receive cost-of-living or merit-based raises. Fleming was set to receive specific bonuses when the football team achieved certain athletic or academic accomplishments and was entitled to a bonus if the team made a bowl appearance, according to the contract. It also provided that a “suitable automobile” would be supplied for Fleming’s use.

In exchange for that compensation, Fleming agreed to abide by all NCAA rules and report any athletic-related income from outside sources, including sports campaigns, TV or radio programs or contracts with apparel or equipment manufacturers.

In the case of early termination, the contract stated that the initiating party would have to pay the other party an “agreed upon early termination cost.” KSU stated that if it was the initiator of such an action, it would pay Fleming the balance of his salary for the remaining season.

When Fleming started his position, he said it was the final year of head coach Doug Martin’s contract. In December 2010, the school hired Darrell Hazell to take over the head coaching position.

Fleming interviewed for a position on Hazell’s staff but testified that in early January 2011, KSU’s executive associate athletic director, Tom Kleinlein, told him “there would be no football coaching job available for (Fleming) at KSU.”

A few weeks later, Kleinlein sent Fleming a letter stating that he had been reassigned to assistant to the athletic director. The reassignment was to be effective starting Feb. 14, 2011.

Fleming did not accept that position but later received a letter stating that he was expected to show up for the new job on Feb. 21 and failure to do so would be viewed as insubordination. Nevertheless, Fleming did not go to work.

In March 2011, KSU’s president sent Fleming a letter terminating his employment because of insubordination. He was paid through March 15, 2011. He provided evidence that his vehicle-related expenses had ceased in February 2011.

A few months after his termination, Fleming filed a complaint against KSU for breach of an employment contract. The court of claims bifurcated the issues of liability and damages and proceeded to trial.

The trial court found that the contract was silent on the issue of reassignment but held that Fleming could only reasonably anticipate reassignment within the coaching staff. It ruled that the reassignment amounted to a constructive discharge and found KSU had in fact breached it contract. After granting Fleming judgment, the court proceeded to consider damages.

Fleming sought liquidated damages under the contract’s stipulated damages clause but KSU argued that clause was unenforceable because there was no uncertainty about the amount of damages. The court of claims agreed with KSU and awarded Fleming only $25 for his court filing fee.

Upon direct appeal, both Fleming and KSU argued that the trial court incorrectly found that his reassignment constituted a breach of contract. Fleming argued that he was discharged when Kleinlein orally informed him that he would no longer be a coach, as opposed to when his reassignment took place. KSU, alternatively, argued that Fleming was not released but rather resigned when he chose not to accept his new role at the university.

After review, the three-judge appellate panel found that it was not clear that KSU had breached its contract during Fleming’s January conversation with Kleinlein.

“However, it is apparent that KSU breached the contract on Feb. 14, 2011, the effective date of Fleming’s reassignment,” Judge Amy O’Grady wrote for the court.

The judges held that the contract established that KSU had to employ Fleming as a football defensive coordinator. It’s failure to do so was therefore in violation of that contract.

“Thus, the court of claims correctly found the act of reassignment constituted a breach of contract even if the court’s constructive discharge analysis was in error,” O’Grady wrote, rejecting Fleming’s and KSU’s first assignment of error.

Fleming then proceeded to challenge the trial court’s analysis of damages owed. He asserted that KSU owed him liquidated damages because it was unclear how much money he lost by its breach of contract. KSU countered by arguing that it was not unclear how much money Fleming would have made because his salary properly outlined that. The trial court ruled in agreement with KSU.

However, the appellate judges found merit to Fleming’s claim. They determined that the trial court must make three findings before issuing liquidated damages: the amount of damages must be uncertain, the contract must not be unreasonable or unclear and the contract must be consistent with the parties’ intentions.

With regard to the first requirement, the judges found that the amount Fleming would have made during the upcoming football season was unknown.

“Even putting the issue of raises and the automobile aside, at the time of contracting, the parties could not predict whether the football team would achieve any of the goals that would entitle Fleming to bonuses under contract,” O’Grady wrote.

The judges further noted that the contract mentioned athletic-related income from outside sources, which would be difficult to calculate.

“Thus, we conclude at the time of contracting in this case, damages were uncertain as to amount and difficult to proof,” O’Grady stated.

The judges found that the trial court improperly assessed the damages portion of the case and remanded so it could address the remaining two requirements regarding liquidated damages.

Presiding Judge Lisa Sadler and Judge Gary Tyack concurred.

The case is cited Fleming v. Kent State Univ., 2014-Ohio-3471.

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