| BRIEF OF AMICI EDWARD C. CARRINGTON ET AL.; IN SUPPORT - Plaintiff, Andrew Giuliani, | |
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| Topic Started: Jun 23 2009, 11:43 AM (276 Views) | |
| Baldo | Jun 23 2009, 11:43 AM Post #1 |
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(Note! This is my PDF translation to a Word Doc. Assume any errors are in translation are mine) BRIEF OF AMICI EDWARD C. CARRINGTON ET AL. IN SUPPORT OF PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS Plaintiff, Andrew Giuliani, claims that Defendants, Duke University and Orrin Daniel Vincent III, breached various contract and tort duties owed to Giuliani. The magistrate judge issued a report recommending that this Court grant Defendants’ motion for judgment on the pleadings against Giuliani. Amici respectfully submit this brief in support of Giuliani’s objections to the magistrate judge’s recommendation. AMICI’S IDENTITY AND INTEREST Amici, Edward C. Carrington et al., were members of the Duke lacrosse team (or their parents) when team members were falsely accused of raping a woman at a party in March 2006. Although Amici were not indicted, they were the object of intense and protracted attention—as well as abusive and illegal mistreatment—by police investigators, the University, the community, and the media. These events prompted Amici to file a complaint against Duke University, various Duke administrators and officers, and others. See Carrington v. Duke University, No. 08-119 (M.D.N.C.). Amici asserted a number of counts, one of which is pertinent to this case. In Count 15, Amici seek to hold the University liable for breaching several contractual promises it made to them: (1) the University failed to implement and enforce its anti-harassment commitment as set forth in its 2005-06 Undergraduate Bulletin, the Faculty Handbook, and other University publications; (2) the University failed to afford Amici various procedural rights guaranteed in the Bulletin; (3) the University cancelled the lacrosse team’s season and fired its coach in bad faith and for illegitimate reasons; (4) the covenant of good faith and fair dealing. Duke University and the other defendants moved to dismiss Amici’s complaint. Those motions are now fully briefed and awaiting decision. Amici have a significant interest in the outcome of this case because Amici’ s complaint, like Giuliani’s, claims that Duke University was contractually bound by terms set forth in the Student Bulletin and other University publications—particularly the anti-harassment and procedural-safeguards provisions—by terms stated by the coach as an inducement to enroll, and by the covenant of good faith and fair dealing. Amici respectfully contend that the magistrate judge erred in concluding that such terms are not contractually binding upon the University, and that the Court should therefore decline to adopt the magistrate judge’s Report and Recommendation to the extent it depends upon the determination that there was no valid contract. Amici believe their brief will assist the Court in resolving the pending motion for judgment on the pleadings in this case by providing the Court with additional analysis of the key legal issue—whether Defendants were subject to any contractual obligations—beyond what Giuliani provides the Court in his brief. BACKGROUND1 Andrew Giuliani is a student at Duke University. Rod Myers, the former head coach of the Duke men’s golf team, “aggressively recruited Andrew to Duke.” Complaint, Doc. 1 (“Compl.”) ¶ 11. Knowing that Andrew would select the school that “would provide him with the best preparation to achieve his dream” of “becom[ing] a professional golfer,” Compl. ¶ 12, Myers “focused Andrew’s attention on the University’s ‘state-of-the-art’ training facilities[,] which were ‘second to none’ and were for the exclusive use of the men’s and women’s golf teams,” Compl. ¶ 13. Myers “emphasized to Andrew that he would be given life-time access to those training facilities as an alumnus of the Duke Golf Program” and “assured Andrew that, if he matriculated to Duke, he would have the opportunity to compete with his teammates to earn spots in the most competitive tournaments against the most talented players in the NCAA.” Compl. ¶ 13. “Andrew decided to accept Duke University’s offer to enroll based in material part upon the[se] promises.” Compl. ¶ 14. Upon enrollment, Andrew would owe Duke “roughly $200,000 in tuition and fees.” Compl. ¶ 15. In exchange for paying tuition and fees, Duke “promised to provide Andrew an array of educational services, the opportunity to participate in the University’s intercollegiate golf program, and lifetime access to the University’s ‘state-of-the-art’ golf training facilities.” Compl. ¶ 59. After Myers died in the spring of 2007, defendant Vincent became the head coach of the golf team. Compl. ¶ 14. In February 2008, Vincent “announced to the team that he was unilaterally cancelling Andrew’s eligibility to participate in the University’s Athletics Program immediately and indefinitely”—that is, Vincent suspended Giuliani from the team. Compl. ¶ 18. As justification for his decision, Vincent cited several recent incidents in which Andrew footnote 1 Amici assume the truth of the allegations in Giuliani’s complaint. allegedly behaved badly, such as “flipp[ing] his putter,” “‘throwing and breaking’ a club,” and “toss[ing]” an apple at a teammate’s face. Compl. ¶ 19. Giuliani alleges that Defendants “fabricated” these “charges.” Compl. ¶ 20 (quotation marks omitted). Vincent then decided that Giuliani’s suspension would be permanent “unless every single one of [Giuliani’s] twelve teammates wrote a letter to O.D. Vincent that O.D. Vincent deemed ‘satisfactory’ supporting Andrew’s reinstatement to the team and explaining the reasons why.” Compl. ¶ 21. Giuliani then met with the nine returning team members, eight of whom “expressly assured Andrew that they supported [his] return to the team.” Compl. ¶ 28. But Vincent, Giuliani alleges, manipulated the process. For example, Vincent instructed team members “not to write their letters until they ‘heard more from Andrew,’” but instructed Giuliani “to ‘back off’ and limit his contacts with his teammates.” Compl. ¶ 30. Vincent also let it be known that he wanted to “drastically cut the size of the team roster.” Compl. ¶ 31. Thus afraid that “their positions on next year’s roster were also in jeopardy,” the remaining players’ “personal interests were directly in conflict with Andrew’s reinstatement to the team.” Compl. ¶ 31-32. Vincent imposed another condition upon Giuliani’s return to the team: Giuliani would have to “re-qualify” for the team even though all other returning varsity players who had participated in a tournament the prior season were exempt from having to re-qualify. Compl. ¶ 33 (quotation marks omitted). But Vincent offered Giuliani an exemption if he “agreed to certain ‘parameters.’” Compl. ¶ 34. Vincent presented his parameters to Giuliani in the form a “waiver agreement,” by which Giuliani was to waive, among other things, any right to know about any “correspondence” between his teammates and Vincent regarding his eligibility. Compl. ¶¶ 36, 41. Andrew refused to sign the waiver agreement. Compl. ¶¶ 3 9-40, 42. Five teammates subsequently “notifjed] Andrew that they had decided that Andrew’s membership on the team should be terminated.” Compl. ¶ 43. Giuliani’s parking and greens privileges were revoked, although Vincent did not directly inform Giuliani that he had been permanently removed from the team. Compl. ¶¶ 43-44. After his eligibility was terminated, Giuliani “sought a meeting with the Interim Athletic Director, Dr. Christopher Kennedy,” who “initiated an investigation of the matter, meeting with six team members as a group and separately with Andrew for approximately ten minutes.” Compl. ¶ 45. When Vincent learned that Kennedy intended to meet again with Giuliani and his teammates outside the presence of the coaches, Vincent “directed [team members] to confront Andrew publicly, which they did that same day, in a public area near O.D. Vincent’s office, where they harassed and attempted to intimidate Andrew” by “shout[ing] obscenities at him, É demand[ing] that [he] cease his attempt to restore his own eligibility, and warn[ing] [him] that they would wield the power that O.D. Vincent had delegated to them to ensure that Andrew would never play competitive NCAA golf again unless he transferred to a different school.” Compl. ¶¶ 46, 66. “Shortly thereafter, Kennedy’s investigation was shut down by Pamela Bernard, the University’s General Counsel,” in favor of the General Counsel’s “own investigation into the matter.” Compl. ¶ 48. Deputy General Counsel Kate Hendricks had responsibility for the investigation, but, the complaint alleges, her investigation was a “sham.” Compl. ¶¶ 49-51. Hendricks concluded that Vincent’s conduct and “termination of Andrew’s eligibility was ‘within the significant authority of the coach,’” and that Giuliani’s “only option was to pursue a grievance procedure conducted by an administrator who must defer to [the general counsel] on such questions.” Compl. ¶ 52. In this action, Giuliani brings five counts. In Count I, Giuliani claims that Defendants breached several contractual duties owed him. According to Giuliani, many of the specific provisions of the contract at issue are contained in the the Duke University Student Bulletin, the Duke University Student-Athlete Handbook, the Duke University Athletic Department Policy Manual, and the 2007-08 NCAA Division I Manual. Compl. ¶ 60. First, the contract provides that Giuliani (like other students) would not be subjected to harassment by University faculty, staff, and students. Compl. ¶ 66. Second, the contract provides that Giuliani’s right to participate in the golf program and to access its facilities could be cancelled or terminated only under certain limited circumstances, none of which obtained. Compl. ¶¶ 62-64. Third, the contract affords Giuliani (like other students) certain procedural “safeguards,” including: that Giuliani would receive notice of the allegations upon which his eligibility was to be cancelled; that Vincent would “consult with the Director of Athletics before he unilaterally suspended and before he unilaterally terminated Andrew’s eligibility”; that Vincent would not “delegate[] authority to terminate Andrew’s eligibility to each and every one of his teammates”; that a student would receive notice of the charges and an opportunity to be heard before being disciplined; that a student would not be “depriv[ed] of [his] rights under the Contract” by “biased or potentially conflicted decision makers, much less decision makers with a personal, vested interest in the decision”; and that a student would be deprived of his rights only if all previously defined conditions of such punishment were satisfied. Compl. ¶¶ 66-72. Giuliani claims that Defendants violated each of these contractual duties. Compl. ¶¶ 24, 67, 73. In Count II, Giuliani claims that Defendants breached the covenant of good faith and fair dealing implicit in the contract between him and Duke by, for example, retaliating against Giuliani’s exercise of his contractual rights. Compl. ¶¶ 82-83. In Count III, Giuliani claims that Vincent tortiously interfered with the contract between him and Duke. Compl. ¶ 88. In Count IV, Giuliani claims that his reliance upon Myers’ recruiting promises estops Duke from denying Giuliani the opportunity to participate in the golf program and to use the program’s facilities. Compl. JJ 95-99. In Count V, Giuliani seeks a declaration that there is a “valid and enforceable” contract between him and Duke and that the conduct described above violated that contract. Compl. JJ 102-05. Defendants moved for judgment on the pleadings. The magistrate judge concluded that Count I fails because there was no valid and enforceable contract between Giuliani and Defendants that was breached. In particular, the magistrate judge determined that “student policy manuals are not binding contracts.” Memorandum, Opinion, Recommendation, and Order, Doc. 23 (“R&R”) at 6-8. With no valid, enforceable contract between Giuliani and Defendants, the magistrate judge concluded, the remaining counts could not stand, either. R&R at 9-11. ARGUMENT There is national consensus that “the basic legal relation between a student and a private university or college is contractual in nature [and that] [t]he catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract,” as does a duty to act in good faith. Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir. 1992) (quotation marks omitted); see, e.g., Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998); Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 472-74 (Minn. Ct. App. 1999); Bleicher v. University of Cincinnati College of Med., 604 N.E.2d 783, 787-88 (Ohio Ct. App. 1992); Gally v. Columbia Univ., 22 F. Supp. 2d 199, 206-07 (S.D.N.Y. 1998); see also Gallimore v. Daniels Constr. Co., 338 S.E.2d 317, 319 (N.C. Ct. App. 1986) (“Every contract or agreement implies good faith and fair dealing between the parties to it É.”). North Carolina law accords with this national consensus: in Mercer v. Duke University, the court concluded that it is “beyond cavil that the relationship between a university and its students is fundamentally ‘contractual in nature.’” No. 97-959, Slip op. at 13 (M.D.N.C. Sept. 28, 2000) [Ex. A].2 It does not matter whether the university’s bulletin and other publications, standing alone, would suffice to constitute a valid contract; the contract may be formed in fact when the student agrees to pay tuition and fees and to abide by rules stated in the bulletin and other university publications in exchange for the opportunity to take classes, participate in activities, and obtain a degree, as well as for the school’s promise to adhere to the terms stated in the bulletin and other university publications. See Snyder v. Freeman, 266 S.E.2d 593, 602 (N.C. 1980) (“A ‘contract implied in fact’ ... arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation is implied or presumed from their acts, or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract.”); Creech v. Melnik, 495 S.E.2d 907, 911 (N.C. 1998) (“an implied [in fact] contract is as valid and enforceable as an express contract. Except for the method of proving the fact of mutual assent, there is no difference in the legal effect of express contracts and contracts implied in fact.”). Surely, Duke could not accept a student’s tuition but refuse to enroll the student and yet keep the tuition Ð such conduct would obviously breach Duke’s contractual obligations to the student. To be sure, in North Carolina, as in other jurisdictions, courts disfavor claims that require Footnote 2 Contrary to Defendants’ suggestion, the Fourth Circuit did not hold in Tibbetts v. Yale Corp., 47 Fed. Appx. 648 (4th Cir. 2002), that a “university’s student policy manuals are not contracts,” Br. in Supp. of Defs.’ Mot. for J. on the Pleadings (Doc. 11) at 10; rather, applying Virginia law, it held only that, under the circumstances, a particular section of the student handbook was not binding, 47 Fed. Appx. at 656. “inquiry into the nuances of educational processes and theories” or into whether the education provided “was not good enough,” but courts in North Carolina will make “an objective assessment of whether the institution made a good faith effort to perform on its promise” if that promise is “specific.” Ryan v. University of N.C. Hosps., 494 S.E.2d 789, 791 (N.C. Ct. App. 1998) (quotation marks omitted) (University of North Carolina was contractually bound by the “Essentials of Accredited Residencies” “to provide a one month rotation in gynecology” to a graduate medical student); see also Alsides, 592 N.W.2d at 472-74; Ross, 957 F.2d at 416-17; Gally, 22 F. Supp. 2d at 207. And, as noted, the University is bound by the covenant of good faith and fair dealing. Further, “[t]he proper standard for interpreting the contractual terms is that of reasonable expectation—what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.” Mangla, 135 F.3d at 83 (quotation marks omitted).3 Under these principles, Defendants were contractually bound by the Bulletin and other publications in the ways Giuliani claims. Giuliani does not claim that the University failed to provide an education that was “good enough.” Rather, Giuliani claims that Defendants failed to follow through on a collection of specific non-academic promises, such as the anti-harassment and procedural guarantees governing disciplinary matters set forth in the Student Bulletin and other University publications. See, e.g., Ross, 957 F.2d at 416 (“the catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract”) (quotation marks omitted); Havlik v. Johnson & Wales Univ., 509 F.3d 25, 35 (1st Cir. 2007) (under Rhode Island law, “the [student] handbook designates the rudimentary contractual Footnote 3 Whether a school made a specific and therefore enforceable promise is a question of fact. See Ryan, 494 S.E.2d at 791; Ross, 957 F.2d at 417; Mangla, 135 F.3d at 83-84. terms between the parties vis-a-vis the appeal process” in disciplinary matters); Atria v. Vanderbilt Univ., 142 Fed. Appx. 246, 255 (6th Cir. 2005) (under Tennessee law, “disciplinary action by the university” is not “academic” and therefore disciplinary procedures specified in handbook bound university). Defendants emphasized in their brief to the magistrate judge the “traditional judicial deference toward the internal operations of a university concerning its relationship with students.” Br. in Supp. of Defs.’ Mot. for J. on the Pleadings at 12. Amici do not deny the validity or importance of that general principle, but, as Ryan and other decisions discussed above establish, that principle must yield when a specific promise or the covenant of good faith and fair dealing is at issue. Indeed, by creating and promulgating policies in the Bulletin and other publications, the University has already determined for itself how it will operate; Giuliani merely seeks to hold the University to its word. Moreover, tolerating or encouraging harassment and biased disciplinary decisions could hardly be considered legitimate exercises of the University’s operational prerogatives. The magistrate judge’s analysis misses the mark in several respects. First, the magistrate judge concluded that “[n]on-binding student policy manuals are not binding contracts.” R&R at 6. Besides begging the question, the magistrate judge’s proposition is irrelevant insofar as Giuliani alleges that the Bulletin and other publications merely express terms of a contract rather than themselves constitute the contract. Giuliani explained in his brief to the magistrate judge that he “is not alleging that the Bulletins themselves are the Contract, but [rather] that elements of the Contract are evinced in the documents which contain, among other things, the terms of the agreement.” Pl.’s Opp’n to Defs.’ Mot. for J. on the Pleadings (Doc. 14) at 10. Giuliani was drawing on authorities such as those cited above, which establish that the relationship between university and student is fundamentally contractual and that university publications such as a student bulletin express promises that may bind the university even if the publication standing alone would not suffice to establish a contractual relationship. The magistrate judge rejected Giuliani’s description of his claim because, in the magistrate judge’s view, Giuliani’s complaint had instead alleged that the Bulletin and other publications themselves are binding contracts. See R&R at 6. Thus, the magistrate judge said, Giuliani was improperly “attempt[ing] to change arguments between the complaint and the brief.” R&R at 6. With due respect to the magistrate judge, Giuliani’s complaint adequately alleges a contractual relationship whose terms are expressed in part through the Student Bulletin and other University publications. The magistrate judge focused on paragraph 60 of the complaint, which states, “The specific provisions of the Contract that are at issue in this action are” the Bulletin and other University publications. That allegation is arguably ambiguous as to whether the publications are themselves contracts or merely express terms of a contractual relationship. Paragraph 59, which the magistrate judge overlooked, makes clear that Giuliani alleges the latter: “Andrew agreed to, among other things[,] pay Duke University well in excess of $200,000 over four years, to allow the University to use his likeness in its solicitations and advertisements, and to abide by the rules established in the Contract. In exchange, Duke University promised to provide Andrew an array of educational services, the opportunity to participate in the University’s intercollegiate golf program, and lifetime access to the University’s ‘state-of-the-art’ golf training facilities.” Second, the magistrate judge’s reliance upon Love v. Duke University, 776 F. Supp. 1070 (M.D.N.C. 1991), aff’d, No. 91-2263, 1992 U.S. App. LEXIS 5802 (4th Cir. Mar. 30, 1992) (per curiam), was misplaced. In that case, the court adverted to two grounds to justify its decision that the University did not breach the terms of the Bulletin by dismissing Love from a graduate program after he had received two failing grades: (1) the court found that Love had not fulfilled a condition precedent to the University’s obligation; and (2) consistent with Ryan’s reluctance to inquire into the nuances of educational processes and theories, the court thought that “great deference must be given to” the University’s decision because “academic dismissals are wholly discretionary.” 776 F. Supp. at 1075. To the extent that Giuliani has satisfied all relevant conditions precedent (an issue about which Amici express no view), Love does not support dismissal because, as just noted, none of the allegedly breached promises at issue relates to the University’s academic policies or prerogatives. Third, the magistrate judge analogized Giuliani’s claim to an employee’s claim that the employer was contractually bound by an employee handbook. Citing Brewer v. Jefferson-Pilot Standard Life Ins. Co., 333 F. Supp. 2d 433, 439 (M.D.N.C. 2004), and Johnson v. Mayo Yarns, Inc., 484 S.E.2d 840, 843 (N.C. Ct. App. 1997), the magistrate judge noted that “an employee handbook or policy manual does not create a legally binding contract between employer and employee unless the terms of the handbook are expressly incorporated into a separate employment contract.” R&R at 5-6 (quotation marks omitted). The magistrate judge might have also cited Mercer—as Defendants have, see Br. in Supp. of Defs.’ Mot. for J. on the Pleadings at 9-1 1—in which the court expressly relied upon this analogy to conclude that Duke was not contractually bound by the nondiscrimination policy stated in the Student Handbook. See No. 97-959, slip op. at 14-15. But the analogy between student and employee handbooks is false. The decisions addressing the enforceability of an employee handbook that were cited by the court in Mercer and by the magistrate judge here involved a claim that the employer terminated an employee in violation of rules specified in a handbook or elsewhere outside the primary written employment contract or that the employee was “at-will” and thus not under any contract. In the employment context, the rule that an employee handbook is not enforceable unless expressly incorporated into the employment contract ensures that a unilaterally promulgated handbook does not disrupt the express agreement of the parties or an important default rule against which the parties are presumed to have acted. More specifically, if the parties’ written employment contract specifies that the employer may terminate the employee only for cause pursuant to certain procedures, then basic principles of contract law dictate that a separate, unilaterally promulgated document may not vary that agreement. See Black v. Western Carolina Univ., 426 S.E.2d 733, 736 (N.C. Ct. App. 1993). And if the parties have not reached such an express agreement, then North Carolina law provides the default rule: the employment relationship is “terminable by either party at will.” Griffin v. Housing Auth. of Durham, 303 S.E.2d 200, 201 (N.C. Ct. App. 1983). Express incorporation of an employee handbook shows that the parties intended to alter the contract’s terms or override this default rule of at-will employment. In contrast, in the context of the university-student relationship, as here, there is ordinarily no separate express agreement or default rule that would be disrupted by the enforcement of bulletins, catalogues, circulars, or similar school publications. In fact, as Ross, Ryan, and other decisions show, the specific terms of the Bulletin and other such documents are the very terms of the agreement that bind the University. Fourth, the magistrate judge reasoned that the Bulletin and other publications are not enforceable because they “have provisions allowing unilateral changes.” R&R at 8. But in general, “[w]hile [the University] could disclaim the existence of a specific promise through the use of such a disclaimer, it could not unilaterally disclaim all contractual relations between the parties.” Gally, 22 F. Supp. 2d at 206 n.7 (citation omitted); see also Atria, 142 Fed. Appx. at 255 (under Tennessee law, student handbook’s terms enforceable as implied contract even though handbook stated that its policies “do not constitute a contract”) (quotation marks omitted). In any event, even if the University could have reserved the right to modify any terms unilaterally, it did not do so in the Bulletin, which expressly reserves the right to change only matters relating to academics: “programs of study, academic requirements, teaching staff, the calendar, and other matters described herein.” Bulletin at 2; cf. Abbariao v. Hamline Univ. Sch. of L., 258 N.W.2d 108, 114 (Minn. 1977) (“all provisions within this bulletin are subject to change without notice”) (quotation marks omitted); Robinson v. Univ. of Miami, 100 So. 2d 442, 443 (Fla. Dist. Ct. App. 1958) (“The University reserves the right to change any provision or requirement at any time within the student’s term of residence.”).4 The reservation, therefore, is irrelevant insofar as Giuliani seeks to enforce the terms of the Bulletin because, as noted above, he does not challenge the University’s conduct of academic matters. More importantly, Duke could not reasonably have expected that Giuliani would believe that the University could dispense entirely with such fundamental protections as those against harassment and procedural improprieties. No prospective student or parent would select a school that reserved the power to permit, let alone foster, the harassment of the student or to punish the student without affording him notice and a fair opportunity to contest the charges before a neutral arbiter. And even if Duke could have disclaimed a non-academic promise stated in the Bulletin and other University publications, it could not avoid the covenant of good faith and fair dealing. Finally, the magistrate judge did not even address the validity of Giuliani’ s claim that Defendants breached promises made by Coach Myers during the course of recruiting Giuliani to Footnote 4 Pursuant to the principle of ejusdem generis, the general term “other matters” should be understood to reach only matters of the same type as those specifically mentioned—i.e., academic matters, see John L. Roper Lumber Co. v. Lawson, 143 S.E. 847, 850 (N.C. 1928)— not to reach all matters discussed in the Bulletin. attend Duke. Those promises could be enforceable even if terms stated in the Bulletin and other University publications were not contractually binding upon Defendants. Defendants have argued, “Playing an intercollegiate sport is a privilege, not a right.” Br. in Supp. of Defs.’ Mot. for J. on the Pleadings at 8. But Giuliani does not claim a right to be on the team; he claims only the right to have the opportunity to be on the team and the right to be deprived of that eligibility only under certain circumstances, which, he alleges, were not present. CONCLUSION For the foregoing reasons, the Court should decline to adopt the magistrate judge’s Report and Recommendation to the extent it depends upon the determination that there was no valid contract, and should hold that Defendants were bound by the terms stated in the Student Bulletin and other University publications, by promises made by Coach Myers in the course of recruiting Giuliani to attend Duke University, and by the covenant of good faith and fair dealing. June 19, 2009 Respectfully submitted, THOMAS, FERGUSON & MULLINS, LLP William J. Thomas William J. Thomas, II (N.C. Bar # 9004) thomas@tfmattorneys.com 119 East Main Street Durham, NC 27701 919-682-5648 COOPER & KIRK, PLLC Charles J. Cooper Charles J. Cooper ccooper@cooperkirk.com David H. Thompson (N.C. Bar # 31958) dthompson@cooperkirk.com David Lehn dlehn@cooperkirk.com 1523 New Hampshire Avenue NW Washington, DC 20036 202-220-9600 Attorneys for Amici Edward C. Carrington et al. Edited by Baldo, Jun 23 2009, 11:51 AM.
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| Quasimodo | Jun 23 2009, 01:31 PM Post #2 |
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There is national consensus that “the basic legal relation between a student and a private university or college is contractual in nature [and that] [t]he catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract,” as does a duty to act in good faith. [citations omitted] (snip) North Carolina law accords with this national consensus: in Mercer v. Duke University, the court concluded that it is “beyond cavil that the relationship between a university and its students is fundamentally ‘contractual in nature.’” No. 97-959, Slip op. at 13 (M.D.N.C. Sept. 28, 2000) [Ex. A].2 It does not matter whether the university’s bulletin and other publications, standing alone, would suffice to constitute a valid contract; the contract may be formed in fact when the student agrees to pay tuition and fees and to abide by rules stated in the bulletin and other university publications in exchange for the opportunity to take classes, participate in activities, and obtain a degree, as well as for the school’s promise to adhere to the terms stated in the bulletin and other university publications. See Snyder v. Freeman, 266 S.E.2d 593, 602 (N.C. 1980) (“A ‘contract implied in fact’ ... arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation is implied or presumed from their acts, or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract.”); Creech v. Melnik, 495 S.E.2d 907, 911 (N.C. 1998) (“an implied [in fact] contract is as valid and enforceable as an express contract. Except for the method of proving the fact of mutual assent, there is no difference in the legal effect of express contracts and contracts implied in fact.”). Surely, Duke could not accept a student’s tuition but refuse to enroll the student and yet keep the tuition Ð such conduct would obviously breach Duke’s contractual obligations to the student. (SNIP) Under these principles, Defendants were contractually bound by the Bulletin and other publications in the ways Giuliani claims. Giuliani does not claim that the University failed to provide an education that was “good enough.” Rather, Giuliani claims that Defendants failed to follow through on a collection of specific non-academic promises, such as the anti-harassment and procedural guarantees governing disciplinary matters set forth in the Student Bulletin and other University publications. Edited by Quasimodo, Jun 23 2009, 01:32 PM.
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| Quasimodo | Jun 23 2009, 01:33 PM Post #3 |
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Indeed, by creating and promulgating policies in the Bulletin and other publications, the University has already determined for itself how it will operate; Giuliani merely seeks to hold the University to its word. Moreover, tolerating or encouraging harassment and biased disciplinary decisions could hardly be considered legitimate exercises of the University’s operational prerogatives. The magistrate judge’s analysis misses the mark in several respects. First, the magistrate judge concluded that “non-binding student policy manuals are not binding contracts.” Besides begging the question, the magistrate judge’s proposition is irrelevant insofar as Giuliani alleges that the Bulletin and other publications merely express terms of a contract rather than themselves constitute the contract. Giuliani explained in his brief to the magistrate judge that he “is not alleging that the Bulletins themselves are the Contract, but [rather] that elements of the Contract are evinced in the documents which contain, among other things, the terms of the agreement.” |
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| Quasimodo | Jun 23 2009, 01:34 PM Post #4 |
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[cont.]: Finally, the magistrate judge did not even address the validity of Giuliani’ s claim that Defendants breached promises made by Coach Myers during the course of recruiting Giuliani to attend Duke. Those promises could be enforceable even if terms stated in the Bulletin and other University publications were not contractually binding upon Defendants. Defendants have argued, “Playing an intercollegiate sport is a privilege, not a right.” But Giuliani does not claim a right to be on the team; he claims only the right to have the opportunity to be on the team and the right to be deprived of that eligibility only under certain circumstances, which, he alleges, were not present. Edited by Quasimodo, Jun 23 2009, 01:35 PM.
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| Baldo | Jun 23 2009, 02:20 PM Post #5 |
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Note! Just to clear up an earlier comment Ekstrand did not bring the Lacrosse Players into the Giuliani Lawsuit. The newspaper article had it wrong. Cooper Kirk, attorneys for the Plaintiffs in the "Lacrosse Team & their Families" Lawsuit filed an amicus brief in response to the Magistrate Judge's report and recommendations Maybe Judge Dixon will regret his dismissive inclusion of his Caddy-shack jokes in a legal filing. Edited by Baldo, Jun 23 2009, 02:22 PM.
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| Quasimodo | Jun 23 2009, 02:35 PM Post #6 |
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And we also have, this : PLAINTIFF’S OBJECTIONS TO MAGISTRATE DIXON’S MEMORANDUM OPINION, RECOMMENDATION, AND ORDER Dated: June 18, 2009 Respectfully submitted, EKSTRAND & EKSTRAND LLP (snip) PLAINTIFF’S OBJECTIONS (snip) First, the [Magistrate's] Recommendation incorrectly asserts that Plaintiff’s breach of contract claims rely solely upon provisions in the University’s policy manuals. To the contrary, the Complaint plainly alleges the breach of promises made directly to Andrew by the University’s Head Golf Coach in his recruiting offer, none of which are contained in the policy manuals. Coach Myers’ recruiting offer included a promise of a right of access to the Athletic Department’s programs and facilities as an undergraduate, a lifetime right of access to its “state of the art” golf training facilities, and other valuable consideration. In exchange, Andrew promised to pay Duke in excess of $200,000.00 to grant Duke the right to use his name and likeness in its promotional materials, to forego opportunities at other universities, and other valuable consideration. When Andrew accepted Coach Myers’ offer “in its exact terms,” his acceptance converted the offer into a “binding promise” by operation of a century-old, “central principle” of North Carolina contract formation. The Complaint alleges that Duke breached that agreement by depriving Andrew of his bargained-for-right of access to the University’s golf training facilities, among other acts specifically alleged in the Complaint. The Recommendation does not reject Plaintiff’s contention that these allegations in the Complaint show that Plaintiff is entitled to the relief he seeks; instead the Recommendation ignores the allegations. However, those allegations—standing alone—state an actionable claim under North Carolina law that does not rely in any way upon the University’s policy manuals. Second, the Magistrate is wrong in asserting that Defendants cannot be bound by provisions contained in the University’s policy manuals. The Magistrate bases this assertion on three false premises: the policy manuals are unenforceable because they are not incorporated into an employment agreement; the manuals are unenforceable because they can be “unilaterally amended” at any time; and the manuals are unenforceable because they are illusory or indefinite. The first premise misapplies the law, the second misstates it, and the third misapplies and misstates the law. Furthermore, these premises are all impugned by Duke itself, in sworn affidavits, motions, and memoranda filed routinely in this Court (and others); in all of them, Duke insists that its policy manuals contain provisions that are “binding contracts” under North Carolina law. |
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| Quasimodo | Jun 23 2009, 02:36 PM Post #7 |
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ANALYSIS I. THE MAGISTRATE IGNORES THE ALLEGATIONS THAT SHOW THE FORMATION OF A VALID CONTRACT GRANTING ANDREW A RIGHT OF ACCESS TO SPECIFIC UNIVERSITY PROGRAMS AND FACILITIES. The [Magistrate's] Recommendation’s most consequential error is its failure to identify the contractual terms that are not contained in the policy manuals annexed to the Complaint. The allegations establish that these terms are binding on Duke by operation of ordinary principles of contract law and do not rely on the policy manuals annexed to the Complaint. Under North Carolina law, “[a] contract is simply a promise supported by consideration, which arises . . . when the terms of an offer are accepted by the party to whom it is extended.” This Court has observed that, under North Carolina law, “a valid contract is formed when there is an agreement based on a meeting of the minds and sufficient consideration.” As explained below, the Recommendations are at war with those ordinary principles of contract law as well as the allegations of the Complaint that plainly establish the two elements of a “valid contract.” (snip) The North Carolina Supreme Court first articulated the operation of the rule in 1918, holding that a contract is formed whenever an offeree’s acceptance is “absolute and identical with the terms of the offer.” The rule remains the same today: The legal principles applicable to contracts generally … include the central principle that, in the formation of a contract, an offer and an acceptance are essential elements; they constitute the agreement of the parties. The offer must be communicated, must be complete, and must be accepted in its exact terms. Moreover, this acceptance, . . . changes the character of the offer. It supplies the elements of agreement and consideration, changing the offer into a binding promise. In Wilkins, North Carolina’s Supreme Court held that a contract was formed when the plaintiff responded to the defendant’s offer by sending the defendant a telegram that simply stated, “accept offer.” The Court explained that, because the plaintiff’s acceptance was “absolute and identical with the terms of the offer,” the acceptance converted the defendant’s offer into “a binding promise,” enforceable under North Carolina law. That is precisely what the [Giuliani]Complaint alleges. The Complaint alleges that Duke’s Head Golf Coach recruited Andrew to Duke. Coach Myers’ recruiting efforts culminated in an offer he made to Andrew that included a promise that Andrew would be offered admission to Duke months before Duke’s early-admission offers were made; he would have a right of access to Duke’s Athletic Department’s varsity programs and facilities during his enrollment at Duke; and a lifetime right of access to Duke’s “state-of- the-art” golf training facilities. The promised right of access to the program’s training facilities was particularly important to Andrew’s career because he would turn professional when his amateur eligibility in golf was exhausted. A lifetime right of access to the Duke’s “state-ofthe- art” golf training facilities would be invaluable to Andrew in pursuing his chosen career during and after he graduated. In exchange, the offer required Andrew, among other things, to pay Duke well in excess of $200,000.00, to grant Duke the unconditional use of his name and likeness, to forego valuable opportunities at other universities, Andrew accepted Coach Myers’ offer “in its exact terms.” Just as C.E. Wilkins created a contract with Vass Cotton Mills nearly a century ago, Andrew’s acceptance created a valid, enforceable contract with the University because Andrew’s acceptance, like C.E. Wilkins’ acceptance, was “absolute and identical with the terms of the offer.” Thus, the Complaint sufficiently alleges the formation of a valid, enforceable contract arising out of Andrew’s acceptance of Duke’s offer, not created by policy manuals, but instead created by operation of a century-old, “central principle” of contract law, which converted Duke’s offer into a “binding promise” that is enforceable under North Carolina law. |
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| Quasimodo | Jun 23 2009, 02:37 PM Post #8 |
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Sufficient Consideration There is no dispute that the Complaint alleges sufficient consideration to support the alleged Contract. The consideration included, among other things, Andrew’s commitment to pay Duke well in excess of $200,000.00... (snip) 4. Rule 12 Requires No Further Inquiry: The Court Must Reject the Magistrate’s Recommendations Based upon the Allegations of the Breached Oral Agreement Alone. The inquiry could end here because all five of the Magistrate’s recommendations depend solely upon his assertion that the Complaint fails to allege a “valid contract” because the policy manuals annexed to the Complaint are “non-binding.” The recommendations—all of them— are defective because that assertion is completely irrelevant to the original oral agreement. Having adopted the Defendants’ recasting and cherry picking of Plaintiff’s allegations, the Magistrate failed to identify the oral agreement that is clearly emphasized and documented throughout Plaintiff’s Complaint. Those binding promises do not depend on the enforceability of the University’s policy manuals at all. As a result, all five of the Magistrate’s dispositive recommendations are invalid and must be rejected for the same reason 4 To hold that the Complaint does not allege a “valid contract,” the Court would turn Plaintiff’s allegations inside a the Complaint alleges in its entirety, and then stand North Carolina contract law on its head by asserting that an offer accepted “in its exact terms” did not create a binding contract. |
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| Quasimodo | Jun 23 2009, 02:46 PM Post #9 |
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II. THE COMPLAINT ALLEGES THE UNIVERSITY BREACHED OTHER CONTRACTUAL TERMS, WHICH ARE CONTAINED IN THE DOCUMENTS ANNEXED TO THE COMPLAINT. The Magistrate recommends entry of judgment on Plaintiff’s claims arising out of provisions in the University’s policy manuals because, the Magistrate asserts, (1) “an employee handbook or policy manual does not create a legally binding contract between employer and employee unless the terms of the handbook are expressly incorporated into a separate employment contract,” and (2) it is “impermissible” to rely on provisions contained in the University’s policy manuals because they can “can be unilaterally altered at any time". As a threshold issue, even if the Magistrate’s assertions were correct, they would have no bearing on the existence of the original oral agreement between Andrew and the University... A. PROVISIONS OF THE UNIVERSITY’S POLICY MANUALS ARE ENFORCEABLE AS “BINDING CONTRACTS.” (snip) The Recommendation applies the wrong rule in recommending that provisions of the University’s policy manuals cannot be “legally binding” on the Defendants. The Recommendation asserts: Under North Carolina law, an employee handbook or policy manual does not create a legally binding contract between employer and employee unless the terms of the handbook are expressly incorporated into a separate employment contract. (snip) However, Brewer, Johnson, and the rule they establish do not control this dispute because this is not an employment dispute. The Complaint does not allege that Andrew was Duke University’s employee, and no employment contract is at issue in this case. To the contrary, the Complaint alleges the breach of an agreement to provide services and a right of access to the University’s Athletic Department programs and facilities, in exchange for a substantial fee. Moreover, the rule of construction established in Brewer and Johnson is uniquely specific to employment agreements under North Carolina law. The rule is particularly inapposite to the contract alleged in this case because the purpose of the rule is to enforce the strict limitations of North Carolina’s “at-will-employee” doctrine. . . For obvious reasons, it is improper to apply a rule designed to enforce North Carolina’s at-will-employee doctrine in a contract dispute that involves rights of access to the University’s programs and facilities. As demonstrated in supra Part II.A.1., North Carolina courts do not apply the at-will-employee doctrine in breach of contract suits brought by students against universities. |
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| Quasimodo | Jun 23 2009, 02:56 PM Post #10 |
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B. THE UNILATERAL RIGHT TO AMEND DOES NOT RENDER PROVISIONS OF POLICY MANUALS UNEFORCEABLE The Magistrate asserts that the right to amend terms of an agreement renders the agreement illusory: Reliance on the four student policy manuals as binding contracts is also impermissible because they can be unilaterally altered at any time. All of the manuals upon which Plaintiff relies have provisions allowing unilateral changes. First, the Magistrate confuses the law of indefinite contracts with the law of illusory contracts, and then fails to correctly identify the law that governs. Second, this Court (and others) routinely enforce a provision published in a Duke University policy manual which also contains a nearly identical right of unilateral modification. The Recommendation asserts that it is “impermissible” for Plaintiff to rely on provisions published in the policy manuals annexed to the Complaint because they “have provisions allowing unilateral changes.” (snip) 477. Thus, the North Carolina courts do not invalidate a contract that allows a party to unilaterally amend it; instead they simply infer that the right must be exercised reasonably. . . 2. The Magistrate Failed to Look Behind the Defendants’ Ellipses to See That It Conceals the Very Words That Undermine Their Contention. Following the Defendants’ lead, the Magistrate’s M&R employs an ellipsis to mask the glaring defect in their assertion that the policy manuals are illusory because Duke reserves the right to unilaterally alter the “matters described herein without prior notice ….” The ellipsis conceals the final five words of the clause, and omitting them dramatically changes the legal significance of the quoted text. Unredacted, the entire sentence reads: The university reserves the right to change programs of study, academic requirements, teaching staff, the calendar, and other matters described herein without prior notice, in accordance with established procedures. (emphasis supplied). Thus, the excised text shows that the right to “change” the “matters described” is neither unilateral nor unlimited at all. The ellipsis the University employed and the Magistrate subsequently used, concealed the words that expressly limit the right to change the Bulletin’s provisions; the right to “unilaterally change” may only be exercised “in accordance with established procedures.” Id. Thus, the right to change the University Bulletin does not establish that terms may be “conditioned upon the whim or caprice of the party” and the protections established therein are not therefore “given and taken in the same breath” as must be shown to render a contract illusory. . . The right to change the provisions is—on its face—duly limited and qualified on its own terms. Magistrate Dixon needed only to look and see what the Defendants’ ellipsis concealed. Having failed to do so, his recommendations now urge that this Court make the same oversight. The Court should decline that invitation and reject the M&R. That is ample reason to reject the Magistrate’s recommendation that the Court enter judgment on the pleadings, but there is more. |
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| sceptical | Jun 23 2009, 03:01 PM Post #11 |
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It does get confusing. Ekstrand represents Giuliani and filed the suit against Duke on his behalf. He is also the attorney who filed for lacrosse players Ryan, Breck, and Matt in McFadyen et al v. Duke et al. See: http://www.ninthstreetlaw.com/filings.html The friends of the court brief in the Giuliani case was filed by a separate team of attorneys headed by Charles Cooper who filed for other Duke lacrosse players in Carrington et al v. Duke et al. Edited by sceptical, Jun 23 2009, 03:02 PM.
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| Quasimodo | Jun 23 2009, 03:03 PM Post #12 |
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3. The University Habitually Seeks (and Obtains) Orders from this Court and Others Compelling Enforcement of Provisions Contained in University Bulletins and Policy Manuals. In addition to all of the foregoing reasons, we know that the University’s policy manuals are enforceable—even when they expressly reserve the University’s right to unilaterally change them— because the University does it all the time—in this Court, no less. For example, the University’s own affidavits and memoranda, filed in this Court and others, contradict Defendants’ claim that the University’s policy manuals cannot be enforced as binding contracts. In fact, the University regularly contends that its dispute resolution policy is a “valid and binding arbitration agreement” that is enforceable in this and other courts. That policy, is contained only in one of the University’s policy manuals, originally called the Staff Benefits Guide (“Guide”). As explained below, there is no meaningful distinction between the Guide and the policy manuals annexed to the Complaint. Just like the University Bulletin that Defendants claim is unenforceable in this case, the Guide contains an express reservation of the right to “unilaterally change” its provisions. A comparison of the relevant language is instructive: Student 2007-2008 Bulletin “The university reserves the right to change programs of study, academic requirements, teaching staff, the calendar, and other matters described herein without prior notice, in accordance with established procedures.” Staff Benefits Guide “Certain policies, benefits, and services described in this handbook may be changed or discontinued. Booklets and plan descriptions summarizing various benefits, policies, and services are issued and revised from time to time. Official policy manuals and governing plans and agreements shall govern in all cases the terms and conditions applicable to the matters governed in this handbook.” Thus, both policy manuals plainly reserve to the University the right to “change” their contents; however, the Guide is broader—it includes the right to unilaterally “discontinue[]” the “policies, benefits, and services described in th[e] handbook,” a right that is not in the policy manuals annexed to the Complaint. Nevertheless, despite an even broader right to “unilaterally change” the Guide and its arbitration policy, the University habitually demands that this Court and others must enforce it, over the strenuous objections of the University’s party-opponent. In fact, Duke has compelled judicial enforcement so often that North Carolina Superior Court Judge Howard Manning recently remarked that Duke has obtained “enough federal orders to choke a cow, from the Middle District and elsewhere, requiring Duke employees to arbitrate under the agreement ….” Exh. B, Transcript of the Motion at 2, Pressler v. Duke Univ., 08CVS1311 (Durham Co. Sup. Ct. Apr. 16, 2008) (pending on appeal of the denial of Duke’s Motion to Compel enforcement of the Guide in N.C. Court of Appeals). Additionally, when the University is seeking to enforce provisions of the Guide, the University contends that the expressed right to unilaterally change the Guide at any time, actually expands Duke’s right to enforce not only the original arbitration policy but also its amended versions, expanding the policy’s enforceability. Of course, the University’s position in those sworn affidavits and memoranda is the polar opposite of the position that Defendants have taken in this case. In this case, the University contradicts its own sworn affidavits by asserting that the right to unilaterally amend the documents annexed to the Complaint renders their provisions “unenforceable” as a matter of law. And, Magistrate Dixon recommends that this Court adopt this new position, which would call into question all of the orders issued on the contrary premise. (snip) All of the foregoing makes clear what this Court already knows: the University routinely enforces its bulletins when their provisions favor the University; and the provisions in those bulletins are routinely enforced by this Court. They are not nullified, held illusory, or otherwise invalid because they may be unilaterally changed without notice. The University’s argument does not suffer for lack of gall; and in light of the litany of sworn affidavits and memoranda on file with this Court, denying this Motion is insufficient to fully address the University’s unsupported and contradictory assertions in this case. |
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