This written assignment is an issue-spotting exercise and related torts analysis of a hypothetical fact pattern. For this assignment, you will need to identify potential causes of action and discuss the likelihood of success for those potential causes of action based on your understanding of tort law and the hypothetical facts provided below.
Hypothetical Fact Pattern
Tom Cuban was a sports agent with Show Me The Money Sports Agency who had signed a contract agreeing not to compete with Show Me The Money for two years after the termination of his employment with Show Me The Money. According to the terms of his covenant not to compete with Show Me The Money, Cuban agreed to not work for a competing sports agency, to not solicit any clients of Show Me The Money, and to not share any knowledge of proprietary information of Show Me The Money.
Torshus Sports Agency is a sports agency that competes with Show Me The Money for clients in several professional sports. Despite knowing about Cuban’s contract with Show Me The Money, Torshus convinced Cuban to quit his job at Show Me The Money and immediately join Torshus. Once Cuban joined Torshus, he quickly moved to sign many of his former clients, who were not contractually precluded from terminating their agency relationships with Show Me The Money at any time.
Cuban has been very successful at signing his former clients at Show Me The Money with the same standard sales pitch. First, he tells potential clients a story about why he decided to leave his former agency. For example, the following statements are a customary part of his story: “Bob Mack [Cuban’s former partner at Show Me The Money] is the most unethical agent in the business. Bob is known to accept kickbacks from teams and sponsors at the expense of his clients. Plus he is an alcoholic who frequently engages in extramarital affairs with clients and their spouses. I just can’t be associated with a person like Bob.”
Second, Cuban emphasizes his ability to analyze player data and turn that use of player data into substantially larger contracts for his clients. Cuban actually took this player data with him from a database of clients and potential clients developed by Show Me The Money. Show Me The Money has long been admired in the industry for its unmatched success with using data analytics to impress teams regarding the statistical value of signing its clients.
And, third, Cuban presents a marketing plan to each potential client directed toward attaining player endorsement deals. To promote his proposed marketing plan, Cuban uses a computer design program to create an advertisement showing Jordan James (perhaps the best athlete of all time) drinking the popular sports drink GatorPower and thanking Torshus for securing the endorsement. Cuban typically emails this advertisement to potential clients. Neither Jordan James nor GatorPower had any idea about the advertisement.
Several clients contacted by Tom Cuban on behalf of Torshus informed Show Me The Money of the above sales pitch. Upon learning of these client contacts, Show Me The Money began contemplating legal action against Cuban and Torshus. It also notified GatorPower and Jordan James of the advertisement, so that they could also consider potential legal action against Cuban and Torshus.
Deliverable and Evaluation Criteria
Please identify potential causes of action against Tom Cuban and Torshus Sports Agency and discuss the likelihood of success for those potential causes of action based on your understanding of tort law and the hypothetical facts provided above. For each potential cause of action, please provide a brief analysis (of approximately one paragraph per cause of action) that (1) identifies the potential cause of action (e.g., defamation), (2) states the law with respect to that cause of action (i.e., the required elements of the cause of action), and (3) provides factual support for your conclusion regarding the likelihood of success (certain, likely, questionable, unlikely, doubtful, certainly not, etc.) for that cause of action.
Example Paragraph – Dr. Cookie’s potential cause of action for defamation against Kim K
Dr. Cookie is unlikely to win a defamation lawsuit against Kim K for calling his cookie diet “unhealthy.” To prevail in a lawsuit alleging defamation, a plaintiff must prove that the defendant published a false statement of fact that has a tendency to harm the reputation of the plaintiff. Here, Kim K’s statement that Dr. Cookie’s diet is “unhealthy” is an opinion rather than a statement of fact, and opinions are protected from liability for defamation. In other words, Dr. Cookie is not likely to be able to prove that his cookie diet is indeed healthy as opposed to unhealthy. Instead, whether the cookie diet is healthy or unhealthy is more likely a matter of opinion. Therefore, Dr. Cookie is unlikely to win a defamation lawsuit against Kim K for calling his diet “unhealthy.”
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