Originally Posted by
WesternSkyDawg
Here's a shot at that:
Nutt/Mars would probably like the contract language to be stronger, as HeCannotGo pointed out. But the breach of contract claim is not the only cause of action pled in the Complaint. Mars also pled Breach of the Covenant of Good Faith and Fair Dealing. Every contract in the state of Mississippi, written or oral, contains this covenant by operation of law. So you can escape a technical breach of the contract language and still be liable for damages if your actions are in bad faith.
Example: you sell your house to someone then invite the Stones, Keith Moon, and Joe Walsh over for a little going away party before you tender the premises to the buyer. The house, of course, gets trashed beyond belief. Your contract says that you must tender the house in "habitable" condition. No pictures are taken; no representations are made that it be substantially the same condition as on the date of closing; the only contractual condition is that it be 'habitable'.
You live in the house for a week after it was trashed, then tender it to the buyer, and when the buyer naturally complains, you say "Uhn, uhn, uhn: I lived in it for a week without getting sick. So it must be 'habitable'." You might get away without technically breaching the contract language. But you would've breached the express or implied covenant of good faith and fair dealing.
To be sure, you'd rather have a breach of the express terms of the contract than to have to rely on a breach of the covenant of good faith and fair dealing; it would be a cleaner, more straightforward case. And yes, that's an extreme example. But the lengths OM went to to misrepresent the truth and lay their NCAA issues at the feet of Nutt is pretty extreme as well, isn't it? That's where judges and juries come in.
I'd probably lean toward OM winning the final verdict as well. But the court of public opinion is a different matter. Hell, forget OM and its rivals...Nutt himself is probably enjoying a bit of repair to his reputation just by showing how far OM went to spin this away from them and against him. In the end, just by showing his successor as a fraud with connections to unsavory elements makes anything Nutt did pale in comparison. I.e. he, and everyone other than OM, has won already.