You may have seen this article on ESPN.com last week. Essentially the article states that the General Counsel for the Jacksonville Jaguars was fired for a contract drafting error that creates potential liabilities of around $4 million for the team. The language in question relates to seven contracts with assistant coaches and states the their contracts “shall terminate on the later of January 31, 2012 or the day after the Jaguars’ last football game of the 2012 season and playoffs …” Apparently instead of the last game of 2012 season, it was supposed to say last game of the 2011 season. Makes sense, right? If it was supposed to terminate after the last game of the 2012 season why would they even include the January 31, 2012 language? The last game of the 2012 season would necessarily be after January 31, 2012, as the 2012 season doesn’t start until the fall.
When interpreting contracts the court will generally make an inference that all contractual terms were included for a specific reason and they will read the contract as a whole. E.g. they will assume that the January 31, 2012 date was meaningful. When the clause is read in this light, it would seem apparent that a drafting error had been made. Otherwise, the January 31, 2012 clause would have no meaning or effect on the contract.
Accidental drafting errors of this type are known in legal parlance as scrivener’s errors, and they are one of the few times when a court is permitted to rewrite the terms of a contract. As stated in § 70:93 of Williston on Contracts, which is a legal treatise on contract law:
In contract law, a scrivener’s error, like a mutual mistake, occurs when the intention of the parties is identical at the time of the transaction but the written agreement does not express that intention because of that error; this permits a court acting in equity to reform an agreement.
In light of the scrivener’s error doctrine, it is quite possible that if these coaches were to pursue this matter through the courts, the courts would reform the agreement and change the “2012 season” language to “2011 season”, so as to give effect to the January 31, 2012 provision and correct the scrivener’s error. Thus saving the Jags a fair chunk of change.
The foregoing is not intended to marginalize or condone contract drafting errors. Such errors are not acceptable and diligent drafting should always be undertaken so as to avoid them. This article is merely a counterpoint and offers some additional insight on the matter along with a potential legal argument that may be brought forward by the Jaguars to minimize their damages.
Matt Breeden is an internationally respected business advisor and attorney at Breeden Legal and is based in Indianapolis, IN. He represents Sports & Entertainment properties, as well as many other entrepreneurial businesses, in a variety of matters, including: Athlete/Driver Contracts, Business Formation, Corporate Governance, Mergers & Acquisitions, Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Private Placements, Insurance & Risk Management, Creditors Rights, Employment Agreements and Litigation Management. He can be reached at Matt@BreedenLegal.com