# Opposition Brief — Neely v. Houston Oilers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1628%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1966 - **Citation:** 385 U.S. 840 ## Text INDEX. OPrINions IN THE Counts BHO |... oon g.c cess JURISDICTION ta turts 3G re eee nens STATUTE INVOLVED QUESTIONS: PRESENTED ............: Vererrieys _ STATEMENT OF THE CASE f. .:.... Br iin eekis oa _ STATEMENT OF FacTs .......:...... ene ee ARGUMENT OPPOSING 43RANTING OF‘ THE WRIT 1. _ the Tenth Circuit is Not in Conflict With ‘the Decision of the Court of Appeals for the » _ Fifth Circuit in New York Football Giants, The Décision of the Court of Appeals for Inc. v. Los Angeles Chargers Football. Club, ‘Inc., 29% F.2d°471 (1961) .............. The Court of Appeals Correctly Applied ..Texas Law in Holding that the Service Sta- ‘tion Agreement (Plaintiff’s Exhibit 7), One of the Contract Documents, Meets the Re- quirements of the Texas Revised Civil Stat- ute of Frauds, Art. 3995, Texas Revised Civil DR rs soon y te ee nee eee . Ada Oil oer. was Not an 1 Indispensable - Party. Bis Ny re BBR ee OT NN - Petitioner Cannot Properly Reise for the _ First Time in His Petition for Writ. of Certiorari an Issue Not Urged in the Courts Below That the Dallas Cowboys Football Team Was an ap Party to this Mg eo ce et en en ARTICLE 3995, TExas -Revisep’ Crvit STATUTES ‘2? (14 18 Puta fee... App. Bel ‘ u | INDEX TO AUTHORITIES _ CASES : | Allstate Ins. Co. v. Brown, (Tex.Civ.App. 1956) _ I oe Bebe cdicaceep ae. - Best Building Co. v. Sikes, (Civ. App., Ft. Worth, 1965) 394 S.W.2d 57, writ ref’d n.r.e. Butler ‘¥. Continental Oil Co., (Tex.Civ.App.)- ae oie eases nacccage; - Dallas Cowboys Football Club, Ipc. v. Harris, _ (Civ.App., Dallas, 1961) 348 S.W.2d 37, 42 Detroit Football Co. v. Robinson, 186 F.Supp. 933 ‘Eastland County v. Davisson, (Tex.Comm.App. oe EN A ee ne Employers Mutual Liability Co. v. Mosqueda, 317. sie La ae 2 en Green) v. American .General Ins. Co., (Tex.Civ. . App. 1962) 354 S.W.2d 616, writ ref’d nur.e. - Kauffman v. Deignan,’ "(Tex Civ. App.) 227 ‘ Rl BO Se a ea McElroy v. Danciger, (Tex.Civ.App.) 241+ "SW. I ee ee Re vs do we 6 oa Ses « Mission Independent School District y. Diserens, (Sup.Ct. Tex., 1945.) 188 $.W.2d 568 National Labor Relations Board v. Pittsburgh - Stearnship Co., 340 U.S. 498, 95 L.Ed. 497 _.. | Page 19 i “9 New York Football Giants v. Los Angeles Chargers - Football Club, Inc., (5th Cir.) 291 F.2d 471. 5,9, 10, 21 Pacific Mutual Life Ins. Co. -¥, Westglen Park; Inc., (Tex.Sup.Ct. 1959) 325 S.W.2d 113 © |: a Precision Instrument Mfg. Co. v. Automotive’ . »Maintenance Machinery Co., 324 U.S. 806, 815, eG Pal ns sles ees , Republic Molding Corp. v. B. W. _— Utilities ' (CA. 9) 319 F.2d 347 - Rice v. Sioux Gity Memorial Park F nclontie Inc. ie 349 U.S. 70, 79, 99 L.Ed. 897, 75 S.Ct. 614 ~ _ 13 10 Ill , CASES ns v. Sedeeive, 349 USS. 48, 99 L.Ed. es Oe a OE 5 eal cae wae dees fees Page: 19 . Skeeters v. Granger ° (Tex.Civ.App,‘.1958) 314° °° ‘§$.W.2d 364, writ ref’d mre. ............... Taylor v. Lester, (Tex. Civ,App. ) 12 SW. 2d 1097, Ee ORG amet: See aE Pepe 7 nah et + Biller -v. Fields, (Tex.Civ.App. 1997) 301 S.W. RENE Sie Sear Pee on nar nr ee een ea Williams vv. Fanning, ss de US. 490, 92 L.Ed. 95, 68 S.Ct. 188 te. ghd stay a STATUTES ihn. 3995. Tex. Rev. Civ. Stats....°.... ee at a pee A ). ene 34 Tex.Jur.(2d) 452 ...... 16 17 16 19 Nh 19 No. 407 a 6 IN THE. a Supreme Court of the United Susie _ OCTOBER TERM, 1966 RALPH NEELY, Petitioner, —_« - * V7. HOUSTON OILERS, INC., Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF .CERTIORARI To The Honorable Judges of The Court: Respondent HOUSTON OILERS, INC., prays that the By . . Petition for. Writ of Certiorari of RALPH NEELY be denied, and would show that the requisite grounds do not exist for review of the Judgment of the United States . Court of Appeals for the Tenth Circuit entered May 18, 1966. OPINIONS IN THE COURTS BELOW © The Opinion of the Court« of Appeals is ‘printed in Appepdix “A” hereto. The Findings of Fact and Conclu- 7 j/ OT a “ee a ee ee 8 ; bis “en _ sions - Law of the District Court appear. ‘in | the record. iat R. 121- 136)" JU! RISDICTION a > The sis of the Court of “Appeals was entered on May 18, 1966. (A.R. 4) ‘Rehearing was denied on June 23, 1966. (A.R. 10) — Petitioner seeks’ to invoke jurisdiction es this Court under Title 28, U.S.C., Sec. 1254(1). Respondent would however show that aliave are neither special-nor important reasons for reviéw of this cause on writ of certiorari; that no conflict here exists between decisions of- Courts of Appeals and that the Court of Appeals correctly applied the Texas law pertaining to the Texas Statute of Frauds, Article 3995, Texas Revised Civil Statutes. “STATUTE INV. OLVED- ~The Texas’ ‘Statute of Frewle, Article 3995, Texas Re- vised Civil Statutes is printed in Appendix “B” hereto. QUESTIONS PRESENTED 1, Did the Court of Appeals abuse it? discretionary: powers when it refused to apply the equitable “‘clean hands” doctrine and granted injunctive relief to enforce a contract ‘provision in a case where a professional football: team and a college football player, without fraud or deceit, entered 1The record is comprised of the Transcript. of Record from the “Court of Appeals which incorporates the Record and Transcript of the District Court. Each document begins with a page one. Refer- ences to the various parts of the. record will be made as follows:. Court of Appeals record—A.R.; District Court Record—D.R.: ‘District ; Court Transcript—Tr. 4 into valid written contracts prior to a -post-season college game, the parties had an extrinsic oral. understanding that ‘the existence of. the contract would not be’ publicized: until after the game, and where the college player did ‘not . play in the post-season game? (2.QDid the Court of Appeals correctly apply Texas law ‘in holding that the: service station agreement (Tr. 36,~ ‘Pl.’s Ex. 7) meets the requirements of the Texas Statute of Frauds, Art. 3995, Texas Revised Civil Statutes, where the instrument is in writing, is signed by the parties, and provides a method of certain and final identification of the property by giving ‘one of the parties the unqualified right of selection without the necessity of further agree- ment by the other party? as 3. Is ‘the i issue ‘that Ada Oil Conair is an indispensable party a proper one for consideration ‘in acting upon a Petition for Writ of Certiorari where such issue has been raised for the first time on Petition for Rehearing in the Court of Appeals after Respondent has alleged, the Peti- tioner has admitted, and the Court of Appeals has held, that the contract involved was ‘made by saat ene and Pétitioner? ~, If so, then the question -presented is: whether or ‘not Ada Oil Company is an indispensable party where it entered into an agreement ‘on which it has secondary or derivative | liability and with respect to: which Respondent is the real party in interest. % 4. Is the issue that -the Dallas Comin Football team is an indispensable party a proper one for consideration in acting upon a Petition for Writ of Certiorari where such issue is raised for the first time in the Petition for Writ of f Certiogari? 4 ‘ If so, then the question presented is whether the -Dallas Cowboys Football team is an indispensable party to this action by Respondent seeking a declaratory judgment that a’ valid contract exists between the Houston Oilers and - Ralph Neely and an injunction restraining the violation by Petitioner of a provision of the contract because Peti- tioner has made a. separate and distinct: contract with such third party. 3 , STATEMENT OF THE CASE® In this action filed in the United States District Court _ for the Western District \of Oklaho Respondent, _ _ Houston Oilers, Inc., seeks a declaratory judgment that © there. exists a valid, enteredsble written contract between Respondent and Petitioner, Ralph Neely, that he play professional football for the Houston Oilers team of the American Football League, arid an injunction permanently restraining and enjoining Petitioner from playing football ‘with any other team during the term of the. contract. (D.R. 1-45) a oe of the District Court was based upon iie- sity of citizenship. Respondent is a Texas corporation. Petitioner was, at the institution of suit, a resident of Oklahoma. (D.R. 109-110) After:a non-jury: trial, the District Judge entered judg- ment that the contract: between the parties was invalid and of no force and effect, denied the application _ for » declaratory judgment and” for injunction, and dismissed the Complaint with prejudice. (D.R. 136) Respondent perfected an appeal ‘to the Court of Appeals for the Tenth Circuit. The Court of Appeals held that . the undisputed facts in the record disclosed a valid and 5 enforceable contract | (ALR. 3 p. 3); that there is insufficient evidence to’ sustain a finding of material misrepresentation on the part of Houston amounting to’ fraud which would affect the validity ofthe contracts (A.R. 3 p. 12); that the Standard Players’ Contracts, the Letter Agreement for Additional Employment, and the Filling Station Agreement ituted a‘single transaction (A.R. 3 p. 5).; that the (clean: hands doctrine) admits of the free exercise: ge ‘cal discretion in the furtherance of. justice (A.R. 13); that it is neither unlawful nor inequitable for. = (PLEx. 8, D.R. 195) 3 Neely received the $2 5,000 “Ballas Cowboy bonus check on December 31, 1964, ptior to the~time he was declared / ineligible ‘to play in the Gator. Bow] football game. He reported the $25,Q00 ‘as 1964 income. (Tr. 161, 174-175). . Neely himself told the Oklahoma University coach that he had signed the Houston contract papers and had sent _ the letters dated December | 29, 1964. (Tr. 200-202) On. January 1, 1965, Neely was declared iacigitte 2 to play in the’ Gator Bowl game. (Tr. 162) , On sanity 1, 1965, Neely signed contracts to play pro-.. fessiénal ‘football with the Dallas Cowboys of the National Football League during the football seasons °commencing in the. years 1965 through 1968. He, in, fact played with : the Dallas team. during the 1965 season and admits that . : @he will continue to. play” football for Dallas unless he ‘is ” The requirements of the Texas Statute of Frauds are satisfied whenever the contract provides a method of cer- . tain and final identification of the property. Directly i in point is the case of Tiller v. Fields, (Tex. Civ. App. 1957) 301 S.W. 2d 185 whenei the court said at ' page 190: hiiiiithtiaiy in their brief cite the case of Stekoll . Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d, 187. We think a careful analysis of this case will show _ that it is supportive of ‘appellees’ position rather than . that of appellants’ because it is clearly recognized: in _ the Stekoll case that the statute of. frauds is met ' where the contract, instrument or agreement, gives either party the unqualified: right or power to make: a selection or determination of the details without the ‘necessity of further agreement or. approval of the - ‘ other party. Also in this connection see Taylor v. Lester, Tex.Civ.App., 12 $.W.2d 1097, wr.ref.;- Gray _y. Producers’ Oil Co., Tex.Civ.App., 227 S.W. 240; Rountree v. Bridwell, "Tex.Civ. App., 269 S.W.2d 824, _ wr.ref., N.R.E.; Lingeman v. Shirk, 15 Ind.App. 432, ° 43 N.E. 33; Peckham v. Lane, 81 Kan. 489, 106 P, 464, 25 L.R.A., N.S., 967. The lease pooling pro- vision in question in this case clearly gives the lessee the broad and unqualified power to select or deter- ‘mine the lands ake the immediate . vicinity) to be placed in the unit . iB Other cases which directly support Respondent’s position _ . that the -writing in question meets the requirements of - the Texas Statute of Frauds are Skeeters v. Granger, (Tex. Civ.App. 1958) 314 S.W.2d 364, 366, writ ref’d n.r.e., and Best Building Company v. Sikes, (Tex.Civ. App. 1965) 394 S.W.2d $7, 62, writ ref’d n.r.e. Under Tekas 1 law, an express or implied reference in one doctment to another incorporates the latter into the former | i 17 $o as to‘allow the two to be considered together in deter- mining whether the statute of frauds has been -complied with. McElroy: v. Danciger, (Tex.Civ.App.) 241° S.W. | _ 1098; Taylor v. Lester, (Tex.Civ.App.) j2 S.W.2d: 1097, | _writ ref’d; Kauffman v. Deignan, (Tex.Civ. App.) 227 '$.W.2d 271, 275. Therefore, the agreement is not made © invalid because it incorporates by reference the instru- ments which describe the improvements. to be erected ‘upon the property, and the Phillips Petroleum Company's s standard Two-Party Lease. Agreements. The Phillips , Petroleum - ‘Company’s Standard Lease Agreements or existing lease agreements used at Phillips servicé stations all over the country. (Tr. 119) The service ‘station leases are to be between Ada Oil Company and © Phillips Petroleum Co, The Service Station. Agreement | - (Pl. Ex. 7, D.R. 36) requires-that the lease rentals pay the full cost of the service station site and improvements. Therefore, the other provisions of the lease agreements are _ of no concern to Neely and he is not required, under Texas’ law, to approve their terms. Pacific Mutual Life Ins. Co. v. Westglen Park, Inc., _— 1959). 325 $.W.2d 113. . Petitioner’s argument cancerning the effect of the ‘ale ment below, if allowed to stand, borders on the ridiculous. The well-established Texas law, concerning ,which there is no dispute is that injunctive relief will be granted to re- strain a violation by Neely of his covenant not to play _ football for a club other than the Houston Oilets; but that he cannot be required by mandatory injunction to." — _. play for Houston. Mission Independent School District v. Diserens, (Sup.Ct. of Tex., 1945) 188 S.W.2d 568; Dallas’ Cowboys Football Club, Inc. v. Harris, (Civ.App. Dallas, _ 1961) 348 S.W.2d 37, 42, Should Neely elect to play foot- 18 . ball for Houston, then the service station site is obviously a valuable part of the consideration for his playing foot- - ball, probably worth under Neely’s own testimony at least $100,000 by the end of twenty years. (Tr. 281) Neely has made and is bound by his contract. This Court will not - presume that Respondent, in the future, will not deal fairly - with the Petitioner. However, Neely would not be com- pelled to accept a conveyance of a service’ station site if he chose for any reason not to accept it. \. 3.° Ada Oil Company Was\ Not ° an Indispensablé - Party. \ Respondent plead ©. R. 2) , \ Petitioner admitted, (D.R. 61), and the Court of Appeals’ found (A.R.. 3, p. 5) that the contract and agreement between Houston Oilers, Inc. and Ralph Neely consisted of seven instruc-’. tions; i.e., the bonus clause, four American Football League ‘contracts, the Real. Estate Salesman Commission Agreement, ig and the Service Station Site Agreement which constituted a single offer in writing made by the’ Houston Oilers and accepted by Ralph Neely. The sole consideration. from. Neely -for the conveyance to him of the station site was his agreement to play football for Houston. (Tr. 49-5 0)... Although Ada Oil Company appears as a pafty to the - service station agreement, examination of all the contract documents and thé evidence makes it obvious that Re- _spondent, ‘Houston. Oilers, is the real party in interest ‘and that Ada, an affiliated corporation owned 100%. by K. S. -Adams, Jr. was named in the Letter Agreement to act for the Houston Oilers merely because that company was the jobber for Phillips ’66 products in the Harris County area and=was in’ a convenient position to carry out what was 19 in fact the primary obligation of the Houston Oilers; namely, to. pay Neely that part of the consideration for playing football represented by the service station site. Under Texas law whether it be considered ‘that wader the circumstances there is an identity of parties between the Houston Oilers and Ada Oil Company, that Houston Oilers stand in the position of a guarantor of the per- formance by Ada, or whether Ada is to act as an agent of Respondent, the requisite relationship exists so that Ada is bound under the doctrine of res judicata by the decision of the Court of Appeals. The law is well-established in Texas that a plea of res judicata based upon a former suit is available against one not a%party to the former suit who rests under a secondary or derivative liability which must have been considered and determined in the former litigation. Eastland Gounty v. Davisson, (Tex.Comm.App. 1929) 13 S.W.2d 673, 676; Butler v. Continental Oil Co., (Tex.Civ.App.) 182 $.W.2d 843, 845; Green v. American General Ins. Co., (Tex.Civ. . . App.1962) 354 S.W.2d' 616, writ ref’d n.te.; Cf. Em- . ployers Mutual Liability Co. v. Mosqueda, 317 F.2d 609; "see also, Allstate Ins. Co. v. Brown, (Tex.Civ.App. 1956) — 289 $.W.2d 300; 34 Tex. Jur.2d 452. Ada + Comipany was bound by the Judgment of the Coprt-of Appeals and was not an indispensable party: | Furthermore, this Court has held that the indispensability is of parties is determined on practical. considerations. Shaugh- _nessy v. Pedreiro, 349 U.S. 48, 99 LEd. 868, 75 S.Ct. 591; .- Williams uv. Fanning, 332 U.S.°490, 92 L.Ed. 95, 68 S.Ct. 188. Applying that test, and under the record ‘before. the a Court, Petitioner should not now be permitted. to ignore the trial. pleadings and the findings from the evidence and r, ° 7 ; e . e : \ e ‘ | a ‘ ‘. . . . : . . } : . 9 ° . ‘ es ‘8 ' aa 20 So: ee to how raise this issue of indispensable parties, Petitioner first contended that Ada Oil Company was a necessary party while Petition for Rehearing was pending in the Court of Appeals. Petitioner should not be permitted by , so doing to circumvent the finding 2 on the evidence that this contract was in fact between the Houston Oilers ‘and Ralph Neely. = \": The pending action in the .133rd District Court of Harris County, Texas, styled “Ralph Neely, Plaintiff ‘y. 9 Ada Oil Company, Defendant; : referred to in the Petition, isan action filed after the Court of Appeals for the Tenth. re had rendered its decision rejecting the same con- ' tentions there and here made by Petitioner pertaining to. the service station agreement. The Texas District. Judge, “on motion of Respondent, has stayed the proceedings. in’ the Texas ‘case pending determination of the instant cause . by this Court. | ; ; ~ © ‘ > aL’. » 4. Petitioner Cannot Properly Raise For the First Time,in' His Petition For Writ of Certiorari, _ an Issue Not Urged in The Courts Below That . _: The Dallas Cowboys Football Team Was An , Endispensable Party to This Action. | “This i is an action hheniiihie by + a I tes declaratory - ‘_ judgment as to the validity of a contract between Respond- ent and Petitioner, and to erijoin a violation by Petitioner of the contract. The Dallas Cowboys Football Club is not a party to the contract, no adjudication is asked as to any “of its contractual zights, That Petitioner, Ralph Neely, | made a subsequent, separate and. distinct contract with the -. Dallas Footbal Club does not make it a necessary party ‘to _ this litigation. This third sari ae ‘could not have been served « . c eS 7 with process in the Western District of Oklahoma where, this action was instituted. The Court should ‘give no consideration to ‘the fourth question presented by Petitioner because it was raised for _ the first time in the Supreme Court, and is not a proper . ground for granting review on certiorari under Rule 19 of the Rules of the Supreme Court. CONCLUSION | ' The,claimed | conflict between the decision of the Court of Appeals for the Tenth Circuit and the decision of the ‘Court of Appeals for the Fifth Circuit in New York Foot- | ball Giants, Inc. v. Los Angeles Chargers Football Club, inc.; supra, does not exist. The Court of Appeals properly construed and applied the Texas law pertaining to the statute of. frauds, Petitioner’s tontentions pertaining to, indispensable: parties are unfounded and do not raise issues which are grounds for review by this Court on certiorari. No special or ‘important reasons exist for review on cer- ~ tiorari by this: Court. Therefore, the Petition for Writ of Certiorari should be denied. ; Respectfully submitted, — F aa ’ Gus ‘RINEHART ° 2320 First National Building ee rs - Oklahoma City, Oklahoma WILLIAM D. DEANS, JR. Wiitiam R. EcKHARDT 2005 First City National Bank nay -- Houston, Texas a Attorneys for Respondent “¢g ¢ 22. ra 7 UL Certificate of Service I hereby certify that a copy of- the foregoing Brief was miailed to Angus G. Wynne, 2808 Southland Center, Dallas, . Texas 75201, and to James D. Fellers and J. Howard Edmondson, 2700 First National Building, Oklahoma City, Oklahoma 73102, counsel for Petitioner, on or 1966. ™ —@ APPENDIX “A” Bnited States Court of Appeals TENTH CIRCUIT " NO. 8520 - MARCH’ TERM - 1966 - HOUSTON _@1LERS, INC., Appellant, . et ll | RALPH-NEELY, Appellee. Appeal From The United States District Court For The Western District of Oklahoma - William R. Eckhardt of the firm of Vinson, Elkins, Weems & Searls, Houston, Texas, and Gus Rinehart of the firm | of Rinehart & re, Oklahoma City, ia for - - Appellant. . James D. Fellers of the firm of Fellers, Snider, pinta & McLane, Oklahoma City, Oklahoma, and Thomas J. Mo- _ roney, Jr., of the firm of Wynne, Jaffe & Tinsley, Dallas,. Texas, (Angus G. Wynne, Dallas, Texas, and J. Howard - Edmondson, Oklahoma City, Oklahoma, with them on the brief) for Appellee. ; Before PICKETT, HILL and SETH, Circuit Judges. PICKETT, Circuit Judge. = «| 3 Pad i 2 | ” Appendix A Page 2 of Opinion This appeal concerns the validity of a professional foot- : ball'contract signed by Ralph Neely, a University of Okla- homa football player, and Houston Oilers, Inc., a Texas corporation which owns and operates a professional football _ team in the American Football League: Neely, a high school athlete of great promise, graduated from the Farmington, - New Mexico high school in 1961, and found his way to the University of Oklahoma at Norman, Oklahoma, There his proficiency in football continued to develop, and in his senior year he became one of the nation’s outstanding col- legiate football players. He intended to play professional football and desired to take full advantage of the financial benefits arising from the-rapidly growing popularity of ‘professional football and the rivalry. existing between the _two major professional football: leagues, Upon completion _ of ‘the regular football schedule at the University of Okla- hhoma on November 28, 1964, the right to contract for _ Neely’s services was awarded under a draft"process to the Houston’ Oilers in the American Football League and to the Baltimore Colts in the National Football -League.’ On December 1, 1964, Neely signed American Football League go Havers Contracts with Houston, each containing . “no-cut” clause, for the seasons 1965 y sees 1968, and iat therefor’ a $25,000 bonus check. Thereafter Neely signed contracts with the Dallas Cowboys of the National \ 1 Under the rules of both leagues, -a club which selects 4 player in the regular course of the:draft owns the exclusive right to con- tract for the services of that wee: & Appendix A oar Page 3 of Opinion Football 3 which had acquired Baltimore’s draft © - rights to Neely, and returned the Houston contracts and the $25,000 bonus check. Houston thereupon ‘brought this action for a judgment, declaring its: contract with Neely to, be valid and enforce- able, and for an injunction-restraining him from playing professional football with any team: other than Houston. The trial court, in denying the relief sought, found that the contract was tainted with fraud and violative of the Texas Statute of Frauds. We hold that the undisputed facts in the record disclose a valid and enforceable contract. — Immediately after the draft on November 28, 1964, both Baltimore and Houston had set in. motion their contract machinery to acquire the services of Neely. On that date ~ Neely, while enroute to New York.City to accept honors * awarded him as an All-American choice and to participate in the Ed Sullivan television show, discussed his plans with _ representatives of the Baltimore team and was given a firm offer to sign a contract. On the same day, Breen, the per- sonnel director of the Houston team, went to New: York “for the sole purpose of obtaining. a commitment from Neely. Neely was accompanied by his father-in-law; Rob- ert Forte, an Oklahoma City businessman, who participated ~ in all the negotiations as advisor to Neely. In New York City, Neely advised Breen of the Baltimore offer,’ - but indicated @hat he preferred to play in the southwest. Neely 2This offer was stated to ‘be a $25,000 bonus and -a four-year © contract starting ‘at $16,000 -. — and en to $25,000 for the fourth year. -4 aoe Appendix A | Haid 4 of Opinion . told — that in any contract negotiations he- wanted to _ discuss an afrangement. for off-season work. Breen assured Neely and Forte that such an arrangement could be worked “out, but only K. S. Adams, Jr., President of the Houston | _ Club, could discuss such proposals.-For the purpose of con- tinuing tract discussiorfy, the three traveled to Houston, arriving Xs on November 30th. At a meeting attended by Neely, Forte, Adams and Martin,. the club’s General ' Manager, a four-year contract with a “no-cut” clause was offered to Neely. The offer provided for a $25,000 bonus and a salary of $16,000 per year. In addition, Adams agreed to secure employment for Neely with‘a local real estate firm at a guaranteed annual income of not less than $5,000. Adams also agreed that an oil company which he - owned and controlled »would construct a “convéntional Phillips. 66 Service Station” on a suitable location in Harris ‘County, Texas, at an approximate cost of $30,000 to $60,- 000, amd convey the same to Neely by special warranty deed, subject to the Phillips 66 lease and a deed of trust. Neely was impressed with the offer but desired further time to-consider it..On December 1, 1964; Adams was advised that the offer was accepted. In the meantime, ‘Neely had conferred with his wife and the owner of the Baltimore Club. The Standard Players Contracts were then prepared and executed by the parties,* but were left un- 3 These player contracts are identical to thdse signed by all A.F.L. players and, in: substance, are the same as those ‘used in the NFL. | ae r2' ‘us or Appendix A oe af 5 Page 5 of Opinion | dated. The letter agreement for additional employment, the filling station agreement; and the bonus check were dated December’ 1; 1964, and executed and delivered on _ that date, It is stipulated that these instruments constitute a single transaction. From the beginning of the discussions, Neely, for tax reasons, had insisted that the bonus money must be paid in 1964, and further, that the signing of the contraét and the acceptance of the bonus money be kept secret to prevent him being declared ineligible to participate in the . post-season Gator Bowl game on January 2, 1965, to which the University of Oklahoma had accepted an 6 iatagied Any rational consideration of the ‘evidence lea conclusion that all the parties knew that if Neely signed "a professional football contract and received money there- for, under the rules of the N.C.A.A. and the Big Eight Conference, of which the University of Oklahoma was a_ member, he would consequently. become ineligible to com- _ pete in the post-season game. Neely and Forte were advised that such a. large sum of money could not be paid without .a signed contract. It was then agreed that. when the con- tract was signed, the’ $25,000 bonus check would be made payable to Forte as Trustee and that all the contract trans- “actions would’ remain confidential, with no public an- - > e ge Appendix A Page 12 of Opinion ~ ceremony immediately after the game. It was, Neely, not : * Houston, who disclosd to his coach the facts which brought about a declaration of his ineligibility. Even then ‘Neely had lost’ his eligibility through his transactions with Dallas, There is insufficient evidence to sustain a finding _ of material misrepresentation on the part of Houston amounting to fraud which would affect the validity of the contracts, It is true that Neely testified that it was his understanding that the contracts were not to become effective until after the game on January 2nd. The con- tracts, hawever, provided otherwise, and we are not at liberty to rewrite them. Furthermore, the letter of em- \ ‘ployment, the filling station arrangement, and the $25,000 bonus check which was delivered-upon the execution of the contracts; were all dated December 1, 1964. The erial: ee in dinisina the relief sought, apparently applied the equitable maxim that “he who comes into equity must come with clean hands.” This doctrine, funda- _mental in equity jurisprudence, means that. equity will not in any manner aid a party whose conduct in relation to the litigation matter has been unlawful, unconscionable, or inequitable. See, Garland v. Brown, Tex., 52 F. Supp. 401. But the doctrine does not exclude all. wrongdoers from a court of equity nor should it be applied in every case where the conduct of a party may be considered unconscionable or inequitable. Office Employees Internat’l Union v. Hous- - ‘ton Lighting & P. Co., Tex., 314 S.W.2d: 315; Kirkland y. Handrick, Tex., 173 S.W.2d 735. The maxim admits -Abpendix A : 13 pase 13 of Opinion | ~ . i * 4 of the free exercise ” judicial discretion in the furtherance of justice. See, Johnson v. Yellow Cab Co., 321 “USS. 383. While it is not contended here: that Houston did not have ‘ a legal right to sign Neely to a professional player’s con- tract, it is: urged that when Houston participated in a | scheme to conceal that fact for the purpose of permitting , an ineligible player to participate in a post-season game, it was such deceit upon others that a court of equity should "not ‘intervene to assist in the enforcement of the con- tract: With this argument we cannot agree. ‘It is neither - _ unlawful nor inequitable for college football players to: surrender their amateur status and turn professional at any tithe. Neely was free to bind himself to such a con- tract on December 1, 1964 as he would have been after —jJanuary 2, 1965. Nor was Houston under any legal duty to publicize the contract or to keep it secret. Its agree- ment to keep secret that which it had a legal right to -keep secret cannot be considered: inequitable or unconscion- ‘able as those terms are ordinarily used in contract negotia- tions. Neely relies on the case of New York Football | Giants v2 Los Angeles Chargers F. Club, Inc., 5 Cir., 291 J F.2d 471, where, in a somewhat similar situation, the court - applied the clean hands doctrine. It is quite apparent that. the player contract in that case was acquired under cir- - . cumstances much different from those in this case, but if the rule announced in that case was irttended to apply to every instance im which a contract is entered into with a = ~ se ~ a / ie si anoying en ee ao = ) 14 ; i Appendix A "Page 14 of Opinion . college football esi bind a post- season’ gamie ii: an * understanding that it be kept secret to permit that player _ to. compete’ in the game, then we must Respectfully dis- agree. with the conclusion. : ' ‘The trial court held that the givice station agreement - violated the Texas Statute of Frauds, Art. 3995, Revised _ : Civil Statutes of Texas; as amended; Vernon’s Anno. Texas — Statutes, Art. 3995, in ‘that it is vague, indefinite, un- > provides that the service station will be for the sale and _ distribution: of Phillips *66 products and that Ada Oil Company will arrange for the construction of a ‘“‘conven- tional Phillips ’66 Service Station of either Series ER 2000,, mn _ ARS 201 or DRS 201”, and: be financed-according to the! plan selected. . It is ‘der: from the unqualified language _of the instrument that the station site, the’ type of station, - “and the financing thereof is to be determined by Ada Oil . _ Company within the limits specified, without ,the necessity of further agreement.’ Such writing satisfies the Texas Statute of Frauds. Tiller v, Fields, Tex., 301- S.W.2d 185. | a REVERSED and - REMANDED with: instructions to: grant the ¢ injunction. o. certain and unenforceable. The letter agreement specifically id | pi . APPENDIX “B” _ TEXAS REVISED CIVIL STATUTES ~ _ Art. 3995. Writing required. &N No action shall be brought in any court in any of the * following .cases, unless the promise or .agreement ‘upon which such action shall be brought, or some memorandum. thereof, shall be in writing and signed by the party to be ° charged therewith or by. some person by him thereunto lawfully ‘authorized: e 1. To charge any executor or sdihiniaerdeoe: upon any " ‘promise to answer any debt or damage due from his testator Or intesta ape, out of, his.own: estate; or, - To charge any person. upon a promise to answer for Ps debr, default or miscarriage of another ; or, 3. To charge any person. ae any agreement made — consideration of marriage; or, "4. Upon any contract for’ the sale of ore estate or the __lease thereof for a | longer term than onie ‘year; or, Upon any agreement which is not to be performed | - withia the space of one year from the making. thereof. ° Acts 1840, P. "28; P.D. 3875; GL. vol. 4s P. 202.~ q --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1628%3A2. Public record. Not legal advice.