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February 15, 1997

KEVIN ROONEY, Plaintiff, against MICHAEL GERARD TYSON, Defendant.

The opinion of the court was delivered by: MCAVOY

 Before the Court are four post-trial motions in the above-captioned matter. Defendant Michael Gerard Tyson moves for judgment as a matter of law, or, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 50(a) and (b). Plaintiff Kevin Rooney moves to amend the judgment pursuant to Fed.R.Civ.P. 59(e), and for a new trial on the issue of damages.


 This action arose out of the alleged breach, by defendant, of an employment contract between he and plaintiff. Plaintiff's cause of action came on for trial on September 17, 1995. Defendant moved for judgment as a matter of law both at the close of plaintiff's evidence and at the close of all evidence: the Court reserved on both motions. The jury retired at 3:40 p.m. on September 26, 1996, and rendered a verdict in favor of plaintiff on Monday, September 30, 1996.

 A. Defendant's Motion for Judgment as a Matter of Law:

 Defendant raises various arguments in support of his motion for judgment as a matter of law. These arguments address plaintiff's alleged failure to introduce evidence sufficient to sustain the jury verdict with respect to: (1) the existence of a contract made by Cus D'Amato on defendant's behalf; (2) the existence of a contract made by Jim Jacobs on defendant's behalf; and (3) the duration of the contract as found by the jury. Defendants also argue (4) that the evidence demonstrated that the boxer-trainer relationship is a close, confidential relationship.

 1. The Standard for Judgment as a Matter of Law:

 The Second Circuit has established the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that:

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). *fn1" Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires pursuant to Rule 50(a), or motion after the jury has spoken pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.

 2. The Contract's Alleged Duration is Indefinite as a Matter of Law

 Defendant argues that the alleged term of the contract -- "for as long as Tyson fights professionally" -- does not constitute a fixed duration as a matter of law.

 The general rule in New York is that employment is "at will," terminable at any time by either party. Wright v. Cayan, 817 F.2d 999, 1002 (2d Cir.), cert. denied, 484 U.S. 853, 98 L. Ed. 2d 112, 108 S. Ct. 157 (1987); Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987); Murphy v. American Home Products, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86 (1983). This rule, however, is only a rebuttable presumption, Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 198, 443 N.E.2d 441 (1982), and can be "trumped" in two ways. First, "'if the employer made a promise, either express or implied . . . that the employment should continue for a period of time that is either definite or capable of being determined, that employment is not terminable by him at will.'" Weiner, 457 N.Y.S.2d at 197 (quoting 1A Corbin, Contracts, ┬ž 152 at 14). Second, even if the employment contract is of an indefinite duration, courts will give effect to an express limitation on the employer's right to discharge. Murphy, 461 N.Y.S.2d at 237.

 Plaintiff in this case relied upon the first of these exceptions, arguing that D'Amato's promise that Rooney would train defendant for "as long as Tyson boxed professionally" stated a definite term as a matter of law, thus limiting defendant's right to discharge plaintiff. On defendant's motion for summary judgment, the trial judge from whom this case was transferred, the late Hon. Con. G. Cholakis, held that

where termination is possible upon the occurrence of a specified event, a contract does not fail for indefiniteness simply because the contingent event may not occur. In this case, the specified contingency is the ending of Tyson's professional boxing career, an event certain to occur, although not specifically determinable. A trier of fact certainly could determine that such a contract was not terminable at will.

 This Court now holds that the alleged term of the employment contract, "for as long as Tyson boxes professionally," does not state a term of definite duration as a matter of law, and thus defendant's motion under Fed.R.Civ.P. 50(a) must be granted.

 It is well-settled that under New York law, terms such as "permanent employment", "until retirement" or "long term" do not state a definite term of employment as a matter of law. See, e.g., Wright v. Cayan, 817 F.2d 999, 1003 (2d Cir. 1987) (letters from employer promising "permanent employment" failed to rebut at-will presumption); Peters v. MCI Telecommunications Corp., 685 F. Supp. 411, 414 (S.D.N.Y. 1988) (employer's promise that employee "'could expect long term employment'" failed to state definite duration); Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 762 (S.D.N.Y. 1986) (promise that employee's tenure was through "full working life" or "through normal retirement age" stated indefinite term). The evidence adduced by plaintiff at trial showed that the alleged term of employment here was "for as long as Tyson fought professionally." (R. 22, 140). The Court sees no reason to depart from the import of these cases that such a term is indefinite as a matter of law.

 The district court in Weiler v. National Multiple Sclerosis Society, 1980 WL 104 (E.D.N.Y. 1980), was faced with an analogous scenario. In Weiler, the plaintiff brought a breach of contract action under New York law based upon an oral employment contract. Id. at *3. He alleged that defendant had promised him that once he completed a probationary period, plaintiff could work "until he chose to retire." Id. In dismissing the claim, Judge Motley held that

the alleged oral employment contract, providing that plaintiff could work "until he chose to retire," is without doubt, a contract for an indefinite period of time. No specific time period for the contract is alleged by plaintiff . . . In fact, the very phrase, "until he chose to retire," is indicative of the indefinite time period of the contract.

 Weiler, 1980 WL 104 at *3 (emphasis added).

 The temporal point of reference concededly is somewhat reversed in the present case; i.e., rather than a promise of employment for the length of the employee's career, the term was measured by the length of the employer's (Tyson's) career. Plaintiff here was essentially promised employment until Tyson chose to retire. This distinction, however, serves only to underscore the equivocal nature of the alleged term: an employee's expectation of employment obviously will be even less certain when based upon the contingency of his employer's retirement, rather than his own, and particularly when his employer is a professional boxer. Tyson's testimony that he "fights[s] one fight at a time," (R.720) *fn3" bears out such a scenario, as does Rooney's own testimony that at the time he became Tyson's trainer, he had no idea how long Tyson's career would last. (R. 140).

 Not only is the term of employment itself indefinite, but the nature of the proof offered at trial cannot sustain a finding that the employment relationship was anything other than one at-will. The basis of plaintiff's belief that his contract was for the length of Tyson's career was D'Amato's and Jimmy Jacobs' oral statements to that effect. (R. 22, 140, Pl. Ex. 22). However, "oral assurances of lifetime employment, or a suggestion that an employee would be fired only for cause, without more, are insufficient to support a claim for breach of employment contract under New York law." Wanamaker v. Columbian Rope Co., 907 F. Supp. 522, 538 (N.D.N.Y. 1995); see also Romer v. Board of Trustees of Hobart and William Smith Colleges, 842 F. Supp. 703, 709 (W.D.N.Y. 1994) (employer's oral assurances of job security by themselves not sufficient to create express agreement); Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 652 (S.D.N.Y. 1993) ("an employer's oral assurances that induce a person to work for the employer are not by themselves sufficient evidence of an express agreement to alter the employee's at-will status"); Kotick v. Desai, 123 A.D.2d 744, 507 N.Y.S.2d 217, 219 (2d Dep't 1986) (oral agreement that promised "permanent position to last as long as the plaintiff was physically capable" insufficient to overcome at-will presumption). The jury in this case was so charged. (R. 1419).

 Moreover, while the jury was required to examine the totality of the circumstances in determining whether plaintiff had overcome the presumption of at-will employment, Weiner, 457 N.Y.S.2d at 198, plaintiff presented no evidence, other than a variety of "oral assurances," indicating employment for a fixed term. As such, the jury's conclusion that the ...

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