A Florida man is expected to file a lawsuit against Republican presidential candidate Donald J. Trump’s campaign over what he considers broken promises to his preteen girl group U.S.A. Freedom Kids. Jeff Popick, manager of the group and father to one Freedom Kid, claims that his group was promised two performances at Trump campaign events. However, the Freedom Kids were not compensated for their first performance at a campaign rally and had their second performance cancelled, never to be rescheduled.
Did the Freedom Kids Have a Valid Contract With the Trump Campaign?
Although Popick admits that none of the promises Trump’s campaign made to the Freedom Kids are in writing, this does not mean that a valid contract doesn’t exist.
One of the essential components in the formation of written as well as oral contracts is that an offer is made by one party (called the offerer) to another (called the offeree). The offerer must spell out the essential terms of the agreement—including the price and subject matter of the contract. According to Jeff Popick, the offer presented to the Freedom Kids was that the group would perform two shows for Trump events in Florida. Although the first Florida event did not pan out, the Trump campaign offered to allow the Freedom Kids to perform at a Pensacola rally.
Popick accepted the terms of the contract when he agreed to have the Freedom Kids perform at the rally in Pensacola. In exchange, the Trump campaign would set up a table at the event where the group could sell their albums. This exchange of the Freedom Kids performance for the table at the rally represents what is known as consideration. Put another way, consideration is the benefit that each party gets in a contract—in this case, the Trump campaign received the Freedom Kids performance in exchange for the exposure and monetary benefit the Freedom Kids were supposed to receive from their table at the rally.
Although the Freedom Kids did perform at Trump’s Pensacola rally as promised, they were not provided with any table. Popick’s attempts to reach the campaign afterward for some other form of compensation met with no success. As a result, Popick was forced to eat the cost of the promotional materials he purchased for the table.
When a Trump representative reached out to Popick again, asking if the Freedom Kids could perform at an event for veterans in Des Moines the following day, he agreed. However, just as the Freedom Kids and their families arrived in Iowa, they learned that there had been a change of plans and the group would not be performing after all. Although the performers were still invited to attend the rally—which they did, in their outfits—they were instructed to not speak with the press.
Popick was never compensated for what he spent on the Iowa trip, including the costs of hotel rooms, a rental car and airfare. His subsequent calls and e-mails to the campaign, demanding a second performance at the Republican National Convention, went unanswered. According to Popick, “We are owed compensation, or as the agreement is, a performance. That’s what the agreement was.”
The Trump Campaign’s Failure to Perform
The contract law term “performance” refers to the act of doing what is required by the terms of a contract. One element of performance has to do with mutual intent, or the state of mind of both of the parties entering into the contract. In contract law, the intent of the parties is usually ascertained by the language of the contract. In the case of the Freedom kids, the lack of a written contract makes it more difficult to prove the mutual intent of the parties.
However, courts asked to intervene in contract disputes can derive mutual intent from the circumstances, including the parties’ conduct. In other words, how the parties’ act following the creation of a contract may later prove to be just as effective as an indicator of their intent as the words in a contract. If a mutual agreement can be inferred between two parties due to circumstances, then an “implied contract” is created. It appears that the Freedom Kids’s performance in Pensacola along with their travel to the Iowa rally bolster the existence of an “implied contract” with the Trump campaign.
Contracts are often evaluated by what is known as the standard of substantial performance. Under substantial performance, parties to a contract are allowed a partial or substantially similar performance to substitute for the performance specified in the contract. In other words, you don’t have to perform your contractual duties perfectly to have completed them. However, the standard of substantial performance is not met if there is a material breach by either one of the parties. In a material breach, one of the parties fails to perform the contract in a way that makes the agreement “irreparably broken.” A material breach defeats the purpose of even making the contract in the first place.
The Trump campaign’s decision not to provide the Freedom Kids with a table at their rally or allow them a second performance are material breaches that completely ignore their previously formed contract.