the previous May 31 (Pl. Exhibit 2). Thereafter, Greenwood and the WFL executed a mutual release and agreement not to sue. That agreement, which was signed by Reagan on March 10, 1975, and by Greenwood on March 18, 1975, released Greenwood from any further obligations to the WFL under the terms and conditions of the player's contract (Pl. Exhibits 4A and 4B).
In a mailgram subsequently sent to Goldberg on March 31, 1975, Reagan stated that he had been told that, contrary to previous statements by Goldberg, Greenwood had received a $25,000 installment payment in September, 1974. Reagan advised Goldberg that if this were true and if Greenwood's contract had not been breached by AFI, then the WFL stood ready to assume the player's contract (Pl. Exhibit 6).
At trial, AFI's Chairman of the Board William R. Putnam testified that he first learned of the possibility that Greenwood would not honor the player's contract in March or April, 1975, from his discussions with news reporters. He testified that AFI did not make the third $25,000 bonus payment on April 1, 1975, because of the questionable status of the Greenwood contract (Transcript, p. 45). Putnam acknowledged that as of April 1, 1975, AFI had no funds for the $25,000 payment but stated that he personally would have put up the money for AFI.
The first direct correspondence between AFI and Greenwood in 1975 occurred on April 18 when Putnam wrote to Greenwood's attorney Goldberg advising him that AFI intended to operate in the WFL during the 1975 season and that AFI considered its contract with Greenwood to be valid and binding (Pl. Exhibit 8). This letter from Putnam was prompted when he learned of an earlier letter Goldberg had sent to the Internal Revenue Service after Goldberg learned that the Greenwood contract was listed among the items to be sold by the Internal Revenue Service at a tax sale of AFI's assets. Goldberg had informed the IRS that any potential bidder should be advised that Greenwood's contract was in default and that Greenwood intended to terminate the contract. The tax sale never took place, and Goldberg's letter was turned over to Putnam.
At trial, Putnam admitted that as of the time of his letter to Goldberg on April 18, 1975, the AFI franchise had been cancelled by the WFL and the WFL had issued the Birmingham territory franchise to another corporation operating as the Birmingham Vulcans. He testified that at the time of the letter AFI was contesting the cancellation of its franchise (Transcript, p. 47) and that AFI intended to relocate and operate a team in some other city during the 1975 WFL season. Putnam wrote to Greenwood on May 16, 1975, stating that Putnam had developed an interest in the New York area and that Putnam would contact Greenwood "within the next two weeks to give you all of the details" (Def. Exhibit V). Greenwood testified that he did not hear from Putnam again. The evidence shows that AFI did not operate a team in 1975, and that the WFL ceased operation prior to completion of the 1975 season.
On June 18, 1975, Greenwood executed a contract to play football for the Pittsburgh Steelers in the National Football League during the 1975 season.
As contemplated by the parties to the contract at issue here, Greenwood's duty to play professional football for the Birmingham Americans was dependent upon AFI's offering an appropriate setting in which the individual defendant could perform his services. By the very nature of the game, Greenwood could perform only if AFI provided a football team on which Greenwood could play.
Greenwood's repudiation of the contract prior to the time his performance was due excuses AFI's abandonment of its responsibilities under the contract. After the repudiation it was no longer necessary for AFI to perform or to tender performance. Nevertheless, it remains a condition precedent to AFI's right to recover damages under the contract that AFI prove that it would have had the willingness and ability to perform if there had been no repudiation. See 4 Corbin on Contracts § 978; 11 Williston on Contracts § 1334 at n. 4. See also the description of plaintiff's proof in Waters v. Weintraub, 255 Ala. 530, 52 So. 2d 510, 514 (1951). On this point, AFI has failed to shoulder its burden. AFI has not proved that at the time of Greenwood's repudiation it had the ability to perform substantially its responsibilities under the contract.
The evidence is uncontradicted that by the end of 1974 AFI's financial situation was bleak. AFI had been unable to pay players who had participated in the 1974 season, the corporation's liabilities exceeded 1.5 million dollars, the team had been forced to vacate its coaches' offices for non-payment of rent, and the team uniforms had been repossessed following the championship game. Giving AFI the benefit of every doubt, these factors may not have made it an absolute certainty that AFI would be unable to perform its duties to Greenwood under the contract. But, these difficulties were compounded by AFI's loss of its professional football league franchise. It was shown by a fair preponderance of the evidence that in early 1975, the WFL acted to stabilize its own shaky financial position by terminating AFI's franchise and revoking AFI's league membership.
Although AFI now contends that this termination was unfair, the WFL's right to take such action was spelled out in the Membership and Franchise Agreement signed by AFI and the WFL on January 13, 1974 (Def. Exhibit BB). That agreement conditioned AFI's membership in the league on the payment of a $500,000 entry fee, which was scheduled to be paid in a series of installments, and an initial operating assessment of $100,000. In Paragraph 8.6, AFI agreed that any failure to meet these obligations could subject AFI to
"revocation of WFL membership, revocation of the WFL franchise, and forfeiture to the WFL of all tangible and intangible assets necessary to operate a WFL football club in AFI's territory."