West Virginia University v. Richard Rodriguez: The Legal Perspective

Final Thoughts on West Virginia University v. Rodriguez

2008-07-13T12:05:00.000-07:00

by Howard M. Wasserman

(Editor's Note: Howard M. Wasserman has been an Associate Professor of Law at the Florida International University College of Law since 2003.)

So West Virginia University v. Rodriguez ends (as most cases do) with the whimper of settlement. Professor andre douglas pond cummings kindly asked me to offer a post-mortem. I want to mention four significant and potentially lasting lessons and questions from the case.

The Importance of Forum Selection
WVU filed suit in December 2007 and the case settled in July 2008, meaning it was alive for just over six months. And a big chunk of that time was spent fighting over where the case was going to be litigated and among what parties. Rodriguez removed the case to federal court on the basis of diversity jurisdiction but, on WVU’s motion, the court remanded to state court because there was no federal jurisdiction.

The fight over federal jurisdiction was a great lesson in the minutiae of diversity jurisdiction, which I wrote about at the time. These include the unique treatment of States as not being citizens; the intensely fact-bound nature of the inquiry into an individual’s citizenship, notably the question of how quickly a person can change his citizenship from one state to another and how courts should determine citizenship; the allocations of cases among different parts of the federal juriciary; and some limitations on unadorned concern for “local bias” as a basis for pushing cases into federal court. As I wrote then, it is hard to imagine a bigger example of local bias than the former football coach of the flagship public university having to litigate against the State itself in state court. But the diversity rules keep this case in state court. I will continue to use the materials from this case to teach removal and diversity.

There also is reason to believe that Rodriguez’s lawyers did not thoroughly research the facts or law prior to removing, always a big no-no. They did not have a good factual record to show that Rodriguez had successfully changed his citizenship from West Virginia to Michigan at the time the lawsuit was filed; he and his family clearly were mid-move at the time. His lawyers also seemed to have assumed WVU’s status as a citizen, rather than as an arm of the state. Ironically, these lawyers previously had represented WVU in litigation and had argued the university could not be sued in federal district court on diversity precisely because it was the state and not a citizen. In moving to remand, WVU also moved for sanctions against the lawyers based on this past representation, although the court denied that motion.

Is Settlement a Good Thing?
More than thirty years ago, Owen Fiss criticized the modern judicial preference for settlement as a method of dispute resolution, arguing that it deprived courts of the opportunity to give meaning to public constitutional values by identifying, elaborating, and expounding on those values. And it deprived the public of the benefit of judicial exegesis on constitutional meaning and values, particularly as that guides future real-world conduct. Fiss focused on settlement in constitutional cases, but the point could be made that all litigation—settlement deprives courts of the chance to establish and elaborate on legal rules and principles and deprives future actors of the benefit of clearer legal rules.

One might make that complaint about the settlement in Rodriguez, a case that had been shaping up as a test case of sorts. How mobile are college football and basketball coaches under long-term contracts? How much leeway do schools have to use steep liquidated damages clauses as a way to at least slow coaches down or make other schools hesitant to hire them? How do schools raid coaches? Is a $4 million buyout provision so out of line with the actual damages WVU suffered as to be an unreasonable, and unenforceable, penalty? Did WVU improperly strong-arm Rodriguez into signing the contract with that buyout provision? Was there an under-the-table agreement not to enforce it? Did WVU abide by its contractual obligations to Rodriguez to sink substantial resources into things such as facilities and assistant coaches? When and how did Michigan pursue Rodriguez as its coach? We never found out.

Reading the Tea Leaves of the Settlement
It generally is a bad idea to read anything into a settlement; parties settle for many reasons, usually upon balancing the strength of their case against the cost of litigation, as well as taking into account (as Rodriguez likely did) the value of "moving on." But can this settlement give any guidance for future clashes between coaches and their former schools and attempts to enforce similar provisions? I find it interesting that WVU will receive the full $4 million; the settlement did not compromise on the amount. Back in January, Rodriguez made a $1.5 million settlement offer, which the University rejected. The ultimate compromise was over who pays (Rodriguez will pay $1.5 million, the University of Michigan $2.5 million) and the payment plan (Rodriguez makes three annual installments of $500,000). This suggests that such a steep buyout clause, even one largely divorced from any real damage suffered by the school, will be enforceable. It suggests that there were no under-the-table agreements beyond what was in the contract and that Rodriguez did not, in fact, sign under duress. It seems to me that if WVU were worried at all about whether its conduct made the buyout less than fully enforceable, it would have given up something monetary.

I would expect that we will begin to see similar multi-million-dollar provisions become the norm in coaching contracts. I also would expect to see payment of all or part of the buyout as a negotiating point with schools looking to hire coaches away from other schools. So, to the extent this was a test case on coaches’ mobility, we did not get a judicial determination on the issue, but we did get a settlement that offers some strong hints.

Blogs and High-Profile Litigation
My last comment is on the role that blogs such as this one are beginning to play in high-profile litigation. This site provided a great service by collecting, disseminating, and commenting on the case and timely developments in the case. And it did so in a manner reflecting an understanding of law and civil litigation that we get from law professors and law students — and do not often expect or receive from the mainstream media. Blogs are the new way of controlling public information about a case, whether controlled by parties and attorneys themselves or by knowledgeable third-party observers.

The students and faculty running this blog have done a wonderful job and provided a tremendous service to those in the public (namely, the entire State of West Virginia) and the press with an interest in the case. It has been my honor and pleasure to have been able to make a few small contributions.

Rich Rodriguez, WVU Settle Lawsuit for $4 Mil

2008-07-10T17:35:00.000-07:00

More than six months after West Virginia University launched a legal battle to retrieve the buyout it claimed it was owed by former football coach Rich Rodriguez, the two sides reached a settlement on Wednesday. WVU will receive the $4 million it claimed it was owed all along, with a significant portion of the money to be paid by the University of Michigan, Rodriguez's current employer.

The settlement would seem to represent a clear victory for WVU and its legal team, led by Tom Flaherty and the law firm of Flaherty, Sensabaugh & Bonasso. Still, Rodriguez managed to save himself at least some money through the terms of the settlement. For one, he may not have to pay WVU any interest that has accrued on the buyout triggered by his departure. Also, WVU will not receive from Rodriguez any of the attorney’s fees it has racked up during the lawsuit. Finally, Michigan’s willingness to pay the greater portion of the settlement spares Rodriguez the possibility of being held personally liable for the entire buyout by an unsympathetic jury at trial in Monongalia County, West Virginia.

Of course, more than plain goodwill may have motivated Michigan to pay a portion of the settlement. With the WVU legal team set to subpoena important figures at Michigan for future depositions, the potential existed that unflattering information would emerge about the Ann Arbor school’s pursuit of Rodriguez last year. Furthermore, the traditional college football powerhouse undoubtedly wished to see the legal controversy surrounding its new coach dissipate as the 2008 season approached.

The settlement marks the end of a long, and sometimes ugly, dispute between West Virginia native Rodriguez and his alma mater. After a largely successful seven-year stint as the head coach at WVU, Rodriguez announced he was leaving his home state to take over as the head coach at Michigan on December 16, 2007. Shortly thereafter, WVU filed a complaint in the Circuit Court of Monongalia County alleging breach of contract and damages. Rodriguez responded with his own lawsuit, claiming that WVU and its president, Mike Garrison, had committed fraud and breach of contract by verbally agreeing to eliminate the buyout clause from the contract and then failing to do so.

At an April hearing before Circuit Court Judge Robert Stone, Flaherty and Marv Robon, Rodriguez’s attorney, engaged in an entertaining (and often scathing) debate on the merits of their clients’ arguments. Following the hearing, Robon invited controversy by comparing the plight of Rodriguez to that of African-American slaves during colonial times. More recently, Rodriguez, Garrison, WVU Director of Athletics Ed Pastilong, and a handful of other important figures with insider knowledge of the ordeal were deposed, revealing a fair share of intriguing information not previously known to the general public.

- submitted by Brian Welch, third-year student, WVU College of Law

WVU President Mike Garrison Deposed

2008-07-02T08:03:00.000-07:00

West Virginia University President Mike Garrison (pictured above) was deposed on June 12 in Morgantown.

In a deposition that lasted nearly ten hours, Garrison said that Mike Brown, the agent for former WVU and current University of Michigan head football coach Rich Rodriguez, referred to his client as "Product Rodriguez" and told Garrison that he would continue to push Rodriguez toward other jobs because he did not believe WVU was the right job for him.

Garrison, who will resign as president at WVU on September 1, denied ever promising Rodriguez that his buyout would be reduced or eliminated if he left. Rather, Garrison said that he expressed interest in exploring "other options or opportunities" outside of liquidated damages clauses in future contracts.

Garrison also described a talk he had with Rodriguez at his home late at night on December 15, 2007. During the talk, Garrison told Rodriguez he felt there was great value in coaching in his home state, at his alma mater. According to Garrison, a distraught Rodriguez responded that West Virginia "isn't so (expletive) special."

- submitted by Brian Welch, third-year student, WVU College of Law

WVU Chief of Staff Craig Walker Deposed

2008-07-02T07:40:00.000-07:00

Craig Walker, Chief of Staff to West Virginia University president Mike Garrison, was deposed on June 11 in Morgantown.

Walker has since announced his resignation as Chief of Staff, effective Sept. 1, 2008, when Garrison will step down as WVU president. Throughout his deposition, Walker (pictured above) portrayed former WVU and current University of Michigan head football coach Rich Rodriguez as a driven individual who is never truly satisfied, for better or for worse.

When asked if Rodriguez would still be the coach at WVU if his list of demands to the WVU athletic department and administration had been met earlier, Walker replied, "I have no idea. If I was guessing, there would be an additional list (after that). If those got done, there would be an additional list. Coach Rodriguez always wanted to be the very best. That's a credible thing, but if those things were done, there would've been a new list, then a new list."

- submitted by Brian Welch, third-year student, WVU College of Law

Petroplus, Parsons, and Farmer Deposed

2008-07-02T06:57:00.000-07:00

Mike Parsons, the Deputy Director of Athletics at West Virginia University, and WVU Board of Governors members Parry Petroplus and Steve Farmer were deposed on June 10 in Morgantown.

Throughout his deposition, Parsons insisted that there is no reliable way to arrive at an accurate figure to measure the economic damages a school will suffer after a coach leaves for another job. "That's why a number was figured out from the very beginning," Parsons said of the $4 million buyout at the heart of the legal dispute between former WVU and current University of Michigan head football coach Rich Rodriguez. "We can't determine in the future what those damages could be." Parsons also said he never heard current WVU president Mike Garrison promise to reduce or dispose of Rodriguez's buyout. "I can imagine him saying that," Parsons said.

Petroplus (pictured above) said that in the days following WVU's upset loss to the University of Pittsburgh on December 1, 2007, Rodriguez "wasn't the same Rich I knew for a while. His thinking was clouded." Petroplus, who claimed that he played no part in any contract negotiations with Rodriguez, said that the coach had grown increasingly frustrated with the WVU athletic department over time.

Farmer, for his part, opined that Garrison did nothing wrong with regard to the scandal surrounding the awarding of a graduate degree to Heather Bresch, the daughter of West Virginia Governor Joe Manchin. Farmer also said that Garrison played a large role in bringing Bob Huggins back to Morgantown as head basketball coach at WVU. Additionally, Farmer claimed that it was he who arrived at the $4 million figure for the buyout inserted into Rodriguez's contract.

- submitted by Brian Welch, third-year student, WVU College of Law

(Photograph by Dan Friend)

Rodriguez Agent Mike Brown Deposed

2008-07-02T05:48:00.000-07:00

Mike Brown, the agent for University of Michigan head football coach Rich Rodriguez since 2005, was deposed on May 5, 2008 in Holland, Ohio.

The lengthy deposition (click to view PART 1 or PART 2) revealed that Brown inquired about the vacant head coaching positions at Arkansas and Michigan on behalf of Rodriguez in the week following West Virginia University's loss to the University of Pittsburgh on December 1, 2007. When asked why, Brown said that those programs are "premier jobs", whereas WVU is just a "good job". Brown also admitted to contacting Louisiana State University in December of 2005 and participating in negotiations with the University of Alabama in December of 2006 that nearly landed Rodriguez in Tuscaloosa.

Brown was also asked questions about his role in a sports betting ring in either 2000or 2001. Brown insisted that his relationship with the betting ring was insignificant, and that he had no actual involvment in betting.

- submitted by Brian Welch, third-year student, WVU College of Law

(Photograph by The Associated Press)

Depositions of Ed Pastilong, Rich Rodriguez Yield Different Perspectives

2008-05-22T14:25:00.000-07:00

West Virginia University director of athletics Ed Pastilong and University of Michigan head football coach Rich Rodriguez were deposed on April 18 and 21, respectively, in connection with the ongoing lawsuit between WVU and Rodriguez.

Throughout his testimony, Rodriguez repeatedly asserted that his relationship with Pastilong and the WVU administration had deteriorated during his final season as the head coach at WVU. At one point, Rodriguez testified that Pastilong “rubbed salt in my wounds” following the Mountaineers’ season-ending loss to Pittsburgh. When asked to gauge the accuracy of the analogy made by his attorney, Marv Robon, comparing his situation to that of a slave, Rodriguez responded, “I do believe I was held hostage.”

Pastilong, however, denied harboring any hard feelings toward Rodriguez during his own deposition. Pastilong also denied that West Virginia Governor Joe Manchin was the de facto director of athletics at WVU, responding in the negative when asked by Robon, “Would you say the Governor of this state meddles in everything that he can?”

- submitted by Brian Welch, second-year student, WVU College of Law

(Photo by Eric Seals/Detroit Free Press)

University of Hawaii and Former Football Coach June Jones Haggle Over Buyout Clause

2008-05-13T08:37:00.000-07:00

In early January, college football coach June Jones breached his five-year contract with the University of Hawaii in order to accept the head coaching position at Southern Methodist University that will pay him $2 million per year. Jones’ contract with Hawaii was set to expire on June 30, 2008.

The problem with Jones’ early termination of his contract with Hawaii is that there are two clauses in the employment agreement that were invoked by the breach: Section 10.4 and Section 10.2. Section 10.4 of the agreement provides, ‘If Coach terminates this Agreement prior to June 30, 2008 … Coach shall pay to the University as liquidated damages the sum of $400,008.’” In addition, Section 10.2 states that, “Coach therefore agrees, and specifically promises, not to accept employment, under any circumstances, as a men's football coach at any institution of higher education which is a member of the NCAA ... requiring performance of duties prior to the expiration date of the term of this Agreement …”

Hawaii is now seeking $400,008.00 in damages as a result of Jones’ early termination of the contract. Jones, however, has denied that any payment is due to the University. Jones’ agent, Leigh Steinberg, claims that Hawaii's former athletic director, Herman Frazier (who was fired as a result of Jones' departure), and Jones made a special agreement: “After three years, there was to be no penalty if coach Jones were to leave the university. If that were not the case, coach Jones would always honor a contractual obligation," Steinberg said. However, Steinberg’s assertion seems to contradict the language of the contract to which the University and Jones originally agreed.

In the contract, Jones acknowledged the irreparable harm he would cause to the school if he terminated his contract early. One section of the contract states:

“Coach represents to have special, exceptional and unique knowledge, skill and ability as a men's football coach, which, in addition to the future development of coaching experience at University, as well as University's special need for continuity in its men's football program, will render Coach's services unique. Coach recognizes that the loss of Coach's services to University, without University approval and release, prior to the expiration of the term of this Agreement or any renewal thereof, would cause an inherent loss to University which cannot be estimated with certainty, or fairly or adequately.”

The matter will be heard by a mutually agreed upon arbitrator, who will have the final and binding authority regarding Section 10.3 of the contract.

- submitted by Shaquana Cooper, student, West Virginia University College of Law

(Photograph by John Schreiber)

Aschebrook Issues Strong Denial of Magee Allegations Through Affidavit

2008-04-23T12:54:00.000-07:00

Larry Aschebrook, the former Senior Director of Athletic Development for the West Virginia University Foundation, has filed an affidavit through which he denies any involvement in a racial incident alleged to have occurred in December by former WVU and current Michigan assistant football coach Calvin Magee (pictured, above left, with Rodriguez).

In January, Magee alleged that an unnamed WVU administrator indicated to him that he would never be considered for the position of head football coach at WVU because of his skin color. Magee alleged that the incident occurred on December 17, 2007, while he was boarding a plane bound for Ann Arbor, Michigan, and Rich Rodriguez’s introductory press conference as head football coach at the University of Michigan. On April 16, Magee told The Associated Press that the previously unnamed administrator was Aschebrook, who had since left WVU for a similar position at Arizona State University.

However, Aschebrook issued a stark rebuttal of Magee’s allegations last week. After first learning of Magee’s allegations in March, Aschebrook created an affidavit on March 25 that refuted the charges. When Magee went public with his allegations, Aschebrook and his attorney, R. Dean Hartley, released the affidavit to a number of media outlets.

According to his affidavit, Aschebrook first learned of Magee’s allegations on March 13 while attending the Big East Conference basketball tournament in New York City. Shortly thereafter, Aschebrook says he decided to call Rodriguez and Magee. During the phone call, Aschebrook claims to have asked the two Michigan coaches why they were levying false allegations against him. In response, Rodriguez allegedly told Aschebrook, “This isn’t about you Larry, it’s about me,” before offering Aschebrook a job at Michigan. Rodriguez also allegedly indicated that if Aschebrook went along with the story, the ordeal would be portrayed as a case of Aschebrook being rendered a sacrificial lamb by WVU: “Chuck will help us,” Rodriguez said, referring to Pittsburgh Post-Gazette sportswriter Chuck Finder.

An affidavit is a statement taken under oath and signed by a notary public. It is a legal document that can be introduced as evidence in court proceedings. If the declarations contained in an affidavit are proven to be false, the affiant can be charged with perjury.

-submitted by Brian Welch and Phil Estep, second- and first-year students, WVU College of Law

(Photo by Eric Seals/Detroit Free Press)

Litigation "Tactic" Could Cost Rodriguez

2008-04-20T10:29:00.000-07:00

The West Virginia University Foundation is seeking $30,287.44 from Rich Rodriguez’s legal team for attorneys’ fees incurred over the past two months. In a motion filed before Monongalia Circuit Judge Robert Stone, the Foundation is seeking an order that would force Rodriguez to compensate for 125.8 billed hours and other various expenses.

Citing a Detroit Free Press article, the Foundation claims that comments made from attorney Marv Robon show that the former suit was nothing but a tactic to gain leverage in the ongoing $4 million suit between the university and its former coach and thus was frivolous. “Mr. Robon clearly suggested in an article in the Detroit Free Press that their reasons for naming the Foundation as a third party defendant was a ‘key tactic’ done to … ‘level the playing field,’” the motion states.

Stephen Crislip, attorney for the Foundation, further declares in the motion that “due to the improperly pled and frivolous nature of Mr. Rodriguez filing the third party complaint, the Foundation seeks costs and attorneys’ fees unnecessarily incurred in the defense of this action.” Among the defense actions taken by Jackson Kelly, a Charleston, W.Va. firm, on behalf of the WVU Foundation, include preparation for discovery, filing of a motion to dismiss, and further research done on behalf of the Foundation. Also of note in the motion is that Crislip contacted one of Rodriguez’s attorneys prior to the hearing asking for the Foundation to be dropped voluntarily from the third party complaint without the Foundation seeking costs. However, no response to the offer was ever made.

The claims made by the Foundation derive from Rule 11 of the West Virginia Rules of Civil Procedure. Rule 11(c) states that the court may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) of Rule 11 which deals with representations to the court, including needless presentations to increase cost of litigation, cause delay, or are frivolous in nature. Thus, if it is proven that the suit against the Foundation was nothing more than a “tactic” as claimed and therefore frivolous, Judge Stone could award attorneys fees to the Foundation.

- submitted by Shawn Fluharty, second-year student, WVU College of Law

(Photo by Eric Seals/Detroit Free Press)

With Pastilong and Rodriguez Depositions Nigh, Will Videos Surface on Web?

2008-04-14T09:23:00.000-07:00

With the deposition of West Virginia University athletic director Ed Pastilong scheduled for Friday at the Waterfront Place Hotel in Morgantown, a key question pertaining to WVU’s lawsuit against Rich Rodriguez remains: to what extent will the videotaped depositions of Rodriguez and Pastilong enter public record?

At a motions hearing on April 3, WVU attorneys expressed concern that videotaped testimony of the concerned parties might show up on YouTube. Wakefield then asked Monongalia County Circuit Court Judge Robert Stone to order that the depositions be conducted in private and that all copies and transcripts of the videotaped depositions be kept private.

In opposing the request, Marv Robon, co-counsel for Rodriguez, argued to Stone, “This is a case involving a public institution. We don’t think the court should impose a gag order on the media, which is what the other side is suggesting…We have nothing to hide.”

“Maybe we should just rent the football stadium and hold the depositions there,” replied Stone sarcastically. “The depositions will proceed as they normally do. There is no gag order. The parties can speak to whomever they want to and say whatever they want to say. But maybe the videos should not be made available.”

Ultimately, Stone asked Robon to submit a written statement explaining why he feels the transcripts should be made available to the public, on which he will rule at a later date.

Rule 30(b)(3) of the West Virginia Rules of Civil Procedure allows for sound-and-visual recording of depositions. Ironically, holding the depositions at a football stadium, as Stone jokingly suggested, is not outside of the realm of the law as stated in Rule 29(a) of the WVRCP. While that won’t happen, Stone must now decide whether allow Robon to freely disseminate any videotaped depositions and their transcripts at his discretion, or to issue a protective order barring the dissemination of the deposition material to anyone not involved in the adjudication of the case.

Upon motion by either party, Rule 26(c) of the WVRCP allows the court in the circuit in which the deposition is being taken to make an order, when justice requires, protecting a party from annoyance, embarrassment, or undue burden. WVRCP 26(c)(6) states that such an order can require that a deposition be sealed and opened only by order of the court.

The potential ramifications of making the depositions of public figures available to the public, regardless of the medium in which they are presented, are substantial. “Misrepresentation by the media through the use of sound bites is a recognized ‘Achilles heel’ of videotaped depositions.” Condit v. Dunne, 225 F.R.D. 113, 118 (S.D.N.Y. 2004). The concern of the attorneys for WVU, presumably, is that sworn statements by Pastilong or other WVU officials could be spliced into a “mixtape” casting the school in an unflattering light, which would then be posted for public consumption on the internet. For instance, the unedited video depositions of many well-known figures, such as Tupac Shakur, Michael Jackson, and Bill Gates, are already available. Depositions taken in cases involving government agencies or a prevailing public interest are less likely to receive court protection.

Should Judge Stone order that the videotaped depositions and transcripts of Rodriguez and Pastilong be kept private, or should Robon be permitted to make them available to the media as he sees fit? Would Rodriguez or Pastilong suffer from “annoyance” or “embarrassment” as a result of the depositions being made available to the public? Does this case involve a “prevailing public interest” requiring that the depositions be made public, or does WVU’s status as a public institution necessitate that they enter public record?

- submitted by Brian Welch, second-year student, WVU College of Law

(Photo by Eric Seals/Detroit Free Press)

Marv Robon's Slavery Analogy: Zealous Representation or Tasteless Illustration?

2008-04-06T20:36:00.000-07:00

"It’s like back before the Civil War when slaves had the right to buy their freedom. A penalty of $4 million is almost like a slave from Africa trying to buy his freedom in America.”

Marv Robon (pictured, left), an attorney for former West Virginia University and current University of Michigan football coach Rich Rodriguez, used the above analogy in a Morgantown, W.Va. courtroom to argue that his client’s $4 million buyout clause with WVU is “outrageous” and “just not fair.” The slavery comment has already drawn criticism from media outlets in West Virginia and in Michigan

But, does Mr. Robon have a point? Or is this simply an egregious analogy?

Let’s start with the argument. Mr. Robon argues that the $4 million buyout clause is an unenforceable penalty, mainly because his independent studies indicate that WVU only sustained damages in the $150,000 to $250,000 range when Rodriguez left to coach at Michigan. This argument is being advanced because if the court were to find that this buyout clause, which is known as a liquidated damage clause, is in fact a penalty, it would be unenforceable. However, courts often uphold liquidated damage clauses in situations where the anticipated injury is uncertain or hard to quantify. If this case does go to trial, attorneys for WVU may well argue that sports are so unpredictable that it is impossible to calculate damages this early in the game.

Now that it is clear why Mr. Robon is advancing an argument that the buyout clause is unfair and unenforceable, let’s move to the analogy. “He's comparing a millionaire to slaves?,” wrote Steve Schrader of the Detroit (Mich.) Free Press. “Oh, come on.”

If media reports are indicative, Mr. Robon could have a very difficult time convincing the average West Virginian to believe that a $4 million buyout clause is akin to slavery. “With no due respect, sir, it is nothing like that,” wrote Charleston Gazette sports editor Mitch Vingle. “It's not in the same ballpark. It's not in the same universe.” Perhaps Mr. Robon is trying to pull on the heart-strings of West Virginians, who rank 49th in the nation in per capita income, hoping they will feel sorry for Rodriguez, a state native who will be earning $2.5 million next year to coach a sporting event. “We see stretches and spins all the time in and around lawsuits,” Vingle wrote. “We see them from those trying to change opinion, whether it's in regard to a jury, a judge or simply the population at large.”

The analogy is not working on West Virginia’s former NAACP president. “[Rodriguez] had a choice all along,” said James Tolbert, according to the Charleston Gazette. “The people from Africa had no rights. The comparison here to Africans-made-Americans is ridiculous.”

Mr. Tolbert’s criticism touches on the legal issues associated with freedom of contract. Prior to the Civil War, slaves brought over from Africa against their will were deprived of all human rights. They could not own property. They could not become citizens. They could not disobey their “owners.” They could gain freedom in one of two ways: buy freedom, or risk being killed during an escape attempt. Slaves had no choice.

Is this comparable to Rodriguez’s situation in his fight to avoid paying WVU $4 million? “It doesn't matter whose side you're on in the Rich Rodriguez-West Virginia dispute over that $4-million buyout clause, this is just plain tacky and sleazy,” wrote Schrader of the Free Press.

While slaves had no choice, Mr. Robon argues that Rodriguez also had no choice but to sign the contract containing the buyout clause. “President Garrison, in front of four witnesses, said, ‘You must sign this contract. Football season is about to start.’” If true, Mr. Robon has a point. While American law provides great latitude to the freedom of contract, law prohibits fraud and overt coercion. This is a question for the court to decide.

But that has not stopped the critics from weighing in.

“Rodriguez didn't have to sign a contract that included the clause – and paid him millions of dollars,” Vingle wrote. “He could have walked away.”

Walking away: a choice “a slave from Africa” never had.

- submitted by Matt Lockhart, second-year student, WVU College of Law

Counsel for West Virginia University and Richard Rodriguez Square Off at Hearing

2008-04-03T17:17:00.000-07:00

Monongalia County Circuit Court Judge Robert Stone ruled on a number of motions filed in West Virginia University’s lawsuit against former football coach Richard Rodriguez on Thursday morning in Morgantown.

Most notable was Stone’s denial of West Virginia University’s motion to dismiss Rodriguez’s counterclaim against the school. Of central importance to Rodriguez’s counterclaim is the breadth of the parol evidence rule. Rodriguez's counterclaim alleges that WVU president Michael Garrison fraudulently induced Rodriguez to sign the second amendment to his contract by telling him that the $4 million liquidated damages clause could be reduced to $2 million or lower if Rodriguez chose to resign at WVU at a later time. Because of the allegedly fraudulent inducement, Rodriguez claims that the contract is void.

At the hearing, however, Thomas Flaherty (pictured above, left), co-counsel for WVU, argued that even if such a promise were made by Garrison, it would be unenforceable because it was not reduced to writing in the contract signed by Rodriguez, and Rodriguez was fully represented by counsel at all times relevant to the contested events. Therefore, argued Flaherty, the verbal agreement should be excluded by the parol evidence rule, which restricts the use of evidence of negotiating history to alter the final terms of a written agreement. Borrowing the famous words used by Supreme Court Justice Ruth Bader Ginsburg in a 1988 U.S. Court of Appeals decision, Flaherty argued that allowing negotiating history to effect the terms of a contract would “render contracts unworthy of the paper on which they are written.”

Flaherty then cited a pair of cases decided by the West Virginia Supreme Court, Iafolla v. Douglas, 162 W.Va. 489, 250 S.E.2d 128 (1978) and Shaffi v. St. Francis Hosp. of Charleston, 183 W.Va. 414, 396 S.E.2d 181 (1990), featuring facts he deems indistinguishable from the events at the crux of the case at hand. Flaherty also cited a pair of 4th Circuit cases, J.S.K Realty v. New Plan Realty Trust, 9 Fed.Appx. 89 (4th Cir. (W.Va.) 2001) (unpublished) and Childers Oil v. Exxon, 960 F.2d 1265 (4th Cir. 1992) to demonstrate the strength and resiliency of the parol evidence rule.

Flaherty did concede that parol evidence can be admitted when a party has been fraudulently induced to agree to a contract, but denied that any such inducement was executed by Garrison. Ultimately, Stone reminded both sides that the non-moving party’s version of the facts must be taken as truth, and ruled that Rodriguez had made a cognizable claim of fraudulent inducement that could avoid the University's motion for a Rule 12(b)(6) dismissal.

However, Rodriguez’s legal team suffered setbacks on two important issues. In finding that the WVU Foundation “is simply not a party to this dispute, plain and simple”, Stone granted the third-party defendant’s motion to dismiss itself from the lawsuit. Stone also granted a request by the WVU Foundation to ask that the court require Rodriguez to pay the Foundation’s legal expenses. Also, Stone granted the University’s motion to compel Rodriguez to answer questions concerning the nature of his communications with the University of Michigan leading up to his decision to accept the head coaching position at the school.

Stone then denied the University’s motion to expedite the hearing, opining that he didn’t see how the case could be fully adjudicated before the beginning of next football season. Finally, Stone implored the two sides to identify mutually convenient dates to conduct the numerous depositions already requested.

- submitted by Brian Welch, second-year student, WVU College of Law

West Virginia University v. Rodriguez: Aberration, or Symptom of a Larger Problem?

2008-03-28T17:02:00.000-07:00

(Editor's Note: This story was originally published at westvirginia.rivals.com)

by Brian Welch

Whether it’s Average Joe or Governor Joe Manchin, it seems that West Virginia University football fans are up in arms these days over the antics of sports agents such as Mike Brown, who has accused WVU of unethical behavior and racial discrimination in defense of his clients, former Mountaineer coaches Rich Rodriguez and Calvin Magee.

But in the midst of the sordid legal drama unfolding between Brown’s client and the university, WVU law professor andré douglas pond cummings believes that the Rodriguez quagmire is merely symptomatic of big-time collegiate athletics gone awry on a much larger scale.

A former sports agent himself, cummings once represented a number of National Football League players before deciding to focus on his passion for teaching the law. He says that while sports agents have definitely contributed to the increasingly money-driven world of big-time college football, universities must share the blame for the high turnover rate of college football coaches and their distrust of athletic directors and university administrators.

“I think there is a kernel of truth that agents contributed to the mercenary nature of college coaching,” cummings said. “A good agent will gather information, and will know what other coaches are making. With that information, they are able to manipulate opportunities. I think a good agent does what’s in the best interests of his or her client. If making more money is in the best interest of the client, I don’t think there is an ethical problem with an agent urging a client to breach a contract, if in fact they have made provisions for breaching, which can appear in the form of a buyout clause. Nowadays, all contracts have those provisions; that’s the name of the game now.”

However, cummings says it is important to remember that that these buyout provisions often work in favor of the university when a coach fails to live up to inflated expectations.

“Universities and their presidents are just as much to blame in that coaches get terminated for doing well, but not well enough. The University of Nebraska fired Frank Solich in 2003 after a 9-3 season. Their athletic director at the time, Steve Pederson, said, ‘I will not allow the University of Nebraska football program to slip into mediocrity.’ Interestingly enough, they’ve slipped into mediocrity anyway. Many coaches are graduating players and running clean programs, but if they’re not winning enough, they’re getting canned. That’s why so many coaches head for the big money while they can get it.”

According to cummings, the true victim in the power struggle between universities seeking better records and higher revenues, and coaches seeking more job security and higher salaries, are collegiate student-athletes.

“With the kind of money that is afoot, I think there are real problems with universities profiting hundreds of millions of dollars while student athletes are essentially given a scholarship and a stipend,” cummings said. “It’s problematic that in places like Morgantown, number 5 and number 10 football jerseys fly off the shelves, while the players that represent those numbers basically scrap to make their ends meet.”

Instead of fighting tooth and nail over every last dollar to be made, cummings thinks that coaches and universities should allocate more resources to the student-athletes that make the billion-dollar system possible.

“I haven’t studied the issue enough to make the argument that student-athletes should be paid, but I do know that some student athletes have trouble making it to funerals, flying home for the holidays, and buying suits for the NFL draft. I think the NCAA needs to figure out a way to share some of the funds with the players that are responsible for it. Scholarships and stipends are wonderful opportunities for student-athletes, but universities are making millions upon millions based upon their efforts, and the student-athletes don’t see any of that.”

Although he doesn’t profess to know the details behind the dispute between Rodriguez and WVU, cummings says that the former coach should honor his obligation to pay the buyout clause included in his contract.

“Don’t forget that if Rodriguez had gone 2-10 this past season, he very well could have been out the door. I know that had we terminated Rodriguez for poor performance, we would have paid the $2 million dollars we owed him on the termination clause. That’s why he, or someone, should pay $4 million for his breach of the contract.”

Still, cummings doesn’t expect the occurrence of scenarios such as that involving Rodriguez to dissipate anytime soon, and he doesn’t know if the current state of affairs can ever be repaired.

“My guess is that a lot of people would say there’s nothing to be fixed,” cummings said. “We as fans have an insatiable appetite for our teams, and we will for the rest of our lives. I’m a USC fan because I grew up in Los Angeles, and I care about the program. The media proliferation covering our teams allows us to feed that appetite and follow our teams from anywhere in the world, so in many ways, that’s a good thing. But at the same time, it ensures that collegiate athletics will always be more about money and less about the athletes.”

(Photo by Tony Ding/Associated Press)

Rodriguez's U of M Contract Includes Increased Salary and Another Hefty Buyout

2008-03-09T12:01:00.000-07:00

Through the Freedom of Information Act, the West Virginia University Sports and Entertainment Law Society has obtained a copy of Richard Rodriguez's basic employment agreement with the University of Michigan.

The agreement, which was signed by Rodriguez on December 16, 2007, will pay him $2.5 million per year for six years and grants him other benefits typically bestowed upon major college football coaches, such as the use of two automobiles and full health insurance coverage. The agreement also includes performance incentives that could earn Rodriguez anywhere from an additional $50,000 per season (for each non-January 1st bowl game in which the Wolverines play) to an extra $300,000 per season (for each BCS National Championship claimed by Michigan under Rodriguez's guidance).

Also of note is the agreement's bilateral buyout clause, which provides that should either Rodriguez or the University of Michigan terminate the agreement in the first year, the terminating party will pay the other side $4 million. The buyout sum required of either side decreases by $500,000 in each year of the contract.

- submitted by Stacey Evans and Brian Welch

Jurisdictional Strategy

2008-03-05T08:00:00.000-08:00

WVU Answers Counterclaim, Moves To Dismiss

2008-02-29T05:43:00.000-08:00

On February 22, WVU submitted its reply to Richard Rodriguez’s counterclaim filed on February 1, 2008, accompanied by a motion to partially dismiss the counterclaim. In answering the University’s amended complaint, Rodriguez also submitted a counterclaim, which the defendant has a right to do provided the claim against the opposing party arises out of the same transaction or occurrence, and it does not require the presence of a third-party over whom the court cannot acquire jurisdiction. In his counterclaim, Rodriguez alleged breach of contract, false inducement, misrepresentation, unenforceable buyout, anticipatory breach, lack of mutuality, failure of condition precedent, and failure to pay monies due and owed.

In its reply to the counterclaim, the University asserts thirteen affirmative defenses mainly relying on the clear and unambiguous written contract language. The reply specifically states that the contract required Rodriguez to give written notice to the University of any alleged material and substantial breach of the Agreement and provide the University thirty days to respond; however, Rodriguez provided no notice of any breach. Secondly, as the University asserts, Rodriguez was represented by legal counsel and an agent in negotiating the Agreement; therefore any acts or omissions were the failure of his agent and/or legal counsel. Lastly, Rodriguez signed the contract with the counsel of his legal representatives and agent; the University made no misrepresentations nor did it falsely induce Rodriguez into signing the contract. The University also asserts Rodriguez is estopped from the action and/ or waived the causes of action for two distinct reasons. First, Rodriguez accepted all the financial benefits of the written contract by accepting the increased compensation in addition to the incentive payments. Moreover, the assertion that the liquidated damages clause is unenforceable as a penalty is barred by estoppel and waiver as Rodriguez agreed to the same or similar liquidated damages in his employment agreement with the University of Michigan. The remaining defenses also serve as grounds for the University’s motion for partial dismissal of the counterclaim.

Pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, every defense to a claim for relief of any pleading shall be asserted in the responsive pleading, if one is required, except certain defenses which may be made in motion form by the responding parties – one of which is the failure to state a claim upon which relief can be granted. By filing a motion to dismiss for failure to state a claim upon which relief can be granted, the University is claiming that, with respect to at least some allegations in the counterclaim, Rodriguez can prove no set of facts consistent with the pleadings that would entitle him to relief. The University specifically asserts that Rodriguez’s causes of action for breach of contract, false inducement, and misrepresentation fail to state a claim upon which relief can be granted. As grounds for these assertions, the University relies on both the parol evidence rule and the integration clause to evidence the contract’s enforceability.

In West Virginia, the parol evidence rule provides that a written contract merges all negotiations and representations made prior to the execution of the contract, and that in the absence of fraud, mistake, or material misrepresentation, extrinsic evidence cannot be used to alter or interpret that contract’s language if it is otherwise plain and unambiguous on its face. As to extrinsic statements and declarations made contemporaneously with or prior to the contract’s execution, evidence is inadmissible to contradict, add to, detract from, vary, or explain the terms in the absence of illegality, fraud, duress, mistake, or insufficiency of consideration. This rule applies with most force when the parties are represented by legal counsel. In addition to the potential application of the parol evidence rule, the University asserts West Virginia’s favorable view of the integration clause, which evidences the full integration of the parties’ agreement in a written contract.

The University, in its motion to dismiss, alleges that aside from the parol evidence rule, which should prohibit Rodriguez’s reliance on the alleged fraudulent oral statements, the Agreement’s integration clause provides that “it is mutually understood that this Agreement contains all of the terms and conditions to which the parties have agreed and that no other understandings or representations, either oral or written, unless referenced in the preceding paragraphs, regarding the subject matter of this Agreement shall be deemed to exist or bind the parties thereto.” The integration clause continues providing that “any modification, amendment, or addendum to this Agreement shall be effective only if made in writing and signed by both parties.” Therefore, the University claims, because Rodriguez, with the assistance of legal counsel, negotiated, drafted, and executed the Agreement, the parol evidence rule applies at its strongest form and anything other than the language in the written contract is inapplicable. Moreover, because the contract contained an integration clause, there could be no breach unless those oral statements were in writing and signed by both parties. The University then asserts that because Rodriguez entered into a valid, binding, and fully integrated contract with the University with the full benefit of legal counsel, in light of the parol evidence rule, Rodriguez should be prohibited from asserting causes of action which seek to void or rewrite the contract by which he agreed to abide.

Now that the University has submitted its motion for partial dismissal, Rodriguez is entitled to file a reply brief. The Circuit Court of Monongalia County then has the option to try and decide this preliminary matter before the full trial on the merits.

- submitted by Bethany Swaton, second-year student, WVU College of Law

Litigation As Press Release

2008-02-22T06:00:00.001-08:00

by Elizabeth G. Thornburg

(Editor's Note: Elizabeth G. Thornburg is the Judge John T. Copenhaver Visiting Chair at the West Virginia University College of Law, where she teaches courses in civil procedure and complex litigation.)

In his 1995 article, Speaking Truth to Power, Herbert Eastman suggests that lawyers drafting pleadings should take care not to lose the client’s story in sterile legalese. “Every client has a story that deserves to be told ̶ from the corporate client trying to survive in a harshly competitive climate, to a spouse embroiled in a bitter divorce.” There are a number of reasons to prefer a vivid, compelling narrative to a recitation of legal formulas, but one of the reasons relates to public relations. As Eastman points out, “through the media, the complaint speaks to the greater community. That community includes the defendants, the defendants' superiors, and possibly their friends and colleagues. That community may come to see hidden problems in a new light, consider change, and press for settlement.”

Is this what is going on in West Virginia University v. Rich Rodriguez? Shortly after Rodriguez announced his resignation, local news was filled with outraged local opinion. How could a West Virginia coach betray his state and his alma mater by breaking his promise to stay, asked one set of folks. How could the University so foolishly fail to keep its promises and lose a talented coach, asked others, including some big donors to the sports program. As the controversy bubbled, both sides addressed the public mostly through surrogates. As Charleston Gazette writer Dave Hickman noted, “I suppose what really irritates me most is that both sides seem intent on conducting this brawl through their corner men. . . It’s as if not speaking directly to the matter somehow stations them on high moral ground. What a load of crap.”

Enter the court system. Less than two weeks after the Rodriguez resignation, WVU filed a lawsuit, asking the court to declare that IT had not breached its contract. Just to make things more fun, the complaint attached Exhibits: copies of Rodriguez’s original contract, as well as first and second amendments to the contract, which included long lists of benefits like two courtesy cars, football camps, and bonuses for season ticket sales. Whether or not the buyout clause is enforceable, no money was due when the lawsuit was filed. WVU not only filed the case in court, but also sent copies of the complaint to local media outlets. “We paid the money into the assistant coaches’ pool, and we fixed the football stadium,” says WVU in lawyer talk. “Don’t blame us for losing the coach.”

As for Rich Rodriguez, his Ohio lawyers have practiced storytelling on steroids. To try to document an offer to settle the case for $1.5 million, they filed a “Notice of Filing of Letter of Credit.” There is no such procedure in federal court. More noteworthy is the Answer, which tells a tale of presidential pressure, rabid fans destroying mailboxes, and promises broken. Not to be outdone in the Exhibit department, Rodriguez attaches his “supplemental” resignation letter, detailing all of his complaints about his situation at WVU.

There’s a limit to storytelling, though, as Eastman’s article points out. The story teller needs to maintain integrity, honesty, competence, and professionalism. It’s time for the lawyers to stop creating nonsense claims (“Imprudent Actions by West Virginia University” is not an affirmative defense). It’s time for the lawyers to stop making legally frivolous claims, such as asserting that WVU had waived its objections to the federal court’s jurisdiction. (As all my first year Civil Procedure students know, it’s just not waivable.) It’s time for the lawyers to stop making legal claims that are incompatible with the story they want to tell, such as claiming in one place that the university filed its suit prematurely and in another that the suit is barred by “laches,” a doctrine that kicks in when a defendant is prejudiced because of the plaintiff’s unfair delay in bringing suit.

Enough already. Telling a client’s story is valid, and important. But the court’s role is not to be a public bulletin board, and a lawsuit is not a press release. Storytelling in pleadings is constrained by the relevant law. Otherwise Rule 11, that referee of good faith, will step in and throw a flag on the play. Illegal procedure: 15 yards.

Why WVU v. Rodriguez Was Remanded to West Virginia State Court

2008-02-19T11:31:00.000-08:00

by Howard M. Wasserman

(Editor's Note: Howard M. Wasserman is currently serving as a Visiting Associate Professor of Law at the St. Louis University School of Law for the 2007-2008 academic year. He has also served as an Associate Professor of Law at the Florida International University College of Law since 2003.)

My thanks to Professor andré cummings and the WVU Sports and Entertainment Law Society for inviting me to occasionally guest blog about West Virginia University v. Rodriguez. I also want to thank visiting Professor Beth Thornburg at the WVU College of Law, who has been keeping me apprised of the developments and documents.

As a college sports fan and occasional sports law commentator, I think this could prove to be a very important case about the mobility of prominent Division I coaches in football and men’s basketball and about what schools can try to do to prevent (or at least deter) coaches from bolting for better jobs. As a civil procedure teacher and scholar, it is fun to see a high-profile case that turns on basic procedural issues and to be able to use that case as a teaching tool. Finally, I hope all students watch this case closely; it is a great opportunity to be able to watch case law being made based in a real-world situation and in a real-world context with which you are familiar. For law students, I think it can help make the stuff you are reading about feel more “real.”

In a Feb. 11 post to this blog, Stacey Evans wrote about last week’s order from the federal district court remanding the case back to state court in West Virginia and does a good job explaining the decision for sending the case back. Let me add a few thoughts on the procedural niceties underlying Judge Bailey’s decision.

Federal jurisdiction in this case turned on Congress’ decision to divide jurisdiction among the three levels of the federal judicial in a particular way. Federal district courts (trial courts) have jurisdiction only over civil actions between citizens of different states and, under well-established Supreme Court precedent, a state or state agency is not a citizen of a state. Because the University is an arm of the State of West Virginia, the case could not originally have been filed in federal district court, even if Rich Rodriguez had successfully changed his citizenship to Michigan prior to the date of the lawsuit. And because the case could not have been filed in federal district court in the first instance, Rodriguez as a defendant could not remove it.

If Rodriguez had become a Michigan citizen in time, the case might have been brought in the federal system, but only in the Supreme Court exercising its original jurisdiction over “All actions or proceedings by a State against the citizens of another State.” Putting that class of case within the Supreme Court’s original jurisdiction was a nod to the special concerns of states as independent sovereign entities — if a state is going to litigate in federal court, keep it there for the shortest time possible by allowing it to begin and end the case in the court of last resort. But that possibility would not help Rodriguez, because there is no procedure for a defendant removing a case from state court to the Supreme Court of the United States.

And that is why Judge Bailey never reached the question of Rodriguez’s citizenship - it was unnecessary. No matter where Rodriguez is a citizen, the case was not removable to federal court under any circumstances. Moreover, and probably more important as an explanation for Judge Bailey’s approach, the citizenship question was more complicated than the legal issue of WVU’s state status. Citizenship for purposes of diversity is about a person’s “domicile,” his true, fixed, permanent residence to which he always intends to return. It is undisputed that, prior to taking the Michigan job, Rodriguez was a citizen of West Virginia because that was his domicile — he lived there and he intended to remain there. Citizenship changes only if a person affects a “change-of-domicile” by actually taking up residence in a new state with the intent to remain there. Clearly Rodriguez intended to remain in Michigan. But the court would have had to undertake the potentially complex and fact-intensive inquiry into what Rodriguez did to try to establish himself and his family in Michigan and when and whether that was sufficient, where he was spending most of his time as of December 27, and where he actually was “residing” at the time of the lawsuit. This, in turn, probably would have required some period for the parties to take jurisdictional discovery on the question of citizenship — deposing witnesses and exchanging and reviewing documents showing Rodriguez’s activities since he took the Michigan job on December 14. That is a lot of time and effort for an issue that, in light of WVU’s status as an arm of the state, has no effect.

Of course, the original rationale for giving the federal judiciary jurisdiction over controversies between citizens of different states or between a State and citizens of another state was to enable an out-of-state litigant to avoid potential local bias that comes from having to litigate on “foreign” soil (think about it historically — in 1789, a New Yorker litigating in Georgia would have been like a Venezuelan litigating in Chile). But the way Congress divided that jurisdiction creates the anomaly that an out-of-stater sued by the State, with the State bringing to bear all its power and resources and influence, remains stuck in that state’s courts to fight the State on its own soil. It is hard to imagine a defendant more subject to potential local bias within a forum than the former football coach of the flagship school who left for the job at a higher-profile school in a different state. Even more so when he is fighting the State of West Virginia.

But state court is where Rodriguez was sued and that is where the case will be litigated — no matter where he now claims citizenship.

Jerry Kill, Southern Illinois Enter Legal Dispute Over Buyout Clause

2008-02-17T10:33:00.000-08:00

In a buyout clause dispute similar to the one at the center of West Virginia University v. Richard Rodriguez, former Southern Illinois University football coach Jerry Kill has sued the school in state court for attempting to enforce what he claims is an illegal contract provision: the buyout clause.

Kill, who coached the Salukis for seven seasons before taking over as head coach at Northern Illinois in December, has been told by the school that he must pay back $57,772, or one-third of his salary last season, for breaching his contract before its 2011 expiration date. According to Southern Illinois athletic director Mario Moccia, the buyout clause was included in Kill’s contract to preserve the university’s ability to collect reimbursement for any liquidated damages that would be incurred by Kill’s early resignation. SIU has since hired Dale Lennon, a former coach at North Dakota, as its new head coach. Lennon’s five-year contract will pay him $200,000 a year, or $26,684 per year more than Kill was to be paid last season under his contract.

While the suits involving Kill and Rodriguez both focus on alleged breaches of contract, the similarities mostly end there.

In his counterclaim to West Virginia University’s breach of contract suit, Rodriguez relies mainly on two affirmative defenses. First, he asserts that the $4 million liquidated damages penalty being sought by WVU is completely unreasonable based on the actual damages WVU has suffered, and is thus an unenforceable penalty against public policy. In the alternative, Rodriguez argues that if he did breach his contract with WVU by leaving to become the head football coach at Michigan in December, he was forced to do so as a result of previous contractual breaches committed by WVU, and thus cannot be held liable.

Kill, on the other hand, has taken a somewhat different path by suing the school first, and in adopting the argument that the buyout clause in his contract is illegal and unenforceable because it gave him no option to leave SIU without penalty unless he died, became disabled, quit football or was fired. Kill’s lawsuit also claims that SIU has refused to pay him for 25 vacation days he said he took after accepting his new position at NIU on December 13. Deborah Nelson, associate general counsel for SIU, said the university disputed the vacation payments because Kill no longer was with SIU at the time, making him ineligible for paid vacation.

Both WVU v. Rodriguez and Kill v. SIU seem to portend a new age in university/head coach relations. Instead of quietly accepting buy-out provisions or termination clauses and paying the money due under these contract stipulations, coaches now seem more willing to contest the validity of these provisions in court.

- submitted by Brian Welch, second-year student, WVU College of Law

Moving Back to West Virginia

2008-02-11T16:15:00.000-08:00

On February 11, 2008, Federal Judge John Bailey ordered that West Virginia University’s lawsuit against former coach Rich Rodriguez be remanded back to State court. Rodriguez was attempting to have the case removed from a circuit court in West Virginia to federal court.

Removal of a case from State court to a Federal court in the same district is governed by 28 U.S.C. §1441 of the Federal Rules of Civil Procedure. Under this rule, a case may only be removed if, at the time of removal, the case could be filed in federal court. In this case, Rodriguez had to prove diversity jurisdiction, meaning that at the time of the lawsuit, he was a resident of Michigan, and therefore WVU and Rodriguez were diverse in citizenship (the two parties are citizens of different states). Removal of state-law claims to federal court is generally restricted. Once a defendant has filed a motion to remove a case, any objection to removal is handled by the federal court. If a federal court finds that the motion was in fact defective or that the federal court does not have jurisdiction, the case is remanded to the state court.

WVU opposed Rodriguez’s removal from district court to federal court. The university claimed that Rodriguez’s place of residence was West Virginia at the time suit was filed. Since he was a West Virginia resident, diversity would not exist in order to remove the case from the State court. Further, WVU had argued that as an arm of the state government, it could only bring suit in West Virginia state court.

Rodriguez argued that if he did in fact have to pay the buyout clause in his contract, the monies would be paid to the West Virginia University Foundation, a private organization, not the publicly-held university. Additionally, Rodriguez’s attorneys argue that he has no chance of a fair ruling if the case is heard in Morgantown.

Judge Bailey determined that the Monongalia County Circuit Court was in fact the proper forum for the suit. Bailey did not reach the domicile question, instead holding that WVU is essentially an arm of the West Virginia state government and not an independent agency. Lawsuits that involve the state government, generally, can be heard only in the state court and not in federal court.

With $4 million at stake, the State undoubtedly has a vested interest in the suit’s outcome. “The contract in question, under which the 'buyout' moneys are sought, is a contract between Coach Rodriguez and the West Virginia University Board of Governors” Judge Bailey held.

- submitted by Stacey Evans, third-year student, WVU College of Law

(photo by Andy Lyons/Getty Images)

How Did They Get That Information?

2008-02-08T13:19:00.000-08:00

For over a month now, allegations and accusations have been levied against and between Richard Rodriguez and West Virginia University. One WVU claim against Rodriguez includes an allegation that the former Mountaineer head coach used his WVU cell phone to contact recruits on behalf of the University of Michigan.

One may wonder just how the public can get their hands on private things such as e-mails and cell phone records, especially those of a high-profile collegiate head coach. The answer lies in the Freedom of Information Act (FOIA). The FOIA is a law that ensures public access to U.S. government records. Upon a written request, agencies of the United States government are required to disclose those records to parties that request them. The government, not the public, has the burden of proof to show why such records should not be released.

The process to generate a FOIA request is fairly simple and is often filed by news organizations, as was the case when the Charleston Gazette submitted their request for Rodriguez’s cell phone records under the West Virginia FOIA, which is very similar to the federal statute. In §29B-1-2 of the WV statute, it is stated that "public record" includes "any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body." A "public body" incorporates "every state officer, agency, and department, including the executive, legislative and judicial departments, division, bureau, board and commission . . . and any other body which is created by state or local authority or which is primarily funded by the state or local authority."

However, not all public information is attainable under a FOIA request. Exemptions within FOIA include national security information, confidential business information, financial institutions, and personal privacy. There are slight differences between the West Virginia FOIA and the federal statute. In Child Protection Group v. Cline, the West Virginia court stated"

"The West Virginia Code, with some ambiguity, favors nondisclosure of personal information unless public interest clearly requires disclosure. The simplest explanation of these differences is as follows: If the scales weigh heavily in favor of disclosure, both codes require disclosure; if the scales weigh heavily in favor of nondisclosure, both codes require nondisclosure; but, if the scales weigh even or near even, the Federal Code favors disclosure while the West Virginia Code favors nondisclosure."

Using a FOIA request to gain access to records of collegiate coaches is not new in this current environment of big dollar college sports. Just last year the Detroit News used a request to see what free cars college coaches within the state of Michigan were receiving. Based on that request, it was disclosed that Michigan State’s Tom Izzo is driving a 2007 Lexus GS350, while the university’s football coach, Mark Dantonio, was supplied a 2007 Cadillac DTS sedan. Also last year, former Arkansas coach Houston Nutt received much publicity after e-mails and cell phone records were obtained revealing many conversations between a prominent booster and a female sportscaster. The ramifications of this FOIA request were significant, as Nutt lost favor among the Razorbacks faithful and former quarterback Mitch Mustain, who was discussed negatively by the coach and the booster. Mustain eventually transferred to the University of Southern California.

While WVU v. Rodriguez continues to draw headlines, one point is clear: head coaches at public universities are fair game for FOIA requests.

- submitted by Shawn Fluharty, second-year student, WVU College of Law

Rodriguez Answers WVU Complaint

2008-02-06T05:34:00.000-08:00

On February 1, 2008, counsel for Rich Rodriguez filed an answer to West Virginia University’s amended complaint accompanied with a counterclaim and third-party complaint against the West Virginia University Foundation.

Once a complaint is filed, the defendant has twenty days to file an answer responding to the allegations made in the complaint, or in this case, the amended complaint. In filing an answer, the defendant is to admit or deny each averment set forth in the complaint and state any affirmative defenses that may be applicable to the specific allegations. In answering the complaint, a defendant may also assert a counterclaim, any claim against the opposing party arising out of the same transaction or occurrence provided it does not require the presence of a third-party over whom the court cannot acquire jurisdiction. A defendant, acting as a third-party plaintiff, may also bring a cause of action against a third-party who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against the third-party plaintiff.

In the amended complaint, WVU asserts that Rodriguez is responsible for paying the $4 million buyout clause agreed to in the Second Amendment to the Employment Agreement signed on August 24, 2007, because the contract was agreed to by both parties, each represented by legal counsel, and Rodriguez did not provide written notice of the alleged breaches by the University prior to his resignation. The Second Amendment specifies that in the event Rodriguez terminates his employment because of a material and substantial breach of the Agreement by the University, if Rodriguez gives written notice to the University within ninety (90) days of the breach and it is not corrected within thirty (30) days, the University will pay Rodriguez. However, if Rodriguez terminates the employment for a reason other than retirement from the University and all other coaching employment at higher institutions, Rodriguez will be liable to the University for $4 million.

In his answer, Rodriguez asserts fifteen (15) affirmative defenses centering around oral conversations with WVU President Michael Garrison, Chief of Staff Craig Walker, and Athletic Director Ed Pastilong, on or around August 24, 2007, made contemporaneous with the execution of the Second Amendment and a claim that the $4 million is an unenforceable penalty against public policy.

In the oral conversations, Rodriguez claims Garrison said that he did not believe in buyout provisions, and the amount would not be fully enforced but that in the event either party terminated the contract, the lawyers would get together and split the difference. Also addressed in these conversations were issues regarding salary increases to assistant coaches, a coach’s website, the ability for student-athletes to keep their academic books, Milan-Puskar Center renovations, and other promises to better the football program. Rodriguez alleges that in a meeting on or around December 15, 2007, with Garrison, Walker, and Pastilong, he introduced these aspects and was told that the University had no intention of curing these breaches. Rodriguez asserts that he was fraudulently induced to sign this contract under the impression he would receive the benefits and because the University did not adhere to those provisions, WVU substantially and materially breached the Employment Agreement and forced him to resign.

The unenforceability of the $4 million liquidated damages clause is addressed in both the answer and counterclaim. Rodriguez asserts that, in addition to Garrison’s statement, the amount is unreasonable based upon anticipated and actual damages suffered by the University. Rodriguez also asserts that while one-third (1/3) of the buyout clause was due within thirty (30) days of the resignation, the lawsuit was filed before this January 18, 2008 deadline.

The factual statements and allegations also serve as the underlying premise for Rodriguez’s counterclaim against WVU. In the counterclaim, Rodriguez alleges seven counts against the University, including breach of contract, false inducement, and misrepresentation resulting from the promises made in connection with the Second Amendment; invalid penalty clause asserting that the $4 million buyout is unreasonable and a penalty as the damages are minimal and non-existent since WVU won a BCS game, named a new head coach, and suffered no monetary damages; and anticipatory breach in that the University breached the employment contract on December 15 by failing to uphold promises which forced Rodriguez to resign.

Lastly, Rodriguez filed a third-party complaint against the West Virginia University Foundation. Again, a defendant can file a third-party complaint against a third-party who may be liable for all of or part of plaintiff’s claim. The Foundation is a private organization that engages in fundraising to support the University’s athletic department. Rodriguez alleges that the only way to tell if the University was damaged is to see if donations to the Foundation have decreased and/or if other expenses have increased at the University. To do this, parties need access to the Foundation’s books and financial records, which renders the Foundation an indispensable party to the action. Moreover, because the Foundation was responsible for paying a substantial portion of Rodriguez’s employment contract, any payment made to the University should go to the Foundation.

Now that Rodriguez has submitted his answer along with a counterclaim and third-party complaint, the University may file a reply to the counterclaim and the Foundation an answer to the third-party complaint. Though Rodriguez recently made an offer to settle the lawsuit, such efforts have thus far failed, and it appears that the end may not be in sight, but a long road combining the worlds of litigation and sports awaits.

- submitted by Bethany Swaton, second-year student, WVU College of Law

(photo by Stew Milne, AP)

Amid Settlement Efforts, Rodriguez Offers Partial Payment

2008-02-01T13:38:00.000-08:00

In an effort to end his bitter legal battle with West Virginia University, former WVU and current Michigan head football coach Rich Rodriguez has offered to pay WVU $1.5 million in order to buy out the final six years of his contract. This latest payment effort was filed via a credit letter in the U.S. District Court in Clarksburg, WV.

Rodriguez’s payment offer of $1.5 million is well short of the $4 million buyout stipulated in his contract with WVU. The partial payment is Rodriguez’s “act of good faith to assure West Virginia University that if this Honorable Court makes an award against Defendant, said monies will be paid."

According to the attorneys for WVU, the school "has no interest in resolving this for $1.5 million." It remains unclear at this time if WVU will accept any less than the $4 million agreed to in Rodriguez’s contract.

With WVU’s refusal to accept a lesser payment, Rodriguez’s attorneys are prepared to let the courts decide just how much Rodriguez will ultimately pay to his alma mater. While Rodriguez is willing to pay something to WVU, his attorneys feel that “the $4 million is absolutely oppressive and unfair."

In the most recent court filings submitted by Rodriguez’s attorneys, his counsel argues that the coach should only be required to pay $1.5 million to WVU because it “is equal to the maximum liquidated damages provision [penalty] at the date of termination provided in the first amendment to the original Employment Agreement.” Another University of Michigan coach (and former West Virginia University employee), basketball head man John Beilein, only had to pay $1.5 million upon his departure from the university in 2007.

- submitted by Stacey Evans, third-year student, WVU College of Law

Dissecting the Rodriguez Buyout

2008-01-29T15:35:00.000-08:00

On December 18, 2007 Richard Rodriguez submitted his resignation letter to the WVU athletic department via a graduate assistant. Just last week, former coach Rodriguez submitted a second letter describing some of the reasons that he left WVU for the University of Michigan.

The much publicized turmoil between Rodriguez and WVU stems from the $4 million dollar buyout that WVU is seeking in breach of the employment agreement signed in 2002. Since that time, the contract has been amended twice with the most recent changes agreed to in August of 2007.

The language of Article V(D)(1) of the contract between Rodriguez and West Virginia University, pertaining to the buyout states that:

“Unless Coach terminates his employment under this Agreement due to a permanent retirement from the University and all other employment with any coaching responsibility with an institution of higher education … Coach will pay University the sum of (a) Four Million Dollars ($4,000,000), payable, within two years of termination if termination occurs after August 31, 2007 and on or before August 31, 2008 … All sums required to be paid by Coach to the University under this Section within two years shall be payable according to the following schedule: one-third due (30) days after termination; one-third due on the one year anniversary of termination; and one-third due on the second anniversary of termination.”

Rodriguez apparently claims in his recently released letter linked above that the buyout is not owed to WVU because the University breached the contract first and that oral promises were extended which motivated Rodriguez to sign an extension in 2007. Thus, Rodriguez appears to argue (and will likely argue in his “Answer”) that he was “fraudulently induced” into signing the contract extension. If Rodriguez claims fraudulent inducement, then to prove that claim, it will need to be shown that a misrepresentation lead Rodriguez to enter into the contract with the false impression that these promises would be fulfilled. In other words, it must be shown by a preponderance of the evidence that not only did the school fail to fulfill alleged promises, but also the school never had any intention of doing it at the time the contract was signed.

Whether the oral promises given to Rodriguez will even become an issue is a different story. Under general contract law, the “parol evidence” rule could apply (rendering talks between Rodriguez and President Garrison irrelevant) to this situation which prevents a party from introducing extrinsic evidence of negotiations that occurred before or while the agreement was being reduced to its final written form. However, fraud is an exception to the parol evidence rule and therefore could leave an opening for the argument that it should be introduced.

- submitted by Shawn Fluharty, second-year student, WVU College of Law

Did Coaching Search Follow Minority Hiring Guidelines?

2008-01-29T15:16:00.000-08:00

When Rich Rodriguez resigned as head football coach at West Virginia University on December 16th, Calvin Magee was immediately considered by many observers as a leading candidate to lead WVU, a nascent college football powerhouse, into the Fiesta Bowl and beyond.

Magee, who had been the Mountaineers’ offensive coordinator since 2004, possessed many attributes that seemed to make him an ideal candidate to lead a perennially successful college program. His stint as the starting tailback for the NFL’s Tampa Bay Buccaneers from 1985 to 1988 gave him credibility with his players. His steady disposition and amiable personality earned their respect. Also, Magee is African-American. With the Division I-A Athletic Directors Association’s recent adoption of minority-hiring guidelines for NCAA football programs, and with Division I athletic departments increasingly hiring consulting firms to locate qualified minority candidates, Magee seemed destined to interview for an opportunity to become the Mountaineers’ next head coach.

According to Magee, however, he was denied serious consideration for the job because of his race. In a story that appeared in the Pittsburgh Post-Gazette the day before the anniversary of Martin Luther King’s birthday, Magee told Post-Gazette staff writer Chuck Finder that on December 17th, a WVU administrator told him that he didn’t have a shot at the job and pointed at his skin. Among other allegations, Magee also claimed that WVU athletic director Ed Pastilong told him that if he were to receive an interview for the head coaching position, it “wouldn’t mean much.”

Facing scrutiny from national media, Pastilong immediately refuted Magee’s allegations, claiming that he wasn’t considered for the head coaching position for another reason: Magee had told Pastilong he was joining the Michigan staff almost immediately upon Rodriguez’s resignation.

While only Magee and Pastilong know the accurate nature of their communications, the allegations present an interesting question. The Division I-A Athletic Directors Association recently adopted national minority hiring guidelines and included non-mandatory “Acceptable Standards” for conducting a head coaching search. Did the handling of Magee and the head coaching search that ultimately resulted in the hiring of Bill Stewart recognize and follow these “Acceptable Standards”?

- submitted by Brian Welch, second-year student, WVU College of Law

LITIGATION UPDATE

2008-01-25T06:04:00.000-08:00

West Virginia University filed a lawsuit December 27, 2007 against former head football coach Richard Rodriguez. The action was filed in a West Virginia State Court. In the lawsuit, the University seeks a declaratory judgment that says the contract between the University and Rodriguez is valid and enforceable. A declaratory judgment is simply a court stating the rights, duties, or obligations of each party in a dispute, and does not order either party to do or pay anything. It is, however, binding in future disputes.

On January 16, 2008, Rodriguez removed the action to federal court based on diversity jurisdiction. In order for removal to be valid, plaintiffs and defendants must be citizens of different states at the time the action is filed. In regards to diversity, citizenship requires a person to be domiciled within a state, meaning a person must be present with the intent to remain there indefinitely. Diversity removal is intended to protect defendants from possible bias from the plaintiff’s state courts.

The University filed a motion to remand the action back to state court on January 18th. Its first reasoning is that the University is actually an arm of the State of West Virginia and is thus not a citizen. Cases may not be removed based on diversity when the State is one of the parties simply because it is not a “citizen” as required by statute. The University claims in its motion to remand that Rodriguez’s attorney has previously successfully argued this point (that the University is an arm of the State) and knew of this when removing the case. Furthermore, the University claims that Rodriguez was still a citizen of West Virginia at the time the action was filed. Its argument is that Rodriguez was served process (notice of the lawsuit) in West Virginia after the filing, that Rodriguez’s wife and children continue to reside in West Virginia, and that on January 10th, Rodriguez used his West Virginia address as the return address on a piece of correspondence. If Rodriguez is found to be a citizen of West Virginia, and not Michigan, then diversity jurisdiction would be “destroyed” as it is not a lawsuit between citizens of different states. If diversity is destroyed, then federal court is an inappropriate forum for this lawsuit.

Additionally, WVU has now amended its complaint to actually recover damages since Rodriguez’s first buyout payment was not received and is past due. WVU claims that this is a breach of the contract between Rodriguez and the University.

- submitted by Phillip Estep, first-year student, WVU College of Law