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Wednesday, December 30, 2009
New Column on Mike Leach and Texas Tech Legal Battle: Was He Wrongfully Terminated?

I have a new column that looks at the Mike Leach firing from Texas Tech and the possibility of a wrongful termination lawsuit. Here's an excerpt:

* * *
Was Texas Tech legally entitled to fire Leach for cause? In addition to requiring Leach to follow Texas Tech procedures and polices and to provide responsible treatment of players' health, Leach's contract lists the circumstances under which Texas Tech could dismiss him for cause:

1) The commission of a major NCAA violation or an excessive accumulation of secondary violations by Leach.

2) Knowingly condoning NCAA violations by any staff member under his direct control.

3) Failure to take appropriate disciplinary action against any staff member committing NCAA violations.

4) Failure to take appropriate disciplinary action against football student-athletes.

5) Indictment for a felony criminal act.

6) A misdemeanor involving moral turpitude.

Worded literally, the six circumstances for cause might not cover Leach's alleged misbehavior. Leach has neither been charged with a felony nor a misdemeanor (Nos. 5 and 6), nor is there any indication that he will be. Even if Leach is eventually sued by James in a civil claim, such as for false imprisonment or intentional infliction of emotional distress, such a claim would not constitute a criminal charge. There is also no indication that Leach failed to take appropriate disciplinary action against football players in this situation (No. 4). Similarly, there are no allegations of major NCAA violations or accumulation of secondary violations (No. 1).

An arguable nexus between James' behavior and the "for cause" stipulations could emerge in Nos. 2 and 3. The NCAA has developed player safety rules that Leach arguably breached when he instructed staff members to isolate Leach. The NCAA is also considering new rules that would demand particularly safe care for players who have suffered concussions.

* * *

I hope you have a chance to read the rest of the column and also hope you read Howard's excellent piece on this topic from earlier today.

Update 12/31/09: I was interviewed by Scott Drake on the Legal Broadcast Network this afternoon to discuss the dispute:


If I'm TT's lawyer, I put a muzzle on Kent Hance. In a recent interview he said Leach was fired because he sued the University ("where I gree up, you know that if you sue your employer it's not going to turn out well"). He says the act of filing the suit was insubordination. He pretty much teed up a retaliation claim by Leach. He can't fire an employee for asserting his rights in court.

Anonymous Anonymous -- 12/31/2009 9:43 AM  

I am glad to see Texas Tech step up and fire coach Leach. I thought Gestapo tactics and imprisonment were done away with long ago and not in College sports !!!

Blogger uinmind -- 12/31/2009 9:58 AM  

What about number 4?

Blogger The Drake Physics Project -- 12/31/2009 10:01 AM  

Major NCAA violations. I'm just guessing here but chances are putting a kid in a closet qualifies for a rule violation somewhere in the NCAA Rules Handbook.

What's sort of sad out of all this if he had only cheated by paying his players rather than mistreating, everyone would be happy today.

Blogger -- 12/31/2009 1:48 PM  

Argument to be made under #4:

Assuming locking kid in the closet was a "disciplinary action," it was not appropriate. Thus, Leach failed to take "appropriate" disciplinary action.

Also, an employer certainly can retaliate against an employee for filing a lawsuit against it. Just depends on what kind of lawsuit it is. There is a defined universe of statutes/causes of action that protect an employee from retaliation (e.g., discrimination, workers' comp). I don't believe there's any theory of anti-retaliation that would protect Leach in this case, which is a simple dispute over contractual rights.

Anonymous Anonymous -- 12/31/2009 3:48 PM  

Putting a kid who suffered a concussion in a dark, air-conditioned closet is not inappropriate. Putting a kid who suffered a concussion on a football field is. Strangely enough, we're seeing a coach get in trouble for choosing the former over the latter.

Anonymous Anonymous -- 12/31/2009 6:37 PM  

Mr. McCann, I read your column and you didn't mention the sovereign immunity problems involved in any suit against Texas Tech. I don't know if you have seen the university's response to Leach's TRO request- they did respond with a plea to the jurisdiction. Texas Tech University is a state governmental unit by statute and there is a body of Texas case law which establishes that breach of contract and wrongful discharge in breach of an employment contract actions can not be brought against Texas public universities absent a showing that the Texas legislature has waived immunity expressly by either a resolution or a bill. The Texas Attorney General is the defense counsel for Texas Tech and their response to the TRO petition accurately cited Texas case law on sovereign immunity. So far, I have not seen any legal expert who has been interviewed about the Leach firing discuss this. I believe that Leach is effectively barred from proceeding with any cause of action for breach of employment contract.

Additionally, in the TRO petition, Leach argued that there was no provision in his contract that provided for a suspension. However, the wording in the contract is not all inclusive of potential actions which could be taken- a range of options was provided. The provision which the university is citing as a reason for his termination is quite broad and I think that the University would most likely be able to support its decision absent any immunity.

As far as any defamation suits against the university and/or university administrators in either their official capacities or an individuals, I believe that there is also immunity for those causes of action. Texas does have official immunity as a defense. The university and the administrators would be covered by this immunity in my opinion. The immunity exists for statements made in the course of official acts. I believe that the statements regarding the player would be covered because they have been made during the course of an investigation into allegations of mistreatment by a student athlete. University officials would be expected to make these kinds of statement as part of the official investigation. As far as the emails from the contract negotiations last year, the emails express sentiments that would be normal during the course of contract negotiations- i.e. statements regarding whether the university should or should not agree to specific contract terms. Therefore, I believe that they would be covered by official immunity as well.

Anonymous Texas lawyer -- 1/01/2010 10:48 PM  

Ditto what Texas Lawyer said regarding immunity: Texas A & M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007). This case is pretty on point given that it involved a university employee suing the employer-university for breach of contract. (The contract was a settlement agreement related to the employee's termination.)

-Another Texas Lawyer

Anonymous Another Texas Lawyer -- 1/02/2010 5:07 PM  

It may be Leach who needs to worry about a lawsuit. There seems to be a statement by a trainer that Leach instructed him to "lock' the player in a space. What intent can be proven? Was it Leach's intent for James to believe that he was not free to leave under threat of his scholarship being revoked or other penalties?

I think Leach needs to walk away quickly and quietly here. It is possible he may be bumping up against some civil rights issues here.

Blogger Amtex -- 1/02/2010 10:39 PM  

To the 2 Texas Lawyers,

I must be missing something here. If it is true what you are saying, then in essence a coach in Texas is an at will employee and his entire long term employment contract is superfluous because immunity precludes the coach from enforcing it. If true, Mack Brown at Texas doesn't really have a multi-year contract that guarantees him anything. (except maybe he can keep the salary the university has already paid him)

Blogger Rick Karcher -- 1/03/2010 6:38 AM  

Something here doesn't pass the smell test--it almost reminds me of Katie Hnida and Colorado.

Separate question: Could Leach file suit against James AND his father for slander or libel, or could the SON be punished in some way if the son's/father's allegations turn out to be false?

(Would ESPN also have some liability due to a conflict of interest--James' father being an on-air analyst for ESPN/ESPN2? And, what legal responsibility does a network have in reporting on an employee or his/her family?)

Anonymous Anonymous -- 1/03/2010 1:57 PM  


The employment contracts are not exactly morphed into "at will" contracts because the Legislature can grant permission for anyone to sue the state (e.g., it could pass a law saying that college coaches can sue the state, or it could pass a resolution specifically allowing Leach to sue on his contract). But absent legislative action, the contracts do have an at-will quality to them.

To be sure, because of immunity, there is a great potential of a coach being screwed. (The university could always bring suit to enforce.) I'd imagine that despite immunity, most schools would attempt to comply with their contractual obligations or settle any disputes. For example, if Mack Brown is due a 500K bonus, and the school refuses payment, then immunity would protect UT from suit. Of course, Mack could walk away from the contract, which UT probably wouldn't want so they end up paying him the bonus. (If Mack walked away, the university could bring suit. Then Mack could assert any counterclaims in an attempt to offset any damages sought by UT. So in that sense, the coach has an opportunity to be heard in court.)

Given the visibility of college football programs, a university likely does not want to be known as unjustifiably screwing over its coaches. Tech is probably banking on the fact its actions were justified, so its probably not worried about having a reputation as not following through on its coaching contracts.

Anonymous Another Texas Lawyer -- 1/03/2010 3:39 PM  

Its also possible that there are administrative procedures for contractual employees to pursue wrongful-termination claims, but I haven't looked into this.

Anonymous Another Texas Lawyer -- 1/03/2010 3:44 PM  

But the immunity issue doesn't arise in your hypothetical involving Mack because in the situation you described Mack is successful and the university still wants him. Immunity only becomes an issue when the university no longer wants the coach, most likely due to a losing season or, in the unusual circumstance such as Leach's situation (and possibly in Mangino's case as well), where the school doesn't like how the coach handles players and wants him out.

Coaches should probably just insist upon a provision in their contracts that the university agrees to waive sovereign immunity in the event of a dispute between the parties.

Blogger Rick Karcher -- 1/04/2010 6:45 AM  

Leach would probably be prevented from suing the University directly by immunity (unless it has been waived), but couldn't he sue the administrators for unlawful termination? I thought when you couldn't sue the state, you sue the state officer instead.

Anonymous Anonymous -- 1/04/2010 1:48 PM  

1:48 -- I just finished Fed Courts, so maybe a real lawyer knows better than I, but I thought you could only sue the officer for prospective relief. So, Leach could sue the officer to enjoin them from firing him, but not for damages. Unless his civil rights were violated under Section 1983, I guess...

Anonymous Anonymous -- 1/04/2010 3:19 PM  

so interesting...

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Blogger baobao -- 1/12/2010 2:28 AM  

I would say Leach violated Clause 4 by allegedly taking "inappropriate" punishment against a player.

Anonymous Anonymous -- 1/28/2010 2:50 PM  

Hey all you MORONS out there!! Mike Leach never locked a kid in a closet!! Give Me a Break!!

You PEOPLE Still believe this nonsense???

Just because ESPN reported it that way doesn't mean its true!!

I hope Mike Leach cleans out TTU and ESPN in court, as well as Craig James' PR firm that he hired to release the Youtube videos (Spaeth Communications).

YOu people need to look at the evidence, and quit assuming. They planned on firing him one year beforehand, and there are emails to prove it!

I absolutley hate Texas Tech now!! I used to have so much pride in my school. I will make sure my kids never set foot on that campus.

All you Tech fans should be real proud that not only did your school fabricate lies to get a good coach fired, but now, they have hired a coach with 3 DUI arrests!! And this was the same AD from Miami that passed on Leach because of "baggage". DISGRACEFUL!!

There is not one ounce of Moral Fiber, honor our integrity in that adminstration.

Anonymous Anonymous -- 3/22/2011 1:42 PM  

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