Hey Lawyer types, can you translate Leach's lawsuit for us?

[Collier11]

http://vmedia.rivals.com/uploads/1043/899535.pdf

[TMcGee86]

Leach has sued TTU for breaching their contract with him.

Specifically Leach is saying that they failed to follow the notice procedure as required under the contract, they did not allow him the ability to cure any defect as required under the contract, and they fired him without proper cause as required by the contract.

Leach has also sued for defamation, claiming that TTU defamed him by saying he was fired for cause, that he was insubordinate, that he put a player in danger, and that he was a fault in this matter.

Leach is also suing for Fraud in the Inducement meaning that Leach thinks the Univ. signed the contract without actually intending to honor it fully.

He then claims negligence based on TTU firing him without cause.

He then claims a whistleblower act violation in that once Leach tried to get a TRO to stop TTU from wrongfully suspending him without cause, they fired him, which prevented him from showing them the wrong they had done and thereby violated the whistleblower act. (this one is a stretch imho).

Leach then claims a due process violation meaning that TTU had to follow the process laid out in the contract and that they failed to do so which deprived Leach of his contractual rights and his constitutional right to due process under the law.

Leach finally claims that what they have done is in effect a wrongful taking of property as Leach had a property right in the value of the contract and that basically the state, through TTU, wrongfully took that property.

[OUinFLA]

so, when Leach gets awarded TTU as a settlement, do you think he will retain the AD?

[Collier11]

So basically Leach is going after every single thing he can go after, most likely to get them to settle out of fear?

[NormanPride]

I would. And then I'd make him the janitor. The only one.

[boomermagic]

One never knows what decision a court will render but I think he has a good chance on getting a positive response at least in a couple of his claims..

[TMcGee86]

after reading the exhibits, in my humble legal opinion, TTU is screwed. BIG time.

They just couldn't help themselves, they had to run their mouths, and it is going to cost them big. By Hance and Myers spouting off that Leach "put a player in danger of further injury" and was fired because he was "insubordinate" they have hamstrung any defense they had.

They are up ship creek.

[Leroy Lizard]

My favorite:

"According to collegefootballpoll.com..."

Sheeez!

[meoveryouxinfinity]

Tech shoulda just paid him the contract money. Mike is now suing for punitive damages.

[Leroy Lizard]

BTW, has it been established that Leach can even sue Tech?

[Leroy Lizard]

I didn't know you could sue for punitive damages. I thought that those had to awarded at the judge's discretion.

[Frozen Sooner]

So basically Leach is going after every single thing he can go after, most likely to get them to settle out of fear?

No. He argued as many theories of recovery as are colorable because that's how you're supposed to do it. If you fail to argue a theory of recovery that might have succeeded and the verdict goes against you, then the theory you failed to argue is precluded from future litigation. Failure to identify and plead a colorable theory of recovery is grounds for a malpractice suit against the attorney.

[Frozen Sooner]

I didn't know you could sue for punitive damages. I thought that those had to awarded at the judge's discretion.

No. You must plead any and all relief requested in your complaint, including the imposition of punitive damages. The jury (not the judge, unless the right to trial by jury is waived) determines the amount and nature of damages.

[Frozen Sooner]

BTW, has it been established that Leach can even sue Tech?

Yes. You can sue anyone you want for anything you want.

[Frozen Sooner]

after reading the exhibits, in my humble legal opinion, TTU is screwed. BIG time.

They just couldn't help themselves, they had to run their mouths, and it is going to cost them big. By Hance and Myers spouting off that Leach "put a player in danger of further injury" and was fired because he was "insubordinate" they have hamstrung any defense they had.

They are up ship creek.

I can't get the link to resolve right now, but does it include Tech's answer and any exhibits they have?

[TMcGee86]

Yes. You can sue anyone you want for anything you want.

true, but even more importantly, Tech signed a contract, they are bound by it, if they fail to follow it they can be sued for breach.

[TMcGee86]

I can't get the link to resolve right now, but does it include Tech's answer and any exhibits they have?

No, just Leach's Petition and Exhibits. Which include his contract, the emails from the DMN, and screen shots from ESPN and other sites where TTU officials were quoted.

Hilariously, they also included the comments at the end of the ESPN article. LOL! Just a way to get the people's voice in there slamming TTU for their treatment of Leach.

[Frozen Sooner]

true, but even more importantly, Tech signed a contract, they are bound by it, if they fail to follow it they can be sued for breach.

Yeah, I know. Sorry for the pedantic answer, that question is just one of my pet peeves.

The better answer to the question that was attempted is "Yes, Leach has a cause of action where there is a material issue of fact or law to be determined."

[TMcGee86]

Yeah, I know. Sorry for the pedantic answer, that question is just one of my pet peeves.

The better answer to the question that was attempted is "Yes, Leach has a cause of action where there is a material issue of fact or law to be determined."

lol. I know, I'm the same way, when people rip lawyers by saying "well so-and-so sued such-and-such for this!"

I always follow up with "yes, and what was the outcome?" Of course they have no idea and fail to realize that you can sue for anything and 99% of frivolous suits get tossed immediately with sanctions. But whatever, all lawyers are evil, :rolleyes:

[Leroy Lizard]

Yes. You can sue anyone you want for anything you want.

The reason I ask is that in California you could not sue for punitive damages, but the judge would award them if he felt that the actions of the defendant were especially egregious and that an additional penalty needed to be awarded to "set an example." This is all from distant memory, however, and my recollection may be way off. Could it be that small claims courts have such a rule? Just curious.

[Frozen Sooner]

The reason I ask is that in California you could not sue for punitive damages, but the judge would award them if he felt that the actions of the defendant were especially egregious and that an additional penalty needed to be awarded to "set an example." This is all from distant memory, however, and my recollection may be way off. Could it be that small claims courts have such a rule? Just curious.

Don't know about any local rules, particularly not in small claims, but it seems rather unlikely that a small claims court would have jurisdiction over any claim that would include any substantive punitive damages.

[meoveryouxinfinity]

The reason I ask is that in California you could not sue for punitive damages, but the judge would award them if he felt that the actions of the defendant were especially egregious and that an additional penalty needed to be awarded to "set an example." This is all from distant memory, however, and my recollection may be way off. Could it be that small claims courts have such a rule? Just curious.

some kind of tort reform?

[Leroy Lizard]

Most I have heard about is where the defendant is purely a crook, but caused no significant damage to the plaintiff. For example, he sold a customer a used battery as new, knowing fully well that it was used.

[prrriiide]

Yes. You can sue anyone you want for anything you want.

Correction: you can try.

TTU has already indicated that they will try to plea Sovreign Immunity, and they have Texas Supreme Court case law on point to back them up.

http://www.houston-opinions.com/files/Tex-2007-Texas-AandM-University-v-Sefa-Koseoglu-by-Green-sovereign-immunity-ILA-plea-juris-opp-to-amend.mht

Might not be a slam-dunk at this point.

[Frozen Sooner]

Correction: you can try.

TTU has already indicated that they will try to plea Sovreign Immunity, and they have Texas Supreme Court case law on point to back them up.

http://www.houston-opinions.com/files/Tex-2007-Texas-AandM-University-v-Sefa-Koseoglu-by-Green-sovereign-immunity-ILA-plea-juris-opp-to-amend.mht

Might not be a slam-dunk at this point.

Correction: you are incorrect. The case may be dismissed, and you may not have any right to recovery, but you can sue.

[TexasLidig8r]

From a practical, street point of view, the petition is VERY unusual in that it is filled with paragraphs of factual allegations.

For the most part, you want to keep your factual allegations to the bare minimum, just enough to give defendants notice of what the lawsuit is about... thus the term "notice pleadings."

In this case, Leach's attorneys went into detail not for the sake of the court.. or the defendant, but for the media. By painting with a very broad brush and making the petition more "salacious," he is beginning the process of "poisoning the well." and is attempting to influence the court of public opinion from the start.

On the other hand, he just gave the defendant a lot of free discovery...and the petition will be Exhibit 1 when Leach is deposed. He will be required to detail every factual allegation and when will be grilled mercilessly when there are inconsistencies.

DAMMIT!! This case would have been fun to be involved with!

[Leroy Lizard]

There appear to be amateurs everywhere.

Lid, the petition mentions that Adam James showed up in sunglasses, and that such sunglasses were not appropriate attire. It then goes on to state that James was punished for being dressed inappropriately. If James can show that the sunglasses were prescribed or suggested by his doctor, what effect does that have on Leach's claims?

[Frozen Sooner]

From a practical, street point of view, the petition is VERY unusual in that it is filled with paragraphs of factual allegations.

For the most part, you want to keep your factual allegations to the bare minimum, just enough to give defendants notice of what the lawsuit is about... thus the term "notice pleadings."

In this case, Leach's attorneys went into detail not for the sake of the court.. or the defendant, but for the media. By painting with a very broad brush and making the petition more "salacious," he is beginning the process of "poisoning the well." and is attempting to influence the court of public opinion from the start.

On the other hand, he just gave the defendant a lot of free discovery...and the petition will be Exhibit 1 when Leach is deposed. He will be required to detail every factual allegation and when will be grilled mercilessly when there are inconsistencies.

DAMMIT!! This case would have been fun to be involved with!

Unfortunately, Iqbal v. Ashcroft casts paragraph two into some doubt. There's a new line of cases off of Iqbal where specificity in pleading is required even in negligence claims. Nobody's quite sure what Iqbal means yet, though.

[TexasLidig8r]

Unfortunately, Iqbal v. Ashcroft casts paragraph two into some doubt. There's a new line of cases off of Iqbal where specificity in pleading is required even in negligence claims. Nobody's quite sure what Iqbal means yet, though.

Actually.. no.

Iqbal is a federal case under Fed.R.Civ.P. 8.

Leach case is in state court where state procedural rules apply.

[TexasLidig8r]

There appear to be amateurs everywhere.

Lid, the petition mentions that Adam James showed up in sunglasses, and that such sunglasses were not appropriate attire. It then goes on to state that James was punished for being dressed inappropriately. If James can show that the sunglasses were prescribed or suggested by his doctor, what effect does that have on Leach's claims?

None. The sunglasses were only a very small part of the issue.

Therein lies one of the issues with your factual issues being set forth in detail. You get grilled on all of them and you look for small inconsistencies to start to build your defense on.

[TMcGee86]

There appear to be amateurs everywhere.

Lid, the petition mentions that Adam James showed up in sunglasses, and that such sunglasses were not appropriate attire. It then goes on to state that James was punished for being dressed inappropriately. If James can show that the sunglasses were prescribed or suggested by his doctor, what effect does that have on Leach's claims?

It never says he was "punished" for not being dressed appropriately, just that he was removed from the field because of this.

And it also says that Leach specifically instructed that he be placed in a dark room because of his sensitivity to light, so it would have no effect but to boost Leach's claims.

[Frozen Sooner]

Actually.. no.

Iqbal is a federal case under Fed.R.Civ.P. 8.

Leach case is in state court where state procedural rules apply.

Good point.

[cvsooner]

The reason I ask is that in California you could not sue for punitive damages, but the judge would award them if he felt that the actions of the defendant were especially egregious and that an additional penalty needed to be awarded to "set an example." This is all from distant memory, however, and my recollection may be way off. Could it be that small claims courts have such a rule? Just curious.

No, this is incorrect. I live in California and my company is currently in litigation with a plaintiff, whose attorney has asked for punitive damages. Other, earlier cases, on different matters (two involving terminated employees) also asked for punitive damages, though in the case of one, the amount was not specified.

Cases involving medical malpractice in the Golden State do have limits on damages, however.

[soonerboomer93]

I wanna read the colorful language under the blacked out segements :D

[Leroy Lizard]

Okay, I stand corrected.


It never says he was "punished" for not being dressed appropriately, just that he was removed from the field because of this.

And it also says that Leach specifically instructed that he be placed in a dark room because of his sensitivity to light, so it would have no effect but to boost Leach's claims.

You're assuming that Leach's description of everything that happened will go uncontested. I am sure that Tech's lawyers will claim that James was in fact being punished and will rely on the trainer's own comments to substantiate it. Wasn't there a comment about making sure that the room was pitch black?


None. The sunglasses were only a very small part of the issue.

To Leach it isn't important. What about to Tech's lawyers?

Next question: Leach has disclosed in colorful language the actions of Adam James in practice. At what point can Adam James sue for breach of academic confidentiality?

[Leroy Lizard]

I think the blacked out statements were for privacy reasons.

[soonerboomer93]

I'm referring to the ones that were blacked out in the Trainers statements.

The other blacked out stuff was e-mail address (which appear on the DMN copy)

[Half a Hundred]

That was one sloppy-*** pleading. I think we all can agree on that.

[Leroy Lizard]

I'm glad I'm not the only one that thought so. Some of the sections sounded like a fan blog.

[proudsoonergal]

Good point.

Lawyered! :D

[Frozen Sooner]

Lawyered! :D

Hush, you. :D

Still waiting for a prof to bust out "Not only do you not know the law, I'm not certain that you know the English language."

[TMcGee86]

You're assuming that Leach's description of everything that happened will go uncontested. I am sure that Tech's lawyers will claim that James was in fact being punished and will rely on the trainer's own comments to substantiate it. Wasn't there a comment about making sure that the room was pitch black?


I'm not assuming ****. You stated something and I pointed out that you were wrong. It's the difference in reading something as a lawyer and reading it as a regular person. There are very real reasons why he phrased it the way he did and Tech's lawyers can claim all they want, the reason Leach's lawyers included all those statements and quotes is because its going to ring hollow to a jury if they suddenly claim all of this was simply because he didn't listen to a doctor when he prescribed sunglasses for James.

[GKeeper316]

Correction: you can try.

TTU has already indicated that they will try to plea Sovreign Immunity, and they have Texas Supreme Court case law on point to back them up.

http://www.houston-opinions.com/files/Tex-2007-Texas-AandM-University-v-Sefa-Koseoglu-by-Green-sovereign-immunity-ILA-plea-juris-opp-to-amend.mht

Might not be a slam-dunk at this point.

not entirely true... you can file a suit against anybody for anything. in effect you have "sued".

at this point its up to a judge to determine if your suit has merit.

[85Sooner]

1. Tech should have kept their mouth shut.
2. Leach is a slimey scheming intellectual.
3. Alot of professors are really gonna be pissed seeing that contract.
4. Leach is gonna win big time.
5. His money better last him cause he ain't coachin again
6. ESPN and Craig James are off the hook on this one but stay tuned...

[Leroy Lizard]

I think you're bending over backwards to see Leach's side of things, but not Tech's.

Can Tech provide meaningful evidence in court that the trainers were told to make sure the room was pitch black? Yes or no?

If so, that's punishment.

You don't make someone stand in a pitch black room for two hours unless you are pissed at them. To make it sound like it was done out of health concerns is going to raise the obvious question: Why pitch black? And if the room needs to be pitch black, have you ever prescribed that treatment for other players in the past? James is not the first player to suffer a concussion.

Once you establish that it was punishment, why was he being punished? The petition mentions that he was taken to the dark room because of his attire, of which the sunglasses are specifically mentioned (and yet no other clothing is specifically mentioned).

Are there potential holes in the argument? Sure, just like any argument. My question was, "Would the argument likely be very effective?" but I ended up asking the Mike Leach Fan Club.

[Leroy Lizard]

I ask again, does Adam James have a case against Leach?

[oudivesherpa]

The fact is that venue is in Lubbock, suing Tech in Lubbock is like playing Notre Dame in Rome. If this ever goes to trail, it will be two to three years and by then Leach won't have the popularity in Lubbock that he has today.

I can't see this case coming to trial.

[GKeeper316]

The fact is that venue is in Lubbock, suing Tech in Lubbock is like playing Notre Dame in Rome. If this ever goes to trail, it will be two to three years and by then Leach won't have the popularity in Lubbock that he has today.

I can't see this case coming to trial.

if tuberville has 3 straight losing seasons, its an easy win for leach.

[StoopTroup]

I'm not assuming ****. You stated something and I pointed out that you were wrong. It's the difference in reading something as a lawyer and reading it as a regular doosh. There are very real reasons why he phrased it the way he did and Tech's lawyers can claim all they want, the reason Leach's lawyers included all those statements and quotes is because its going to ring hollow to a jury if they suddenly claim all of this was simply because he didn't listen to a doctor when he prescribed sunglasses for James.

fixed

[Leroy Lizard]

I was wondering when you were going to show.

[StoopTroup]

I ask again, does Adam James have a case against Leach?

Somewhere I heard you could sue anyone for anything....except maybe some ghey kalifornia county that has an abundance of parades and just can't commit to anything like that.

[Soonerfan88]

From an amateur's perspective, TT and James began "poisoning the well" weeks ago and Leach is just responding in kind. I know that juries are only supposed to go by what they see/hear in court but I don't think it's practical to expect they aren't swayed by earlier media reports. Also if Leach and his attorney don't think this will actually get to trial, why not put it in front of the world and try to counter all the ESPN propaganda?

Again, speaking only as a potential juror and not a lawyer, the biggest issue I have is TT doesn't appear to have upheld the contract. I haven't seen their side but that 10 days is hard to overcome. And although the emails are from last year, it still shows some pretty bad faith (amateur's definition) and firing him the day before his bonus was due just makes it worse.

[soonerboomer93]

The biggest issue for me, as a layman isn't that they didn't uphold the contract, but that from looking at the e-mails acquired by the DMN it appears they never intended to uphold their end of the contract and negotiated in bad faith. I understand that TT was unhappy about parts of the negotiations, however they seem to make some pretty damning statements about the specific desire to be able to fire him quickly.

[TMcGee86]

I ask again, does Adam James have a case against Leach?

No. Even if that was a viable cause of action Leach has a right to defend himself against allegations. Similar to a lawyer breaking the atty/client confidentiality when accused of malpractice.

[TMcGee86]

I think you're bending over backwards to see Leach's side of things, but not Tech's.

Can Tech provide meaningful evidence in court that the trainers were told to make sure the room was pitch black? Yes or no?

If so, that's punishment.

You don't make someone stand in a pitch black room for two hours unless you are pissed at them. To make it sound like it was done out of health concerns is going to raise the obvious question: Why pitch black? And if the room needs to be pitch black, have you ever prescribed that treatment for other players in the past? James is not the first player to suffer a concussion.

Once you establish that it was punishment, why was he being punished? The petition mentions that he was taken to the dark room because of his attire, of which the sunglasses are specifically mentioned (and yet no other clothing is specifically mentioned).

Are there potential holes in the argument? Sure, just like any argument. My question was, "Would the argument likely be very effective?" but I ended up asking the Mike Leach Fan Club.

It's got nothing to do with any mike leach fan club, you need to acutally read the affidavits. There is no mention of "pitch black" or any sort of punishment.

Those affidavits are Tech's evidence.

Not to mention the kid took a video of the room and it was not "pitch black"

At this point you are just making up ****. However it's not necessary to do so to make an argument that Tech wins.

Tech can easily claim that Leach violated the terms of the contract with his actions. The problem they are going to have is that by making claims regarding insubordination and endangering James, they have contradicted what they claimed they fired him for. But the terms are fairly open ended, as long as they stick to the script they have a very good chance of coming out on top. Not to mention the immunity claim they have.

[Leroy Lizard]

It's got nothing to do with any mike leach fan club, you need to acutally read the affidavits. There is no mention of "pitch black" or any sort of punishment.

Here is what was said in the affidavit:

"Leach further said something to the effect that he wanted me to tell James that I was to 'lock his ***** in a place so dark that the only way he knows he has a ****, which I repeated to James."

And that doesn't sound like punishment to you? Seriously? That doesn't sound like Leach wanted James in total darkness?

Are you going to find a jury stupid enough to go along with your argument?

[AlbqSooner]

Leroy, I mentioned this to you in another thread. Until you have gone to law school you will not understand a lot of this. Pleadings define the issues. They do not settle the issues. A lawyer crafts his pleadings to define what matters are at issue. The other side's lawyer files an 'Answer" which sets forth what that side believes the issues to be. Through "Discovery" it is determined what admissible evidence is available to support or refute the allegations of each side. Ultimately those issues, together with the evidence in support or contradiction of those issues, are presented to a jury. The Judge will carefully instruct the jury on the Law to be applied. The jury has the responsibility of determining what evidence they believe or disbelieve. Once they have made those determinations, the jury will apply the law, as given to them by the Judge, to the facts that they have determined to be proven. From that process they will determine how to fill out the Verdict.
It took me a paragraph to tell you that. It takes a lawyer two semesters to learn Civil Procedure well enough to pass an exam. It takes that same lawyer to rest of his life to master Civil Procedure. You cannot be expected to understand it from reading that one paragraph, or even everything posted in all of the Leach related posts. That is not an insult. I could not be expected to understand Multiple Linear Regressions by reading an internet message board.
Give up the arguing with people who have far greater training than you in these matters and just sit back and see how this plays out. There are some pretty damn good legal minds posting here. NOT ONE of them will tell you that they have anything more than a hunch what the result of this case will be.

[Soonerus]

It is obvious Leach's attorneys are pleading aggressively trying to scare out a settlement early on...it may work and it may not...T.Tech does not seem to have much pride so public opinion is probably irrelevant to them...T.Tech should do the right thing and settle on favorable terms to Leach but they will probably not...forget all of the legal niceties, this is the reality of what is happening...

[Leroy Lizard]

Leroy, I mentioned this to you in another thread. Until you have gone to law school you will not understand a lot of this. Pleadings define the issues. They do not settle the issues.

That's all fine, but none of it is relevant.

By the way, I have experienced Condescending AlbSooner, and I much prefer Insulting AlbSooner. Can you go back?


I could not be expected to understand Multiple Linear Regressions by reading an internet message board.

You could if I was explaining it. :D

[Leroy Lizard]

Even if that was a viable cause of action Leach has a right to defend himself against allegations.

I think that would be true if Adam was suing him. Can a (say) professor divulge a student's grades to the public if he is being sued by someone other than the student?

I could see a court issuing safeguards against publicly displaying confidential student information. But that's kind of tough if the plaintiff has already done it to the public.

Now, even though I just asked a question, I will be lectured once again that I am not a lawyer, and I cannot hope to understand all the legal issues surrounding the case...

[Collier11]

No. He argued as many theories of recovery as are colorable because that's how you're supposed to do it. If you fail to argue a theory of recovery that might have succeeded and the verdict goes against you, then the theory you failed to argue is precluded from future litigation. Failure to identify and plead a colorable theory of recovery is grounds for a malpractice suit against the attorney.

cool, I have no idea, I was just guessing

[sooneredaco]

Leroy, I mentioned this to you in another thread. Until you have gone to law school you will not understand a lot of this. Pleadings define the issues. They do not settle the issues. A lawyer crafts his pleadings to define what matters are at issue. The other side's lawyer files an 'Answer" which sets forth what that side believes the issues to be. Through "Discovery" it is determined what admissible evidence is available to support or refute the allegations of each side. Ultimately those issues, together with the evidence in support or contradiction of those issues, are presented to a jury. The Judge will carefully instruct the jury on the Law to be applied. The jury has the responsibility of determining what evidence they believe or disbelieve. Once they have made those determinations, the jury will apply the law, as given to them by the Judge, to the facts that they have determined to be proven. From that process they will determine how to fill out the Verdict.
It took me a paragraph to tell you that. It takes a lawyer two semesters to learn Civil Procedure well enough to pass an exam. It takes that same lawyer to rest of his life to master Civil Procedure. You cannot be expected to understand it from reading that one paragraph, or even everything posted in all of the Leach related posts. That is not an insult. I could not be expected to understand Multiple Linear Regressions by reading an internet message board.
Give up the arguing with people who have far greater training than you in these matters and just sit back and see how this plays out. There are some pretty damn good legal minds posting here. NOT ONE of them will tell you that they have anything more than a hunch what the result of this case will be.

Best response I've seen given to lizzard thus far. However, I have a feeling even this commen sense response won't work on him.

[CrimsonJim]

Here ya go, Leroy! Give it hell!!!

http://cruciality.files.wordpress.com/2009/01/fence-post.jpg

[prrriiide]

The other shoe, as expected:


Texas Tech wants lawsuit thrown out

LUBBOCK, Texas -- Texas Tech on Tuesday asked a judge to throw out fired coach Mike Leach's lawsuit, saying state law gives the university immunity from legal action.

The university contended Leach is barred from suing the university without a waiver of sovereign immunity from the Texas Legislature...

One of the attorneys, Paul Dobrowski, said at a news conference that a sovereign immunity defense isn't permissible under a whistleblower claim. In a statement read by another attorney, Ted Liggett, Leach said he expects to be "vindicated" and will "vigorously prosecute" his claims.


http://sports.espn.go.com/ncf/news/story?id=4820349

My bet is that the sovereign immunity defense was in the offing all along, knowing that Leach would sue when fired (not if). I think Leach's fate was sealed the minute the texass Supreme Court handed down the Koseoglu decision in favor of the TAMU system.

[Leroy Lizard]

Does Tech have a waiver from sovereign immunity that Leach can exploit?

[prrriiide]

Does Tech have a waiver from sovereign immunity that Leach can exploit?

Not unless the State Legislature explicitly grants a waiver to Leach for TTU to be sued, unless Leach and his lawyers can find an exploitable avenue around Sovereign Immunity (such as his claim about the whistleblower violation, which is not covered under SI).

[King Barry's Back]

OK. Tech has played the sovereign immunity card to get rid of a bothersome and litigious coach they don't like.

First comment: Why bother to fire him the last day before the bonus is due if they have sovereign immunity anyway? I mean, why bother with the details of a contract that you are not legally required to honor?

Second comment: Now that Tech has declared itself above contract law, aren't they concerned that they will have trouble contracting with anyone? I mean, I can see top-notch coaches turning them down because they won't be bound to honor a contract. ANd I can see typical building contractors, garbage disposal firms, and paper clip manufacturers avoiding them as well. And maybe even the entire Texas state university system.

Final comment: This is exactly what happens when ego-driven ADs are allowed too much power. They had a messy personnel issue and chose to handle it publicly -- with the only possible result that the reputation of their institution is going to be undermined.

[prrriiide]

OK. Tech has played the sovereign immunity card to get rid of a bothersome and litigious coach they don't like.

First comment: Why bother to fire him the last day before the bonus is due if they have sovereign immunity anyway? I mean, why bother with the details of a contract that you are not legally required to honor?

Second comment: Now that Tech has declared itself above contract law, aren't they concerned that they will have trouble contracting with anyone? I mean, I can see top-notch coaches turning them down because they won't be bound to honor a contract. ANd I can see typical building contractors, garbage disposal firms, and paper clip manufacturers avoiding them as well. And maybe even the entire Texas state university system.

Final comment: This is exactly what happens when ego-driven ADs are allowed too much power. They had a messy personnel issue and chose to handle it publicly -- with the only possible result that the reputation of their institution is going to be undermined.

Not sure how texass law works, but I know that with the Fed there has been legislation that functions as a blanket SI waiver in matters of contracts. I would think that there is similar law in texass and that Taco Tech is saying that the parts of Leach's suit that have merit are not covered under those laws, meaning that SI would apply.

[Half a Hundred]

Not sure how texass law works, but I know that with the Fed there has been legislation that functions as a blanket SI waiver in matters of contracts. I would think that there is similar law in texass and that Taco Tech is saying that the parts of Leach's suit that have merit are not covered under those laws, meaning that SI would apply.

I really think Leach will take this thing all the way to the Feds, if only for shiats and giggles (since by going after TTU first, they're taking the conventional route). Koseoglu is a pretty whacked-out precedent, and it might be time for the Supes to say something regarding procedural due process in state governmental contracts.

[TexasLidig8r]

No surprise that sovereign immunity is the first hurdle thrown out. It was to be expected.

Based upon the emails from last year and other investigations Leach's attorneys probably have already undertaken, I wonder if and when Leach's attorneys will pull in the AD and Hance in both their official capacities and individual capacities.

If the allegation is made that the AD and Chancellor conspired with TTU regents to breach Leach's contract and then to defame him, the argument can be made that they were acting outside the realm of their "official" capacities thus sovereign immunity does not apply.

Finally.. and it has been a LONG time since I looked at this point, my understanding was that constitutional violations trumped sovereign immunity.

[Frozen Sooner]

Hmmm. Lid, what do you think about Leach possibly alleging a violation of his right to due process and filing under § 1983? That trumps both sovereign immunity and gets the case into federal court (though I don't know that Leach wants it there.)

[TexasLidig8r]

Hmmm. Lid, what do you think about Leach possibly alleging a violation of his right to due process and filing under § 1983? That trumps both sovereign immunity and gets the case into federal court (though I don't know that Leach wants it there.)

Don't know enough about Sec. 1983 to give an intelligent response.

I do know if he amends to add a count for a 1983 violation, he is stuck with his initial forum. Defendant would have the right to remove after he alleged a federal violation. And Tech probably would not.

As for federal court, I do know that the case would be before Judge Cummings. He is a Reagan appointee, has a reputation of being conservative, a strict constructionist... a very thorough judge.

Apparently, the rumors are flying that Leach will be the next offensive coordinator at UCLA.. which certainly guts one of Tech's expected defenses.. that is, he failed to mitigate his damages.

[TMcGee86]

Are you going to find a jury stupid enough to go along with your argument?

LOL. Obviously you've never tried a case to a jury.

But I'm not making an argument, you are, you are throwing out terms like punishment and pitch black. The fact is, that affidavit contains hearsay and doesn't even say Leach said it, just that it was "something to the effect of..."

Nothing that weak will make it into evidence. Now he may strengthen his testimony later, but it will just be refuted by Leach.

But all that is beside the point of Tech has never cliamed Leach was fired for wrongful punishment. That is why I think they are screwed. They grasped what they knew everyone would flip out about and that is endangering a child with a concussion.

They dont get to go back and say wait, we change our minds now on why we fired you. That's why that notice provision is in the contract. To clear up matters like this before they lead to firings. Tech just wanted Leach gone. I think they are now praying they get immunity because they know they breached the K.

[Half a Hundred]

Hmmm. Lid, what do you think about Leach possibly alleging a violation of his right to due process and filing under § 1983? That trumps both sovereign immunity and gets the case into federal court (though I don't know that Leach wants it there.)

The problem with that is Leach would have to prove that not only did he have an expectation interest in the contract, but above this he had an entitlement to some property and the State engaged in a "taking" without due process. That's a whole other can of worms - you'd have to look at the cases as to whether futures contracts indicate ownership of the specified chattel, whether the non-pecuniary grants within the terms of the contract constitute property which the state can enact a "taking" against, &c.

[TMcGee86]

I think that would be true if Adam was suing him. Can a (say) professor divulge a student's grades to the public if he is being sued by someone other than the student?

I could see a court issuing safeguards against publicly displaying confidential student information. But that's kind of tough if the plaintiff has already done it to the public.

Now, even though I just asked a question, I will be lectured once again that I am not a lawyer, and I cannot hope to understand all the legal issues surrounding the case...

Well the problem with this question is it involves a specific law put in place to protect student's privacy and I am not even remotely an expert in such law. I know that grades are obviously covered but that's pretty much it.

But what is confidential about James' practice time with the team?

If anything I would think he would be seen to waive his right to privacy by making the concussion allegation public.

Granted, I have no idea on any of this because it's never been discussed as far as I know. I would think a college athlete has very little right to privacy regarding almost everything concerning the football team. Sort of assumption of the risk. But even with any right he had, when you make a public claim regarding your condition, you have pretty much thrown out your right to privacy.

The better question might be could he sue the school for making this public. If he simply went to the administrators and complained about his head coach, and the admins ignored his right to privacy and took it public because they hate leach and wanted anything they could latch on to to make him gone, then he might have a claim.

[Leroy Lizard]

LOL. Obviously you've never tried a case to a jury.

You can use that response to counter anything.

[TUSooner]

Generally speaking, sovereign immunity bars constitutional claims against an immune state under section 1983. Just sayin. I deal with a fair amount of 1983 claims, but not so much with sovereign immunity. Sovereign immunity does not apply to individuals sued in their individual capacities, that much I know (pretty much). :D

As an astonishingly ignorant person, I ask: "Why the **** would anyone EVER contract with a state if the person had no right to obtain relief against the state for a breach of the contract ?! I'm sure I'm missing something here.

[Leroy Lizard]

Well the problem with this question is it involves a specific law put in place to protect student's privacy and I am not even remotely an expert in such law. I know that grades are obviously covered but that's pretty much it.

But what is confidential about James' practice time with the team?

If anything I would think he would be seen to waive his right to privacy by making the concussion allegation public.

Granted, I have no idea on any of this because it's never been discussed as far as I know. I would think a college athlete has very little right to privacy regarding almost everything concerning the football team. Sort of assumption of the risk. But even with any right he had, when you make a public claim regarding your condition, you have pretty much thrown out your right to privacy.

I think student-athletes' rights to privacy are covered just like any other student. I am not referring to privacy rights that address medical conditions (which I think is covered by the law), but rather student performance.

I have never checked into it, but if a student of mine is lazy and I broadcast that to the media, I'm not sure I haven't violated a school policy. I'm going to need to look into it for my own sake.


The better question might be could he sue the school for making this public. If he simply went to the administrators and complained about his head coach, and the admins ignored his right to privacy and took it public because they hate leach and wanted anything they could latch on to to make him gone, then he might have a claim.

I would think Leach would be the defendant here. Isn't he the one that broadcasted James' practice habits and attitude publicly?

[TMcGee86]

I think student-athletes' rights to privacy are covered just like any other student. I am not referring to privacy rights that address medical conditions (which I think is covered by the law), but rather student performance.

I have never checked into it, but if a student of mine is lazy and I broadcast that to the media, I'm not sure I haven't violated a school policy. I'm going to need to look into it for my own sake.

Well that's what I mean by specific law, really have no idea what "law" you would be talking about at this point. I'm sure there are school policies that spell out that you can't do such things, but naturally those would be school specific and defined by the policy document. Without seeing Tech's we would have no idea if there was a violation.

Whereas if we are just talking about a basic constitutional right to privacy, the right to privacy does not prohibit any publication of matters of public or general concern. Even if your role in the matter was unwilling you still become a public figure and waive your right to privacy.


I would think Leach would be the defendant here. Isn't he the one that broadcasted James' practice habits and attitude publicly?

No. Tech suspending leach for putting a player in a closet set this thing in motion. At that point, Mike has a right to defend himself.

But I just don't think there's a privacy right in practice habits. Otherwise kids could sue coaches for benching them claiming that they somehow violated their right to privacy that they suck at football.

Plus you can't overlook the very real difference in a regular student and a D1 football player. The football player knows he is going to be on TV and in the public eye every week. He accepts this as part of the gig. He is a public figure. You have to take the good with the bad.

[Leroy Lizard]

No. Tech suspending leach for putting a player in a closet set this thing in motion. At that point, Mike has a right to defend himself.

Are you sure he has the right to broadcast Adam James' performance publicly if it is protected by codes of confidentiality? To me, that would seem odd. In Adam's view, whatever problems exist between Tech and Leach are not his concern.


But I just don't think there's a privacy right in practice habits. Otherwise kids could sue coaches for benching them claiming that they somehow violated their right to privacy that they suck at football.

If the player was benched and the coach told the press that he refused to participate in practices, I'm not so sure.

Naturally, this all sounds unreasonable. What coach doesn't have the right to bitch about his players? But in terms of strict university policy, I'm not so sure.

Is practicing football like studying for exams? If I tell the news media that a student doesn't study for her exams, is that a violation? Can we extend that to football?

Is this likely? Suppose that the student is the daughter of the governor and has just won an academic award. I can easily see the media asking a prof for some dirt on how the student really performs.

There is no doubt that divulging a player's practice habits can hurt them financially in the future, so there is a reason for having the rules.


Plus you can't overlook the very real difference in a regular student and a D1 football player. The football player knows he is going to be on TV and in the public eye every week. He accepts this as part of the gig. He is a public figure. You have to take the good with the bad.

In terms of university policy, I think a football player is not much different than any other student. It seems to me that his privacy is covered the same as any student's performance. Maybe players sign a waiver.

[Leroy Lizard]

No. Tech suspending leach for putting a player in a closet set this thing in motion. At that point, Mike has a right to defend himself.

I think you misunderstood. I am referring to the situation where Adam James sues Leach.

[Frozen Sooner]

Generally speaking, sovereign immunity bars constitutional claims against an immune state under section 1983. Just sayin. I deal with a fair amount of 1983 claims, but not so much with sovereign immunity. Sovereign immunity does not apply to individuals sued in their individual capacities, that much I know (pretty much). :D

As an astonishingly ignorant person, I ask: "Why the **** would anyone EVER contract with a state if the person had no right to obtain relief against the state for a breach of the contract ?! I'm sure I'm missing something here.

Well that's cruddy. I was under the impression that a claim of sovereign immunity was estopped in a § 1983 action. Then again, I haven't taken Civil Rights Litigation yet.

[Frozen Sooner]

The problem with that is Leach would have to prove that not only did he have an expectation interest in the contract, but above this he had an entitlement to some property and the State engaged in a "taking" without due process. That's a whole other can of worms - you'd have to look at the cases as to whether futures contracts indicate ownership of the specified chattel, whether the non-pecuniary grants within the terms of the contract constitute property which the state can enact a "taking" against, &c.
Betcha I could sound it in if I really tried.

[TUSooner]

Well that's cruddy. I was under the impression that a claim of sovereign immunity was estopped in a § 1983 action....

Au contraire, mon frere, that's when it's handiest! :P

BONUS! :D There is also no vicarious liability under 1983. Almost all 1983 defendants are individuals sued in their individual capacities, unless there is a waiver of sov. immunity AND some direct violation by the entity or supervisor, such as inadequate training or an unconstitutional policy. The latter 2 things are pretty hard to prove in most cases.

DISCLAIMER: This post is not intended as legal advice, and you don't even know for sure that I'm really a lawyer !

[StoopTroup]

If you have a govt backed student loan...shouldyour grades be confidential? Shouldn't we even be able to send Homeland Security over to his Profs house and find out what he had for dinner 24 hours before?

[TooSoon]

Are you sure he has the right to broadcast Adam James' performance publicly if it is protected by codes of confidentiality? To me, that would seem odd.




So if my coach says in an interview "Too Soon is the hardest worker I've ever seen in practice. He gets there early and stays late. He finishes first in every practice sprint and has only dropped one pass in practice the entire year. He always has a postivie attitude and encourages his teammates to have the same. He has never missed a practice for illness or any other reason."

By your logic, the coach has violated my right to privacy, right?

[Collier11]

I dont think that game or practice performance is anyway covered by confidentiality clauses, that is retarded

[TUSooner]

I dont think that game or practice performance is anyway covered by confidentiality clauses, that is retarded

This^^^.
I'll believe player performances are confidential when games are played in secret in empty stadiums. The analogy between the practice field and the classroom is strained, to say the least.

[MeMyself&Me]

This^^^.
I'll believe player performances are confidential when games are played in secret in empty stadiums. The analogy between the practice field and the classroom is strained, to say the least.

LL kept drawing those comparisons over and over again until I hit 'ignore'. Just another instance of LL not knowing **** about sports.

[prrriiide]

There appear to be amateurs everywhere.

Lid, the petition mentions that Adam James showed up in sunglasses, and that such sunglasses were not appropriate attire. It then goes on to state that James was punished for being dressed inappropriately. If James can show that the sunglasses were prescribed or suggested by his doctor, what effect does that have on Leach's claims?

No effect at all. The NCAA clearly detail what competition sunglasses are allowable eyewear, even down to the brands and model numbers. If the sunglasses were not one of the ones outlined by the NCAA, they were not appropriate attire.

[TexasLidig8r]

I dont think that game or practice performance is anyway covered by confidentiality clauses, that is retarded

So, if I sent a Freedom of Information demand to Ou for Bob Stoops playbook and all documents related thereto, as an employee of the state, would Stoopsie be required to cough it up?

[prrriiide]

Are you sure he has the right to broadcast Adam James' performance publicly if it is protected by codes of confidentiality?

It depends on how the laws are (or aren't) written. To see if this is an issue, first the court will look to black-letter law. If it is explicitly prohibited, then Leach is wrong to divulge.

If there is no black-letter law on the issue, the court will then proceed to case law, where the lawyers from both sides will make argument supported by cases previously adjudicated, who's decisions lend credence to their respective positions. If there is applicable precedence, the court will usually (though not always) rule accordingly.

If there are no cases on point, the court will then look at commonly accepted industry practices. It is VERY common in college football for practice sessions to be open to the public, and for coaches to comment on individual practice performances. So if there are no cases on point and there is no black-letter law, the position that Leach violated privacy will likely be denied.

[Leroy Lizard]

If you have a govt backed student loan...shouldyour grades be confidential?

Absolutely.


So if my coach says in an interview "Too Soon is the hardest worker I've ever seen in practice. He gets there early and stays late. He finishes first in every practice sprint and has only dropped one pass in practice the entire year. He always has a postivie attitude and encourages his teammates to have the same. He has never missed a practice for illness or any other reason."

By your logic, the coach has violated my right to privacy, right?

Possibly (and only technically). It would be hard to say why the student has been damaged. But suppose that a potential employer asks me evaluate a student who has applied for a job, and I reveal that the student has not performed her last two assignments. Is that acceptable?


I dont think that game or practice performance is anyway covered by confidentiality clauses, that is retarded

I don't think it should be, necessarily. But how we feel about it is not important as far as the handbook goes.


The NCAA clearly detail what competition sunglasses are allowable eyewear, even down to the brands and model numbers.

Sure, if the student is {\em competing}. I am not sure the NCAA has any jurisdiction over this matter, because the player was not competing in his sport but merely showing up to practice, from which he was excused from taking part in activities.

As a player, I can't wear any sunglasses I want when competing because they could injure another player, provide an unfair competitive advantage, or hurt myself if I am tackled. None of those conditions apply to a player that is merely walking the track.


It depends on how the laws are (or aren't) written. To see if this is an issue, first the court will look to black-letter law. If it is explicitly prohibited, then Leach is wrong to divulge.

We're not talking about the law, but rather university code. So the question is, does providing information to the media about a player's performance violate the university code?

Consider the statement that Adam slammed a door hard and told his coach to **** off. That could be construed as a disciplinary issue. Can a coach divulge disciplinary issues to the public?

Leach didn't break any laws as far as I can tell.

[Leroy Lizard]

So, if I sent a Freedom of Information demand to Ou for Bob Stoops playbook and all documents related thereto, as an employee of the state, would Stoopsie be required to cough it up?

OU no longer needs to rely on FOI once Stoops received spy-training from Barry Switzer. :D

[StoopTroup]

So, if I sent a Freedom of Information demand to Ou for Bob Stoops playbook and all documents related thereto, as an employee of the state, would Stoopsie be required to cough it up?
Let me or someone here know when you want someone to explain it to you or anyone else down there. Darrell Royal might not be up for it.

[Collier11]

So, if I sent a Freedom of Information demand to Ou for Bob Stoops playbook and all documents related thereto, as an employee of the state, would Stoopsie be required to cough it up?

how is asking for a playbook the same as asking how Demarco is looking in practice?

[AlbqSooner]

I do know if he amends to add a count for a 1983 violation, he is stuck with his initial forum. Defendant would have the right to remove after he alleged a federal violation. And Tech probably would not.

Sorry Lid, you are incorrect on this. At least you were 12 years ago when I last practiced law. A plaintiff has the right to bring a 1983 action in State Court or Federal, at his choosing. The case is not removable on purely Federal question grounds.

Very few 1983 cases are filed in State Court because Federal Judges are generally much more familiar with the nature of the action. I filed a 1983 case in State Court in St. Petersburg, Florida for two reasons. At that time, with all of the drug cases in Federal Court it was generally conceded that a Civil action in the Middle or Southern district of Florida would take from 5 to 8 years to get a trial date. The second reason was that at that time the St. Petersburg PD had a HORRIBLE reputation and the City Attorney assigned an assistant to defend the city, rather than getting outside counsel in State Court. They really didn't have any assistants that knew much about 1983 actions.

Also, Leach's attorneys plead a waiver of Sovereign Immunity in paragraph H. They also cite a 2003 case involving the Couty of El Paso and a 2007 case involving Texas Southern. I don't know enough about Texas law to determine the viability of that particular claim, but no one has mentioned it thus far.