New Email Causes Leach to Request Sanctions

back when I was at Tech and worked with Windy Sitton quite a bit….writing statements, press releases, holding up cue cards, working the camera, broadcasting council meetings, etc (back then the Lubbock N&M dept. consisted of a whopping 4 people, myself the intern included).

From that experience, I can assure you with a great deal of sincerity, that Windy Sitton is every bit as arrogant and inept as those she is criticizing.

But then again, at the executive level, how many people don’t have some degree of arrogance and ineptness? They should almost be requirements for the job.

He wants to have his name cleared and winning this case is his only hope. If he couldn’t even get an interview for the East Carolina job, his return to coaching is in doubt unless he can prove that he doesn’t abuse players.

None of the below is designed to weigh in on whether Leach gets poured out on the sovereign immunity issue. That is specific to the case.

The rule basically says you can’t sue a state entity unless the state gives you permission. The state can waive this immunity through its actions, a classic example being taking the benefits of a contract and then claiming immunity when it comes time to pay the piper. Sound familiar?

The rule is statutory, which bears on the “public policy” issues presented below, discussed in more detail momentarily.

The truth of the proposition that the state can waive immunity by conduct depends on who you ask. Some Courts of Appeals have addressed waiver by conduct in extraordinary circumstances. The Texas Supreme Court has never explicitly recognized the waiver by conduct exception to sovereign, immunity, at least so far as I can tell. To the contrary, at least in a somewhat typical breach of contract case, the Supreme Court explicitly rejected waiver by conducted in Texas A&M Univ. Sys. v. Koseoglu (“[Plaintiff] advances a waiver-by-conduct argument (i.e., that Texas A&M waived its immunity from suit by accepting benefits under its alleged contract with Koseoglu), but we have consistently rejected that position[.]” If a “classic example” of waiver is the taking the benefits of a contract and then claiming immunity, you’ll need to square that with the Supreme Court’s holding in Gen. Servs. Comm’n v. Little-Tex Insulation Co., which states: "the State does not waive its immunity from a
breach-of-contract action by accepting the benefits of a contract." It is well-established enough law so that I feel comfortable stating, unambiguously, state entities do not waive sovereign immunity merely because they enter into contracts and breach those contracts. That may strike you as bizarre — it strikes me as unfair — but it is still the law. Courts were rejecting sovereign immunity under the common law because the doctrine, which has its historical basis in English common law that protected the King from being sued in courts he provided (which for obvious reasons became dated very early in our country’s history). But the courts were very quickly rebuked by federal and state legislatures, including Texas, which promptly passed broad sovereign immunity statutes to protect themselves.

In any event, without even depending on the law, it cannot be the case that “taking the benefits of a contract and then claiming immunity when it comes time to pay the piper” is a waiver of sovereign immunity because if it were so, sovereign immunity is meaningless. If the act of breaching a contract and then refusing your own liability under immunity is enough to waive immunity, then there is no protection for the state. And yet there is.

It seems public policy (a common rationale used in court decisions) would also come into play. Rejecting Leach’s contract cause would effectively nullify every coach’s contract in the state, from elite colleges to your local high school. Every buyout clause would be meaningless. No coach could ever rely on bonuses for completion, bowl games, championships, etc. Schools could promise the moon without any legal obligation at all.

I think this is a nice touch, it is creative, and it may well have some legs. But public policy arguments depend in large part on defining “public policy” which starts and ends with what the legislature does. Despite widespread criticism to the contrary, courts are not all that free to insert their own interpretations of “public policy” against clear statements by the legislature (through statutes) of what they think the public policy is. And if the statutes provide overwhelming, broad, and air-tight protection for the states in the form of sovereign immunity, it is going to be very difficult for anyone to argue to a court that entire pages of statutes need to be ignored on the grounds that the public policy is not what the public’s representatives say it is.

But even if the legislature were silent on the issue, it’s not apparent to me at all that “public policy” requires this contract be enforced. A large portion of the construction industry involves public jobs. The participants have a pretty good sense that their state-clients are very difficult to sue. Does that mean the contracts they sign are worthless except for the value of the paper? Maybe, if you need to enforce your rights against the state in a court. Yet construction companies enter into these contracts frequently. Lee Lewis is building our stadium. Why would he do that if the contract were difficult to enforce in a court?

Because the state pays a shitload of money. Because Lee Lewis doesn’t anticipate the state walking away because it will do a great job, or thinks it will do a great job. The clauses are “meaningless” to the law if courts cannot interpret them because sovereign immunity applies. But that doesn’t mean they are “meaningless” in the business world, where people tend to follow their promises even without the threat of litigation, because business reasons necessitate that. The state plays a dangerous game when it fucks over people on its contracts, because future contracts are more difficult to negotiate when one of the parties knows the other will not play nice and cannot be forced to play nice in a court. Just because a contract is (potentially) legally “meaningless” doesn’t mean there is some public policy necessity to enforce the contracts legally, particularly if those same contracts will be entered into with or without the court’s enforcement. Have you ever entered into a wager with one of your friends? Did you know gambling agreements are illegal and therefore unenforceable at all? Why would you enter into a contract with a friend that was unenforceable?

Why might Leach or Coach TT? Because they are offered millions of dollars to do what they love. I would happily quit my job tomorrow and become the head coach of any state university in the country for one million dollars, with or without any guarantee that I could hold the other party to their end of the contract legally. It is worth the risk. Hence why it MAY not be the case that public policy demands these kinds of contracts be legally enforced… particularly if the legislature has said repeatedly that they should not be legally enforceable against the state.

Even if somehow Tech got sov imm. What coach worth a damn would want to do business with them. It’s like welching on a handshake. Their word is no good. It’s like a small mom and pop restaurant or tienda being carried on credit with suppliers, sure, they have the right to file bankruptcy, screw their creditors, and reorganize to stay in business, but good luck getting a produce company to carry you more than cash on delivery. My $.02

Lbkpirate the points you make are a good indication that the relationship was strained for a long time, just another reason why it needed to end. These guys on both sides were so bitter towards one another they will fight and spend to justify their years of resentment. If the bosses win, Leach is a POS and never works again (on a major college / major division level) if Leach wins he cant wait to prove that he is a smart successful coach.

Although I’m by no means an expert on sovereign immunity, I still don’t quite understand why the state holds superior power to an employee and the employee has to ask permission to sue the state. Can someone say dictatorship?

The original point of sovereign immunity was dictatorship; the state was the king, the king provided his people with access to the courts, therefore it didn’t make sense for the courts to enforce judgments against the king, since he provided the courts. On that basis sovereign immunity was rejected by many American courts. However, state and federal legislatures subsequently reinstated sovereign immunity by statute.

Why might they do that? When the “sovereign” is “the people” then judgments paid by the state are paid by “the people.” A successful suit by plaintiff against the state will have to be paid by your taxes. The state engages in the people’s business, and most people want that business completed without taking into account the excessive costs of a bureaucrat terrified of future liability. In other words, we want the state to proceed with the state’s business without fear of having to eventually tax the people to death to pay judgments due to the state’s negligence. Risk will have to be allocated somehow, and virtually every state has declined to allocate it in the way you’ve suggested. That doesn’t make Texas a dictatorship, it just means we’re a state that takes seriously the people’s resources.

Also I’m pretty sure our constitution doesn’t allow the state to pay for anything unless it is covered by some present taxation schema, which might help explain why we’re less broke than many other states.

If there were a logical way to distinguish between cases like the present one and the “real” cases where the state entity wasn’t just “hiding behind sovereign immunity like it’s a big stone wall” (which it is, and they do, and isn’t that precisely what the statute permits them to do?) that could be enforced by courts non-arbitrarily or capriciously, then by all means, take a shot. It’s a pretty tough line to draw. I doubt the courts will want to open up sovereign immunity to an ad hoc factual determination every case, for exactly the reasons you state. There is a fear that exceptions swallow the rule, and if your exception is something like “state is hiding behind a big stone wall” then that’s just to say there is only the exception and there is no rule.

I agree that this is wrong. Not every “wrong” needs legal redress, though.

Money shouldn’t be the sole factor that delegates power. That’s why I hate America’s elitist public system. It voids the opinions of those who don’t make huge sums of money completely null and worthless. It also makes it that much harder for the few people who are screwed by the state to receive social and legal justice in the courts because the state will always abuse the power of "sovereign immunity" and run away in celebration knowing they can get away with it if they have the right ahem "connections"..

Let’s be clear about what money the state is allegedly being cavalier with when it hides behind sovereign immunity, before we devolve into class-warfare for no good reason. It is your money. The state uses tax dollars. If the policy decision is not to spend tax dollars without good cause, then that’s not the state acting on behalf of the rich or connected, it is them acting on behalf of people like Skin Patrol, who is neither rich nor connected but pays taxes.

That’s particularly off point here, where the voided opinion is Coach Leach, he made a lot of money, he’s one of the only people in the history of Texas who actually engaged in something like an arms-length negotiation with the state, something none of us will ever have a chance at. “Legal justice” is a zero-sum game, and if Mike Leach wins, someone has to pay him the money he’s owed. Who will that be? The University? Who pays for that?

This has nothing to do with “connections.”

Dicky may have some inside information.

Dicky Grigg (not Dobrowski), Tech’s attorney, who said that next thing Leach’s attorneys will do is link the Bell Tower Boys to the JFK assasination because they have a document. He’s talking about “absurd” conspiracies to help diffuse the idea that there is any relevance to this email or the failure to produce it during discovery.

I’m in full and absolute agreement with every part of this opinion.

Very true all the way around. No matter what happens with the lawsuit, Leach won’t ever coach at TTU again. I’m fairly certain there are almost no alumni who will suddenly stop cheering our team or Tuberville, who had nothing to do with his ouster. Nobody will remove their diploma from its frame and burn it (at least nobody with more than 19 functioning brain cells).

We ALL (and I speak for all of us, so forgive me) want Tech and our program to succeed. I think we mostly all want Leach to land on his feet somewhere (preferably where he naver faces Tech…that would be too weird) and be successful as well.

I work at a construction law firm.

How do you think it plays out with Lee Lewis under those circumstances? Because in a lot of sovereign immunity cases contractors get fucked because the contracts they enter into cannot be legally enforced against the state, even if the state is the breaching party.

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Again … as I posted in this same thread above.

The Leach case is not at all similar to a private-party/business doing contract work with TTU and/or a State entity.

This case has to do with TTU’s Operating Policies and Procedures as legislated by the Texas Education Code and all laws in the state.

According to Leach’s attorney, here is what the sovereign immunity rule hinges on related to Leach’s case:

From the Daily Toreador – April 19, 2010; paragraph 13

One of Tech’s defenses in this case has been the sovereign immunity claim, which points out that an individual cannot sue the state, of which Tech is a branch.

But Leach’s attorneys believe the Tech administration has waived that through numerous causes, such as the Board of Regents making its own policies and procedures, therefore acting as its own legislative body.

The TTU Operating Policies and Procedures must be written and followed verbatim in accordance with the State Education Code and all laws of the State.

The University’s regents and administrators appear to had decided to act as their own legislative body and not afford Coach Leach that which is expressly written in the Operating Policies and Procedures under the grievance process, both at the time of his suspension and eventual termination.

The procedure itself even goes so far as to state that the grievant/party may so elect to file the grievance/complaint "with any external agency or court…"

OP 70.10: Non-faculty Employee Complaint and Grievance Procedures (pdf)

PURPOSE: Texas Tech University/Texas Tech University System (TTU/TTUS) is an at-will employer. Employment is for an indefinite duration and can be terminated at any time. Nothing in this or any other TTU/TTUS policy constitutes an employment agreement, either express or implied, a contract, a contract relationship, a guarantee of continued employment, or a property right. The purpose of this Operating Policy/Procedure (OP) is to establish a procedure to provide fair, consistent, and prompt internal consideration of complaints and grievances and provide resolution when possible. In the event the employee files substantially the same issues as the grievance or complaint before or during this procedure with any external agency or court, the employee may elect to remove such issues of grievance or complaint from further consideration through this process.

It appears to me that on the face of the approved Operating Policies and Procedures the University waives it’s ability to claim sovereign immunity insofar as the Regents and administrators legislated outside the approved policies and procedures.

To conclude: If in the event no out of court settlement is reached between now and next Friday, my personal belief is that no matter which way the judge rules on the sovereign immunity issue, it will be immediately appealed to a higher court.

Old_Ghostrider
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I credit Leach for fighting for a principle he believed in. But it does bother me (but only a little) he was so willing to quit at the end of next year, per his deposition. This whole thing wasn’t going to end the way fans wanted it to.

I do agree that if James was such a pain as a player that he should have just cut him. Sounds like he had ample opportunity even before the December fiasco. I don’t think for a second Leach kept him so he could help the kid mature as a man, as I don’t honestly think that’s what Leach thinks his job is. I base that not on any fact, but on my reading of the guy in general. I think he kept him because it was easier than cutting him and dealing with CJ after.

I don’t think James being put in the media room or the shed hurt him. But I also think it’s complete idiocy that Leach said he was doing it to protect James from flying footballs and players. It’s fairly clear, to me, it was a punishment and to prove who is boss. I don’t think it was hiddeously wrong and harmful to the kid (and not a fireable offense), but I also think it’s fairly disingenuous for Leach to claim for the record that it was to keep James from getting hurt.

You speak of the ethical thing to do. I agree completely but these guys were obviously just trying to find a way to get rid of him and save money at the same time. The more I read about this whole mess I realize just how bad things were between both parties. To some degree I blame them both and think Leach earned his money yes but his attitude didn’t render any aid to the situation. This was a pissing match among children to say the least.

He’s a RB from Odessa named Bradley Marquez. My source is from directly inside the football office.

http://recruiting.scout.com/a.z?s=73&p=8&c=1&nid=4115970