Factual Allegations of Complaint (Petition) and the Legal Issues of Denial of Due Process and Waiver of Sovereign Immunity
Mike Leach, Head Coach of the Texas Tech Red Raiders was fired from his job on December 30, 2009, a few days before the team was to play in the Alamo Bowl. He was fired for allegedly mistreating a player, wide receiver Adam James. Coach Leach filed a lawsuit on January 8, 2010, against Texas Tech. He is seeking damages on seven grounds including defamation, breach of contract, and violations of his due process rights.
On January 12, 2010, Coach Leach filed a Third Amended Petition alleging the facts set forth below. Texas Tech has filed a motion to dismiss the case on the grounds of “sovereign immunity,” which means (generally) that a state agency or entity cannot be sued without its permission. Leach argues that such immunity does not apply because of the Texas Whistleblower Act, which gives legal recourse to aggrieved state employees. He argues that Tech’s conduct in the matter waives the university’s immunity.
In this post, I want to set forth the facts alleged by Coach Leach, and certain legal issues raised (briefly), particularly the questions of sovereign immunity and denial of due process. In subsequent posts I plan to discuss these issues in more detail.
Facts Alleged in Petition:
- For the last ten years Mike Leach has made his livelihood as head football coach at Texas Tech University, a Division 1 school that has appeared in NCAA College Bowl games the last ten years. Leach has a strong winning percentage while the head coach at Texas Tech. He is the winningest head football coach in Texas Tech’s history. According to www.collegefootballpoll.com, Leach is responsible for over half of Texas Tech’s 11 bowl wins all time. Last year Leach was the national college coach of the year.
- Leach is a member of a very small pool of qualified applicants for head coaching positions at major colleges and universities in the United States. The number of head coaches at Division 1 schools number 120 in the NCAA Bowl Eligible Subdivision. Even fewer openings exist for such positions in any given year. These Division 1 schools recruit during the year and practice in the spring and summer for the upcoming year. If a coach is not hired in the early part of the year, his opportunity to find a position is effectively gone. Moreover, a coach’s good reputation among recruits – high school seniors and their families – is paramount.
- This case involves a dispute between Texas Tech University and Leach, its former head football coach. The University executed a contract with Leach effective January 1, 2009 (the “Agreement”) providing that Leach will perform as Head Football Coach of the University’s Division 1 football program for a term of five years. See Exhibit 1, Employment Contract dated February 19, 2009. The Agreement has certain provisions relating to termination, including a termination-at-will provision, a termination for cause provision, and a notice and cure provision.
- During the 2009 football season, Leach had to contend with the disciplinary problems of a sophomore wide receiver named Adam James. For example, in September 2009, wide receiver coach Lincoln Riley met with Adam James in the Texas Tech coaches’ offices. Coach Riley told James that his effort at practices was not good and that Riley needed more from James at his position. As a result, James was demoted to the third team. Unhappy with this demotion, Adam James stormed out of the athletic offices yelling “F*@# this!” in front of staff and players. James slammed the outer door to the coaches’ office so hard that it split and came off its hinges, causing approximately $1,100 in damage.
- On or about September 10, 2009, Adam James’ father Craig James, called Texas Tech assistant coach Tommy McVey to tell him, in effect, that you coaches are crazy and you’re screwing my kid. On or about the same day, Craig James left a voice message for Coach Riley stating, in effect, “You don’t know what you’re doing. Adams James is the best player at the wide receiver position.” He concluded his message to coach Riley by stating, “If you’ve got the balls to call me back, and I don’t think you do, call me back.”  Coach Riley forwarded the message to Plaintiff Leach. Plaintiff Leach met with Adam James and requested that Adam tell his father to stop calling Texas Tech coaches. Thereafter, upon information and belief, Craig James began to call Texas Tech officials.
- On December 14, 2009, during practice for the Alamo Bowl, Coach Leach noted poor effort by Adam James. Leach advised James during the 1st period of practice if he didn’t like James’ effort he was going to be sent to ‘Muscle Beach’ (an area designated for use by injured players and for lifting weights which is generally overseen by Texas Tech Strength Coach Bennie Wylie). During the 2nd period of practice, Leach advised several players, including Adam James, that their effort was unacceptable and that he had seen enough. Leach sent James and other players to Muscle Beach. At Muscle Beach, Coach Wylie directed James, and the two other players to run laps and stairs. Afterward, the players other than James acknowledged to Coach Wylie that they had put forth unacceptable effort in practice and had learned from the discipline of the coaching staff. However, Adam James told Coach Wylie that Wylie didn’t know what he was doing and James’ effort was just fine.
- On or about December 17, 2009, Adam James arrived at football practice in street clothes wearing sunglasses, claiming he had received a concussion. The team physician Dr. Phy acknowledged that James had a mild concussion and limited him from any physical activity until he was symptom free. The football team policy provides that all players, including injured players, shall attend practice in practice attire and participate in the manner permissible given the nature of their injury. If a player cannot practice at all, he must still attend practice in appropriate practice attire and “walk the field”. Street clothes and sunglasses are not considered appropriate attire. According to the affidavit of team trainer, Steve Pincock, James was “walking the field” in a nonchalant, non-caring way. See Exhibit 2.
- When advised by Pincock that James had a concussion, Leach told Mr. Pincock to take James to a dark location (since concussions cause sensitivity to light), to remove James from the immediate practice field since he was not in proper attire and the rest of the team was practicing hard for the Alamo Bowl, and to have James stand during the duration of the practice. Plaintiff Leach did not identify where James was to be taken; he did not direct that James be locked anywhere; and he did not require James to engage in any physical activity during practice. In his affidavit, Mr. Pincock has testified that Leach did not want James loafing while others practiced. (Any reasonable person can understand the need to keep a team focused on the most important game of the season and to limit the team’s view of/exposure to players who are not being put through the same difficult physical and mental stresses of an elite college football program preparing for its biggest game of the season.)
- Athletic trainer Steve Pincock placed Adam James in the medicine/athletic training garage and told him to stand. Mr. Pincock placed assistant trainer Jordan outside the garage so that someone could check on James’ condition every fifteen to twenty minutes. When James was checked by team trainers during the practice, which lasted approximately 2 hours, James was sitting and/or sleeping in the garage. Adam James was never locked in the garage. Further there is no “electrical closet” in the garage.
- On or about December 18, 2009, the Red Raiders football team conducted practice on the game field. Prior to practice trainer Pincock asked Coach Leach what should be done with the injured players. Leach responded, to the effect, “same thing as yesterday.” Because he was still allegedly suffering from this mild concussion, James did not practice. At Pincock’s direction, James spent the practice in a media room used for opposing teams’ postgame press conferences at the Red Raiders’ stadium. Pincock instructed a student trainer was placed outside the media room to check on James’ condition. At no time was James locked inside the room or the electrical closet. Indeed, according to Mr. Pincock’s affidavit, Adam James wandered around the room, sat down, and laid down in the media room. James was not required to engage in any physical activity, and was checked periodically by team trainers. Moreover, based on Mr. Pincock’s affidavit, James was specifically told not to go into the electrical closet. Despite Mr. Pincock’s express instructions, Adam James voluntarily placed himself into the electrical closet and apparently took pictures with his phone camera. (It is a violation of team policy to have a phone at practice.)
- On or about December 19, 2009, Adam James again reported to practice. Trainer Pincock placed James in training room and instructed James to ride a stationary bicycle because his symptoms had subsided sufficiently. Leach was not advised of Pincock’s treatment until after practice. At no time did Leach or any other member of the coaching staff or team place Adam James at any risk of additional injury or take any action that was inconsistent with James’ health and welfare.
- That day, Leach received a phone call from Chancellor Kent Hance, who advised Leach that Larry Anders, Chairman of the Texas Tech University Board of Regents had received a complaint from Adam James’ father, Craig. According to Hance, the elder James complained that his son was being forced to play before his concussion had healed. Leach denied this allegation. Further, Leach informed Hance that Craig James had previously called Tech coaches to interfere on Adam’s behalf. Hance admitted to previously receiving such calls. In response, Hance advised Leach that Hance would tell Craig James three things: (1) that Adam could choose to listen to the coaches; (2) that Adam could leave the team, stay at Texas Tech, and the school would honor the scholarship through graduation (typically, a school is only required to honor a scholarship through the semester); or (3) transfer to another school which Texas Tech would facilitate by signing necessary waivers. At no time did Hance request that Mike Leach change treatment of Adam James. In addition, Hance forbade Leach from cutting Adam James from the football team.
- Despite their previous discussion, Hance instigated an investigation by Texas Tech University attorney Charlotte Bingham. Several Tech officials advised Leach that this investigation was simply to ensure that the University had some evidence in its files that it investigated the complaints. Specifically, President Guy Bailey advised Leach that while the investigation was no big deal, he (Bailey) was concerned that Kent Hance was going to “railroad Leach” because Hance and Craig James were in business together. Consequently, Bailey had his assistant attend the investigation interviews conducted by Ms. Bingham, who worked for Hance’s office. After interviewing Leach as part of the investigation, Ms. Bingham advised Leach that this was just a routine investigation to protect the University in case the James family sued Defendant.
- Despite Ms. Bingham’s investigation and statements, on or about December 22, 2009, Hance again called Leach to advise him that some members of the Board of Regents wanted to fire Leach over some unspecified complaints made by Craig James. Hance also advised Leach that Hance had discussed this matter with members of the Board of Regents and that they were going to take some kind of disciplinary action against Leach, though Hance could not articulate what Leach had done wrong. Hance indicated that he wanted to fine Leach up to $100,000 and demanded a letter of apology from Leach. When Leach reiterated that he had not done anything wrong and would not issue an apology, Hance warned Leach that if he refused, Hance could fire him. Hance also advised Leach that he would call Leach after the board meeting. Hance never called Leach.
- On December 26, Leach attended a meeting with Athletic Director Myers and President Bailey. At that meeting, Bailey and Myers presented Leach with a letter. See Exhibit 3. Myers and Bailey advised Leach that he needed to sign the letter which acknowledges wrongdoing on the part of Leach in the “mistreatment” of a student-athlete. Leach refused to sign the letter again reiterating his innocence of any mistreatment. In addition, the letter delineates several items that Leach is supposed to undertake. When Leach noted that he had already agreed to each of the items in his contract, Myers and Bailey agreed. More specifically, Leach’s contract states clearly that it contains all the terms and conditions to which the parties had agreed and that no other understandings or representations exist regarding Leach’s employment as head football coach of Texas Tech University for the next five years. Leach advised Bailey and Myers that nothing in his contract required him to sign this letter. They did not disagree.
- Defendant did not set forth any deadline in the letter or advise Leach of any deadline for Leach to execute the letter. Myers and/or Bailey advised Leach that if Hance would not meddle with them, they would not be in this situation. Thereafter, both Bailey and attorney Bingham confirmed to Leach’s representative that the letter did not need to be signed by Leach. Instead, according to them, it was needed to paper the file. Indeed, attorney Bingham stated that she had advised Bailey, Myers and Hance that Leach did not need to sign the letter, the letter could be placed in the file without Leach’s signature, that the James family should be called and advised not to call again. The next day, December 27, 2009, Ms. Bingham left a voicemail for Leach’s representative, to the effect, “This thing is heating up. There are outside forces affecting this situation that I can’t control.”
- On December 28, 2009, Leach left for San Antonio to continue preparing the football team for its appearance in the Alamo Bowl on January 2, 2010. When Leach arrived in San Antonio, he was called by University Athletic Director Myers and advised that he was suspended as head football coach at Texas Tech University, despite there being no contractual basis for suspending Leach or any evidence of wrongdoing to support such a disciplinary measure. Leach asked why he was being suspended, but was given no valid reason. Myers told Leach that (1) there was an allegation against Leach and (2) Leach’s refusal to sign the letter presented on December 26, 2009 amounted to insubordination.
- Leach reminded Myers that he was not obligated to sign such a letter and asked how exercising his right not to sign a letter constituted insubordination. Moreover, Leach did not agree with the contents of the letter because they suggest that Leach was guilty of mistreating a student-athlete. Leach also did not agree to the suggestion that he must apologize to Adam James or the James family. Myers advised Leach that the decision had been made by Hance and the Board of Regents to suspend him, there was nothing he could do, and that Leach was not coaching the football team at the Alamo Bowl. Leach was instructed not to speak to the team members.
- On December 28, 2009, Leach received a letter suspending him as head football coach of Texas Tech University. See Exhibit 4. The letter states that Defendant had received a complaint from a player and that an investigation was on-going. On December 29, 2009, Pat Campbell, General Counsel of Texas Tech, spoke to Leach’s representative and advised that if Leach filed an application for temporary restraining order (TRO), Leach will be fired.
- Because of Defendant’s wrongful actions in violation of Plaintiff’s contract and without due process, Leach’s attorney sought a temporary restraining order in this Court to complain of Defendant’s actions. On December 29, 2009, Leach through his attorney of record Ted Liggett, filed a petition seeking a temporary restraining order complaining of Defendant’s failure to accord Leach due process and for breaching his contract. The District Court of Lubbock County set the matter for hearing on December 30 at 10:00 a.m.
- On December 30, 2009, at a pre-hearing meeting in the Court’s chambers, Defendant advised Leach’s attorney that if Leach proceeded with the hearing on the TRO, Defendant would terminate Leach as an employee and head football coach of Texas Tech University. Leach’s attorney advised Defendant that he intended to proceed with the hearing. At this point, Defendant handed Leach’s counsel a letter of termination advising Leach that he was terminated from his employment for cause effective December 30, 2009.
- Subsequently University officials, including Chancellor Kent Hance, made statements to the effect that “if you sue your boss, you are going to get fired.” This statement and others like it clearly reflect the motive for the University’s firing of Mike Leach, that he filed a lawsuit complaining that Defendant was not affording him his constitutionally protected right to due course of law in Texas. These statements also clearly demonstrate Defendant’s intentional retaliation against Leach for reporting Defendant’s wrongful conduct in violation of Leach’s constitutional rights. On information and belief, all of Defendant’s actions were committed intentionally and with impunity based on the belief that Defendant would not face liability for its conduct due to the sovereign immunity shield and Defendant intended to hide behind this shield to deprive Plaintiff of his constitutional rights.
- Defendant, its agents and representatives also given (sic) other statements about the basis for terminating Leach for cause. On or about December 30, 2009, the day the University terminated Leach, University Chancellor Kent Hance stated that the only person responsible for Mike getting fired is Mike. See Exhibit 5. Hance also claimed that Leach’s contractual bonuses due under the contract were “never a consideration” when Leach was fired. See Exhibit 6. On or about December 30, 2009, Defendant released a “Statement from Texas Tech on Termination of Football Coach Mike Leach.” See Exhibit 7. In that statement, Defendant asserted the termination was due to Leach’s suit against Texas Tech. Id. That statement suggests Defendant terminated Leach because he sought to apprise himself of legal protections.
- In addition, on January 1, 2010 the Wall Street Journal reported that “three prominent current and former members of the school’s board of regents said the firing was largely the result of ill will left over from heated contract negotiations early last year.” See Exhibit 8. That report is supported by emails obtained by the Dallas Morning News in 2009 which illustrate hostility on the part of the University in the contract negotiations with Leach and demonstrating that bonuses and contract buy-out issues were at the very heart of the hostility by the University. See Exhibit 9.
- All of these statements have been made by Defendant despite school officials telling the Los Angeles Times on January 4, 2010 that “the investigation into Adam James’ allegations is on-going.” See Exhibit 10. Indeed, Defendant’s representative, Mr. Hance, engaged in an apparent lengthy interview with the Lubbock Avalanche Journal discussing the termination that appeared in that newspaper on January 10, 2009 in which he admitted that Leach was terminated for having filed suit seeking to enforce his rights. These statements demonstrate that Plaintiff Leach was not at fault in this situation and establish that Defendant’s actions were wrongful and violate Texas law.
- The University wrongfully terminated Leach allegedly with cause. Having wrongfully terminated Leach for cause, the University is not intending to pay him the compensation, including bonuses to which Leach was or would have been entitled and certain guaranteed income it owes under the Agreement. In addition, in reasonable probability, Leach will not be able to obtain another head coaching position in the near term due to the very public, wrongful acts and statements of Texas Tech University, its agents and representatives. The University has publically accused Leach of mistreating a student-athlete who allegedly suffered a mild concussion and being insubordinate and uncooperative in the investigation. The University even alleges that Leach himself is responsible for his contract being terminated. The mere allegation that a head football coach would mistreat a student athlete threatens that coach’s reputation and prospects for future employment and exposes him to ridicule and contempt. Leach denies those allegations.
The 11th Amendment of the U.S. Constitution states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Chapter 554 of Title V of the Texas Government Code (the Texas Whistleblower Act), states, in part:
A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.
The Act therefore prohibits a college such as Texas Tech from taking an adverse employment action against an employee who “in good faith reports a violation of law” by the employer. The Act waives sovereign immunity in causes of action arising out of claims by public employees whose employment was allegedly terminated for reporting illegal conduct.
Whether or not a state university enjoys sovereign immunity for purposes of the Eleventh Amendment turns on whether the university is considered an arm of the state or whether it is an independent political subdivision. 15A Am. Jur. 2d Colleges and Universities § 46. Without going into detail at this time, let us assume that Texas Tech is an arm of the state.
Arguments of Coach Leach:
- Defendant sought to suspend Plaintiff under his contract without due process/course of law. Plaintiff filed a lawsuit seeking a temporary restraining order complaining that Defendant failed to afford him due process with regard to the allegations leading to this alleged suspension. Plaintiff further complained that there existed no legal grounds for the suspension and Defendant was acting without process or any contractual basis.”
- Upon learning of Plaintiffs lawsuit, Defendant terminated Plaintiff. It is clear from statements made at the time Defendant fired Plaintiff and in the timing of the termination that it is in direct retaliation for Plaintiff filing this lawsuit that complained of Defendant’s failure to afford him due process under the Texas Constitution and his written employment contract in which he has a vested property right as a public employee. Plaintiff filed this lawsuit in good faith with the District Court of Lubbock County, Texas, an appropriate authority in the State of Texas for the enforcement of constitutional rights and guarantees.
- Defendant deprived Plaintiff of his property rights under the contract and the due course of law to which Plaintiff is entitled under the Texas Constitution. On the date that Defendant terminated him, Plaintiff Leach was an employee of Defendant, a public institution of higher education in the State of Texas. Plaintiff Leach had a written contract for a specified term with Defendant. That contract provided for continued employment for a specific term. In addition, the University’s ability to terminate that contract was expressly limited by terms requiring substantial monetary payment in the event it were terminated without cause and provided for specific procedures and an opportunity to cure, in the event the University contemplated termination with cause. Specifically, the contract’s “for cause” provision required at least 10 days notice of the alleged violation and a reasonable opportunity to cure before being terminated. The limitations on termination for cause were additionally regulated by specific procedures under the employment policies and regulations of Texas Tech University.”
- The specific term of Plaintiff Leach’s contract and the limitations on the University’s ability to terminate that contract created a vested property interest protected the Article I, Section 19 of the Texas Constitution. Defendants violated Plaintiff Leach’s rights under the Texas Constitution by failing to afford the mandatory due process, and by unilaterally and wrongfully terminating Plaintiff Leach’s employment contract, thereby depriving him of a vested property right.
- Because Plaintiff Leach had a vested property interest in his employment contract, Defendant was required to observe due course of law before depriving Leach of that interest. Defendant failed and refused to afford Leach his rights to due course of law before unilaterally and wrongfully terminating the contract and thereby depriving Leach of his property rights. Under the Texas Constitution, no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made . . . (Citation Omitted). The takings clause prohibits the State from taking a person’s property under its sovereign powers without adequate compensation. In this case, Defendant has taken or invaded Plaintiff Leach’s property and/or unreasonably interfered with Leach’s right to the use and enjoyment of the contract terms and benefits without compensation. On information and belief, all of Defendant’s actions were committed intentionally and with impunity based on the belief that Defendant would not face liability for its conduct due to the sovereign immunity shield and Defendant intended to hide behind this shield to deprive Plaintiff of his constitutional rights and property.
- Plaintiff Mike Leach denies that Defendant is entitled to immunity from suit because Defendant has waived such immunity based on its conduct. Texas Tech waived any immunity claim by its egregious conduct which was in violation of Mike Leach’s contractual rights and rights to due process. (Citations Omitted). On information and belief, all of Defendant’s actions were committed intentionally and with impunity based on the belief that Defendant would not face liability for its conduct due to the sovereign immunity shield and Defendant intended to hide behind this shield to deprive Plaintiff of his constitutional rights.
What About a Hearing?
One issue missing from the above arguments is Coach Leach’s right to a hearing before being discharged. In Board of Regents v. Roth, 408 U.S. 564 (1972), the Court stated:
[T]he Court has held that a public college professor dismissed from an office held under tenure provisions, and college professors and staff members dismissed during the terms of their contracts, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle “proscribing summary dismissal from public employment without hearing or inquiry required by due process” also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.
Of course Coach Leach had a formal written contract. I am puzzled as to why the issue of the absence of a hearing prior to discharge has not been raised.
 All exhibits referenced in this petition are attached to Plaintiff’s Motion for Expedited Discovery which is on file with this Court and are incorporated by reference.
 Craig James is a former SMU running back who played in the National Football League and who currently works as a college football analyst for ESPN. James had previously contacted Leach and other members of the coaching staff to complain and question the amount of playing time afforded to his son.
 In August 2009, Craig James told Mike Leach that he was in business with Chancellor Kent Hance.
 Indeed, offensive linemen stay in the training garage during special teams practice.
 According to statements from Hance, Craig James called Hance, Board Chairman Larry Anders, Board vice chairman Jerry Turner and Athletic Director Gerald Myers.