Wow...getting those phone records will be interesting...when did RR start talking to UM?? Before the Pitt game??

Jackson


January 9, 2008
WVU awaiting Rodriguez move
By Mike Casazza
Daily Mail sportswriter
MORGANTOWN -- It has been 13 days since West Virginia University's Board of Governors filed its declaratory judgment lawsuit in Monongalia County Circuit Court and the defendant, former football Coach Rich Rodriguez, has seven days to reply.

So far, there has been no response, which is no surprise to WVU. The university is seeking the $4 million buyout Rodriguez's most recent employment agreement says he must pay for terminating the contract early, as well as reimbursement for fees and costs sustained as a result of the legal action.

"It could be resolved quite easily if Coach Rodriguez determined that he would do what the contract says he should do and agree to pay the buyout," President Mike Garrison said.

Yet from the day he was introduced as the new coach at the University of Michigan Dec. 17, Rodriguez hinted he would contest the buyout when he said, "lawyers are working on it."

"That gave us an indication he was going to challenge the enforceability of the agreement," said Alex Macia, legal counsel and vice president of legal affairs for WVU.

When supporters of Rodriguez accused the university of breaking promises, WVU took note and then took action. The university is not suing Rodriguez for a breach of contract, but rather trying to prevent a breach by asking the court to decide who is responsible for what in accordance with the employment agreement.

"We're asking the court for a legal opinion of who has to perform," Macia said. "We want the court to say he has to abide by his promises."

The key promise is the $4 million buyout, one-third of which is due Jan. 19, and WVU has made its case while attempting to debunk any potential Rodriguez comeback.

In addition, Bob Fitzsimmons, who represented former WVU men's basketball Coach John Beilein as he successfully reduced his $2.5 million buyout by $1 million last year, is a counsel for WVU in this case.

* * *

IN THE declaratory judgment filed Dec. 27, WVU requested a series of admissions from Rodriguez and sought to refute claims made by him or on his behalf. The action was prompted by allegations made by the coach's supporters who said negligence by WVU's athletic department caused Rodriguez's resignation.

The most serious charge said WVU did not keep several promises made to Rodriguez, either in word or in writing, regarding facility improvements and money to be made available for his staff.

"We did this here because the supporters of Rich Rodriguez, who questioned the validity of the contract, and because Rich Rodriguez never disavowed their questioning of the contract," Macia said. "We felt court was the best place to determine the validity."

In the lawsuit, WVU states the most recent employment agreement between the school and Rodriguez "contained all the terms and conditions to which the parties had agreed and that no other understandings or representations, either oral or written, regarding the subject matter of the Agreement existed or bound the parties."

Additionally, WVU says it fulfilled all other terms of the contract "including, but not limited to, the supplemental payment to the assistant coaches' salary pool and certain Puskar Center renovations."

In essence, WVU tried to discredit the complaints made public by Rodriguez's disgruntled supporters.

"The things we saw reported in the news, but have not seen directly from Rich Rodriguez, most of them are not in the contract to begin with," Macia said. "Even if they were, they don't rise to the level of material or substantial."

WVU also requests Rodriguez admit it did not breach the contract. If Rodriguez disagrees, he is to submit a statement explaining his point of view, as well as documents that prove WVU's breach.

The breach is significant because Rodriguez's contract says WVU pays him the buyout if he terminates the contract "because of material and substantial breach of the Agreement by University." However, for Rodriguez to claim a breach he must submit written notice within 90 days of the incident or its discovery and that breach has to go uncured for 30 days by the university.

"We never received anything in writing and never had the opportunity to cure anything," Macia said. "We have to have an opportunity to cure and if it remains uncured after 30 days, he can then say 'I will terminate for cause.'"

* * *

WHEN BEILEIN and Fitzsimmons fought WVU, they did so behind the definition of the buyout. Beilein and Rodriguez had contracts defining the fee as liquidated damages.

Liquidated damages are designed to compensate one party when the other does not fulfill the terms of a contract, but they are more a matter of contractual interpretation than obligation.

"It's a reasonable assessment on the front end of the contract for what the damages might be," Macia said.

Beilein and Fitzsimmons argued that WVU sustained damages not equal to $2.5 million. They said the university quickly hired Bob Huggins to coach the team, lost no players or recruits as a result of Beilein's departure and could not say ticket sales, TV revenue and donations to the athletic department would be negatively affected.

This time, however, WVU feels it has experienced greater consequences.

For example, six assistant coaches and the director of strength and conditioning and five people from his staff left WVU to rejoin Rodriguez at Michigan. That could affect the current roster, recruiting commitments, competition and future revenue.

"What it does is show the (buyout) amount was reasonable," Macia said. "When you have to go out and recruit and hire new coaches and essentially replace a good chunk of your coaching staff, there are expenses related to that type of search.

"It certainly dampens ticket sales and there are a whole host of other issues attached to his leaving. That is precisely what liquidated damages are for."

Two more claims support WVU's case. It says Rodriguez spoke with Michigan representatives about the head coaching job on or before Dec. 14, 2007 and prior to Rodriguez's resignation, and did so "without prior knowledge or consent of the university."

WVU also says on or before Dec. 16, 2007 and prior to his resignation, "Rodriguez and/or persons on his behalf communicated with student athlete recruits for the 2008 football team regarding his employment as the Head Coach of the University of Michigan." That also occurred without prior approval from WVU.

WVU not only asks for admission to both charges or explanations and proof of his denial, but also "full and complete copies of all cell phone records, text message records, phone records, and e-mails for the time period between Dec. 1, 2007, up to and including Dec. 18, 2007."

Additionally, Rodriguez is to submit the names of the recruits he or those under his direction contacted from Dec. 16-18. Rodriguez told his team he was leaving Dec. 16 and was employed through Dec. 18. The NCAA recruiting calendar was on a quiet period Dec. 16. A dead period began Dec. 17 and continued through Jan. 1.

"There are serious and substantial concerns with the way he departed and how we might be implicated by the NCAA," Macia said. "We also want to make sure in all instances West Virginia and its programs are being run consistent with the law."