Texas Tech Protected by Sovereign Immunity in Leach Suit

Mar 25, 2011

A Texas state appeals court dealt a blow to former Texas Tech University Head Football Coach Mike Leach earlier this year when it dismissed the coach’s breach of contract claim against the school because Texas Tech is shielded by the doctrine of sovereign immunity.
 
The 7th Court of Appeals did, however, allow that Leach could pursue non-monetary claims against the school. To that end, the case was remanded back to State District Judge William C. Sowder, who will determine if Leach received his due process.
Texas Tech fired Leach on Dec. 30, 2009, two days after it had suspended him because of allegations that he mistreated a player, who had a concussion. Leach claimed that one of the reasons he was fired was because he was due an $800,000 bonus on Dec. 31. The school has maintained that Leach was fired because he refused to abide by its directives in the wake of the incident.
 
Not surprisingly, Leach’s attorneys were highlighting the small legal victory in their public reaction.
 
“We appreciate and are gratified by the appellate court’s ruling permitting Mike Leach to pursue his claims for declaratory relief against Texas Tech that: (a) Mike’s constitutional rights were violated; and (b) Mike was improperly dismissed by Texas Tech University,” said attorney Paul J. Dobrowski. “This ruling is very important because it permits Mike to pursue his request that a court declare Texas Tech’s dismissal of him was improper and allows Mike to clear his name.”
 
Clearly, however, the attorney wanted more.
 
“We are disappointed by the appellate court’s ruling that Mike cannot pursue his claims for breach of contract and monetary damages based on Texas Tech’s waiver of sovereign immunity by conduct.
 
“As the appellate court stated in its opinion, it was forced to rely on the archaic doctrine of sovereign immunity in denying Mike’s right to pursue monetary damages for breach of contract. The vast majority of states, besides Texas, have withdrawn the doctrine of sovereign immunity because it is inherently unfair to contracting parties and today we see why. Indeed, we agree with the court of appeals’ observation in footnote 4 of their opinion, that art. 1, § 2 of the Texas Constitution is diminished by this purely judicial creation. Sovereign immunity contradicts and violates the principle that all political power is inherent in the people.
 
“The doctrine permits a Texas state institution to deny a person’s written contractual rights and steal his hard-earned labor while paying nothing. In essence, this is nothing more than university-sanctioned theft of a person’s labors and contractual rights. That is not fair and not the principles upon which Texas or its citizens stand. We are certain the people of Texas and its Legislature are disturbed that Texas Tech can sign a legally binding contract for services with Mike Leach, accept the benefits of Mike’s performance under the contract, but deny Mike his right to enforce and obtain monetary damages for Texas Tech’s breach of the contract simply because Tech is a state institution.
 
“In its opinion, the appellate court also noted that the Texas Supreme Court case law is unclear regarding waiver of sovereign immunity for breach of contract through conduct. Specifically, the appellate court noted that Texas case law on waiver by sovereign immunity is contradictory and requested that the Texas Supreme Court clarify it. We intend to ask the Texas Supreme Court to clarify the law on this issue, hope they will accept our appeal and decide in Mike’s favor so he can pursue his claim for monetary damages due to Texas Tech’s breach of contract.”
 
Leach still has a chance at another victory on a different legal front.
 
“We won,” Texas Tech attorney Dicky Grigg said in a press conference. “The court has held that he has no monetary claims against the school.”
 
The opinion can be viewed at http://www.7thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=14325
Last November, attorneys representing Leach announced that they were suing ESPN and a public relations firm, Spaeth Communications, for libel and slander for their actions during the tumultuous time when Leach was fired. Specifically, he claimed “willful and negligent defamation,” causing the former coach’s “reputation” to take “a severe hit.”
 
A Spaeth Communications spokesperson issued the following statement at the time:
 
“Because his effort to sue Texas Tech University individuals failed, it now appears that Coach Leach is looking for someone else to blame, and has shifted his focus to the Craig James family, ESPN and Spaeth Communications. This lawsuit is the predictable strategy of a man who is desperate to avoid accountability for his own behavior.”