[Editor's note: Bleacher Report reported on Friday morning that Baylor and former coach Art Briles have reached a contract settlement.]
Former Baylor head football coach Art Briles could soon use the court system to enlarge an already extensive sexual assault scandal at the university. On Thursday, Briles filed an emergency motion for substitution of counsel in the U.S. District Court for the Western District of Texas. The motion further warned that Briles could soon sue Baylor for breach of contract, fraud, libel and slander, negligence, intentional infliction of emotional distress and other claims.
A lawsuit filed by Briles could lead to public disclosure of more damaging information about Baylor’s handing of sexual assault incidents during recent years. Alternatively, a lawsuit might raise questions about the accuracy of how those incidents have been portrayed. These incidents were the subject of an extensive investigation by law firm Pepper Hamilton, which Baylor hired in August 2015 and which reported findings to the Baylor Board of Regents in May 2016. In response to Pepper Hamilton’s findings, the Board of Regents issued a 13-page “findings of fact.” These findings were particularly critical of Baylor football coaches and staff, who though not named individually were collectively described as repeatedly failing to prevent and report misconduct and as creating a “risk to campus safety.” On May 26, 2016 the university suspended Briles with the intent to terminate his employment and accepted the resignations of chancellor Kenneth Starr and athletic director Ian McCaw.
While Briles’s employment relationship with Baylor is mostly severed and is limited to negotiating a contractual buyout, he remains fully tied to the university in the legal system as a co-defendant. Briles, McCaw and Baylor are all co-defendants in a lawsuit brought by former Baylor student Jasmine Hernandez. In 2012, then-Baylor football player Tevin Elliott raped Hernandez. In 2014, a Texas jury convicted Elliott of sexual assault and he was sentenced to 20 years in prison. Hernandez contends that the three co-defendants knew that Elliott had sexually assaulted other women and then acted negligently by failing to take steps to prevent Elliott from sexually assaulting her.
Briles claims that Baylor and its attorneys acted disingenuously and without regard to ethics
For his part, Briles contends that Baylor essentially tricked him into believing that the university’s attorneys were also his attorneys in developing a defense against Hernandez’s lawsuit. According to Briles, in April 2016 he met with Doug Welch, an attorney in the office of Baylor’s general gounsel, and Lisa Brown, an attorney from Houston. Briles insists that Welch and Brown assured him “they represented him” and were “looking after his interests in all respects.” They then asked him questions about Hernandez’s allegations and related topics, and Briles volunteered “extensive personal information” to the two attorneys. Briles further asserts that the attorneys have made several court filings and public statements on his behalf without his consent, and used text messages and emails that Briles had turned over to them to help Baylor justify ousting him.
Briles’s allegations are a reminder of the difficult role for the university general counsel. Attorneys in the office of the university general counsel represent the university as an institution. They do not represent the university’s employees as individuals, even though those attorneys frequently interact with university employees and advocate for them so long as doing so is in the university’s best interests. While a university and its employees usually enjoy harmonious interests, occasionally those interests diverge.
From August 2015, Briles’s interests appeared increasingly at odds with Baylor. He either knew or should have realized that. Along those lines, Briles presumably knew that Baylor hired Pepper Hamilton to investigate misconduct allegedly committed by student-athletes that he and others coached. He was certainly on notice of this investigation given that Baylor made a public announcement of Pepper Hamilton’s hiring in September 2015. Briles, who is 60 years old and has been employed by universities since 2000, probably should have realized that he ought to retain his own attorney in light of Pepper Hamilton’s investigation and in light of Hernandez’s lawsuit.
U.S. District Judge Robert Pitman, who is presiding over Hernandez’s lawsuits, will likely allow Briles to be represented by two new attorneys, Ernest H. Cannon and Janet Hansen. He will probably also order that Baylor return any texts, emails and other materials that Briles provided Welch and Brown given that those materials are critical to Briles’s legal rights.
It is unclear if either Baylor or its attorneys could face repercussions over Briles’s allegations, which might be of interest to the State Bar of Texas that enforces attorney ethics rules. We have only read Briles’s account of the facts. It is very likely that Welch and Brown would offer a very different recollection of their meeting with Briles. They might argue, for instance, that they never told Briles that they acted as his attorneys. The attorneys would also stress that Briles is a sophisticated and seasoned individual and that he should have realized that his legal interests and those of Baylor were not fully aligned.
Danger to Baylor as it negotiates a buyout with Briles
As mentioned above, Briles now threatens a number of potential claims against Baylor. One of those claims is breach of contract. An ex-employee who was under contract and who insists that he or she was wrongfully terminated can raise such a claim.
At the time of his ouster, Briles had eight years remaining on a 10-year contract that reportedly paid him on average about $6 million a year (Briles’s contract is not a public record since Baylor is a private university). Employment contracts, particularly those of highly paid employees, often contain liquidated damages clauses. These clauses essentially dictate how much money is to be paid by the party that breaches the contract. When an employer fires an employee who is under contract (as opposed to an employee who is “at will”), that employment contract likely indicates how much money the employer must pay the employee. Usually this amount of money can be reduced or even eliminated when the employer fires the employee “for cause” or “with cause”—terms that refer to an employee who engages in wrongful misconduct.
Contractual terminology is crucial as Baylor and Briles continue to negotiate a buyout. The university is likely threatening him with firing him for cause, thereby reducing or possibly relieving the university of contractual money owed to him. In response, Briles has likely warned the university that he would file a breach of contract lawsuit in the event that he and the university cannot strike a deal.
Such a threat by Briles could be troubling for Baylor. If Briles sues Baylor, the accuracy of the Pepper Hamilton investigation and the board of trustee’s account of the investigation would become key subjects in the lawsuit. This is because whether the university lawfully fired Briles for cause would depend on whether in fact he committed the requisite misconduct. Any weaknesses or limitations in the sexual assault investigation would come to light. Limitations are sure to surface. When a law firm conducts an investigation for a university, the law firm lacks any subpoena power. This means that the law firm normally cannot compel witnesses to testify nor can it force the disclosure of any documents. Those who speak with the law firm, moreover, are not under oath, meaning they could lie to protect themselves without fear of perjury charges. These limitations have proven meaningful in several high profile university investigations, including the one conducted by former FBI Director Louis Freeh at Penn State in the wake of the Jerry Sandusky scandal.
While the Pepper Hamilton investigation of Baylor appears to have been conducted in a very thorough and diligent way, the law firm’s report has not been made public. How well it would stand up under judicial scrutiny is unknown. For its part, Baylor likely does not want to see the larger controversy become the subject of a protracted and public litigation with a high-profile college football coach.
Similar consequences would arise if Briles refuses to settle with Hernandez. Baylor appears interested in reaching a settlement with Hernandez. But if co-defendant Briles refuses to settle with her, and instead gambles that he will defeat Hernandez’s lawsuit, how Baylor officials interacted with Elliot (the football player who raped Hernandez) would come to light in the litigation. This dynamic provides Briles with some leverage in his buyout talks with Baylor.
A buyout between Briles and Baylor still the most likely outcome
While Briles and Baylor appear at odds, that could change suddenly if they’re able to reach a financial buyout that works for both sides. Any buyout would likely contain non-disclosure and non-disparagement language. This language would assign monetary damages in the event that Briles or Baylor publicly disparaged the other or shared confidential information. This language would likely also position Briles and Baylor to work together on resolving any remaining litigation. At the end of the day, a buyout likely makes sense for both sides. We’ll see if one materializes.
Update: According to Jason King of Bleacher Report, Briles and Baylor have reached a settlement. As I explained above, a settlement was the most likely outcome.The terms of the settlement are not yet known, but they almost certainly call for Briles to receive a significant portion of the money remaining on his contract. Expect the settlement to also include non-disparagement/non-disclosure language that has the effect of better aligning Briles and Baylor in the Hernandez case and in any other litigations stemming from the sexual assault controversy. Further, the settlement will probably diminish the possibility that the Pepper Hamilton report and related materials are made public or scrutinized by a court.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.