Why Houston Nutt’s Suit Against Ole Miss Was Dismissed And What Comes Next

0:33 | College Football
Court Dismisses Houston Nutt's Lawsuit Against Ole Miss
Thursday August 10th, 2017

One topic that often confuses law students is “jurisdiction.” Generally speaking, jurisdiction refers to when a court has the legal authority to render a decision over a particular person in a particular matter. Former Ole Miss head coach Houston Nutt learned all about jurisdiction on Wednesday. Unfortunately for him, that lesson was delivered through a federal judge’s dismissal of his lawsuit against Ole Miss on grounds that the court lacked jurisdiction. On a brighter note for Nutt, the dismissal is not a fatal setback for his case. As explained below, Nutt can file a similar complaint in state court—but he would then face a potential jury selected from right in the heart of Ole Miss country.

Inside Nutt’s lawsuit

In July, Nutt the 59-year-old Nutt sued three defendants—Ole Miss, the Mississippi Board of Trustees of State Institutions of Higher Learning and the Ole Miss Athletic Foundation—in the U.S. District Court for the Northern District of Mississippi. Nutt’s claims are breach of contract and for breach of good faith. Nutt charges that Ole Miss officials violated the severance agreement that Nutt and university officials signed following his firing in 2011.

Among other terms, the agreement instructed Ole Miss to refrain from badmouthing Nutt. Nutt’s lawsuit identifies several examples of national media articles that cite unnamed sources who are ostensibly connected to Ole Miss. These sources direct much of the blame for Ole Miss’s alleged NCAA rule violations on Nutt. Nutt—who contends that Ole Miss has irreversibly tarnished his coaching reputation—highlights that most of the NCAA’s allegations concern conduct that transpired under Nutt’s successor, Hugh Freeze.

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Nutt’s rationale for filing his complaint in federal court

Nutt’s decision to file in federal court instead of state court was likely motivated by a desire to receive a more favorable jury and a less partial judge.

If Nutt had instead sued in state court, the proper trial court would have been in Lafayette County, Mississippi. Of concern to Nutt, who coached the Rebels to a dismal 2-10 record in his final season, Lafayette County is where Ole Miss, the defendant in his lawsuit, resides. Many potential jurors for a Lafayette County trial have personal and family ties to Ole Miss. Indeed, Mississippi’s largest university enrolls over 24,000 students and is the largest employer in Lafayette County. Similarly concerning to Nutt, judges in Lafayette County are elected and thus beholden to the voters.

By filing in federal court, Nutt was set to receive a wider geographic area from which potential jurors would be drawn. Nutt was also assigned an appointed judge, Neal Biggers (who happens to be a graduate of Ole Miss Law School). Federal judges enjoy lifetime tenure and are thus more protected from public disapproval.

Jurisdiction causes a fumble in Nutt’s case

Nutt’s strategy made sense, but as Judge Biggers wrote on Wednesday, Nutt’s complaint lacked a crucial element: a reason for a federal court to find jurisdiction.

There are two ways a federal court can identify jurisdiction to rule on a particular subject. One way is through “diversity” jurisdiction, which is available when the parties to a lawsuit are citizens of different states and the claim exceeds $75,000. Diversity jurisdiction was not present in Nutt’s lawsuit. While Nutt is from Texas neither Ole Miss nor the Board of Trustees is a “citizen” for purposes of diversity jurisdiction. As a public university and a trustee board for public universities, they are considered “arms” of the state of Mississippi.

The other way for a federal court to identify jurisdiction over a subject is if the complaint raises a “federal question.” For instance, a complaint might invoke a federal statute to claim that an injury occurred or it might raise a theory that implicates a significant federal interest. Judge Biggers found no such aspects to Nutt’s complaint. As the judge stressed, Nutt’s case does not implicate any federal statute or the U.S. Constitution. Instead, it raises claims under the laws of Mississippi.

Moving forward: Nutt can re-file his lawsuit and Ole Miss might want to settle

Judge Biggers dismissed Nutt’s claim “without prejudice,” a term of art that means the dismissal does not relate to the merits of Nutt’s case. Nutt can essentially file the same complaint in state court. In a statement released Wednesday evening, Nutt’s attorney, Thomas Mars, says that Nutt plans on re-filing in state court next week. However, as discussed above, Nutt’s case could face much more resistance in state court.

For Ole Miss, Nutt’s lawsuit has already caused the football program harm, albeit not for reasons related to the Nutt’s actual claims.

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In developing their case against Ole Miss, Nutt’s attorneys filed records requests under the Mississippi Public Records Act, which Mississippi’s version of the federal Freedom of Information Act. As a public university—an arm of the state—Ole Miss is generally obligated to comply with such requests. Among the requested records were phone calls made by Freeze. These calls arguably related to Nutt’s theory that Freeze had been in phone communication with members of the national media as part of a plot to defame Nutt. The records revealed a plot though of a very different kind: Freeze had repeatedly called a female escort service. Freeze resigned as coach on July 20.

Had Ole Miss reached an early settlement with Nutt, Freeze’s phone records may have never come to light. This highlights a danger for Ole Miss: even if the university were to ultimately defeat Nutt in court, it’s unknown what kind of information and evidence might come to light before then. The NCAA, which is expected to punish Ole Miss at some point this fall or in 2018, could take notice of new developments that arise through Nutt’s lawsuit and use them to justify a harsher penalty.

On the other hand, Ole Miss likely has viable defenses. For one, none of the national media journalists cited by Nutt would ever divulge their sources—even if those journalists were forced to testify in court. For another, the university’s communications with the NCAA were likely outside the scope of the severance agreement. As an NCAA member, Ole Miss is required to comply with NCAA investigations. Ole Miss would argue this requirement trumps a generic non-disparage clause found in a severance agreement with a departing coach.

Odds are Ole Miss would probably “win the war” against Nutt’s lawsuit, but would it be worth the risk of losing battles over evidence and testimony along the way? That will be the critical question for Ole Miss officials and their attorneys in the days and weeks ahead. If Ole Miss is open to a settlement, Nutt has reportedly enunciated his demands: an apology and a $500,000 pledge to form a state commission on sports ethics. The university could certainly afford those demands. We’ll soon find out whether the university is willing to meet them.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.

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