Unpacking Louisville's Countersuit Against Rick Pitino
The legal battle between the University of Louisville and Rick Pitino intensified late Wednesday when the school counterclaimed Pitino in the U.S. District Court for the Western District of Kentucky. Through the University of Louisville Athletic Association (ULAA), Louisville contends that Pitino, who coached the Cardinals from 2001 until his firing two months ago, owes the university unspecified monetary damages. Louisville contends that Pitino is liable for breach of contract, negligence and unlawful interference with business relationships between the university and the NCAA, Atlantic Coast Conference, media companies, TV networks and sponsors. Louisville also demands that Pitino indemnify the school for any penalties it must pay to the NCAA for wrongdoing connected to his acts.
Last month, the 65-year-old Pitino sued the school for breach of contract. His central argument is that the school lacked sufficient grounds to fire him “for cause”—meaning for such a high level of misconduct that the school ought to be relieved of the obligation to pay him about $38.7 million on the remainder of a multi-year deal. In answering Pitino’s claims with firm denials, Louisville asserts that it was Pitino, not the school, who broke the law.
How allegations of corruption impact Pitino’s contract
The dueling legal claims center on a fact pattern of college sports corruption where, in reality, many people likely deserve blame, and where those criminally implicated are pointing fingers at others. From Louisville’s perspective, Pitino clearly failed to meet core duties specified in his contract. The contract obligated Pitino to promote academic integrity, guarantee ethical conduct, carefully oversee his assistant coaches and the men’s basketball program in general, and notify school compliance staff of the on-campus presence of agents and other individuals who might jeopardize student-athletes’ NCAA eligibility.
Louisville asserts that Pitino badly fumbled his contractual duties. For one, although Pitino is neither a defendant nor a named witness in any of the recent criminal indictments brought by the U.S. Department of Justice against assistant coaches and sneaker executives, he is implicated in them. To that end, Pitino supposedly facilitated financial payments—which the Justice Department construes as illegal bribes—to the family of five-star Louisville recruit Brian Bowen.
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Louisville also highlights that Pitino neglected to alert university officials about the on-campus presence of the now criminally charged Christian Dawkins, a so-called “investment advisor” whom the Justice Department portrays as an architect of illegal bribes. Further, from the viewpoint of Louisville, Pitino botched his contract by incapably handling allegations of improper conduct by an assistant coach whom Pitino was contractually obligated to supervise. The coach—Andre McGee—allegedly arranged for prostitutes and strippers to “entertain” Louisville recruits. In response to the escort scandal, the NCAA’s Committee on Infractions suspended Pitino for five games, and also punished Louisville by vacating up to 123 victories and placing the school on four years’ probation.
For his part, Pitino claims that each of these rationales to fire him for cause are categorically untrue and without merit. He also charges that the school never provided him adequate due process to rebut the rationales for his firing.
Along those lines, Pitino claims that his alleged involvement in bribes lacks any credible evidence. He notes that although the FBI used wiretaps and informants to obtain evidence as part of a comprehensive and multiyear investigation, there does not appear (at least at this time) to be any recording or written statement of Pitino in which he admits to wrongful acts. Instead, the evidence against Pitino seems to be limited to recollections of persons who have been accused of crimes—persons who may now be trying to deflect blame onto Pitino.
Pitino also insists that he had no idea Dawkins bribed anyone. Similarly, Pitino denies awareness that McGee used an escort service to recruit players. He also makes a point to observe that Louisville is appealing the NCAA’s punishment in the escort scandal, which intuitively suggests that the school has questions about the NCAA’s findings.
In sum, Pitino asserts that none of Louisville’s rationales for him breaching his contract hold water, and thus the school breached his contract.
Louisville’s strategy for counterclaiming
As expected, Louisville’s court filing on Tuesday answered Pitino by denying Pitino’s legal argument and many of his alleged facts. The school went a step further, however, by including counterclaims.
One reason for Louisville to include counterclaims is the legal principle of “res judicata” which is sometimes called “claim preclusion.” In its simplest form, res judicata requires that legal claims stemming from a case must be litigated in that case, and that many types of related claims cannot be litigated once the case is resolved. Federal Rule of Civil Procedure 13(a) outlines res judicata, and it applies to Pitino’s federal lawsuit. As a result, Louisville likely needed to include claims against Pitino while the court (U.S. District Judge David Hale) considers Pitino’s arguments.
Louisville’s counterclaims are also designed to raise the possibility that Pitino might need to pay the school for the damage it believes he caused. Such damage, Louisville asserts, goes beyond a mere failure to perform his contract.
To that end, Louisville stresses that Pitino has mischaracterized the university’s appeal to the NCAA. The school did not appeal the NCAA’s determinations of violations, but only the NCAA’s imposition of penalties. In other words, while Pitino makes much of Louisville appealing the NCAA’s sanctions, Louisville qualifies that appeal to highlight that the school is only upset with the severity of the NCAA’s punishment—it does not object to the NCAA’s findings of wrongdoing against the school and against Pitino.
Further, Louisville believes that Pitino’s alleged wrongdoing has badly damaged the school’s brand. In turn, a damaged brand impairs the school’s ability to recruit star high school players and conduct business with the NCAA and various companies. “Mr. Pitino’s Level 1 violation,” the school’s attorney, Thomas Williams, writes, “has damaged and continues to damage ULAA and the University in a material fashion, including, but not limited to, its reputation, ability to contract, ability to recruit, ability to meet certain financial responsibilities associated with men’s basketball, and ability to generate ticket sales and donations.” Although Louisville does not offer a specific monetary demand from Pitino, the extent of business damage it believes Pitino caused appears to be in the many millions of dollars.
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Louisville also rejects Pitino’s assertion that he was denied a fair review of the allegations. Along those lines, the school contends that Pitino failed to fully avail himself of an opportunity to be heard. The school highlights that the ULAA board offered Pitino’s legal team “the ability to present all of the information they sought to present on behalf of Mr. Pitino, without interruption.” Pitino, according to the school, declined to participate in the meeting either in person or by video.
Louisville also draws on media interviews of a remorseful Pitino. For instance, in an Oct. 18 interview with ESPN’s Jay Bilas, Pitino said he took “full responsibility” for what Louisville characterizes as hiring decisions on the coaching staff. Pitino is arguably trying to have it both ways: appear contrite in media interviews as a way of redeeming his image while in court filings depicting himself as a victim.
This high-profile litigation will probably never go to trial
While Pitino and Louisville engage in a very public litigation—and while they generate billable hours for their attorneys—the odds of their case ever being heard by a jury remain very low. Both sides know that pretrial discovery and a jury trial would potentially lead to disclosure of damaging or embarrassing emails, texts and written materials. The litigation would also eventually lead to witnesses from both sides having to testify under oath about topics they’d probably want to avoid.
The risks of litigation are especially high in this case given that the Justice Department will carefully monitor any developments. The Justice Department could use such developments to support existing criminal charges or even seek charges against additional persons.
In reality, Pitino and Louisville are likely jockeying for the most advantageous position to settle the case out of court.
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, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.
