Friday, January 25, 2008

The Substance of WVU v. Rodriguez

In an interview yesterday about West Virginia's suit against Rich Rodriguez, I made two points to a reporter (prior posts here and here). First, I think the case is going to end up back in state court--the university is an arm of the state and not subject to diversity jurisdiction in federal district court, not to mention the uncertainty about where Rodriguez was living on December 27. Second, I think this controversy could have significant future effects on the relationship between coaches and schools, the mobility of coaches, and the ability of schools to protect themselves from vagabond coaches.

Today's Charleston (W. Va.) Gazette prints in full a letter Rodriguez sent earlier this month to WVU Athletic Director Ed Pastilong (this is the letter that had as a return address Rodriguez's West Virginia residence and was used by the school as evidence that he remained a West Virginia citizen). The letter seems to hint at what Rodriguez's substantive case will be in the lawsuit and it includes the following:

On Page 6 of the lawsuit (Article 17) it mentions that the University and I mutually understood and agreed on all the terms, conditions and understandings either oral and or written. It also mentioned that any further modification or amendment was effective only if made in writing and signed by both parties. This is not true - several issues were promised and discussed and were oral agreements that I thought would be upheld. Verbal promises and statements made by Mike Garrison, Craig Walker and several Board of Governor members were a factor in my agreeing to sign the second amendment. They include:

a) Mike Garrison stated that he did not believe in buyouts and that if I wanted to leave that "the buyout would be reduced to 2 million or eliminated altogether". He knew I did not want to sign it with the large buyout but assured me that as soon as he took office he would address it. I told him the four million buyout was unfair and Garrison agreed but said the Board of Governors would not change it at the time due to publicity concerns (the University leaked the term sheet information to the press in violation of the Agreement. I was also misled when I was told when I originally agreed to sign the term sheet in December that the boosters who paid my salary "insisted" that I have the four million dollar buyout clause. I have found out that this was not true.)

b) I told Garrison that I knew everyone was under pressure to get me to sign the contract (I was getting calls by Board Members, the President and the Governor.) I told him I was not comfortable signing it with the buyout clause and other issues but Garrison said it would be a personal favor for him and several Board Members and said I needed to do it to help Garrison's start as the new President.



In other words, Rodriguez is arguing that he does not owe $ 4 million; he owes at most $ 2 million or maybe nothing at all, because university officials orally agreed to waive the clause, although it remained in the agreement. Now, it was been almost 15 years since I dealt with contract law (back when I was slogging through Contracts as a 1L). But am I completely off in remembering that a basic doctrine of contract law prohibits a party from arguing in court that an oral agreement altered or overrode a contract term--that the terms of the contract control over any oral representations to the contrary, unless the contract allows for oral amendment? Can anyone educate me on this part of contract law?

Clearly, those facts could set up an issue of fraudulent inducement, either as an affirmative defense or counterclaim. But can he defeat the university's basic breach of contract claim in this way?

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