Federal Judge P.K. Holmes has denied the Razorback Foundation’s motion to dismiss former Razorback coach Bret Bielema’s lawsuit over its refusal to pay some $7 million he says he’s owed following his firing. It had paid about $4 million but stopped paying after it contended he hadn’t tried hard enough to get suitable work that could offset the severance payments.
The Foundation had tried to get the suit dismissed because Bielema had said the Foundation was thoroughly intertwined with the University of Arkansas. If so, the foundation said, it should qualify for immunity from lawsuits against the state. Bielema then said he wasn’t alleging the foundation is an arm of the state and Holmes rejected the foundation argument that this was a “sham” amendment to his original complaint.
The foundation also wanted the suit dismissed because it contends the case should be tried in state court in Washington County. Bielema argues that the contract agreement, as amended, only specified suit in Washington County, and there’s a federal court branch there.
Forum-selection clauses limiting the venue of an action may impose both geographic and jurisdictional limits, and may be permissive or mandatory. Because the forum-selection clause here states that “Washington County, Arkansas, shall be the exclusive venue for any action arising under or relating to this Agreement,” it is clear that the clause is mandatory. Legal action is limited to the identified venue, and no other. The parties’ disagreement is whether the mandatory venue limitation intended to be imposed by this clause are both geographical and jurisdictional, or only geographical Bielema has the better argument—this language, considered in light of the circumstances facing the parties when they entered into the contract, reflects an unambiguous intent to impose only a geographical limitation
UPDATE: Several readers said, well: If the Razorback Foundation is a state entity, isn’t it subjection to the Freedom of Information Act?
It appears Tom Mars, Bielema’s lawyer, has already thought of that.
This letter is part of the pleadings in the case, from Mars to the Foundation’s attornety:
It has several interesting points in the dispute, but this paragraph is relevant to the FOI:
For your information, we will soon be submitting a request for public records related to
this dispute to the University of Arkansas. After thoughtful consideration, much research, and consultation with a lawyer who is regarded as an expert on the Arkansas Freedom of Information Act (“FOIA”), we have decided to submit a similar, if not identical, FOIA request to the Foundation. Although we expect the Foundation to resist such a request, we take the position that the Foundation essentially acts as a wing of the University Athletic Department and is so entwined with the University that its records should be regarded as “public records” under the FOIA.
Deja vu all over again. I made a similar argument in, oh, 1986 or so. The attorney general at the time agreed that the Foundation was so intertwined with UA the records should be open. That led to efforts to establish the foundation as independent, with its own building and such. But of course, through handling preferred seating arrangements and guaranteeing parts of coaches’ contracts with the UA, that independence has long been essentially a fiction.
Perhaps the Bielema suit will lead to a definitive legal answer. More likely, it seems to me, particularly after its loss on getting the suit tossed, would be the Foundation deciding to do some settlement negotiations lest some dirty laundry be revealed through FOI.