Discovery lessons from Pitino’s Suit Against Louisville

SI reports:

Pitino filed a breach of contract lawsuit against the University of Louisville Athletic Association in the U.S. District Court for the Western District of Kentucky. The complaint charges that Louisville lacked a valid “just cause” rationale to fire him.

The article highlights several important matters in this situation.

First, under normal circumstances, an employer can fire an employee for any reason, or no reason. This is the danger of living in an at-will employment state like Kentucky, or Alabama. There are a few exception in at-will employment states. For instance, an employer cannot fire someone because of their race or sex. Whistleblowers are protected too in many situations.  Rick Pitino had a distinct contract which became the law of this case of their relationship.

Second, the article rightly highlights the dangers to which civil litigation Pitino exposes himself by opening the litigation door.

Pitino is gambling that his lawsuits do not cause damaging evidence and incriminating witness testimony to surface about him. Pitino is surely aware that while he has not been charged with a crime, he is in the orbit of persons who have been charged—which is never a good place to be, especially when the government could indict others in the weeks and months ahead.

Pitino currently enjoys the privilege against self-incrimination of the Fifth Amendment to the United States Constitution. By entering into this civil litigation, he is exposing himself to answering questions, under oath, within responses to interrogatories, depositions, and court-room testimony. All such testimony could be used against him in some later criminal prosecution. As Forbes notes:

In civil lawsuits, like this one, discovery through the use of depositions is wide and far-ranging. Lawyers are allowed to ask questions in discovery that they never could in a trial. The rule is that any question whose answer might lead to relevant evidence is admissible. Questions are asked under oath; anyone who lies is subject to a charge of perjury.

Pitino will likely be asked about his relationship with the staffer who allegedly hired the escorts, how often they spoke about recruits and what conversations and meetings he had with recruits.

All of the recruits who went on to play for Louisville will likely be deposed and asked about what they received from assistant coaches and whether they thought Pitino knew what was going on. Answers in depositions always lead to other questions, questions that could be embarrassing to Pitino as well as Louisville.

The article concludes:

Can Pitino win? The odds probably weigh against him. This is mainly because Pitino’s contract contains expansive and vague language for the university to construct a valid rationale for firing with just cause. For instance, he would have violated his contract by failing to: diligently supervise compliance of his assistant coaches; promote an atmosphere of compliance; or avoid disparaging media publicity. In order to conclude that Pitino did not violate his contract, one would likely have to believe that Pitino was unaware and uninvolved in any of the corruption that was both around him and that appeared to benefit him.

Another article highlights some of that language:

“Presumed to be responsible” for the actions of all of his staff members (according to contract section 4.3), and subject to termination for just cause in the event of “disparaging media publicity of a material nature that damages the good name and reputation” of U of L (Section 6.1.2), Pitino enters these proceedings like a team trailing Duke by double digits with less than a minute left.

Wow. Even if Pitino is wholly innocent, considering the action of his staff, this is some powerfully tough language to overcome.

 

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