By: Eiland H.C.R. No. 101
HOUSE CONCURRENT RESOLUTION
WHEREAS, Mike Leach alleges the following.
WHEREAS this case involves a dispute between Texas Tech
University and Leach, its former head football coach, over the
termination of his employment.
WHEREAS Texas Tech University executed a contract of
employment with Leach effective January 1, 2009 (the "Agreement"),
contracting to retain Leach's services as Head Football Coach of
the University's Division 1 football program for a term of five
years.
WHEREAS the Agreement incorporates Texas Tech University's
policies and procedures as terms of the contract, and provides that
Leach is entitled to the benefits of Texas Tech University's
policies and procedures. Among other things, the TTU Operating
Procedures ("OP") provide that an employee aggrieved by an
employment decision of the University may appeal that decision
through a grievance proceeding without fear that the University
will retaliate.
WHEREAS at Coach Leach's election, that proceeding could
take the form of a civil lawsuit:
In the event the employee files substantially the same issues as the
grievance or complaint before or during this procedure with any
external agency or court, the employee may elect to remove such
issues of grievance or complaint from further consideration through
this process.
WHEREAS these policies were established under a direct grant
of authority by the Texas Legislature.
WHEREAS the Employment Agreement contains certain provisions
limiting termination by Texas Tech University, including a
termination without cause provision, a termination for cause
provision, and a notice and cure provision.
WHEREAS on December 28, 2009, Leach received a letter
suspending him as head football coach of Texas Tech University.
WHEREAS Leach's attorney sought a temporary restraining
order in the District Court of Lubbock County as allowed by Texas
Tech OP 70.10 to complain of Defendant's actions and failure to
accord Leach due process, and to complain of Texas Tech's breach of
his contract.
WHEREAS on December 30, 2009, representatives of Texas Tech
handed Leach's counsel a letter of termination advising Leach that
he was terminated from his employment for cause effective December
30, 2009.
WHEREAS in firing Leach, Texas Tech University invoked the
"with cause" provision of his contract. As a result, the University
has refused to pay him the compensation, including bonuses to which
Leach was or would have been entitled and certain guaranteed income
it owes under the Agreement.
WHEREAS Texas Tech University, has still yet to pay Leach for
his completed services during the 2009 football season, including a
payment due under the Employment Agreement for $1.6 million as
"Guaranteed Outside Income."
WHEREAS though Leach followed Texas Tech University's
required procedure to address grievances under the Employment
Agreement, he has never been able to fully adjudicate his claims
against Texas Tech University. Leach has been prohibited by Texas
Tech University's protection under sovereign immunity. Leach
alleges that Texas Tech University breached its contract by, among
other things, suspending him without any process or contractual
basis, failing to give Coach Leach notice as required under his
contract and a reasonable opportunity to cure, and allegedly
terminating him for cause when no good cause exists. In addition,
because the procedural safeguards, including an appeal, are a term
and condition of Coach Leach's employment, termination without
permitting such appeal constitutes a breach of contract.
WHEREAS if successful in proving his allegations against
Texas Tech University, Mike Leach is entitled to an award of actual
damages for breach of contract, which may include consequential,
special and incidental damages, and is also entitled to reasonable
attorney fees, interest on past damages, and costs of suit as may be
authorized by law.
WHEREAS the damages that Mike Leach seeks shall not include
tort damages or punitive damages. Nor does Leach seek permission to
sue any individual official of Texas Tech University for any cause
of action. By this resolution, Mike Leach does not seek
authorization or permission to join any other agency, institution
or university of the State of Texas in this or any other lawsuit.
WHEREAS Mike Leach, if successful, shall initially seek to
satisfy the judgment from non-appropriated funding sources
available to the Texas Tech University Athletic Department. Any
attempt to satisfy the judgment from appropriated state funds shall
require separate approval of the State Legislature.
WHEREAS the Seventh Court of Appeals of Texas ruled that
Texas Tech University had not waived its protection from suit under
sovereign immunity and that the Legislature of the State of Texas
was the only proper entity to waive such sovereign immunity.
RESOLVED by the 82nd Legislature of the State of Texas, That
Mike Leach is granted permission to sue Texas Tech University for
breach of contract.; and be it further
RESOLVED, That, Guy Bailey at the Office of the President of
Texas Tech University, as a representative of Texas Tech University
and the Attorney General of the State of Texas be served with
process as provided by Section 107.002 of the Texas Civil Practices
and Remedies Code.