FAYETTEVILLE — Attorneys for the Razorback Foundation on Wednesday asked a federal judge to dismiss the amended lawsuit by former University of Arkansas football coach Bret Bielema.
It is the second motion to dismiss filed by the foundation since Bielema originally sued June 12. The foundation’s first motion to dismiss was ordered moot by U.S. District Judge P.K. Holmes III when the amended lawsuit was filed July 2.
Attorney Marshall S. Ney, who represents the foundation, writes in the latest motion that the court “is not required to accept the truth of these new allegations because they directly contradict factual allegations made by Bielema in his original complaint and even before.”
In the original filing, Bielema’s attorneys asserted the foundation was so “intertwined” with the UA athletics department to the point it acted as an arm of the department. Foundation attorneys disputed that claim in their original motion to dismiss, but argued that the 11th Amendment to the U.S. Constitution would bar federal court from hearing such a case if the allegation were true.
In the amended lawsuit, Bielema’s attorneys write the foundation, not the UA, is the real party of interest in the case.
“Bielema’s position is that the Foundation is an ‘arm of the Athletic Department,’ and he cannot escape that allegation now,” the foundation writes. “Bielema makes no federal law claim and instead asserts jurisdiction is proper under diversity of citizenship. But as an alleged ‘arm of the state,’ the Foundation is not a citizen for purposes of diversity jurisdiction, and the Court therefore lacks jurisdiction.
“In short, Bielema’s knee-jerk, about-face attempt to try to keep his case in federal court is undermined by the position he has taken publicly for months and cannot remedy the jurisdictional flaws in his initial complaint.”
The foundation is asking Holmes to dismiss the case on jurisdictional grounds, claiming any disputes between Bielema and the foundation were meant to be settled in Washington County Circuit Court. In a release and waiver agreement finalized in January 2018, “Washington County, Arkansas,” is listed as the venue for disagreements relating to the settlement.
Bielema’s attorneys claim the ambiguous language in the buyout settlement was material to Bielema agreeing to its terms, which included an $11.935 million buyout, subject to offsetting mitigation. Prior agreements between Bielema and the foundation were meant to mirror his UA contract and listed Washington County Circuit Court — not the U.S. Western District of Arkansas court with an office in Fayetteville, which is in Washington County — as the forum for disputes.
“Bielema does not dispute that the provision is valid and enforceable,” the foundation writes. “In fact, he relies on the forum selection clause in his Amended Complaint, albeit to reach the wrong conclusion.”
The foundation cites multiple examples of similar cases that federal courts rejected and, citing legal precedent, writes: “Bielema ‘bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.’”
In its filing Wednesday, the foundation also attempts to reinforce its position that it was justified in ceasing buyout payments to Bielema in January 2019, 23 months before the end of his buyout agreement.
The foundation demanded Bielema repay more than $4.5 million, a move that Bielema’s attorneys claim “blindsided” the coach who was working as a special assistant to the New England Patriots at the time. The foundation claims Bielema did not seek employment that would pay him more than $150,000 — his salary exempt from mitigation during the first year of the agreement — in the 12 months between when he settled with the foundation and when the foundation stopped making payments to him.
“(T)he Amended Complaint expressly admits that Bielema failed to mitigate in 2018 by expecting employers to come to him rather than him complying with his duty to mitigate,” the foundation writes. “Specifically, in Paragraph 92 (of the amended lawsuit), Bielema alleges that in 2018 no ‘AD, member of a search committee, or anyone associated with a search firm reach(ed) out' to him or his agent about Bielema’s ‘(a) interest in a DI head coach position; (b) availability to assume such a role; or (c) willingness to be considered for a particular position.’
“Over the course of 65 pages of allegations, the Amended Complaint illuminates Bielema’s uncontested failure to take any action whatsoever to seek other employment prior to receiving notice of uncurable breach in January 2019. His deficiencies in 2018 are illuminated even brighter when compared to the efforts Bielema made after the notice of material breach and discharge of the Foundation — efforts which were insufficient and too late to satisfy the mitigation obligations under the parties’ agreement.”
The amended lawsuit states Bielema was a finalist for jobs at Colorado and Rutgers, and was also involved in coaching searches at Baylor, Michigan State, Boston College, Florida Atlantic and South Florida in the past year, but scarcely heard from athletics directors or search committees during the time he was being paid by the foundation.
Bielema was hired by the New York Giants as a linebackers coach in January. He was the defensive line coach for the Patriots during the 2019 season.
“On its face, therefore, the Amended Complaint admits that Bielema failed to mitigate,” the foundation writes. "The Release Agreement…imposed an affirmative legal duty on Bielema to mitigate and find a job and not a legal duty on the rest of the world to beat a path to his door while he did nothing to mitigate.”
Bielema is demanding $7.025 million in compensatory damages, as well as punitive damages, attorney fees, court costs and a jury trial. Rogers-based attorney Thomas A. Mars is Bielema’s lead attorney in the case.