Tom Murphy is a reporter for the Arkansas Democrat-Gazette. A graduate of Louisiana Tech University, he is a member of the Football Writers Association of America, and voter for the Heisman Trophy and AP Top 25 football poll. Murphy was the 2017 Arkansas Sportswriter of the Year.
Bielema attorney counters to dismiss suit
Bret Bielema is shown in this file photo. (AP Photo/Paul Sancya)
FAYETTEVILLE -- Tom Mars, the attorney representing former University of Arkansas Coach Bret Bielema, filed a feisty brief late Wednesday in Bielema's $7 million lawsuit against the Razorback Foundation.
The 34-page brief argues against the Razorback Foundation's latest motion to dismiss the lawsuit, which Mars filed in U.S. District Court for the Western District of Arkansas, based on lack of jurisdiction. The sides disagree on whether disputes between Bielema and the Razorback Foundation should be heard in federal or district court, both of which have locations in Fayetteville.
The lawsuit has been given a preliminary trial date of early June 2021.
The original lawsuit was filed June 12, and an amended lawsuit, claiming the foundation was trying to mislead U.S. District Judge P.K. Holmes III regarding Bielema's employment with the New England Patriots between 2018-20, was filed July 2.
Mars asserts the Razorback Foundation, 18 months after claiming Bielema breached the terms of his buyout agreement with the foundation, "has yet to decide what the terms of the Agreement mean," and says the foundation's characterization of the agreement "continues to evolve to a degree that the Foundation's position has become indefensibly absurd."
The foundation stopped the monthly payments it was making in the $11.935 million settlement with Bielema after January 2019, claiming material breach of the agreement and demanding return of more than $4.5 million in payments it had made to that point.
Mars asserts the foundation is misinterpreting the mitigation language written into the release agreement, and he hammers on the wording in the agreement regarding the proper venue for the lawsuit.
Mars writes that the foundation is attempting to "rewrite the forum selection clause" by using invented nuances in language.
The forum for the lawsuit, as written in Bielema's buyout agreement reads that "Washington, County, Arkansas shall be the exclusive venue" for all disputes arising out of the agreement. Bielema's original contract and his subsequent amended contract read "venue for this Agreement shall lie solely with the Circuit Court of Washington County, Arkansas."
Mars notes the final buyout agreement replaces almost every word of that section of the document and asks, "Why change out contract language that isn't broken if you didn't intend for it to have a different meaning?"
Writes Mars, "the only real issue before the Court is whether the language in the forum selection clause of the Agreement means what it says or whether the words 'Washington County' should be given a previously unheard of meaning for which there is no judicial precedent."
Mars said the language in Bielema's release agreement could not be clearer, writing " 'Washington County' means just that – a location, not a court – and no amount of torture will make those words say: 'Washington County Circuit Court.'"
Foundation attorney Marshall S. Ney of Friday, Eldredge & Clark of Rogers asked Holmes in a motion filed July 15 to dismiss the lawsuit due to jurisdictional grounds, claiming disputes between Bielema and the foundation were meant to be settled in Washington County Circuit Court.
The foundation also attempted to reinforce its position that it was justified when it stopped making the buyout payments to Bielema 23 months before the payments were due to end.
Ney wrote "the 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."
He also added, "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."
In his latest filing, Mars included a copy of the letter he sent to Ney on Jan. 31, exactly one year after the foundation wrote Bielema to inform him it was stopping payments.
In the letter, Mars expressed the frustration of Bielema's counsel in trying to meet with the foundation's representatives to discuss the matters and being "rebuffed without any logical explanation."
He added the foundation never reached out to Bielema to propose a "reconciliation meeting" before or after informing him the foundation believed he was in breach of the agreement, even though the meetings were supposed to be mandatory.
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