CHARLESTON - During the course of arguing one of his federal cases, Charleston attorney Jason Huber nearly had the U.S. Supreme Court change what he was arguing about.
Instead, Huber and client David Ridpath will continue battling Marshall University's Board of Governors over the former NCAA compliance officer's demotion following the discovery of rules violations in the Marshall football program.
Ridpath says the school made him a scapegoat in 1999 and is suing the school's Board of Governors as well as former president Dan Angel, former legal counsel F. Layton Cottrill, former vice president Ed Grose, former football coach Bob Pruett and outside counsel Richard Hilliard.
In May, as an appeal request made by the defendants was pending, the U.S. Supreme Court reached a decision in Garcetti v. Ceballos, declaring that speech by a public official is only protected if it is engaged in as a private citizen, not during the course of employment.
Huber says the defendants' legal team, led by Charles Bailey of Bailey and Wyant in Charleston, argued that remarks made by Ridpath that were critical of the university's involvement in an employment scam that provided football players with a bogus salary from a booster were done during the course of his employment, thereby leaving him susceptible to a demotion.
"The fact that his duties sometimes required him to speak or write," Justice Anthony Kennedy wrote of Garcetti v. Ceballos, "does not mean his supervisors were prohibited from evaluating his performance."
The defendants decided to amend their petition to include the Garcetti decision. However, Huber said, the Supreme Court justices included a stipulation that states the decision does not apply to academic institutions. The defendants had argued that Ridpath's critical comments were a reason for his demotion, and that he enjoyed no free-speech immunity as an employee.
"They can't fire teachers for what they say in the classroom," said Huber, of Forman and Huber. "(The Supreme Court) wanted to keep that free exchange of ideas."
Ridpath says he took the professional fall for a program that had certain players who needed to sit out a year before they were eligible for football working at McCorkle Machine Shop and being paid $200 per day by Marshall booster Marshall Reynolds.
When the NCAA needed to reprimand Marshall, Ridpath was demoted but told it wouldn't be reported as a form of corrective action.
However, he says it was reported as a form of corrective action, and he was threatened by Angel, Cottrill and Gross in order to keep him from publicly challenging his demotion.
He adds that Pruett had earlier stopped him from investigating the jobs scam. Ridpath maintains he had no knowledge of anything illegal going on.
Huber says the demotion following the violations was the equivalent of a professional scarlet letter. Ridpath now works at Ohio University.
Recently, the U.S. Court of Appeals for the Fourth Circuit in Richmond decided not to hear the defendants' appeal, which sought to overturn the denial of their motion to dismiss.
"What happens when you have a panel decision is if the losing party wants to ask if the full (all 11 judges) circuit court of appeals will hear the case, they can get the full panel if they petition for an en banc hearing," Huber said.
In this case, the petition was turned down. The case will be sent back to Huntington if the defendants do not choose to appeal that decision to the U.S. Supreme Court.
Huber says a new scheduling order will probably be drawn and Discovery will continue on the case, which was filed in 2003. Ridpath is seeking $1 million in damages.
"Needless to say, it's been a fairly arduous battle for my client," Huber said.
