CLARKSBURG – Former West Virginia University football coach Rich Rodriguez claims that if he owes $4 million for terminating his contract, he owes it to the private WVU Foundation and not the university.
Answering a suit the university filed against Rodriguez on Dec. 27, Sean McGinley of Charleston argued that the foundation paid a big part of his compensation and bonuses.
"West Virginia University had virtually no actual responsibility for a substantial portion of the salary that the Plaintiff contracted to pay to the Defendant," McGinley wrote.
As a result, he wrote, "... all payments that would be made to West Virginia University most likely would be directed to the West Virginia University Foundation."
McGinley wants U.S. District Judge John Bailey to include the foundation as a party to the university's suit in federal court at Clarksburg.
"Plaintiff has failed to join all real parties in interest in this litigation," he wrote.
He seeks an order compelling the foundation to disclose "agreements and arrangements that it has with donors to provide funds to West Virginia University."
McGinley's Feb. 1 brief unloaded a barrage of attacks on the university and asserted a counterclaim that accused the university of breaching the coach's contract.
McGinley wrote that when Rodriguez agreed to a $4 million early termination penalty, university president Mike Garrison assured him they would negotiate a lower figure.
Garrison knew the university had substantially reduced the penalty for basketball coach John Beilein when he resigned last spring, McGinley wrote.
Both Beilein and Rodriguez resigned to coach at the University of Michigan.
McGinley further argued that the university can't prove Rodriguez caused any damage.
"Plaintifff has won a BCS Bowl Game convincingly against the University of Oklahoma, has retained a new coach, and has not suffered any monetary damages whatsoever," he wrote.
The foundation recently stated that donations were at an all time high, he wrote.
"The only way to tell whether or not West Virginia University has been damaged is to see if its donations to the Foundation have decreased and/or if other expenses have increased," he wrote.
"West Virginia University was able to hire assistant coach Bill Stewart at a salary which was a small percentage of what Richard Rodriguez was being paid," he wrote, "so there was no additional cost or expense incurred in that regard."
He wrote that university news releases about the lawsuit enraged and incited fans and caused them to threaten Rodriguez, his family and his property.
"Defendant's mailbox was destroyed, nasty signs were put in his family's front gate, and in addition, he had been told his family basically will be unable to sell their house for its true value because no one would want to purchase this house that was owned by a 'traitor,'" he wrote.
McGinley also challenged the legitimacy of the suit, arguing that the university's board of governors did not authorize it and Attorney General Darrell McGraw did not file it.
He wrote, "... the Attorney General must be a participant attorney in any action brought by a state agency, something that was not done in this case."
The university retained Thomas Flaherty of Charleston and Robert Fitzsimmons of Wheeling to pursue the claim against Rodriguez.
Finally, McGinley denied the university's assertion that the coach's contract set forth all terms and conditions of his employment.
He claimed Garrison told Rodriguez he did not believe in buyout provisions and if a dispute occurred, lawyers would "get together and split the difference."
He wrote, "... numerous other oral misrepresentations and promises were made ..."
Three days later, McGinley asked Bailey to deny a motion from the university to remand the suit to Monongalia County, where the university filed it.
Rodriguez removed the suit to federal court Jan.16, claiming diversity jurisdiction as a Michigan citizen.
McGinley argued that Rodriguez obtained an address, a telephone number and a driver's license in Michigan before the university sued him.
The university's motion for remand claimed Rodriguez accepted service of the suit at his West Virginia residence.
The university claimed his children continued to attend schools in West Virginia.
The university filed with the court a copy of an envelope that Rodriguez sent from his West Virginia address on Jan. 10.
McGinley responded that Rodriguez used the old address to keep the new one out of the public domain, "given the public animosity, threats against him and his family, and property damage already done to his West Virginia residence."
In a footnote he suggested that the university pulled a dirty trick.
"Considering how quickly and prematurely Plaintiff filed the lawsuit, without communication with Defendant and before any breach of contract occurred," he wrote, "one could speculate that Plaintiff, who obviously knew Defendant intended to move to Michigan as soon as he accepted the position there, was hoping to gets its complaint on file for the very purpose of creating an argument against diversity."