Rodriguez has same deal at Michigan, WVU lawyer says

By Steve Korris | Feb 22, 2008


MORGANTOWN – Former West Virginia University football coach Rich Rodriguez, who attacks the validity of a $4 million buyout clause in his contract, signed the same deal at Michigan, according to an attorney for the school.

"Rodriguez has, upon information and belief, subsequently agreed to include the same or similar liquidated damages sum in any employment contract or agreement with the University of Michigan," attorney Thomas Flaherty of Charleston wrote Feb. 22.

He moved to dismiss portions of a counterclaim Rodriguez filed after the university sued him in Monongalia Circuit Court to collect the four million.

Flaherty wrote to Circuit Judge Robert Stone that when Rodriguez accepted a buyout clause at Michigan, he waived his claim that West Virginia's buyout clause was unreasonable and not enforceable.

Flaherty tried to knock down the coach's charge that university officials broke verbal commitments.

"The University denies that it fraudulently induced Rodriguez to sign the written contract or made any misrepresentations in connection with the signing of the written contract," he wrote.

He argued that any difference between terms and provisions Rodriguez desired and those expressly set forth in the contract was the result of acts or omissions of Rodriguez, his legal representative and his agent.

He quoted the contract:

"It is mutually understood that this agreement contains all of the terms and conditions to which the parties have agreed and that no other understandings or representations, either oral or written, unless referenced in the preceding paragraphs, regarding the subject matter of this agreement shall be deemed to exist or to bind the parties thereto."

He wrote that the contract required 90 days notice of substantial breach and allowed 30 days to cure a breach.

"Rodriguez did not provide any such written notice," he wrote.

He denied Rodriguez's assertion that the university "has not suffered any damages whatsoever."

Rodriguez has argued that his resignation didn't harm WVU. The football team went on to win the Fiesta Bowl after his departure, and later made interim coach Bill Stewart the head coach.

Flaherty leads the Charleston firm of Flaherty Sensabaugh and Bonasso. Jeffrey Wakefield and Jaclyn Bryk of the firm also represent the university in the case.

So do Robert P. Fitzsimmons and Robert J. Fitzsimmons of Wheeling.
Flaherty sued Rodriguez on behalf of the university board of governors Dec. 27, eight days after the coach departed.

Rodriguez's attorney, Sean McGinley of Charleston, removed the suit to U.S. District Court in Clarksburg.

McGinley, who works for the Charleston law firm of DiTrapano, Barrett and DiPiero, claimed diversity of citizenship, arguing that Rodriguez was a citizen of Michigan when the university sued him.

That didn't exactly repair the coach's image in his home state. Nor did it help his case.

To carry off the removal, McGinley also needed to persuade District Judge John Bailey that the university is a citizen and not an arm of the state.

Bailey disagreed. He defined the university as an arm of the state and sent the case back to Stone without worrying about Rodriguez's citizenship.

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