HUNTINGTON – A month before Marshall University filed its $1 million lawsuit against the University of Pittsburgh alleging breach of contract over the cancelation of a 2020 football game, Pitt filed its own lawsuit in its home court.
But Marshall says that complaint should be dismissed because the university is an arm of state government and has sovereign immunity.
Pitt filed its initial complaint for declaratory judgment November 27 in the Court of Common Pleas of Allegheny County against the Marshall University Board of Governors.
The schools’ football teams had a contract to play two games – the first on October 1, 2016, in Pittsburgh and the second on September 26, 2020, in Huntington.
The Thundering Herd traveled to play at Pitt for the 2016 game. The Panthers defeated the Herd 43-27. The following spring, the schools agreed to amend the contract regarding the date of the 2020 game. It was rescheduled for September 12, 2020.
In its Allegheny County complaint, Pitt says the original 2014 agreement does not require that the 2020 game be rescheduled nor does it require liquidated damages because the game was canceled because of circumstances outside of Pitt’s control, namely the ACC COVID-related rule about playing out-of-state games against non-conference opponents in the 2020 football season.
“There is an actual controversy between Pitt and Marshall as to the interpretation and application of the agreement, and this dispute is ripe for resolution,” Pitt’s complaint states. “Accordingly, Pitt seeks a declaratory judgment from this court that it is not obligated to reschedule the 2020 game or pay any damages to Marshall.”
Pitt says the original agreement did not include any provision for rescheduling any game “regardless of the reason for cancelation.”
“Instead, the agreement specifically listed each game next to its exact date and year to accommodate both parties’ schedules,” Pitt’s complaint states. “To this end, § (Section) 15 the agreement provided, in part, that “none of the terms and conditions of this agreement shall in any manner be altered, amended, waived or abandoned except by written agreement of the parties.”
The complaint says Section 9 of the agreement says if a game is “impossible to play” for reasons of “power failure, strikes, severe weather conditions, riots, wars or other unforeseen catastrophes or disasters or circumstances beyond the control of a party hereto … that game shall be canceled, and neither party hereto shall be responsible to the other for any related loss or damage. Cancelation of a game solely under this section 9 shall not be deemed a breach of this agreement, and Section 11’s (liquidated damages provision) shall not apply.”
Section 11 of the agreement says the parties agree that “actual damages might be sustained by reason of the failure of a party to participate in a game (other than as expressly described in Section 9 … above) are uncertain and would be difficult to ascertain. It is further agreed that the sum of one million dollars per game for each game in which a party so fails to participate would be reasonable and just compensation for any such breach.”
In its complaint, Pitt says Marshall “did not challenge Pitt’s cancellation of the 2020 game, nor did it challenge that the ACC’s rules required Pitt to cancel the 2020 game.”
“Pitt and Marshall never agreed to reschedule the 2020 game,” Pitt states, then noting the September 27, 2024, letter Marshall sent saying Pitt is in breach of a binding contract. “Marshall indicated that it was ‘prepared to seek all available legal recourse.’ Marshall does not identify what provision of the agreement, if any, Pitt has ‘breached.’
“Indeed, Marshall does not even claim that Pitt improperly canceled the 2020 game due to the ACC’s COVID-season rules.”
Pitt denies it breached the agreement and that it has any obligation to reschedule the 2020 game or pay any damages to Marshall.
“Pitt disputes Marshall’s interpretation of the agreement and application of the agreement to these facts,” the complaint states. “In any event, whatever breach of contract claim Marshall could raise is barred by Pennsylvania’s four-year statute of limitations for such actions.”
In Marshall’s preliminary objections filed December 23, Marshall says the Allegheny County complaint should be dismissed because of its sovereign immunity being a state institution and “is immune from a suit brought against it in Pennsylvania under both U.S. and West Virginia Constitutions.”
In its December 26 brief in support of the preliminary objections, Marshall says the Allegheny County court is “obligated to recognize defendant’s (Marshall) sovereign immunity” and must dismiss Pitt’s complaint.
The Marshall BOG filed its complaint December 23 in Cabell Circuit Court against the University of Pittsburgh of the Commonwealth System of Higher Education.
The agreement “does not reference the occurrence of a pandemic or epidemic as a permissible basis for cancellation of a game,” according to Marshall’s complaint filed in Cabell County.
Pitt is a member of the Atlantic Coast Conference, which announced its plans and rules for football for the 2020 season on July 29, 2020. Specifically, the ACC said its member schools would play an 11-game schedule consisting of 10 conference games and one non-conference game each. It also advised that the non-conference game must be played in the home state of that ACC school.
Marshall was a member of Conference USA at the time. On August 7, 2020, C-USA announced its member schools would play eight conference football games and up to four non-conference games with no location restrictions.
In a letter dated August 7, 2020, former Pitt Director of Athletics Steve Pederson told former Marshall AD Mike Hamrick his school was unable to participate in the September 12 game because of the ACC’s COVID-19 rules.
“However, because Marshall was the home team in 2020, the express language of Section 2 of the agreement provides that its conference’s rules and regulations (that is, those of C-USA) govern the 2020 game, and not those of the ACC,” the complaint states. “Per the C-USA rules, the 2020 game could have been played at Marshall as contemplated by the agreement and the parties’ negotiations prior to August 7, 2020.”
The complaint notes that Pitt played in four other states for five conferences games in the 2020 season “despite Pitt’s position that the ACC’s rules regarding the COVID-19 pandemic made it impossible to travel to Huntington to play the 2020 game against Marshall.” The Panthers also played a non-conference game at home September 12, 2020, against Austin Peay State University from Clarksville, Tennessee.
After Pederson’s letter, Pitt and Marshall negotiated to reschedule the 2020 game, considering dates in 2026 and 2028 in Huntington. But the complaint says no final date ever was confirmed.
On September 27, 2024, Marshall sent a letter demanding Pitt satisfy its contractual obligation by rescheduling the game or remitting the sum of $1 million pursuant to the contract.
On November 26, Pitt filed its declaratory judgment action in Allegheny County seeking a declaration that it was not obligated to reschedule the game or pay damages to Marshall.
“The Pennsylvania action … was the first time that Marshall was put on notice of Pitt’s breach of the agreement, by Pitt’s expressed intention not to honor its obligations under the agreement,” the complaint states. “Based on its sovereign immunity from private suits brought in courts of other states, Marshall is seeking dismissal of the Pennsylvania action.”
Marshall accuses Pitt of breach of contract, saying the Panthers’ participation in the 2020 game “was not impossible … and is still not impossible.” It also says the breach is “without justification or excuse” and has damaged Marshall.
In its lawsuit, Marshall seeks $1 million, pre- and post-judgment interests and further relief.
Marshall is being represented by Susan L. Deniker, Shawn A. Morgan and Stephenee R. Gandee of Steptoe & Johnson in Bridgeport. The case has been assigned to Circuit Judge Paul Farrell.
Christian Spears, Marshall’s current athletic director, previously was the deputy athletic director and chief operating officer at Pitt before arriving in Huntington in 2022.
Court of Common Pleas of Allegheny County case number 24-013956; Cabell Circuit Court case number 24-C-476