HUNTINGTON – Following the cancelation of a 2020 football game, Marshall University and University of Pittsburgh officials spoke for months trying to find a date to schedule a make-up date.
But, according to files obtained by The West Virginia Record through a Freedom of Information Act request, Pitt officials stopped communicating in June 2021.
A September 27, 2024, letter from Toney Stroud, Marshall’s chief legal officer, to Pitt General Counsel Geovette E. Washington details the efforts on both sides to try to reschedule the game Pitt backed out of because of Atlantic Coast Conference rules instituted for the 2020 season because of the COVID-19 pandemic.
Stroud
| File photo
In that letter, obtained through the FOIA request by The Record, Stroud details the history of the home-and-home contract between the two football programs. The Thundering Herd traveled to Pittsburgh for a 2016 game, and the Panthers were supposed to visit Huntington in 2020 for the other game in the contract.
“That game was never played,” Stroud wrote to Washington last fall. “Pittsburgh canceled the game by way of a letter dated August 7, 2020. Therein, Pittsburgh’s Athletic Director, Heather Lyke, stated: ‘I am writing to confirm that Pitt is unable to participate in the September 12, 2020, game and is cancelling its participation in that game consistent with Agreement Section 9. As a response to the COVID-19 pandemic, the Atlantic Coast Conference recently announced its decision that all its members may play in only one non-conference football game during the 2020 season … the ACC’s announcement constitutes the unforeseen circumstance making it impossible for Pitt to participate in the game as described in Agreement Section 9.'”
Following that, Stroud’s letter says Marshall’s Associate Athletics Director David Steele and Pitt’s Associate Athletic Director Chris LaSala communicated about trying to reschedule the game. Emails obtained by the FOIA request show the sides began discussing possible dates on the same day Pitt backed out of the game in 2020.
Email discussions between Steele and LaSala sometimes included Pitt Deputy Athletic Director Christian Spears, who now is Marshall’s athletic director, and Dave Brown with gridironschedule.com. The parties looked at dates during the 2026, 2027, 2028 and 2029 seasons. Most major college football programs have most of their schedules set up a few years in advance.
In a December 17, 2020, email exchange, Steele and LaSala discussed the game being played on September 1, 2029. But Steele never heard back from LaSala after he has confirmed the date was available for Pitt and said “let me work to get it confirmed.”
On February 9, 2021, Steele sent a follow-up email to see if that date was good.
The next emails regarding the game came on April 7, 2021, when Brown emailed both Steele and LaSala asking if the sides had settled on a September 22, 2029, game. LaSala replied that he understood the date would be September 1, 2029, but said it wasn’t definite yet. He also said, “I owe David (Steele) a call.”
On June 8, 2021, Steele emailed LaSala again and asked if they could “lock in 9/1/2029.” LaSala replied June 24 and asked, “Is there any opportunity for us to come to Marshall in 2026?” Steele responded and said that could work, asking if September 12, 2026, would work. LaSala then replied the next day that he had “spoke too soon” and was back to looking for a 2029 date to work.
“This was the final correspondence from Pittsburgh to Marshall about rescheduling the game,” Stroud wrote in his September 27 letter to Washington. “Mr. Steele sent two separate reply emails to Mr. LaSala (dated June 27 and November 1, 2021) suggesting that the game be rescheduled for week 1 of the 2029 season. Pittsburgh did not respond and has not responded.”
That, Stroud writes, shows Pitt is in breach of contract. He says Marshall is entitled to damages and would like for the game to be rescheduled.
“We continue to believe that this would not only honor the original spirit of our agreement but also provide an opportunity for both schools, their teams and their student bodies and fan bases to enjoy and benefit from experiencing this greatly anticipated game,” Stroud wrote. “Alternatively, Marshall demands remittance of one million dollars as per the damage clause within the contract.
“We remain hopeful that our respective institutions can reach a satisfactory resolution to this matter. Time, however, must be of the essence. We therefore ask and expect from Pittsburgh, within 60 days, a declaration as to whether Pittsburgh agrees to one of the two proposed alternative solutions above.”
Two months after Stroud’s letter, 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.
In that 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.”
Marshall says that Allegheny County complaint should be dismissed because the university is an arm of state government and has sovereign immunity.
In its 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 also filed its own 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 Cabell County case originally was assigned to Circuit Judge Paul Farrell, but he recused himself because of his family ties to Marshall. His son was chairman of the Marshall University Board of Directors and was a liaison to the athletic department during this period.
The case then was assigned to Circuit Judge Greg Howard, who on January 8 ordered the parties to file, among other items, written reports outlining a proposed discovery plan as well as a written request for a scheduling conference with 74 days of service.
A preliminary objection hearing in the Allegheny County case is scheduled for February 4.
Despite the litigation, Stroud remains optimistic.
“We still want to play the game,” he told The Record in a recent interview. “That’s what we would prefer to happen. We just want to get the game scheduled. We think that is the best solution.
“But if that doesn’t happen, we want properly compensated.”
Court of Common Pleas of Allegheny County case number 24-013956; Cabell Circuit Court case number 24-C-476