PITTSBURGH – The University of Pittsburgh says Marshall University does not enjoy sovereign immunity from being sued in the schools’ legal dispute over the cancelation of a 2020 football game.
“Marshall is attempting to turn an arms-length agreement with Pitt into a one-way contract that only Marshall can enforce,” Pitt says in its latest filing in its case filed in Allegheny County Common Pleas Court in Pennsylvania. “The court should overrule Marshall’s preliminary objections, which are not only contrary to settled law, but would also result in a fundamental injustice.”
The University of Pittsburgh of the Commonwealth System of Higher Education first filed its complaint for declaratory judgment against the Marshall University in November, claiming the original agreement did not include any provision for rescheduling any game “regardless of the reason for cancelation.”
Marshall filed a $1 million breach of contract suit against Pitt the following month in Cabell Circuit Court in West Virginia. Marshall also filed an objection to the Allegheny County complaint, saying it should be dismissed because of 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.”
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.
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.
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.”
Marshall filed its preliminary objections December 23 saying the Allegheny County court is “obligated to recognize defendant’s (Marshall) sovereign immunity” and must dismiss Pitt’s complaint.
In its January 28 opposition to Marshall’s objections, Pitt says Marshall has sovereign immunity in some cases, but not this one.
“Pitt is only seeking a declaration of rights under an agreement with Marshall to play two football games,” the filing states, noting a 1993 West Virginia Supreme Court ruling that said a declaratory judgment suit does not violate the state’s constitutional immunity where it seeks only a declaration of rights. “Thus, this lawsuit for a declaratory judgment is ‘not a suit against the state’ for purposes of sovereign immunity. Marshall has no grounds for barring Pitt’s claims.”
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 the filing, Pitt says Marshall didn’t question the cancellation of the 2020 game “until a few months ago” when it sent a letter demanding Pitt to schedule a makeup game or pay $1 million for breaching the agreement. Pitt disagreed and filed the Allegheny brief.
“Pitt has thus placed the exact issue that Marshall picked a fight about front-and-center for resolution – namely, whether Pitt breached the game agreement,” Pitt says in its opposition brief. “Now Marshall – despite threatening to sue Pitt under the game agreement – asks this court to ignore West Virginia law and hold, in effect, that Pitt is not allowed to seek relief under that exact same contract.”
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.
In its latest Allegheny filing, Pitt calls Marshall’s legal stance a double standard “(if Marshall is even adhering to any standard at all)” that is “both contrary to the law and improper gamesmanship.”
“This could should reject Marshall’s attempt to avoid an interpretation and application of the game agreement,” Pitt’s opposition brief states.
In a letter dated August 7, 2020, former Pitt Director of Athletics Heather Lyke 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.”
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 Lyke’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 the original Allegheny County complaint, 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 is being represented by Susan L. Deniker, Shawn A. Morgan and Stephenee R. Gandee of Steptoe & Johnson in Bridgeport. Pitt is being represented by Jonathan D. Marcus and Daniel J. Stuart of Marcus & Shapira in Pittsburgh.
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