In a ruling that could spark a settlement in former Arkansas football coach Bret Bielema’s $7 million lawsuit against the Razorback Foundation, Judge Paul Holmes on Thursday night denied the Foundation’s motion to dismiss.
The ruling ensures that Bielema’s case will advance toward pretrial discovery, where attorneys would question witnesses while under oath. Emails, texts and other sensitive records would be shared. Unflattering communications could be “discovered” and publicly viewed.
To protect reputations, defendants in high-profile litigations often try to settle before discovery begins. Here, initial disclosures and discovery must be filed within 28 days. This timeline could promote settlement talks. For a settlement, the Foundation and Bielema must find a mutually agreeable dollar amount.
As detailed on Sportico, the case centers on whether Bielema complied with a contractual duty to mitigate.
Bielema, who in January joined the staff of New York Giants head coach Joe Judge, maintains the Foundation illegally breached a buyout agreement. The buyout was signed in 2018 after Arkansas fired Bielema. It stipulates that if Bielema landed a new job, his salary would offset the amount owed by the Foundation.
The Foundation contends that Bielema accepted a lower-paying position with the New England Patriots in 2018 knowing the Foundation was on the hook. It also asserts that Bielema didn’t make “best efforts” to land another D-I head coaching job.
Tom Mars and other attorneys for Bielema reject the Foundation’s narrative and its contractual interpretation. They insist that Bielema pursued other D-I jobs, including with Colorado, Michigan State and Rutgers. They also stress that the buyout omits language obligating Bielema to pursue any specific type of job. As worded, the buyout only compels him to use “best efforts” to land another job and to then negotiate a maximum salary for that new job.
In attempting to persuade Judge Holmes to dismiss Bielema’s lawsuit, the Foundation—a nonprofit that supports Arkansas Athletics—argues that “sovereign immunity” applies. Sovereign immunity instructs that public universities and other public entities are generally immune from civil liability. There are exceptions to sovereign immunity, but it is a device commonly used by public universities to defeat civil lawsuits.
Here, the Foundation highlights language from Bielema’s original complaint (an amended complaint omitted the language). In the original complaint, Bielema maintained that the Foundation is “so intertwined with every aspect of the University’s Athletics Department that it functions as an arm of the Athletics Department.” This depiction, the Foundation asserts, would be consistent with sovereign immunity.
Judge Holmes disagreed. In his order, the judge stressed that Bielema’s amended complaint is the governing document. He also noted that the Foundation acknowledges it is not “an arm of the State,” and thus sovereign immunity cannot logically apply.