Former Players v. Football Program *** Thread
- Thread starter AuroraHawk
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First and foremost, you've made it clear this is a strategy that you are NOT advocating.
That written, IMO, if that is the current thought process employed by the AG's office, it would be profoundly misguided. If you feel as though outside experienced counsel is needed if and only if you cannot successfully dismiss some of the claims/counts, then you need to have your head examined.
***In fairness, I have no idea what you two are even talking about. I am just proud I know AG stands for Attorney General and not some Dept of Agriculture.
What? I have only said there should be better than the the AG’s office involved. I think you said that about 4 times if not more so not sure why that’s he is aimed at me. But whatever Aurora . I will let you keep running this post with your legal wisdom. Since you handle these type of cases and also said since day 1 to get outside counsel. Don’t really get your point. Sorry if you have never been in a case where outside counsel is brought in after the initial pleadings/motions. At you firm, you are better than that. Cause I know you have.
Hkfan - I think that you misread my post or (it won't be the first nor the last) I didn't articulate the point well.
I could not agree with your comment more. That is why I prefaced my post with the "this is NOT a strategy that you are advocating." You simply point out that, perhaps, if the AG's office loses a MTD, then they will bring in the specialists.
My point is - again, knowing that is not what you are advocating - IF that is how the AG's office is playing this out, then that is profoundly misguided. Why would you bring in the specialists only AFTER losing the MTD? You bring them in from the start. You want them taking the lead on the MTD.
Is it possible? Sure. Would it be wise? Not in my opinion. Far from it.
EDIT: OK . . . I think that I see where the confusion may lie. When I used the word "you" in the last sentence of the post, "you" is not Hwkfan, "you" is in reference to the AG's office. Would have been more clear had I wrote, if that is what "they" feel or that is "their" mentality . . . I thought that my initial caveat made that clear but . . . "fail" on my part.
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After talking to Aurora we are on the same page. Bring the pro’s in now do not wait. Simple football analogy. If you can bury them at the 3 yrd line with a good punt why pooch it 10 yards and pray they turn it over later?
Thanks! As a lawyer, what can a program like ours do if it is deemed to be innocent to regain its previous reputation? Have you seen cases like this before?
100 percent correct. I think we saw what happened last time. Bring the pros from Dover in now. End this.
Update . . .
Demetrio Solomon-Simmons filed his motion to appear as pro hac vice counsel for the Plaintiffs on Wednesday. Such a motion seeks the court's permission to allow an attorney not admitted to practice in the S.D. of Iowa to appear for this particular case - so long as he's associated with counsel who is admitted to practice in the S.D. of Iowa. Routine motion; routinely granted. And it was granted yesterday.
Two new attorney appearances for the defendants were filed earlier today (which gave me some hope that outside legal counsel was getting involved). Nope. Two more lawyers - Christopher Deist and Samuel Langholz - from the Iowa AG's office. While I wasn't exactly holding out hope that there was much of a chance that outside legal counsel would get involved before the initial response deadline, any glimmer of hope that I had was effectively extinguished by this development. There's simply no reason to have four separate attorneys file appearances from the AG's office if outside counsel was getting involved in the case.
If my math is correct, the due date for the response (either an Answer to the original Petition, Motion to Dismiss the original Petition or hybrid thereof) is on Sunday. That would move the deadline to Monday. A Motion for Extension of Time could be filed as well. Regardless, we should expect that there will be some type of docket activity either later this afternoon, this weekend or on Monday. I wouldn't expect an Answer or MTD this afternoon but perhaps a motion to extend time.
I'll be checking on both Saturday and Sunday.
Big couple of days for Iowa men's sports. Beat the 'Clones and Badgers!
Demetrio Solomon-Simmons filed his motion to appear as pro hac vice counsel for the Plaintiffs on Wednesday. Such a motion seeks the court's permission to allow an attorney not admitted to practice in the S.D. of Iowa to appear for this particular case - so long as he's associated with counsel who is admitted to practice in the S.D. of Iowa. Routine motion; routinely granted. And it was granted yesterday.
Two new attorney appearances for the defendants were filed earlier today (which gave me some hope that outside legal counsel was getting involved). Nope. Two more lawyers - Christopher Deist and Samuel Langholz - from the Iowa AG's office. While I wasn't exactly holding out hope that there was much of a chance that outside legal counsel would get involved before the initial response deadline, any glimmer of hope that I had was effectively extinguished by this development. There's simply no reason to have four separate attorneys file appearances from the AG's office if outside counsel was getting involved in the case.
If my math is correct, the due date for the response (either an Answer to the original Petition, Motion to Dismiss the original Petition or hybrid thereof) is on Sunday. That would move the deadline to Monday. A Motion for Extension of Time could be filed as well. Regardless, we should expect that there will be some type of docket activity either later this afternoon, this weekend or on Monday. I wouldn't expect an Answer or MTD this afternoon but perhaps a motion to extend time.
I'll be checking on both Saturday and Sunday.
Big couple of days for Iowa men's sports. Beat the 'Clones and Badgers!
The initial defense "shot" has been fired.
Yesterday evening, defendants filed a Motion to Dismiss under Federal Rule 12(b)(6) claiming that the initially filed Petition failed to state a viable cause of action against all defendants.
The motion is broken down into two parts:
Part 1 - 10 of the 13 players' claims raised in Counts I through VII (remember . . . Count VIII seeks recovery for breach of contract) are barred by the applicable statute of limitations. For anyone that has been following the various threads since the letter from Solomon-Simmons was released, there have been several postings questioning whether a number of the initially named players' claims would be barred by the statute of limitations. I think that I initially posted that, if the statute of limitations is determined to be two years, only Aaron Mends (of the initially named players) would have been in the program within the applicable two year time period. Since the release of the initial letter, Javon Foy and Brandon Simon have been added to the list of allegedly aggrieved players and both of them were in the program within the applicable two year time period.
Part 1 argues that any and all claims raised by Akrum Wadley, Jonathan Parker, Marcel Joly, Maurice Fleming, Reggie Spearman, Kevonte Martin-Manley, Darian Cooper, LaRon Taylor, Andre Harris, and Terrence Harris in Counts I - VII are covered by a two year statute of limitations and are time-barred. The argument is relatively straight forward. Since all 10 of these players left the Iowa football program more than two years before filing their lawsuit, Counts I-VII are barred by the statute of limitations.
Interestingly, the defendants did not argue that Count VIII is barred by the statute of limitations as well. Instead, defendants attacked Count VIII in part 2 of their motion to dismiss. When I read the initial Petition, I thought that a strong argument could be made that the plaintiffs were "stretching" to fit a racial discrimination/civil rights claim into a breach of contract claim. Because the statute of limitations for breach of written contract is 10 years, trying to pound a proverbial round peg into a square hole (calling a civil rights claim a breach of contract claim) appeared - at least to me - to be based on very wobbly legal foundation which was subject to attack from the outset. If it was me, I very well would have made that argument in the statute of limitations section - pointing out to the court that, by pleading a breach of contract count in what was clearly a claim for racial discrimination, the plaintiffs have all but acknowledged that 10 of the 13 players claims are time barred and Count VIII was a desperate attempt to try to circumvent the statute of limitations.
I've written it before and I continue to believe that any claims raised by these 10 players, given the relief they seek, are governed by the 2 year statute of limitations. Unless plaintiffs can come up with a viable theory as to an alternate SOL, my assessment is that Judge Rose will dismiss these claims - with prejudice. That means that the plaintiffs won't have the chance to try to re-plead the claims to cure some type of pleading sufficiency (see below). The claims would be dismissed as a matter of law.
Part 2 of the Motion to Dismiss alleges that (a) in Counts I - VII, the originally filed Petition fails to assert a sufficient factual basis to support the claims asserted by Mends, Foy and Simon. I have little to no interest in breaking down the arguments in each of the counts. Generally speaking, the defendants argue that the plaintiffs have not pled sufficient facts to support the conclusion that they were subject to actionable racial discrimination and (b) in Count VIII, the plaintiffs' originally filed petition fails to plead sufficient factual basis to conclude that a contract existed between the players and the defendants, the terms of that particular contract, whether it was multi-year or one-year contract and whether the contract was oral or written. In the absence of such allegations, defendants argue that the Petition is insufficient as a matter of law.
As a practical matter, prevailing on a Motion to Dismiss because a Petition fails to state sufficient factual basis is usually, IMO, an uphill battle - and usually a steep uphill battle. But . . . this may be an example of why removing to federal court was an important maneuver. Federal court judges read Petitions/Complaints with a far more critical eye than state court judges. Rules regarding sufficiency of pleadings are more strict in federal court versus state court. In 2009, SCOTUS handed down two key opinions cited frequently by defense counsel when attacking the sufficiency of pleadings and it is not uncommon to see defense counsel argue that the Petition/Complaint is "conclusory" and lacks sufficient factual allegations. Of the claims raised in Counts I-VII by Foy, Simons and/or Mends (without going back to the original Petition, I can't recall which of the counts applies to these three or whether all of the counts apply to these three), I'm skeptical that Judge Rose concludes that there isn't a sufficient basis to move forward on those claims. Even if she feels as though the Petition is a "mess" from a pleadings standpoint, she may simple provide plaintiffs' counsel the opportunity to re-plead it. I cannot envision any scenario (nor do I believe that it would be correct at this juncture) for Judge Rose to dismiss Counts I-VII with prejudice as to Foy, Simons and Mends without the opportunity to re-plead.
Somewhat similar thoughts on Count VIII. However, even if Judge Rose believes that there is a sufficient factual basis for Foy, Simons and Mends to go forward on Counts I-VII at this time, I think that there is a very good chance that Judge Rose concludes that Count VIII is particularly lacking in facts to support a breach of contract claim. My prediction is that she grants the Motion to Dismiss Count VIII - without prejudice - and gives the plaintiffs an opportunity to try to plead sufficient facts to support a breach of contract claim. Under Iowa law (and every other state that I've defended against a breach of contract claim) a plaintiff has to plead the terms of the contract, when it was entered, what terms were breached, etc. Those types of allegations are simply lacking. Thus - although I certainly would have attacked Count VIII in Part 1 of the MTD (if I was manning the ship) - the defendants are attacking it with, IMO, a very credible argument.
In sum . . . my predictions based upon what I've read so far:
As for players other than Foy, Mends and Simons, I think Judge Rose will conclude that all of their claims in Counts I-VII are be time barred.
As for Foy, Mends and Simons' claims in Counts I-VII, I think Judge Rose will deny the motion to dismiss and allow the litigation to go forward. Even if she grants the motion, the plaintiffs will have a chance to "clean up" the Petition.
As for Count VIII, I think that Judge Rose will grant the motion but allow the plaintiffs an opportunity to "clean up" the allegations but there will have to be specific allegations supporting the existence of a contract giving rise to the specific complaint. Even if plaintiffs attempt to do so, I suspect that the defendants will attack it again with another Rule 12(b)(6) motion.
Now . . . for timing . . . plaintiffs' response brief in opposition to the Motion to Dismiss is due to be filed on December 28th.
It is not uncommon for a party opposing a Motion to Dismiss to seek additional time either with consent from opposing counsel or through a court order. Given that the holidays fall between now and the due date, I'll be very surprised if the plaintiffs don't seek an extension of time. I'm thinking that mid-January is when some type of oppositional brief will be filed.
Other than pleadings relating to a potential extension of time, I don't expect anything of consequence to happen before the end of the year.
Your law lesson for the day is over. Cheers!
Yesterday evening, defendants filed a Motion to Dismiss under Federal Rule 12(b)(6) claiming that the initially filed Petition failed to state a viable cause of action against all defendants.
The motion is broken down into two parts:
Part 1 - 10 of the 13 players' claims raised in Counts I through VII (remember . . . Count VIII seeks recovery for breach of contract) are barred by the applicable statute of limitations. For anyone that has been following the various threads since the letter from Solomon-Simmons was released, there have been several postings questioning whether a number of the initially named players' claims would be barred by the statute of limitations. I think that I initially posted that, if the statute of limitations is determined to be two years, only Aaron Mends (of the initially named players) would have been in the program within the applicable two year time period. Since the release of the initial letter, Javon Foy and Brandon Simon have been added to the list of allegedly aggrieved players and both of them were in the program within the applicable two year time period.
Part 1 argues that any and all claims raised by Akrum Wadley, Jonathan Parker, Marcel Joly, Maurice Fleming, Reggie Spearman, Kevonte Martin-Manley, Darian Cooper, LaRon Taylor, Andre Harris, and Terrence Harris in Counts I - VII are covered by a two year statute of limitations and are time-barred. The argument is relatively straight forward. Since all 10 of these players left the Iowa football program more than two years before filing their lawsuit, Counts I-VII are barred by the statute of limitations.
Interestingly, the defendants did not argue that Count VIII is barred by the statute of limitations as well. Instead, defendants attacked Count VIII in part 2 of their motion to dismiss. When I read the initial Petition, I thought that a strong argument could be made that the plaintiffs were "stretching" to fit a racial discrimination/civil rights claim into a breach of contract claim. Because the statute of limitations for breach of written contract is 10 years, trying to pound a proverbial round peg into a square hole (calling a civil rights claim a breach of contract claim) appeared - at least to me - to be based on very wobbly legal foundation which was subject to attack from the outset. If it was me, I very well would have made that argument in the statute of limitations section - pointing out to the court that, by pleading a breach of contract count in what was clearly a claim for racial discrimination, the plaintiffs have all but acknowledged that 10 of the 13 players claims are time barred and Count VIII was a desperate attempt to try to circumvent the statute of limitations.
I've written it before and I continue to believe that any claims raised by these 10 players, given the relief they seek, are governed by the 2 year statute of limitations. Unless plaintiffs can come up with a viable theory as to an alternate SOL, my assessment is that Judge Rose will dismiss these claims - with prejudice. That means that the plaintiffs won't have the chance to try to re-plead the claims to cure some type of pleading sufficiency (see below). The claims would be dismissed as a matter of law.
Part 2 of the Motion to Dismiss alleges that (a) in Counts I - VII, the originally filed Petition fails to assert a sufficient factual basis to support the claims asserted by Mends, Foy and Simon. I have little to no interest in breaking down the arguments in each of the counts. Generally speaking, the defendants argue that the plaintiffs have not pled sufficient facts to support the conclusion that they were subject to actionable racial discrimination and (b) in Count VIII, the plaintiffs' originally filed petition fails to plead sufficient factual basis to conclude that a contract existed between the players and the defendants, the terms of that particular contract, whether it was multi-year or one-year contract and whether the contract was oral or written. In the absence of such allegations, defendants argue that the Petition is insufficient as a matter of law.
As a practical matter, prevailing on a Motion to Dismiss because a Petition fails to state sufficient factual basis is usually, IMO, an uphill battle - and usually a steep uphill battle. But . . . this may be an example of why removing to federal court was an important maneuver. Federal court judges read Petitions/Complaints with a far more critical eye than state court judges. Rules regarding sufficiency of pleadings are more strict in federal court versus state court. In 2009, SCOTUS handed down two key opinions cited frequently by defense counsel when attacking the sufficiency of pleadings and it is not uncommon to see defense counsel argue that the Petition/Complaint is "conclusory" and lacks sufficient factual allegations. Of the claims raised in Counts I-VII by Foy, Simons and/or Mends (without going back to the original Petition, I can't recall which of the counts applies to these three or whether all of the counts apply to these three), I'm skeptical that Judge Rose concludes that there isn't a sufficient basis to move forward on those claims. Even if she feels as though the Petition is a "mess" from a pleadings standpoint, she may simple provide plaintiffs' counsel the opportunity to re-plead it. I cannot envision any scenario (nor do I believe that it would be correct at this juncture) for Judge Rose to dismiss Counts I-VII with prejudice as to Foy, Simons and Mends without the opportunity to re-plead.
Somewhat similar thoughts on Count VIII. However, even if Judge Rose believes that there is a sufficient factual basis for Foy, Simons and Mends to go forward on Counts I-VII at this time, I think that there is a very good chance that Judge Rose concludes that Count VIII is particularly lacking in facts to support a breach of contract claim. My prediction is that she grants the Motion to Dismiss Count VIII - without prejudice - and gives the plaintiffs an opportunity to try to plead sufficient facts to support a breach of contract claim. Under Iowa law (and every other state that I've defended against a breach of contract claim) a plaintiff has to plead the terms of the contract, when it was entered, what terms were breached, etc. Those types of allegations are simply lacking. Thus - although I certainly would have attacked Count VIII in Part 1 of the MTD (if I was manning the ship) - the defendants are attacking it with, IMO, a very credible argument.
In sum . . . my predictions based upon what I've read so far:
As for players other than Foy, Mends and Simons, I think Judge Rose will conclude that all of their claims in Counts I-VII are be time barred.
As for Foy, Mends and Simons' claims in Counts I-VII, I think Judge Rose will deny the motion to dismiss and allow the litigation to go forward. Even if she grants the motion, the plaintiffs will have a chance to "clean up" the Petition.
As for Count VIII, I think that Judge Rose will grant the motion but allow the plaintiffs an opportunity to "clean up" the allegations but there will have to be specific allegations supporting the existence of a contract giving rise to the specific complaint. Even if plaintiffs attempt to do so, I suspect that the defendants will attack it again with another Rule 12(b)(6) motion.
Now . . . for timing . . . plaintiffs' response brief in opposition to the Motion to Dismiss is due to be filed on December 28th.
It is not uncommon for a party opposing a Motion to Dismiss to seek additional time either with consent from opposing counsel or through a court order. Given that the holidays fall between now and the due date, I'll be very surprised if the plaintiffs don't seek an extension of time. I'm thinking that mid-January is when some type of oppositional brief will be filed.
Other than pleadings relating to a potential extension of time, I don't expect anything of consequence to happen before the end of the year.
Your law lesson for the day is over. Cheers!
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Take a bow. Very well written and even I could actually understand over 50% of this. Very informative.
As the previous gentleman just mentioned, I read a whole bunch of it, and understood some of it. Then I got inspired and pressed the tie and threw on the one suit I have (or is it press the suit and put on the tie??? Ha!) and I'm running down to the local courthouse to see if anyone needs some really weak counsel!
Pro- bono of course! Ha!
Thank You for your efforts.
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So, it looks like of the 13 players, only 3 will be left with viable claims that can move forward in a court of law: Foy, Simons and Mends. Correct?
I’ll defer to Aurora on the pleadings analysis, Fed Court wasn’t my thing. My concern is with one of the new appearances. I know Sam Langholz. He’s been a political appointee for various positions ( State Public Defender appointed by Branstad in 2010 - primarily administrative position, the with Iowa Dept of Inspections and Appeals as an administrative law judge, then Gov Reynolds Chief Counsel). He clerked for a federal judge, but has no significant trial experience ( mainly prosecuting simple misdemeanors) I don’t think he any type of experience that’s needed for defending a case like this.
My 2 cents...
My 2 cents...
In one of Dochterman's articles he had mentioned that he had contacted a number of players and they had indicated to him that they had been approached to join the suit and had declined. He didn't mention names so I assume it was off the record or he didn't think it was necessary to include names.
How do people interpret the fact that they recruited 13 players for the lawsuit. Given the number of players that complained I'm thinking the plaintiffs may be a bit disappointed at that only 13 signed on.
How do people interpret the fact that they recruited 13 players for the lawsuit. Given the number of players that complained I'm thinking the plaintiffs may be a bit disappointed at that only 13 signed on.
They're thinking they can avoid the bumpy ride in life with fistfuls of UofI cash. Of course they fail to realize that the decisions they make in life are most of the reasons FOR their life. It's someone else's fault, and they don't want to actually have to put forth effort.
and if I read it right, of the 13, only 3 will remain because of Statute of Limitations
Your question reminds me of clients who want definitive answers in an arena where definitive answers are hard to provide. Lawyers can look at a particular situation and offer opinions as to potential outcomes and, based upon what is known at that time, the potential likelihood of such outcomes. However, with very few exceptions, I am rarely in a position to opine with near certainty as to what the outcome may be. Those situations exist but they are rare outliers.
Keep in mind that litigation is an adversarial process. There are always two sides to any argument. As of now, we have an eight count Petition, removed to federal court and a Motion to Dismiss that pleading. We have yet to read/hear the plaintiffs' response in opposition to the motion which will support why they feel that they should be allowed to go forward with their claims.
Based upon what I've read thus far, I believe that:
Counts I-VII for Akrum Wadley, Jonathan Parker, Marcel Joly, Maurice Fleming, Reggie Spearman, Kevonte Martin-Manley, Darian Cooper, LaRon Taylor, Andre Harris, and Terrence Harris will be dismissed.
Counts I-VII for Aaron Mends, Javon Foy and Brandon Simon will ultimately go forward (either as currently pled or with a revised/amended Complaint)
Count VIII for all players will be initially dismissed, plaintiffs' counsel will attempt to re-plead with more specific facts and defense counsel will attack the merits of the "new" Count VIII. Hard to predict with any sense of confidence without seeing how the new Count VIII reads. Personally, I think that it will be difficult for plaintiffs to fit a civil rights/discrimination claim into a breach of contract claim but I'd like to read more before offering anything more concrete.
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Cancel culture and victimhood will make sure that is a very difficult task for whomever. It's the culture we live in now thanks to our higher education.
In your opinion, the only counts you believe that will possibly move forward will be 1-7 for those three players? Aaron Mends is the only one I even recognize and I believe he transferred as a grad transfer implying he got a degree from Iowa.
I tried to read this entire thread...
Based upon what I've read thus far, I'm thinking that the 10 players who were not in the program in the two years leading up to the filing of the lawsuit have significant statute of limitations problems in Counts I-VII.
For Foy, Mends and Simon - who were in the football program within the two years before the lawsuit was filed - I am skeptical that the court is going to dismiss the claims for not supplying sufficient facts. If I had to attach a percentage, I roughly put it at a 70% chance that the court concludes that there is a sufficient factual basis pled in the Petition for those cases to move forward. Even if the court concludes that the fact pled in the Petition are insufficient, the court will give those plaintiffs a chance to include more specific factual allegations in an effort to cure any deficiency the court finds. When all is said and done, I'll be very surprised if Foy, Mends and Simon's claims are not allowed to proceed. (Please keep in mind . . . allowing claims to proceed is not indicative of whether the claims are meritorious or that Foy, Mends and/or Simon can ultimately prevail . . . it simply means that the court will not dismiss the case before engaging in discovery).
Count VIII (breach of contract) has been brought by all of the players. As of right now, the defendants are only seeking a dismissal due to a lack of specific factual allegations to support a breach of contract claim. (i.e. when was the contract entered into, who were the contracting parties, what were the operative terms of the contract, what terms were breached, was it an oral contract or a written contract, etc). I believe that defendants' argument is strong in this regard and - based upon what I've read thus far - I think that Judge Rose will require the plaintiffs to plead more specific facts to support such a claim. Personally, based upon what has been pled, I think that they are trying to "fit" a civil rights/discrimination claim into a breach of contract claim. I'm far from convinced that it will work. That written, plaintiffs will be filing a response in opposition to the motion to dismiss (which will undoubtedly argue that the Petition properly states a claim for breach of contract) and I'll be curious to read what their reasoning may be. And, even if the court agrees with defendants' initial position, the plaintiffs will have a chance to re-plead more specific factual allegations in an effort to cure the deficiency. If/When that happens, I fully expect defense counsel to file another Motion to Dismiss attacking the sufficiency of the factual basis and/or legal basis (as noted in an earlier post, I would have gone after the legal basis in this rounds as well but they chose not to do so . . . and I'll readily admit that they may have reasons why they took that approach based upon documents in their possession)
So . . . as for Counts I-VII, I think that Foy, Mends and/or Simon's claims will ultimately proceed. I think that the other 10 plaintiffs' claims will be dismissed due to the SOL. As for Count VIII (which includes all players), it is a tough call to make at this point. I'm skeptical but it is a more difficult argument to win when compared to the SOL defense asserted in Counts I-VII for the 10 players.
As for the contract claims, I'll add this:
The Petition includes a section pertaining to each of the 13 players. While the factual allegations differ for each player (i.e. the alleged exposure to discriminatory conduct), there is an allegation included for every single player. That allegation reads:
"Akrum, like many of his African-American teammates, selected Iowa over
other offers based on the promise of receiving a high-quality college educational
experience and degree from one of the nation’s top Tier I public research institutions, the opportunity to compete in the Conference, and to join a family atmosphere that permitted him to grow as a person and an athlete."
I copied the allegation from the section on Wadley simply because he's the first listed player. You'll find the exact same allegation under each of the other 12 players. Thus, it appears to me that the breach of contract claim rests, in part, on a theory that one or more of the defendants "promised" (their words, not mine) (a) the receipt of a high quality college educational experience; (b) the receipt of a degree from one of the nation's top Tier 1 public research institutions; (c) the opportunity to compete in the Conference; and (d) to join a family atmosphere that permitted [the player] to grow as a person and an athlete.
In Count VIII, these allegations are included as well:
- Plaintiffs formed contractual relationships with the Defendants that touched
on every aspect of their life at Iowa, including their participation in Iowa Athletics in
exchange for a high-quality educational experience at a top Tier I public research institution and college degree free from discrimination and bullying.
- Plaintiffs and the University of Iowa were under obligations to each other
arising from the contract.
- Defendants breached these contracts by, inter alia, failing to expel the
systemic plague of racial discrimination and disparate treatment occurring within the
Program during K. Ferentz’s tenure.
I anticipate that they will argue that those promises may not necessarily have been reduced to writing but either expressly made by those who recruited them or that the promises were implied as part of the recruitment process. Alternatively, perhaps they will contend that such promises were implied as part of the written scholarship documents. I also anticipate that they will claim that the allegedly hostile racial atmosphere interfered with those "promises" and that they were deprived of the "promises" made.
I'd love to get the insight from other attorneys who post on the Board on this issue but here is "where my head is" currently. Civil rights statutes exist to protect individuals from discrimination based upon a protected class, including race. There need not be a contract in place - oral or written - to protect a person from being subjected to racial discrimination. In other words, protection from discrimination has nothing to do with the presence or absence of a contract. An African-American student who is not on scholarship and is studying Economics in the College of Liberal Arts cannot be subjected to unlawful racial discrimination at the University of Iowa simply because that student isn't on a scholarship. Put another way, the University of Iowa and its employees owe a "duty" not to discriminate. I'm far from convinced that the "duty" is contractual in nature. To me, the "duty" is imposed by law - by civil rights statutes and, accordingly, the claims should be governed by the two year statute of limitations. Trying to seek remedies appropriate of civil rights statutes but trying to fit them into a contractual setting seems to be ill-reasoned and a fairly obvious effort to find a viable legal theory for the 10 players who have significant statute of limitations problems.
For me (law geek/procedural geek), how the parties and Judge Rose address the allegations in Count VIII will be extremely interesting. If I was wearing the black robe, plaintiffs' counsel would have an uphill battle convincing me that breach of contract is a viable theory. That written, I've written before that this civil rights litigation is not my specialty and perhaps there is case law directly addressing this issue.
Thanks for tracking this. I think your argument regarding the nature of the relationship has merit. I wish I could add some insight but I practiced exclusively in state court handling run-of-the-mill criminal defense, divorce cases, and such then spent the last half of my career as in-house legal counsel for a bank. It does surprise me that outside counsel has not been brought in as part of the defense team.
I won’t argue with Aurora. He is right. But will say this case will be gutted. And the knees broken for the case. It will end up being a non event.
On Monday (12/21), Plaintiffs filed an unresisted (meaning that the defendants agreed to the requested relief) a motion for an extension of time to file their response brief in opposition to defendant's motion to dismiss. The court (as it is almost always willing to do when the issue is not contested) immediately granted the requested relief.
Plaintiffs' Response Brief is now due to be filed on January 11th . . . which means that they received a 14 day extension from the previous due date of December 28th.
I am 99.9% certain that there will be no docket activity between now and the time that the Response Brief is filed.
For anyone tying to "read" anything into seeking an extension of time . . . don't waste the energy. It does not mean that they need extra time to figure out how to defeat defendants' motion or that it signals that plaintiffs are struggling to figure out how to attack defendants' motion.
Requests for extensions of time are commonplace when responding to substantive motions to dismiss (the 14 day deadline is an imposing deadline). When you throw holidays into the mix, it was (IMO) almost a surety that such a request would be made.
Also . . . for anyone who may have put 2 + 2 together and realized that (a) Judge Rose is presiding over this case and (2) Judge Rose just entered injunctive relief against the U of Iowa in the Title IX case filed by four members of the U of Iowa Women's Swimming team . . . I would caution against leaping to any conclusions by comparing what happened in the Title IX case as a "sneak peak" on what may happen in this case.
I haven't closely followed any of the pleadings/proceedings in the Title IX case but plan on doing a bit of reading over Christmas Eve and Christmas Day to try to get a "feel" for Judge Rose's ruling in that case.
How can the plaintiff's claim they were PROMISED a degree from one of the nations top Tier 1 public research institutions when it is well known that a majority of African American football players at Iowa never obtain a degree? Foy appears to have been a walk on and never on scholarship - does that matter? If you are correct, (and I suspect you are) that 10 players claims are dismissed because of SOL, is it financially feasible for the plaintiff's attorneys to continue this case?
How can a particular plaintiff attempt to claim a "promise?"
PLAYER: "When I was recruited, [RECRUITER] promised me that I'd get a degree from the university."
Now . . . whether the claim is credible is a completely different question. Credibility decisions aren't made at the outset of a lawsuit. And, with very few exceptions, judges don't make credibility determinations. Juries make credibility determinations.
Your point about it being "well-known" that African American students don't receive a degree goes to the issue of credibility. I'll also add that what you call "well known" isn't something that the UI will want to proudly parade in front of a jury in the middle of a discrimination lawsuit.
Foy will likely claim that "promises" were made to him regarding opportunities to compete as a walk-on, that he eschewed other opportunities based upon the "promises" made to him and that the UI's "promises" were not met in reality. But, you're right, he can't claim that they breached the promises that were part of a scholarship.
Civil rights statutes contains fee-shifting provisions for prevailing plaintiffs. If one or more of the plaintiffs prevail at trial, the lawyers will petition the court for a fee award and the court will rule on an appropriate fee award. I'd be shocked if any of these players are paying legal fees right now. Perhaps each of them paid a relatively small initial retainer but, after that, this case is likely one of those cases akin to the advertising you see on TV . . . "if you don't win, we don't get paid." And, by "win," that would include a settlement as any settlement negotiations will undoubtedly involve an attorney fee component.
IMO, this case will proceed whether 1, 2, 3 or 13 plaintiffs remain after the motion to dismiss.
Points well taken. Overall graduation rate for Iowa football players is around 75%. For a recruiter to promise any recruit a degree seems not to be very likely. I guess deposing recruiters or getting affidavits from them would shed light on this. If defendants show one claim is not credible, that should weaken their case to a jury I would think.
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Every time I see this I just get more pissed off at what bullshit it all is. Thanks for keeping us posted Aurora.
This. I have no idea who several of these guys are and most of the rest were buried on the depth chart. Hope they can open a winery with all those sour grapes....
In my dealings with legal proceedings the attorneys seem to have set up a system that only benefits them. My theory is that many legislators are also attorneys and thus the system is rigged in their favor. I can only speak from the medical malpractice side. I got sued as part of group of everyone on the hospital chart being named. During my testimony, the lawyer suing me was sick, so his partner filled in with questioning. He asked me a bunch of questions, seemed annoyed, and then asked to speak to my attorney off the record. This was over a phone deposition. He asked, "Why are we talking to this guy? He didn't do anything and doesn't know anything." All I heard from my attorney on my side of the phone was, "I trust we will get your motion to dismiss my client soon." He then said it was good news that I was being dropped from the lawsuit.
I asked if I could counter sue or file a complaint. These douche bags had wasted my time, spent a lot of my malpractice insurance's money, and basically filed a case against me without any merit. All they did was throw out a wide net and try to catch as many fish as they could. I thought they should be punished. He basically said they have the right file a claim and then gather evidence. There was no way of knowing that the case against me was meritless until they gathered evidence and when they discovered it was, they dropped me. Only way I could sue or file with the bar association is if the plaintiffs attorneys were maliciously targeting me personally.
Now I get to file an explanation describing this suit whenever I apply for a medical license, new insurance contracts, and apply for hospital privileges for the rest of my career.
Total FWIW, not medical field related, but contracting/construction. There the process is similar to what you described...which really stinks for the "associated party", but one who is truly faultless.
Example - multiple contractors are involved on a project where there is a subsequent roof leak that damages product. Owner sues every contractor on the job, because they can and because they may truly not know who is truly at fault. It could have been just about any of the contractors and not necessarily the roofer.
Short version - a contractor who was on the job, but never on the roof was sued too. At the advice of their lawyer they settled for $5000, mainly to avoid additional legal fees and time spent fighting a BS charge...to them at least. Like you, they got to "explain" that suit/judgment for many years afterwards. Total BS.
This "case" is one of many perfect metaphors for society at large.
Aurora Hawk Maybe you can help me out. I was in the Army a while back and my drill sergeant call me names, said I was worthless, made me get up before I was ready and put me on KP and didn't issue me meal card for meals 24 hours a day. Will you hep me sue those bass turds for maybe 5 million dollars. This would really be a nice Christmas present. We can settle out of court for 3 million. Thanks Chuck
This is nothing more than a cancel culture shake down attempt directed at a juicy target.
Those former players are now persona non grata and that scum lawyer can suck a big bag o dix.
Those former players are now persona non grata and that scum lawyer can suck a big bag o dix.
Hey Aurora, Have there been any new filings today? I recalled you mentioning the extension to 1/11 and curious if you've seen anything. Thanks!
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