Leavitt files Lawsuit

[Triple B]

It was obviously the trashing of Erskin's locker that caused Leavitt to be considered an "immediate threat" and fired immediately without said hearing.

He didn't have Snake's locker trashed, he had it emptied ... but I guess they could still try and spin that into an "immediate threat" if they really wanted to.

[Who'sYourData?]

It was obviously the trashing of Erskin's locker that caused Leavitt to be considered an "immediate threat" and fired immediately without said hearing.

He didn't have Snake's locker trashed, he had it emptied ... but I guess they could still try and spin that into an "immediate threat" if they really wanted to.

Well, none of us were there.  And I meant "trashed" as in his locker contents were thrown in the trash.  Emptying Erskin's locker would not be a problem.  Two things could be a problem. 

One, was this normal procedure for graduating seniors, especially ones that were injured heading into the offseason?  If not, that's a problem.

Two, more importantly, were any of Erskin's personal items thrown away without sufficient warning?  Again, if all the seniors lockers were done the same way, no problem.  If Erskin was the only one, big problem.

Given the timing of the firing in relatiion to all the other events, one has to believe this incident lead to the firing.

I'd bet money that if this ever goes to trial, USF will highlight this incident (and others not publicly reported?) as cause for termination.  When an investigation like this is started, management is reminded of the seriousness of "retaliation" in a legal sense.  There is very strong employement law focused on retaliation.  The original investigation does not have to be proven true for a case of retaliation to stand.

[macphisto]

I don't get this at all.  Civil court is about damages, that's it.  What difference does it make if they gave Leavitt a pre-termination hearing?  Would he have been able to present any information pre-termination that he could not present post-termination?  Of course not.  So the end result is that Leavitt would have been employed for one extra week.  Congrats, his total damages would be about $15,000 for not following process.

If anything, waiting as long as they did and then firing him immediately supports USF's case.  If they planned on firing him, they would have done so sooner.  It was obviously the trashing of Erskin's locker that caused Leavitt to be considered an "immediate threat" and fired immediately without said hearing.

The problem with the pre-termination meeting is that by not doing it the argument can be made that USF breached the contract.  No matter what Leavitt did, he was due a pre-termination meeting and review of the report findings with his attorneys.  USF will likely claim that they did have a pre-termination meeting when they brought the report and asked him to apologize.  That would be pushing credulity.

Civil cases are not merely about damages.  They are about contracts.  There is a discipline aspect in USF's contracts and if USF did not follow it precisely then they may be found to have breached the contract.  At that point they would be on the hook for whatever buyout the contract stipulates for a coach being fired.  If there is no buyout stipulated then they'd be on the hook for whatever is left.

Leavitt's attorneys are the best in the state when it comes to employment law.  As I said, I know them and their rep.  They would not have represented him if they didn't think he had a strong case. 

All the dirt USF may have on Leavitt is immaterial.  If he had never been reprimanded by USF before then that severely hurts them because there would be no paper trail.  They didn't give him due process as stipulated in the contract, so it becomes about USF not following their own procedure.

If there's a buyout then you can bet that that's what USF will have to pay. 

Now, the specifics of the report are a different matter.  If there's any evidence that USF railroaded Leavitt, that is where damages would come in.  I read the report and it was sloppy.  Lots of contradictions from all kinds of people in there.  If Leavitt was dismissed for no one agreeing with his story then why were players that also were not consistent with other stories also not dismissed from the team? 

For the damages part you will likely see the argument that a bunch of privileged kids ganged up and had plenty of time to work together on a story.  That's a huge problem.  They will all be called to testify under oath first in a deposition and in court if necessary.  In a trial the lawyer will probably end up bringing up race and that fact that black players did not speak out against Leavitt whereas more privileged white ones did.  Those privileged kids just couldn't take it and felt they deserved better.  You will hear accusations of a conspiracy.

And the big thing that USF has to watch out for is if any boosters emailed or wrote letters to USF directly.  If they did and demanded that USF fire Leavitt or funds would be withheld - well, in a bad economy that could be incentive to can the coach and use this as a means of doing so. 

I do think USF got booster pressure.  I don't think that played into their decision.  But if you go to jury trial (and this would be) you don't have to convince all jury members.  This is not a criminal case.  You only need nine members of a 12 member jury in a civil case for a judgement.  They also can suggest punitive damages and Florin-Roebig are good at driving that number up.

If there's any malfeasance on USF's part and Leavitt's attorneys can argue that USF hurt his career then USF could get hit with both whatever was owed on the contract and millions of dollars in lost pay via punitive damages.  I'd say it could go as high as $20-25 million against USF IF there is any sense of booster pressure or manipulation of the data on their part.  And it's not hard to convince a jury of that stuff.  They'd have to hope that the judge or an appeals court would reduce the penalty in that case.  I wouldn't be surprised if a jury came back with a crazy number - like $100 million - only to see it reduced by the judge.  Juries often like the extremely high punitive damages.

[fhemmer209]

I don't get this at all.  Civil court is about damages, that's it.  What difference does it make if they gave Leavitt a pre-termination hearing?  Would he have been able to present any information pre-termination that he could not present post-termination?  Of course not.  So the end result is that Leavitt would have been employed for one extra week.  Congrats, his total damages would be about $15,000 for not following process.

If anything, waiting as long as they did and then firing him immediately supports USF's case.  If they planned on firing him, they would have done so sooner.  It was obviously the trashing of Erskin's locker that caused Leavitt to be considered an "immediate threat" and fired immediately without said hearing.

The problem with the pre-termination meeting is that by not doing it the argument can be made that USF breached the contract.  No matter what Leavitt did, he was due a pre-termination meeting and review of the report findings with his attorneys.  USF will likely claim that they did have a pre-termination meeting when they brought the report and asked him to apologize.  That would be pushing credulity.

Civil cases are not merely about damages.  They are about contracts.  There is a discipline aspect in USF's contracts and if USF did not follow it precisely then they may be found to have breached the contract.  At that point they would be on the hook for whatever buyout the contract stipulates for a coach being fired.  If there is no buyout stipulated then they'd be on the hook for whatever is left.

Leavitt's attorneys are the best in the state when it comes to employment law.  As I said, I know them and their rep.  They would not have represented him if they didn't think he had a strong case. 

All the dirt USF may have on Leavitt is immaterial.  If he had never been reprimanded by USF before then that severely hurts them because there would be no paper trail.  They didn't give him due process as stipulated in the contract, so it becomes about USF not following their own procedure.

If there's a buyout then you can bet that that's what USF will have to pay. 

Now, the specifics of the report are a different matter.  If there's any evidence that USF railroaded Leavitt, that is where damages would come in.  I read the report and it was sloppy.  Lots of contradictions from all kinds of people in there.  If Leavitt was dismissed for no one agreeing with his story then why were players that also were not consistent with other stories also not dismissed from the team? 

For the damages part you will likely see the argument that a bunch of privileged kids ganged up and had plenty of time to work together on a story.  That's a huge problem.  They will all be called to testify under oath first in a deposition and in court if necessary.  In a trial the lawyer will probably end up bringing up race and that fact that black players did not speak out against Leavitt whereas more privileged white ones did.  Those privileged kids just couldn't take it and felt they deserved better.  You will hear accusations of a conspiracy.

And the big thing that USF has to watch out for is if any boosters emailed or wrote letters to USF directly.  If they did and demanded that USF fire Leavitt or funds would be withheld - well, in a bad economy that could be incentive to can the coach and use this as a means of doing so. 

I do think USF got booster pressure.  I don't think that played into their decision.  But if you go to jury trial (and this would be) you don't have to convince all jury members.  This is not a criminal case.  You only need nine members of a 12 member jury in a civil case for a judgement.  They also can suggest punitive damages and Florin-Roebig are good at driving that number up.

If there's any malfeasance on USF's part and Leavitt's attorneys can argue that USF hurt his career then USF could get hit with both whatever was owed on the contract and millions of dollars in lost pay via punitive damages.  I'd say it could go as high as $20-25 million against USF IF there is any sense of booster pressure or manipulation of the data on their part.  And it's not hard to convince a jury of that stuff.  They'd have to hope that the judge or an appeals court would reduce the penalty in that case.  I wouldn't be surprised if a jury came back with a crazy number - like $100 million - only to see it reduced by the judge.  Juries often like the extremely high punitive damages.

You make many good points. I also read both the investigation and the complaint. I think USF is facing considerable expense if Leavitt plays it all out. Hopefully they will settle and do it quickly.

[USF_Grouper]

only thing that was mishandled was the pre-termination meeting... thats about it

Perhaps.  I keep hearing "in his contract".  I was always under the impression this pre-terminaton meeting was actually part of USF's process and not spelled out in his contract.  Either way, Leavitt's lawyers claimed USF said it was an emergency situaton because of recruiting, but I haven't heard that from USF.  I would think it is an emergency situation because we have a coach who we know believe has struck a player, and seems to be tossing peoples property in the trash.  Under those circumstances I don't think you give him notice, you simply tell him to clean out his desk.

I have lost an awful lot of respect for Jim in his unwillingness to be a man about this.  People make mistakes, but Jim has thrown his players under the bus for his personal gain.  Unfortunate and I think in the long run will make it much more difficult for him to find another coaching job.

[Who'sYourData?]

Good points, Mac.  But I still think USF has their ducks in a row.  I don't see how booster pressure makes any difference at all.  The decisions still rest with Woolard and Genshaft.  Managers get pressure from all kinds of people all the time. That doesn't make them more or less liable for their decisions. 

[Bullsfan2000]

Regarding Colby Erskin, what I heard is that Leavitt did put his personal items in the trash, and not just his team gear, and without warning.  I also heard that there was another player in the locker room when this happened, and he was quickly interviewed and had the same story as Erskin.

I believe that for all seniors who have finished their eligibility, their lockers are kept as they prepare for their combine or other workouts.  The same is probably true for a guy who is recovering from surgery and rehabilitating at the school's facility. 

I could picture senior player's lockers maybe being moved to another place if space/numbers are an issue.  But I would never imagine that the protocol would be to throw a player's stuff in the trash can. 

[Triple B]

Regarding Colby Erskin, what I heard is that Leavitt did put his personal items in the trash, and not just his team gear, and without warning.  I also heard that there was another player in the locker room when this happened, and he was quickly interviewed and had the same story as Erskin.

Leavitt personally put his stuff in the trash?

[cmhatter]

straight out of leavitt's own mouth (could be lying, could be truth, who knows)

he did not put the gear in any trash bin nor did he touch it himself... i said the name of the guy who did it in another thread that i dont care to dig up.

[macphisto]

Good points, Mac.  But I still think USF has their ducks in a row.  I don't see how booster pressure makes any difference at all.  The decisions still rest with Woolard and Genshaft.  Managers get pressure from all kinds of people all the time. That doesn't make them more or less liable for their decisions. 

Booster pressure does make a difference because boosters both directly donate and help with publicity. 

And I'm not sure that USF's ducks are in a row.  I'm a manager myself.  I've fired people, even people under contract.  That's how I know this stuff and how I'm familiar with Florin-Roebig.  I understand the bad position that Genshaft and Woolard were in.  This report hits their desk.  They have to confront Leavitt and they have the end of the "hands off" window with recruits coming to an end.  Signing day is close and the best opportunity to find a new coach is up in Orlando during the upcoming weekend.  You have to make a decision fast and that means that all the "i"s may not be dotted and the "t"s may not be crossed. 

This report reeks of something slapped together quickly from data because their backs were up against the wall.  Can't get near signing day without clarity on Leavitt's status.  Not likely to draw as much interest if recruiting ends up bombing out because of this.  You're stuck between a rock and a hard place. 

Frankly if I were in Genshaft's shoes and I supposedly was informed of other problems with Leavitt in the past then I wouldn't give him the chance to admit it and keep his job.  If I feel the evidence is there that he did this and is a repeat offender then I can him.  But that's not supposedly what she tried to do.  I think they hoped Leavitt would basically own up BECAUSE they were well aware that this wouldn't be smooth sailing for USF if they canned him.  They'd be able to formally reprimand him but the recruiting class would likely stay fairly intact.  Then they'd have a paper trail and at the first sign of trouble they'd be able to more easily act with a much clearer road.

If USF believes that they are clear and they don't want to offer a generous multi-million dollar deal to settle then their lawyers should be canned because civil juries eat this stuff up.  Leavitt's lawyers will talk about how USF violated its own process.  How they never documented issues with Leavitt in the past.  They will subpoena phone records from all the players involved to see if they increased their frequency for talking and they likely will try to get texts from cell carriers if they are available.  They will subpoena USF's phone records and look for any prominent people that called.  They will subpoena USF's emails to see if anyone prominent threatened them with withdrawing funds if they didn't use this as an excuse to can Leavitt.

This is a civil case and reasonable doubt goes out the door.  If Leavitt's lawyers can paint a picture of an administration under pressure for a change and students that may have worked on their story in the long period between the incident in question and the investigation then they could get millions.  They will subpoena the students that testified against Leavitt and drag them through the mud.  They will go after the investigators hard as well and look at anything that was left out of the report closely (it's clear that the report is selective).

And then they will bring in people that will estimate how much Leavitt could have earned had USF not wrongfully impugned him.  They will argue that he could have been a head coach for at least 15 more years and that he could have earned at least $20M during that time.  They will bring up however much he would make in sponsorship deals.

And they will harp on USF not following its own procedure the whole time.  They will continuously say that by not giving Leavitt a chance to respond that they violated the rights that his contract gave him and they will ask for the jury to award punitive damages to punish USF for what they did.

The jury could get all worked up over how this school screwed Leavitt over and, as I said, come back with some crazy punitive award of $50M or more.  A judge would reduce that, but that's what Florin-Roebig does.

I'd say that if USF offers Leavitt $5M that he might go away.  If not then I think they could end up on the hook for $20-25M, though it would take years to get there after appeal. 

Best thing is to reach a settlement and make it go away.  Problem for USF is that I'd bet that Leavitt wants an apology from USF as part of that.  He wants them to say they screwed up in some way so he can pretty up his resume.

Like I said, I'm very happy we have Coach Holtz.  I think are program has a brighter future with him BUT I'm not convinced that the administration handled everything well.  I think they did about as well as they could all things considered if they were set on dismissing Leavitt.  There backs were up against the wall due to the calendar.  Had this happened in spring practice or something then it would have been easier to go forward, though they'd have ended up with an interim coach from the staff.  The best time to can a coach is at the end of the regular season before the bowls. 

Just know that a civil case is not a slam dunk for USF.  Leavitt has a strong case based on USF denying him due process and that's bad news under contract law.  At best they will only have to pay the buyout for breaching contract.  At worst they will be blamed for ruining a career and be forced to pay much more.