Swinging Your Sword Against Sovereign Immunity and High-Sea Thievery: How Texas Tech Invoked Sovereign Immunity to Avoid Paying Mike Leach Millions of Dollars

by Grant Alan Williams, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Mike Leach, the author of the New York Times Best Seller “Swing Your Sword: Leading the Charge in Football and Life” and former head football coach at Mississippi State University, was widely regarded as one of the most influential and eccentric individuals in all of college football history.¹ Whether he was discussing his patented air raid offense, wedding advice or his infatuation with pirates, Coach Leach remained brazen and authentic.² Sadly, Coach Leach passed away in December 2022 from heart complications.³

Reflecting on his legacy, this article explores sovereign immunity in Texas and how Texas Tech University invoked it to avoid paying Mike Leach millions of dollars following his untimely termination after he led the program to prominence during his tenure.⁴ Section II provides background on the doctrine of sovereign immunity, its utilization in Texas, and the dispute between Mike Leach and Texas Tech. Section III postulates that Texas Tech essentially robbed Mike Leach of millions of dollars and that sovereign immunity should be waived when a state enters into a contractual agreement with a private individual or entity. Lastly, Section IV suggests that Texas reconfigure its sovereign immunity laws and Texas Tech make good on its contract with Coach Leach.

II. Background

A. Don’t Mess with Texas, Literally

Sovereign immunity protects states and their entities from damages arising out of lawsuits.⁵ Typically, a state waives its immunity when it enters into an agreement with a private citizen.⁶ However, in the State of Texas, the State nor government entity waive immunity by simply entering into a contract.⁷ A plaintiff must obtain legislative consent to sue the State or one of its entities.⁸ This means a plaintiff must bring a breach of contract lawsuit pursuant to a particular statute or obtain a legislative resolution.⁹ Further, a court does not have subject matter jurisdiction to hear a breach of contract case against the State or its entities unless there is a clear and unambiguous waiver of sovereign immunity.¹⁰

B. Mike Leach and Texas Tech

Mike Leach was the head coach at Texas Tech University for over ten years, leading the Red Raiders to a record of 84–43.¹¹ He was fired over the alleged mistreatment over a player, which he vehemently denied and was eventually shown to be false by testimony and video.¹² The University used the allegation to establish for-cause termination, resulting in forfeiture of a $800,000 bonus due to Coach Leach the day after his termination.¹³ After the District Court of Lubbock determined Texas Tech had waived its sovereign immunity, the Court of Appeals for the Seventh District reversed and held the University did not waive its sovereign immunity.¹⁴ The court found that an individual may not sue for payment from the State without legislative consent.¹⁵ Furthermore, Texas Tech cannot be sued for damages without its permission, regardless if they breach their duties.¹⁶ Coach Leach maintained that the University owed him $2.5 million dollars.¹⁷

III. Discussion

A. High-Sea Thievery

It is rather ironic that a man so infatuated with pirates would fall victim to such thievery. To add insult to injury, many individuals tried to tarnish Mike Leach’s name along the way.¹⁸ As a result of his hard work, Texas Tech enjoyed nine wins and a finish in the AP Top 25 the year he was fired.¹⁹ Further, multiple Texas Tech players and coaches went on the record and stated the alleged victim was the trouble, not Coach Leach.²⁰ Instead of conducting a thorough investigation and coming to a fact-based conclusion, the University to conveniently terminated his contract a day before he was owed thousands of dollars.²¹ Although the University denied the bonus played any role in Coach Leach’s termination, emails surfaced that contradicted their assertion.²² Furthermore, he continued to pay thousands of dollars to consulting and legal firms in an attempt to get what his contract guaranteed him.²³ It took two years for Coach Leach to find a new head coaching position after the Texas Tech debacle. He would go on to lead two universities, each without a history of winning, to winning records during his tenures.²⁴ Texas Tech should publicly apologize and make good on the contractual terms they agreed to by paying Mike Leach’s family what is owed to them. It is the very least the University could do for a man who revitalized not only the football program, but also the campus as a whole.

B. Texas Must Change its Sovereign Immunity Law

The idea of sovereign immunity in the State of Texas, especially in the context of contractual agreements, is tyrannical and inequitable. Justifications for such immunity are rooted in the belief that the public must be shielded from the monetary consequences of government action and allowing individuals to sue the State as they please would cause burdensome distractions and expenses for the government.²⁵ However, any distraction or expense resulting from the State’s failure to abide by the obligations set forth in a contractual agreement with a private citizen is of the State’s own doing. The notion that a plaintiff must receive permission from the entity they are attempting to sue for damages is irrational and outdated. Sovereign immunity is derived from beliefs that monarchs “could do no wrong” and that the king was above the courts.²⁶ The founders of the United States rejected such beliefs when they declared their independence from the British monarchy.²⁷ Such a law runs afoul of the simple premise the United States was founded on; one is entitled to enjoy the fruit of one’s labor.²⁸ Not only was Coach Leach robbed of the fruit of his labor, he was robbed of an opportunity to clear his name. Furthermore, Texas remains one of the few states where the government or its entities cannot be sued for money damages associated with breach of contract.²⁹ Comparatively, the Indiana Supreme Court concluded the idea that a state could invoke sovereign immunity after failing to perform their obligations agreed to in a contractual agreement with a private citizens was illogical, as it meant a state could simultaneously be bound and not bound by the obligations set forth in contractual agreements.³⁰ What is the point of entering into legal agreements with the State of Texas or its entities if they are allowed to circumnavigate otherwise binding contracts without fear of facing monetary or liability retribution?

IV. Conclusion

Texas Tech University should finally swing their sword in the right direction and make good on their contractual agreement with Coach Leach by paying his family the money he is owed. It is embarrassing that the University would run a good man’s name through the mud and invoke a tyrannical law to prevent Coach Leach from enjoying the fruit of his labor. Texas and its entities must be held responsible for their failure to perform the duties set forth in a legally binding contract, just as every individual is. Therefore, the State must reconfigure their sovereign immunity laws, at least in regard to contractual agreements.

Cover Photo by Talena Reese on Pexels

Grant A. Williams

Grant Williams is a 3L from Kingsport, TN. Grant’s primary interests within the legal field include antitrust, securities regulation, and M&A. After law school, Grant anticipates pursuing a career as a transactional attorney and antitrust litigator. During his free time, Grant enjoys fishing, golfing, working out, playing guitar, listening to country music, and spending time with his friends and family.

References

1
Ross Dellinger, ‘The Most Interesting Man Alive’: Stories About Mike Leach Paint His Life Picture, SI (Dec. 14, 2022), https://www.si.com/college/2022/12/14/mike-leach-stories-mississippi-state-wazzu-legacy.
2
See id.
3
Mississippi State Coach Mike Leach Dies After Hospitalization, ESPN (Dec. 13, 2022), https://www.espn.com/college-football/story/_/id/35242848/mississippi-state-coach-mike-leach-dies-hospitalization.
4
Alex Kirshner, Why Mike Leach is Angry About Texas Tech and Sovereign Immunity, SI (Aug. 5, 2017, 1:19 PM), https://www.sbnation.com/college-football/2017/8/5/16101556/mike-leach-texas-tech-sovereign-immunity.
5
Jason Freeman, Governmental Immunity Under Texas Law, JDSupra (Apr. 12, 2022), https://www.jdsupra.com/legalnews/governmental-immunity-under-texas-law-2391826/.
6
Id.
7
Id.
8
Id.
9
Id.
10
Brandon Brauer, Sovereign Immunity Protects Public Texas University in Construction Dispute, JDSupra (Dec. 11, 2020) (citing Texas Southern University v. Pepper Lawson Horizon International Group, LLC, No. 01-19-00395, 2020 WL 703584 (Tex. Ct. App. Dec. 1, 2020), https://www.jdsupra.com/legalnews/sovereign-immunity-protects-public-81594/.
11
Mike Leach, Wikipedia, http://en.wikipedia.org/wiki/Mike_Leach_%28coach%29 (last visited Mar. 23, 2023).
12
Corey Wiese, The Mike Leach Firing: Testimonies and Videos that Show Leach Is Innocent, Bleacher Rpt. (Dec. 11, 2010), https://bleacherreport.com/articles/540633-the-mike-leach-firing-testimonies-and-videos-that-show-leachs-innocence.
13
Andy Kostka, Mike Leach: Maybe Texas Tech Will ‘Deliver the Check’ He Feels He’s Owed After 2009 Firing, USA Today (Dec. 13, 2021, 1:38 PM), https://www.usatoday.com/story/sports/ncaaf/2021/12/13/mike-leach-texas-tech-firing-liberty-bowl-mississippi-state-football/6497796001/.
14
Martin J. Greenberg & Jessica Pfau, The Defense of Sovereign Immunity: Mike Leach and Texas Tech, Marq. L. Rev. (2011) (citing Leach v. Texas Tech University, 335 S.W.3d 386, 401 (Tex. Ct. App. 2011)), https://law.marquette.edu/assets/sports-law/pdf/Leacharticle-9-04-12.pdf.
15
Id. (citing Leach, 335 S.W.3d at 392).
16
Id.
17
Alex Kirshner, Why Mike Leach is Angry About Texas Tech and Sovereign Immunity, SI (Aug. 5, 2017, 1:19 PM), https://www.sbnation.com/college-football/2017/8/5/16101556/mike-leach-texas-tech-sovereign-immunity.
18
Jeff Benedict & Armen Keteyian, The Battle Between Mike Leach and Craig James at Texas Tech, SI (Sept. 9, 2013), https://www.si.com/college/2013/09/09/system-leach-excerpt.
19
Mike Leach, Wikipedia, http://en.wikipedia.org/wiki/Mike_Leach_%28coach%29 (last visited Mar. 23, 2023).
20
Corey Wiese, The Mike Leach Firing: Testimonies and Videos that Show Leach Is Innocent, Bleacher Rpt. (Dec. 11, 2010), https://bleacherreport.com/articles/540633-the-mike-leach-firing-testimonies-and-videos-that-show-leachs-innocence.
21
Andy Kostka, Mike Leach: Maybe Texas Tech Will ‘Deliver the Check’ He Feels He’s Owed After 2009 Firing, USA Today (Dec. 13, 2021, 1:38 PM), https://www.usatoday.com/story/sports/ncaaf/2021/12/13/mike-leach-texas-tech-firing-liberty-bowl-mississippi-state-football/6497796001/.
22
Henry Ball, Mike Leach vs. Texas Tech University: Why It Should Matter To Everyone, Bleacher Rpt. (Jan. 13, 2010), https://bleacherreport.com/articles/325118-mike-leach-v-texas-tech-university-and-why-it-should-matter-to-everyone (“[I]n emails between [Chancellor] Hance and others involved in negotiating Leaches’ $12.5M Contract they clearly outline the intent to fire Leach PRIOR to the deadline for him to earn that $800,000 bonus and they clearly discuss the intent not to fulfill the following years of the contract.”).
23
Daniel Libit, Leach’s Texas Tech Records Raiders Hope Costly Fight Survives Him, Sportico (Dec. 14, 2022, 9:00 AM), https://www.sportico.com/leagues/college-sports/2022/mike-leach-records-lawsuits-1234698384/.
24
Mike Leach, Wikipedia, http://en.wikipedia.org/wiki/Mike_Leach_%28coach%29 (last visited Mar. 23, 2023).
25
Elaine Renberg, The Texas Two-Step: A Streamlined Application of Governmental Immunity to Contracts in Texas, 73 Bay. L. Rev. 696, 698 (2021) (citing Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 703–04 (Tex. 2019); Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 382 (Tex. 2006) (Brister, J., concurring)).
26
Jonathan G. Brush & Liz M. Rice, Governmental Immunity Update, U.T. Austin Law Conference (Feb. 20–21, 2020) (citing Hosner v. De Young, 1 Tex. 764, 769 (Tex. 1846); Wasson Interests, Ltd. v. City of Jacksonville (Wasson I), 489 S.W.3d 427, 431 (Tex. 2016) (observing rationales for sovereign immunity originated from the English legal fiction that “[t]he King can do no wrong” (quoting 1 William Blackstone, Commentaries 246)), https://m.winstead.com/portalresource/lookup/wosid/cp-base-4-109702/overrideFile.name=/Governmental%20Immunity%20Update%20BrushRice.pdf.
27
Eliga Gould, The American Founders Made Sure the President Could Never Suspend Congress, The Conversation (Sept. 3, 2019, 10:00 AM), https://theconversation.com/the-american-founders-made-sure-the-president-could-never-suspend-congress-122703.
28
See John Locke, Second Treatise, §§ 25–51, 123–26.
29
Martin J. Greenberg & Jessica Pfau, The Defense of Sovereign Immunity: Mike Leach and Texas Tech, Marq. L. Rev. (2011), https://law.marquette.edu/assets/sports-law/pdf/Leacharticle-9-04-12.pdf.
30
Renna Rhodes, Principles of Governmental Immunity in Texas: The Texas Government Waives Sovereign Immunity When It Contracts – Or Does It, Comment, 27 St. Mary’s L.J. 679, 706 (1996) (citing Carr v. State ex rel. Du Coetlosquet, 26 N.E. 778, 779 (Ind. 1891) (determining that by entering into contract, a state lays aside its sovereign attributes and is not protected by sovereign immunity)).