Sounds like Mars about to make his next move

[coach66]

Per CL. I wonder if it ties back to Robertsons cryptic teeet from a couple of days ago. We will see.

 

[Shmuley]

I'm starting to wonder if maybe Mars doesn't feel so hot about the prospects for overcoming the MTD. An old, wise lawyer once told me that the strength of a lawyer's case is sometimes inversely proportional to the volume of said lawyer's arguments. Mars is pretty loud and bombastic here.

 

[Tin Cup Cowboy]

Could you give a short break down - I refuse to read anything on that website.

 

[Shmuley]

Settlement proposal was sent to black bear side last Friday. Djork quoted as saying that the Nutt side doesn't want to negotiate. Not making a response. Mars threatens to take it to the next level.

 

[ezsoil]

I'm starting to wonder if maybe Mars doesn't feel so hot about the prospects for overcoming the MTD. An old, wise lawyer once told me that the strength of a lawyer's case is sometimes inversely proportional to the volume of said lawyer's arguments. Mars is pretty loud and bombastic here.

i believe you are correct...however, he is controlling the narrative and certainly embarrassing the Plantation during these slow summer months...and that, may be all Nutt really wanted....exposing Freeze was just a bonus.

 

[Ishmael]

What's the basis for the MTD? I haven't read the motion, but the complaint had a breach of contract claim if I recall correctly. I assume the severance agreement had a non-disparagement clause, so a breach of contract claim ought to survive a MTD under the circumstances.

 

[Shmuley]

Jurisdictional (11th Amendment). I agree Nutt should survive the MTD, but the settlement activity suggests there is more there than initially meets the eye.

 

[Beretta.sixpack]

What's lost in all of this is that Mars is suing the IHL ......

He is suing not only Ole Miss, but the IHL as well....they are going after higher education money.....now, to echo what you have said....they will have a hard time proving a dollar figure, so the only option is to settle out of court....where they have ole miss by the balls, is getting info that could further tear down the plantation.....step 1 got freeze taken down, and step 2 will be to open up the bigger can of worms with the recruits, etc.....that is their play to get this particular case settled...

Settlement proposal was sent to black bear side last Friday. Djork quoted as saying that the Nutt side doesn't want to negotiate. Not making a response. Mars threatens to take it to the next level.

 

[Arloguthrie]

I'm starting to wonder if maybe Mars doesn't feel so hot about the prospects for overcoming the MTD. An old, wise lawyer once told me that the strength of a lawyer's case is sometimes inversely proportional to the volume of said lawyer's arguments. Mars is pretty loud and bombastic here.

Agree. He has a jurisdictional defect, IMO. He could re-file in state court, but then venue could be tricky.

 

[Shamoan]

if i was om, i would recognize the case may/may not have merit, but the fact that this guy is digging and said digging has already lead to the resignation of the highest paid public figure in the state would make me extremely nervous. if it gets tied to recruiting, Hiroshima and Nagasaki got off light. for the 5-10% chance mars finds something highly damaging, 500k seems light. that is a hell of a gamble imo. the worst case is catastrophic, the best case it gets dismissed, but if allowed to continue, mars is going to inflict damage, the question is how much.

 

[Ishmael]

Thanks. Makes sense.

It is kind of funny to be making this argument in a MTD while simultaneously trying to argue phone records aren't subject to disclosure as public records because the phone was paid for by a private entity. I realize they're making those arguments in different settings and different parties are involved, and I don't fault them for doing it. It just seems like fairly inconsistent positions to take.

 

[Arloguthrie]

Thanks. Makes sense.

It is kind of funny to be making this argument in a MTD while simultaneously trying to argue phone records aren't subject to disclosure as public records because the phone was paid for by a private entity. I realize they're making those arguments in different settings and different parties are involved, and I don't fault them for doing it. It just seems like fairly inconsistent positions to take.

The Motion to Dismiss was filed by the university and the IHL (not by the OM Athletics Foundation) arguing there's not complete diversity & thus no federal jurisdiction. The Motion to Dismiss doesn't have anything to do with whether the OM Athletics Foundation is a public or private entity. If the presence of the university and the IHL destroy diversity, then the court lacks jurisdiction regardless of whether the Foundation is public or private.

 

[Ishmael]

So maybe I need to read the MTD - I thought Shmuley's reference to the 11th amendment meant they were arguing sovereign immunity only and not lack of diversity jurisdiction. It's been awhile since I've read case law on the 11th amendment, so I apologize for my mistake and you're right there's no inconsistency.

 

[Shmuley]

Correct. Should have clarified.

 

[thatsbaseball]

Arlo is there in fact a separation agreement containing a disparagement clause ?

 

[Arloguthrie]

Arlo is there in fact a separation agreement containing a disparagement clause ?

I think all sides agree there was a severance agreement, which is pretty standard. The dispute concerns whether it contains a non-disparagement clause. OM says it doesn't contain a non-disparagement clause, while Mars claims it does (or at least he claimed that in the Complaint). My guess is it doesn't contain a non-disparagement clause, but I honestly don't know.

 

[Shmuley]

I'm betting there is "language" that Mars is saying amounts to a non-disparagement requirement, but that the language is subject to interpretation. The black bears say "that ain't what that means, kemosabe."

 

[Shmuley]

IHL was required to authorize the severance agreement, making them a necessary party to the suit.

 

[Arloguthrie]

I'm betting there is "language" that Mars is saying amounts to a non-disparagement requirement, but that the language is subject to interpretation. The black bears say "that ain't what that means, kemosabe."

I agree.

 

[Ishmael]

I'm curious why your guess is there is not a non-disparagement clause? I can't imagine either side agreeing to a severance agreement without one in most cases, but I guess college coaching could be different enough from most professions that they don't normally contain such clauses.

 

[Arloguthrie]

Outside counsel for the OM Athletic Foundation was pretty emphatic in stating there was not a non-disparagement clause, that Nutt's attorney at the time asked for one, but the request was refused, and instead they agreed to give a directive to certain individuals (presumably a directive not to talk about Nutt). Granted, I suppose he could be lying, but that's not a very smart legal tactic when eventually everyone will know whether it contains a non-disparagement clause (if the case proceeds). So like Shmuley said, there's probably language that arguably is/arguably isn't a non-disparagement clause, and the parties will argue over its meaning and the individuals to whom it applies (if the case proceeds).

 

[thatsbaseball]

Thank you.

 

[jethreauxdawg]

Why would anyone on the OM side

Granted, I suppose he could be lying, but that's not a very smart legal tactic when eventually everyone will know whether it contains a non-disparagement clause (if the case proceeds).

Start telling the truth now? Gonna mess up their reputation.

 

[Ishmael]

Thanks. That makes sense; I didn't realize there had been categorical statements that no such non-disparagement clause exists. It makes sense that Ole Miss would not agree to a general non-disparagement clause and only to a specific set of individuals in what sounds a lot like a limited non-disparagement clause. It would be interesting to see the actual contract to see who would be included and exactly what is prohibited. I wonder if it was general language referencing something like a "control group" and the argument will end up being whether Freeze is in that group since I'm sure Freeze would not be personally named in his predecessor's severance agreement.

 

[Maroon Eagle]

...I wonder if it was general language referencing something like a "control group" and the argument will end up being whether Freeze is in that group since I'm sure Freeze would not be personally named in his predecessor's severance agreement.

The control group argument is exactly what I've been wondering about (maybe using titles such as athletics director, provost, chancellor, head football coach?)

 

[Dawgzilla]

Outside counsel for the OM Athletic Foundation was pretty emphatic in stating there was not a non-disparagement clause, that Nutt's attorney at the time asked for one, but the request was refused, and instead they agreed to give a directive to certain individuals (presumably a directive not to talk about Nutt). Granted, I suppose he could be lying, but that's not a very smart legal tactic when eventually everyone will know whether it contains a non-disparagement clause (if the case proceeds). So like Shmuley said, there's probably language that arguably is/arguably isn't a non-disparagement clause, and the parties will argue over its meaning and the individuals to whom it applies (if the case proceeds).

Mars didn't attach the contract to the Complaint as an exhibit. He didn't have to, of course, but in my experience Plaintiffs tend to attach a copy of the contract when the language is clearly in their favor. It said a lot to me that not only did Mars not include the contract as an Exhibit, but he also failed to directly quote the contract in the Complaint, just giving a statement of what the contract allegedly said.

Could just be Mars' style, though, so it might not mean anything, but I suspect the language of the contract is not so cut and dry.

 

[goindhoo]

Probably cause there is a confidentiality agreement

 

[Shmuley]

Or it could be that the severance agreement prohibits public dissemination of the agreement by either party. The agreement, therefore, would have been tendered to the court under seal.

 

[Ishmael]

Or it could be that the severance agreement prohibits public dissemination of the agreement by either party. The agreement, therefore, would have been tendered to the court under seal.

I'm pretty sure this is accurate. I can't remember where I saw the complaint, but I think it references a confidentiality provision and being an exhibit filed under seal.

 

[8dog]

Which is what he did. He attached it under seal

but as noted above if it was so clear he would have quoted it

 

[Wizard of bulldogery]

I know this isn't exactly related, but if evidence of lying in writing to the different reporters and using that to blame all the NCAA stuff on Nutt... couldn't they use that to enter into a separate lawsuit for criminal proceedings for Libel/slander? as opposed to a contract dispute?... seems like it would be easier to have that thrown out initially but the other way not so much... so using the evidence discovery for contract stuff to pin them into a corner for a bigger issue. basically using the disparagement stuff as a tactic to leverage a bigger case
PS i'm ignorant of legal proceedings

 

[Dawgzilla]

Well, sure, there's that....

​Nevermind.

 

[Willow Grove Dawg]

Ole Miss cannot afford any admission of guilt and apology as part of a settlement without potentially severe NCAA consequences. An admission of guilt in this suit would signal (1) that Ole Miss willfully breached the Confidentiality Clause required by rule during a NCAA Investigation and (2) Ole Miss willfully misled recruits to sign with Ole Miss which would probably result in the NCAA releasing all of the 2016 signees to transfer without having to sit out a year.

 

[josebrown]

Outside counsel for the OM Athletic Foundation was pretty emphatic in stating there was not a non-disparagement clause, that Nutt's attorney at the time asked for one, but the request was refused, and instead they agreed to give a directive to certain individuals (presumably a directive not to talk about Nutt). Granted, I suppose he could be lying, but that's not a very smart legal tactic when eventually everyone will know whether it contains a non-disparagement clause (if the case proceeds). So like Shmuley said, there's probably language that arguably is/arguably isn't a non-disparagement clause, and the parties will argue over its meaning and the individuals to whom it applies (if the case proceeds).

Ive heard people use that attorney as the reason they believe there isn't a non-disparagement clause, and I'm not sure I find the same conclusion. In fact, I know I don't. One reason is because one of their attorneys lied clearly when he said the originally known Hugh Freeze escort call was a "mis-dial". And for two years the whole lot of their family has made lying their policy. He may very well be telling a true story, but I'm very hesitant in trying to believe anything from their family to include attorneys.

 

[DancingRabbit]

Well, that's twice Arlo has been right

But, I sense a "great depression" coming soon in some parts