Professional Documents
Culture Documents
)
RICHARD A. PITINO, )
)
PLAINTIFF, ) CAUSE NO. 3:17-cv-00722-DJH
)
v. )
) DEFENDANTS ANSWER TO
UNIVERSITY OF LOUISVILLE ) PLAINTIFFS VERIFIED
ATHLETIC ASSOCIATION, INC., ) COMPLAINT AND
) COUNTERCLAIM
DEFENDANT. )
)
conclusions. To the extent a response is required, ULAA admits that Plaintiff purports to bring
this lawsuit for breach of contract pursuant to state law. ULAA specifically denies it has
committed any such breach or that Plaintiff is entitled to any relief against ULAA.
2. ULAA admits the averments of Paragraph 2 of the Complaint to the extent that
this Court has original subject matter jurisdiction over this matter.
8. ULAA admits the averments of Paragraph 8 of the Complaint that ULAA could
terminate the Contract for Just Cause or impose other appropriate discipline consistent with
the terms of the Contract which speaks for itself. ULAA denies any averments inconsistent with
foregoing.
9. ULAA admits the averments of Paragraph 9 of the Complaint to the extent that
Plaintiff had certain rights under the Contract under section 6.5 which speak for themselves.
10. ULAA affirmatively states that the unsealed complaint referenced in Paragraph 10
speaks for itself. ULAA is otherwise without sufficient knowledge or information to admit or
deny the averments of Paragraph 10 of the Complaint, and therefore, denies same.
Plaintiff on administrative leave in response to a pending FBI investigation. ULAA denies the
14. ULAA admits the averments of Paragraph 14 of the Complaint to the extent that
Plaintiffs counsel sent ULAA a letter dated September 29, 2017. ULAA denies all remaining
15. ULAA denies the averments of the first two sentences of Paragraph 15 of the
Complaint. ULAA admits the averments of the final sentence of Paragraph 15 only to the extent
that, by letter dated October 3, 2017, ULAA provided Pitino with Notice of the charges against
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him which constituted Just Cause for termination. ULAA denies any averment not specially
admitted.
16. ULAA admits the averments of Paragraph 16 of the Complaint to the extent they
are consistent with the documents that speak for themselves. ULAA denies any characterizations
17. ULAA admits the averments of Paragraph 17 of the Complaint to the extent that
they are consistent with the documents that speak for themselves. ULAA admits in documents it
informed Pitino that based on his above-listed conduct, he was charged with violating multiple
provisions of his Contract. ULAA denies any averment inconsistent with the foregoing.
18. ULAA admits the allegations of Paragraph 18 of the Complaint in that it provided
Pitino with an opportunity to be heard at a ULAA Board of Directors October 16, 2017 meeting.
legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and plain statement.
ULAA affirmatively states that Mr. Pitino made arguments through counsel at the October 16,
2017 meeting. Those statements speak for themselves and ULAA denies that the statements and
legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and plain statement.
ULAA affirmatively states that Mr. Pitino made arguments through counsel at the October 16,
2017 meeting. Those statements speak for themselves and ULAA denies that the statements and
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legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and plain statement.
ULAA affirmatively states that Mr. Pitino made arguments through counsel at the October 16,
2017 meeting. Those statements speak for themselves and ULAA denies that the statements and
legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and plain statement.
ULAA affirmatively states that Mr. Pitino made arguments through counsel at the October 16,
2017 meeting. Those statements speak for themselves and ULAA denies that the statements and
legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and plain statement.
ULAA affirmatively states that Mr. Pitino made arguments through counsel at the October 16,
2017 meeting. Those statements speak for themselves and ULAA denies that the statements and
26. ULAA admits the allegations of the first sentence of Paragraph 26 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
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27. ULAA admits the allegations of the first sentence of Paragraph 27 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
28. ULAA admits the allegations of the first sentence of Paragraph 28 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
29. ULAA admits the allegations of the first sentence of Paragraph 29 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
30. ULAA admits the allegations of the first sentence of Paragraph 30 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
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the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
31. ULAA admits the averments of the first sentence of Paragraph 31 of the
Complaint as legal arguments and in violation of Fed. R. Civ. P. 8 in failing to be a short and
plain statement. ULAA affirmatively states that Mr. Pitino made arguments through counsel at
the October 16, 2017 meeting. Those statements speak for themselves and ULAA denies that the
33. ULAA admits the averments of Paragraph 33 of the Complaint to the extent they
34. ULAA admits that Plaintiffs counsel sent a letter to ULAA dated October 25,
2017, in which he claimed that ULAA was in material breach of the Contract, and further that he
would terminate the Contract unless ULAA remedied its alleged material breach. ULAA denies
36. ULAA admits the averments of Paragraph 36 to the extent that Pitino, by letter
dated November 27, 2017, purported to notify ULAA of his intent to terminate the Contract for
failure to remedy. ULAA denies all remaining averments or implications of Paragraph 36 of the
Complaint.
37. With respect to Paragraph 37 of the Complaint, ULAA states that the Contract
speaks for itself. ULAA denies that it committed a material breach or that Plaintiff is entitled to
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liquidated damages under this provision, or any damages whatsoever. ULAA denies all
allegations of Paragraph 38 of the Complaint, and therefore, denies same. ULAA affirmatively
states that Plaintiff, under the Contract, is not entitled to the damages sought, or any relief
whatsoever.
42. ULAA admits the averments of Paragraph 42 to the extent that the Employment
Contract authorized ULAA to terminate Plaintiff for cause. ULAA denies all remaining
46. ULAA denies the averments of Paragraph 46 of the Complaint. ULAA further
denies that Plaintiff is entitled to the damages he seeks, or any relief whatsoever.
47. ULAA denies all averments of the Complaint not expressly admitted herein.
48. ULAA denies that Plaintiff is entitled to the relief he seeks and denies that he is
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DEFENSES
FIRST DEFENSE
The Complaint violates Fed. R. Civ. P. 8 as it contains legal argument and does not
SECOND DEFENSE
Plaintiffs claims are barred, in whole or in part, by the doctrine of unclean hands.
THIRD DEFENSE
The Complaint and/or the relief requested therein is barred, in whole or in part, under the
principles of estoppel.
FOURTH DEFENSE
Plaintiffs claims are barred, in whole or in part, under the after acquired evidence
doctrine.
FIFTH DEFENSE
ULAA complied with all of its obligations under the Contract. All or part of the
averments raise issues that are immaterial and resulted in no limitation of any contractual rights
of Plaintiff.
SIXTH DEFENSE
SEVENTH DEFENSE
The Second Cause of Action related to purported damages from Plaintiffs alleged loss of
the Adidas endorsement contract is barred, in whole or in part, by paragraph 6.4 of the Contract.
EIGHTH DEFENSE
Plaintiff, in whole or in part, fails to state a claim upon which relief may be granted.
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NINTH DEFENSE
ULAA is entitled to an offset for any damages caused by Plaintiff for his violations of the
Contract or otherwise. ULAA is entitled to an offset for any contractual sums previously paid to
Plaintiff for any titles, honors, or records that are vacated by the NCAA or any other body.
TENTH DEFENSE
Plaintiffs own acts or omissions proximately and directly caused any damages he claims
ELEVENTH DEFENSE
Plaintiffs alleged damages, if any, were caused by the actions of third parties under the
direction and supervision of Plaintiff and not by any act or omission attributable to ULAA.
TWELFTH DEFENSE
Plaintiffs claims are barred, in whole or in part, because the relief sought in the
THIRTEENTH DEFENSE
ULAAs actions were at all times fair, reasonable, in good faith, and in the best interests
FOURTEENTH DEFENSE
Plaintiffs claims are barred, in whole or in part, because he was responsible for the
actions of his subordinates under intercollegiate athletic rules and the Contract.
FIFTEENTH DEFENSE
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SIXTEENTH DEFENSE
The actions giving rise to the Level I violations against ULAA were not known until after
the July 1, 2015 term of the Contract between Plaintiff and ULAA; that certain underlying
actions hidden from ULAA occurred before the current Contract does not insulate Plaintiff from
SEVENTEENTH DEFENSE
Plaintiff was paid bonuses on the condition precedent that the NCAA would not vacate
the records set and titles and honors bestowed. In the event that the NCAA vacates such records,
titles, and honors, any bonuses paid to Plaintiff as a result of these vacated records, titles, and
EIGHTEENTH DEFENSE
Consistent with standard human resource practice, Plaintiff was placed on administrative
leave pending further investigation in connection with the FBI investigation. Plaintiff was given
actual notice of the leave and paid throughout the entirety of his leave. He was further offered an
opportunity to be heard in with connection with the leave. Neither he nor his counsel took the
NINETEENTH DEFENSE
The placement of Plaintiff on administrative leave pending further investigation was not
TWENTIETH DEFENSE
Any alleged technical errors in the form or delivery of the notice of administrative leave
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TWENTY-FIRST DEFENSE
Any statements of support for Plaintiff by ULAA and/or its officers, employees, or
agents, were not a waiver of its right to terminate him for cause.
TWENTY-SECOND DEFENSE
ULAA had a right to consider the entire employment history of Plaintiff in making its
decision to terminate him for cause. This employment history included, but was not limited to,
public scandals in his personal life, multiple NCAA Level 1 violations, and an FBI investigation.
TWENTY-THIRD DEFENSE
ULAA reserves the right to raise all applicable defenses, statutory or otherwise, that arise
COUNTERCLAIM
I. PARTIES
2. Upon information and belief, Mr. Pitino is an adult citizen of the state of Florida.
3. This Court has subject-matter jurisdiction under 28 U.S.C. 1332 because the
amount in controversy exceeds $75,000, exclusive of interest and costs, and there is complete
Kentucky and, upon information and belief, Mr. Pitino is a citizen of Florida.
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6. This Court has personal jurisdiction over Mr. Pitino because he performed the
acts and omissions giving rise to these claims in Jefferson County, Kentucky.
substantial part of the events or omissions giving rise to this action occurred in the Western
District of Kentucky.
8. This Court has supplemental jurisdiction under 28 U.S.C. 1367 over the
remaining claims asserted herein because such claims are so related to the claims arising under
28 U.S.C. 1332 and 28 U.S.C. 2201 that they form part of the same case or controversy.
9. At times relevant to this Complaint, Mr. Pitino was the Head Coach of the
10. Mr. Pitinos employment relationship with his employer, ULAA, is governed by
an Employment Contract (the Contract), effective July 1, 2015. A copy of the Contract is
11. The Contract sets forth, in part, Mr. Pitinos duties as follows:
12. Section 4.1.3 of the Contract provides, in relevant part, that Mr. Pitino shall
diligently supervise compliance of assistant coaches and any other employees for which
Employee is administratively responsible with the aforesaid policies, rules, and regulations, and
[shall] immediately advise the Athletic Director if Employee has cause to believe violations by
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responsible for the actions of all assistant coaches and administrators who report, directly or
14. Section 4.3.5 of the Contract provides, Employee shall ensure that he and his
staff immediately notify the compliance staff when concerns or red flags occur related to
15. Section 4.3.6 of the Contract provides, Employee shall ensure that he and his
staff cooperate fully with any University, conference, and/or NCAA investigations and accept
responsibility for maintaining the integrity of the investigation and enforcement process. See
Exhibit A.
16. Section 4.3.7 of the Contract provides, Employee shall ensure that he and his
staff provide complete and truthful information in all compliance matters and investigations, be
forthcoming at all times, and take responsibility for their involvement in, or knowledge of,
17. Section 4.3.8 of the Contract provides, in part, Employee shall demonstrate a
commitment to compliance through actively monitoring his staffs activities. See Exhibit A.
18. Section 6 of the Contract, Termination for Just Cause, provides in pertinent
part:
6.1 Employer has the right to terminate this Employment Contract for Just Cause or
impose other appropriate discipline, in which case prior to such action, Employee shall be
given ten (10) days prior written notice and an opportunity to be heard. The term Just
Cause with respect to Employers right to terminate this Employment Contract shall be
understood to include all of the following:
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6.1.2 Disparaging media publicity of a material nature that damages the good
name and reputation of Employer or the University, if such publicity is caused by
Employees willful misconduct that could objectively be anticipated to bring
Employee into public disrepute or scandal, or which tends to greatly offend the
public, or any class thereof on the basis of invidious distinction;
6.1.3 Major violation of any rule, or bylaw of Employer, the athletic conference
with which the University is then affiliated or the NCAA, including Level I and/or
Level II NCAA violations, which violation damages Employer or the University
in a material fashion[.]
See Exhibit A.
19. Section 6.3 of the Contract provides, in pertinent part, termination of this
Employment Contract by Employer may occur only by decision of the Board of Directors of
Employer or a duly authorized and constituted subcommittee of the Board after ten (10) days
prior written notice of the charges against Employee and an opportunity for Employee to present
evidence. Employee may obtain the assistance of an attorney at Employees sole expense to aid
20. Section 14 of the Contract, Waiver, provides, [t]he failure of either Employee
or Employer to insist upon the strict enforcement of any of the terms, conditions or covenants of
this Employment Contract or to exercise any right or remedy consequent upon a breach thereof
shall not be construed to be a waiver to affect their respective rights thereunder to enforce each
and every provision or right. The waiver of any default and breach of this Employment Contract
shall not be held to be a waiver of any other default and breach. See Exhibit A.
21. On June 15, 2017, the NCAA Committee on Infractions issued its Public
Infractions Decision (the Decision) involving the University of Louisvilles mens basketball
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22. The NCAAs Decision found, in part, [f]or approximately four years, the head
coach [Mr. Pitino] failed in his responsibility to monitor the activities of former operations
director who reported to him. . . .The panel concludes that the violation occurred and is Level 1.
See Exhibit B.
23. According to the Decision, Level 1 violations are severe breaches of conduct that
undermine or threaten the integrity of the NCAA Collegiate Model. See Exhibit B.
From January 2010, the time the head coach hired the former operations director,
through April 2014, when the former operations director left the University, the
head coach failed to monitor his activities in Minardi Hall with prospects visiting
campus. Specifically, the head coach failed to monitor the former operations
director when the head coach: (1) created the residential environment in which the
violations eventually occurred and trusted the former operations director to
behave in a manner consistent with NCAA rules; and (2) delegated monitoring of
the former operations director to his assistant coaches without appropriate
oversight. The head coachs failure to monitor the former operations director
violated Bylaw 11 head coach responsibility legislation.
Bylaw 11.1.1.1 and its predecessor, Bylaw 11.1.2.1, create a presumption that
head coaches are responsible for the actions of their subordinates. . . . The
monitoring responsibility applies to all assistant coaches and program staff
members who report, either directly or indirectly, to the head coach. That
presumption is rebuttable.
Here, the head coach failed to rebut the presumption. He essentially placed a peer
of the student-athletes in a position of authority over them and visiting prospects
and assumed that all would behave appropriately in an environment that was, for
all practical purposes, a basketball dormitory. Further, he delegated responsibility
for monitoring to his assistant coaches, who later stated they were unaware it was
their job.
See Exhibit B.
25. As a result of the NCAAs Decision, the Committee instituted severe penalties
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26. As penalty for the multiple violations found by the NCAA, including Mr. Pitinos
Level I violation, the University was ordered to return to the NCAA all of the monies it had
received to date through conference revenue sharing for its appearances in the 2012, 2013, 2014,
27. The University did not appeal any of the NCAAs determination of violations.
28. Upon information and belief, Mr. Pitino initiated an appeal of the NCAAs
finding of his Level I violation; however, Mr. Pitino subsequently withdrew his appeal
29. On September 26, 2017, the University of Louisville was informed by the U.S.
Attorneys Office for the Southern District of New York that it intended to publicly announce a
criminal investigation implicating certain unnamed members of the mens basketball program at
the University of Louisville in a scheme of fraud and malfeasance in the recruitment of student
athletes in violation of federal law and NCAA Division I Bylaws. A copy of the Sealed
Complaint (later unsealed), styled United States of America v. James Gatto, is attached hereto as
Exhibit C.
30. On September 27, 2017, in the wake of the FBI investigation, Mr. Pitino was
placed on a leave of absence. Pursuant to Section 6.1 of the Contract, Mr. Pitino was provided
pay during the leave and offered an opportunity to be heard. See Notice of Leave at Exhibit D.
31. Mr. Pitino did not elect to be heard concerning his leave of absence.
32. On October 2, 2017, the ULAA Board authorized its Chairman, Dr. Greg Postel,
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33. On October 3, 2017, Dr. Postel provided Mr. Pitino and his legal counsel with
34. The October 3 Notice provided Mr. Pitino with notice of the charges against him
and advised him of his right to present evidence before the ULAA Board, as provided by Section
35. The Notice arose out of Mr. Pitinos conduct over a period of years, including
without limitation, his involvement in multiple recent and highly publicized scandals involving
himself, personally, and the University of Louisvilles mens basketball team. See Notice at
Exhibit E.
36. More specifically, the Notice identified the following conduct by Mr. Pitino in
violation of his Contract: (1) the NCAAs finding that Mr. Pitinos failure to monitor and
exercise sufficient oversight of the former director of mens basketball operations constituted a
Level I violation of NCAA rules; (2) the announcement by the U.S. Attorneys Office for the
Southern District of New York of a criminal investigation implicating certain members of the
University of Louisvilles mens basketball program, including several coaches; and (3) failure
to notify Athletics Compliance of Christian Dawkins presence on campus in May 2017. See
Notice at Exhibit E.
37. On October 11, 2017, ULAAs legal counsel sent a letter to Mr. Pitinos counsel
addressing his opportunity to present evidence before the Board pursuant to the terms of his
Contract. The letter advised that Mr. Pitino could appear before the Board in person or via video
38. On October 16, 2017, the ULAA Board of Directors held a special meeting
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39. Mr. Pitino did not appear before the ULAA Board in person or by video
conference. Instead, Mr. Pitino appeared through his legal counsel, who tendered to the Board
written information and the statements of a private investigator. See Mr. Pitino written materials
at Exhibit G.
40. At the special meeting, while the Board was in closed session, Mr. Pitinos legal
team was granted the ability to present all of the information they sought to present on behalf of
41. After consideration of the presentation and information provided, the Board
unanimously elected to terminate Mr. Pitinos Contract for cause. The Board further instructed
its Chairman to provide Mr. Pitino with formal notice of the decision.
42. Before the Board finalized its decision to terminate for cause, Mr. Pitino was
43. On October 17, 2017, the Chairman of the ULAA Board, Dr. Postel, provided Mr.
Pitino with formal notice of the Boards decision to terminate him for cause, pursuant to Sections
6.1.1, 6.1.2, and 6.1.3 of his Contract. See Termination Letter at Exhibit H.
44. On or about October 18, 2017, shortly after Mr. Pitino was advised of the Boards
decision to terminate him for cause, Mr. Pitino participated in a televised interview with ESPNs
Jay Bilas.
45. During this interview, Mr. Pitino stated that he took full responsibility for his
hiring decisions.
46. Thereafter, on October 25, 2017, counsel for Mr. Pitino sent a letter to Vince
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47. The letter purported to serve as Notice of ULAAs alleged material breach of the
48. The letter claims, in relevant part, that the ULAA Board materially breached the
Contract when it voted to terminate Mr. Pitino for just cause, because [s]o far as we know,
ULAA has conducted no independent investigation and has obtained no contrary proof to
overcome the information presented on Mr. Pitinos behalf at the October 16 meeting. The letter
further claims that ULAA therefore lacked any lawful basis for concluding that it had just cause
to fire Coach Mr. Pitino, and had no right to terminate the [Contract]. See Exhibit I.
49. This claim is inconsistent with Mr. Pitinos statement in his October 18th
50. The letter further advises that unless ULAA remedies its purported material
breach by, at a minimum, restoring Mr. Pitino to his full, active employment position until the
conclusion of the investigation currently underway by the U.S. Attorneys Office in collaboration
with the FBI[,] Mr. Pitino will be entitled to liquidated damages in the amount equal to the
compensation due to him under the Contract for the balance of the contractual termthrough
51. Pursuant to Federal Rule of Civil Procedure 10(c), ULAA adopts and incorporates
52. Mr. Pitino contends that the ULAA Board lacked cause to terminate him under his
Contract, and as a result he is entitled to liquidated damages pursuant to Section 6.4 of the
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53. Under the Contract, Mr. Pitino may be terminated for cause for [a] material
violation of the Contract; [d]isparaging media publicity of a material nature that damages the
good name and reputation of Employer or University[;] and [m]ajor violation of any rule, or
bylaw of Employer . . . or the NCAA, including Level 1 . . . violations, which violation damages
54. In the NCAAs June 2017 Decision, the NCAA found that Mr. Pitino failed in
his responsibility to monitor the activities of former operations director who reported to him.
The Decision concluded that Mr. Pitinos failure to monitor constituted a Level 1 violation. See
Exhibit B.
55. Mr. Pitino breached his contractual obligations when he failed in his
responsibility to monitor the activities of the former operations director, Andre McGee, who
reported to him. This failure to monitor lasted for approximately four years. (See NCAA
Decision at 18).
56. Mr. Pitinos Level 1 violation has damaged and continues to damage ULAA and
the University in a material fashion, including, but not limited to, its reputation, ability to
contract, ability to recruit, ability to meet certain financial responsibilities associated with mens
57. Mr. Pitinos Level 1 violation also constitutes a material violation of Section 4.3
the Contract, Employee is presumed to be responsible for the actions of all assistant coaches
58. ULAAs failure to immediately terminate Mr. Pitino for cause under Section 6.1.3
of his Contract upon receiving the NCAAs June 15, 2017 Decision was not a waiver of its rights
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59. As a result of Mr. Pitinos breach of contract, ULAA has suffered and will
60. In addition, ULAA is entitled to recoup any bonuses and other compensation
61. Pursuant to Federal Rule of Civil Procedure 10(c), ULAA adopts and incorporates
62. Mr. Pitino entered into an Employment Contract with ULAA whereby Mr. Pitino
expressly agreed that he would be presumed to be responsible for the actions of all assistant
coaches . . . who report, directly or indirectly, to him[,] and further promote an atmosphere of
compliance, academic integrity, and ethical conduct within his program and shall monitor the
activities of all assistant coaches and administrators involved with the program. (Exhibit A).
63. Mr. Pitino further agreed to ensure that he and his staff immediately notify the
compliance staff when concerns or red flags occur related to potential NCAA, conference, and/or
64. Mr. Pitino further agreed to ensure that he and his staff cooperate fully with any
University, conference, and/or NCAA investigations and accept responsibility for maintaining
65. Mr. Pitino further agreed to ensure that he and his staff provide complete and
truthful information in all compliance matters and investigations, be forthcoming at all times,
and take responsibility for their involvement in, or knowledge of, violations. (Exhibit A at 11).
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68. The FBIs criminal investigation of certain members of the Universitys mens
basketball program, which was announced on the heels of Mr. Pitinos Level 1 violation for
failure to monitor staff, evidences an ongoing failure to adequately monitor and supervise his
assistant coaches as required by the material terms of his Contract. See Exhibit A.
69. Although Mr. Pitinos legal counsel argued to the ULAA Board that Mr. Pitino
was unaware of the actions of his assistant coaches relating to the FBIs investigation, Mr.
Pitinos legal counsel did not deny that the mens basketball program and his assistant coaches
were entangled in the FBI investigation. Under his Contract, Mr. Pitino is presumed to be
responsible for the actions of all assistant coaches who report to him. See Exhibit A.
70. Mr. Pitinos legal counsel presented evidence that Mr. Pitino was concerned when
he learned that a student athletes mother was living in the Galt House, and instructed his
Assistant Coach, Kenny Johnson, to look into the matter and find out how she could afford to
live in the Galt House. See Mr. Pitino Written Materials at Exhibit G. However, Mr. Pitinos
legal counsel did not present any evidence or even suggest that Mr. Pitino notified the
Universitys compliance staff of the potential red flag, as required by Section 4.3.5 of his
Contract.
71. Mr. Pitino further failed in his contractual obligations resulting in ULAA and the
72. As a result of Mr. Pitinos breach of contract, ULAA has suffered and will
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73. Pursuant to Federal Rule of Civil Procedure 10(c), ULAA adopts and incorporates
74. As set forth above, ULAA entered into an Employment Contract with Mr. Pitino
for his continued services as head coach of the University of Louisville varsity mens basketball
team.
75. In his role as head coach, Mr. Pitino was responsible to manage and supervise the
mens basketball team, and was presumed to be responsible for the actions of all assistant
coaches and administrators who report, directly or indirectly to him. (Exhibit A at 10).
76. On June 15, 2017, the NCAA issued its Public Infractions Decision against the
University of Louisville in which it found, in relevant part, that [f]or approximately four years,
[Mr. Pitino] failed in his responsibility to monitor the activities of the former operations director,
77. As penalty for the multiple violations found by the NCAA, including Mr. Pitinos
Level I violation, the University was ordered by the Committee on Infractions to return to the
NCAA all of the monies it had received to date through conference revenue sharing for its
appearances in the 2012, 2013, 2014, and 2015 NCAA Mens Basketball Tournaments. (Ex. B at
23). Mr. Pitino, and not the University, was the active wrongdoer. His actions resulted in the
NCAAs Decision. To the extent the University is obligated to pay financial penalties to the
NCAA, the University is entitled to indemnity from Mr. Pitino for the total amount of the
penalties, if any, and any other resultant consequential damages, including the costs and
attorneys fees associated with the compliance investigation and defense of this action.
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COUNT IVNEGLIGENCE
78. Pursuant to Federal Rule of Civil Procedure 10(c), ULAA adopts and incorporates
79. Mr. Pitino owed a duty of care to ULAA and the University because of his
relationship to ULAA and the University and its relationship with the public.
80. Mr. Pitino breached his duty of care with ULAA by failing to supervise his
Assistant Coaches and staff and by failing to maintain an adequate level of supervision of the
81. But for this breach of duty, ULAA would not be facing Level 1 violations from
82. Mr. Pitino knew, or should have known, that his breach of these duties would
83. Mr. Pitinos negligent behavior and failure to exercise reasonable care has
84. Pursuant to Federal Rule of Civil Procedure 10(c), ULAA adopts and incorporates
85. ULAA has business relationships with various business entities and media outlets
agreements. These include but are not limited to, the NCAA, ACC, ACC Network and other TV
networks.
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Case 3:17-cv-00722-DJH Document 4 Filed 12/13/17 Page 25 of 26 PageID #: 148
87. Mr. Pitino knew or should have known that ULAAs business relationships would
be disrupted if he failed to act with reasonable care in his supervision of the mens basketball
program at UofL.
88. Mr. Pitino failed to act with reasonable care by failing to supervise his Assistant
Coaches and staff and by failing to maintain an adequate level of supervision of the overall
basketball program.
89. Mr. Pitinos wrongful conduct resulted in his breach of his Employment Contract
with ULAA.
90. As a result of Mr. Pitinos conduct, ULAAs business relationships have been
91. ULAA has been materially harmed as a result of these disrupted or damaged
business relationships.
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Case 3:17-cv-00722-DJH Document 4 Filed 12/13/17 Page 26 of 26 PageID #: 149
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that, on this 13th day of December, 2017, I electronically filed the
foregoing with the Clerk of Court using the electronic filing system, which will send email
notification to the following:
Stephen B. Pence
Pence & Whetzell, PLLC
9300 Shelbyville Road, Suite 1205
Phone: 502-736-6200
steve@pencelegal.com
-and-
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