By: William Lawton
In something that has become all too familiar to us New England sports fan, the Patriots are once again involved in a scandal. After serving as the head coach of the Arkansas Razorbacks for five seasons, Bret Bielema (“Bielema”) was fired. Bielema’s contract was subsequently bought out by the Razorback Foundation. Bielema’s buyout had a few conditions, one of which was that Bielema would, “make reasonable efforts to find employment that would mitigate or offset” the buyout amount owed to the former head coach. Any income that Bielema made which was less than $150,000 per year would not offset the money owed to Bielema by the Razorback Foundation.
The reasonable efforts clause required Bielema to get any job and receive a competitive salary for the position. The Patriots hired Bielema as a consultant shortly after his firing from Arkansas with a salary of $25,000. The Patriots later promoted Bielema to a special assistant where he had a salary of $100,000 and finally to an assistant coach where Bielema earned a salary of $250,000. Bielema claimed that he received fair compensation for his positions with the Patriots and therefore met his contractual duty.
The Razorback Foundation felt that Bielema did not uphold his contractual obligations and stopped making buyout payments to Bielema in 2019. At the time payments were stopped, Bielema had received about $4.5 million out of the $12 million owed to him as a result of the buyout. In June 2020, Bielema sued the Razorback Foundation in Federal Court in Arkansas claiming a breach of contract. The Razorback Foundation countersued claiming that Bielema breached the contract by failing to meet a particular condition. At issue in the case is whether or not Bielema, along with his agent, Neil Cornrich (“Cornrich”), failed to make reasonable efforts to secure employment for Bielema at a competitive price in order to mitigate the Razorback Foundations contractual obligations.
The lawsuit between Bielema and the Razorback Foundation is still in discovery. The Patriots are implicated in the lawsuit because the Razorback Foundation is claiming that Bielema and his agent, Cornrich, conspired with Patriots head coach Bill Belichick (“Belichick”), also a Cornrich client, to underpay Bielema so that he could receive the full value of his buyout. Discovery introduced four emails that were exchanged between Belichick and Patriots owner Robert Kraft (“Kraft”) during the years of 2018 and 2019 for the lawsuit and countersuit. The only reason that the Arkansas Foundation was able to read the emails was because they were provided by the Patriots upon subpoena with the understanding that only attorneys for both parties would have access to them.
Judge P.K. Holmes III (“Holmes”), who is presiding over the case, stated that the courts initial position is for opposing parties to disclose as much information as possible during trial. However, the Patriots responded to Holmes’s position by stating that they believe the emails should not become part of the public record. The Patriots are taking the stance that the emails should be protected by a confidentiality order because they, “contain competitively sensitive and personal information — including compensation paid to another member of the team’s coaching staff.”
The Razorback Foundation wants the emails submitted as evidence, which would then be made public because they believe that, “the emails confirm that the Patriots were intimately familiar with the terms of the Release Agreement,” and that, “the emails demonstrate that the Patriots paid Bielema less than what he could or should have earned.”
Under the Federal Rules of Civil Procedure 26(c), “the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . forbidding the disclosure of discovery.” The Patriots moved to have the emails exchanged between Belichick and Kraft kept private because they contained information that was competitively sensitive and personal. If this information were released the Patriots argued that they would suffer, “commercial and competitive harm” which could impact the organization if other teams had access to the Patriots records.
They went on to say that teams compete aggressively for assistant coaches and retaining the best ones is very challenging, therefore, this could potentially cause them undue burden and expense. The Razorback Foundation has argued that the emails are evidence of a scheme between the Patriots and Bielema’s agent, Cornrich, where the Patriots placed him in a low paying position in order for Bielema to receive the full price of his buyout. For now, Holmes has sided with the Patriots and found that the Patriots met the burden of showing the emails between Kraft and Belichick deserve the privacy of a protective order. However, Holmes left the door open for the emails to be admitted into evidence as the litigation ensues.
Student Bio: William Lawton is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law. William received a Bachelor of Arts Degree in Political Science and Psychology from Providence College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
