I'm not talking about baseball in the title, as you might guess, but about litigation -- something we Americans hold near and dear to our heart. "I'll sue!" is perhaps the most famous and oft-heard response to a commercial dispute in this country, and our jam-packed court system is evidence of our love affair with the lawyers.
So Billy Gillispie has filed a lawsuit in Federal court in Texas against the University of Kentucky for breach of contract. I greeted this news with a yawn, as I have been expecting it for weeks. Folks, Gillispie has a case, and if you read the suit, you will see it writ large in the double-spaced 12-point Roman typeface. UK breached their agreement with Gillispie, about that there can be no rational argument. What is an argument is whether or not that agreement had the legal, binding force of a contract.
Now, some of the stuff in Gillispie's complaint just tortures reason. The idea that the University of Kentucky defrauded Gillispie is absurd on its face, and in my opinion will not survive a motion to dismiss. There is no way Gillispie can provide enough evidence to satisfy a judge that UK intended not to live up to its obligations under the agreement, whether it be contract or MOU. All the other allegations relating to fraud rest on the foundation that UK deliberately misled Gillispie about his intended employment. If that were true, Barnhart should lose his job and perhaps be indicted on federal fraud charges, but I don't believe that it is either a) true or that b) Gillispie can produce enough evidence that it might be true for the claim to withstand a motion to dismiss, if it ever comes to that.
What this lawsuit represents is Gillispie's attempt to force UK to negotiate seriously. That's what all such lawsuits are ever about. It costs very little to file a suit -- I have done so before and it is neither difficult nor costly. A quick phone call to a lawyer, $1500 or so and viola!
The lawsuit will force UK to expend money to respond, however, and engage their attorneys. UK will have to decide how to play it all out, but in the end, if there is actually a jury trial on this lawsuit, I will be drop-dead shocked. Jury trials are capricious and expensive, and neither side really wants that, trust me. But the longer this drags on, the more expensive it becomes for UK (I expect Gillispie's lawyer is taking it on contingency).
Now, I am not a lawyer, and what legal knowledge I have is mostly in the area of criminal, not civil, law. But I do believe that Gillispie has a very sound case against UK for breach of contract. With that said, civil and contract law is complicated and full of nuances that I have no familiarity at all with. But in the end, it matters little -- this case is not designed to go to court, it is to get UK off the $3 million dollar settlement they had been hoping for to a more reasonable (for Gillispie) figure. My expectation is that it will, and the amount will go up some -- not to the full $6 million, for sure, but to something more like $4 or even $5 million. Even at that, UK would be getting a bargain, for in my opinion, they absolutely owe Gillispie the full $6 million dollars. There is no doubt that UK understood that MOU to represent a contract, and would have enforced it as such if Gillispie had been in breach. The complaint quotes UK several times as saying just this, so there is no doubt whatever that they viewed it exactly as it was intended to be -- fully interchangeable for a formal contract.
There will be a settlement, and that's in the interest of everyone. Here's hoping it's sooner rather than later.