BRET BIELEMA: The former Hog coach has sued the Razorback Foundation for stopping payment of his almost $12 million buyout.

When the Razorback Foundation said Bret Bielema hadn’t complied with terms of his buyout agreement after firing as Hog football coach and Bielema hired Tom Mars as attorney, you knew it was heading to a lawsuit.

And here it is, filed today in federal court in Fayetteville.

Bielema received about $4.3 million in January 2019 after his firing, but the Foundation has refused to pay an additional almost $7.7 million.  The Foundation claimed he broke the agreement by not seeking a comparable job. He worked as a “consultant” to the New Englan d Patriots in 2018, then became a defensive line coach. He now is a coach for the New York Giants.

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Marshall Ney (misspelled originally) of the Friday Law Firm, representing the Razorback Foundation, gave this statement to CBS Sports.

“It appears that the complaint was provided to the media several hours ago –- even before the complaint was accessible on the court’s website. What I can share at this point before digesting the entire document is that the Foundation previously demanded that Bret Bielema return the $4,555,833.29 that had been paid to him prior to the Foundation’s discovery of his multiple material breaches of the agreement. It appears that Bielema filed suit in order to avoid being sued.”

Variety offers details of Bielema’s work history and his attempts to obtain work where pay could offset the Razorback Foundation obligations. He “volunteered” his first year at Boston and any pay up to $150,000 subsequently wouldn’t count as an offset of money owed by the Razorback Foundation.

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Variety, I expect schooled by Bielema representatives, lays out a case that Bielema had sought better paying jobs and that failures in the drafting of the agreement by the Foundation favored him in the dispute.

If the Razorback Foundation required that Bielema pursue other high-paying coaching jobs in college, the contractual language should say as much. It doesn’t.

Analogously, if the Razorback Foundation was worried that Bielema might take a pay cut to reposition his coaching career in the NFL, the contractual language should address that possibility. Again, it doesn’t.

Indeed, Bielema has neither been under obligation to seek employment with another college nor compelled to take jobs that pay a certain amount. The duty to mitigate implicitly invites Bielema to pursue employment in the NFL, the XFL (while it was in operation), a TV network, a radio network, a sports media publication, a high school or numerous other types of occupations. Nothing is stated about salary, status or other terms and conditions of employment.

Considering that the Foundation, as the employing body, likely played a crucial role in drafting the language, the Foundation arguably should own the words it included and didn’t include. This underscores Bielema’s best argument: as expressed in writing, the bar for him to meet the duty to mitigate is low. So long as he has made reasonable efforts to land a new job, and best efforts to maximize how much that job paid, he has satisfied his duty.

 

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Variety also offered a potential defense.

One likely argument is to claim that Bielema, knowing Arkansas was on the hook to pay him millions of dollars and knowing about the offset provision, took advantage of the circumstances to secure a high-prestige, but relatively low-paying position with the Patriots.

Perhaps he should have  been more diligent in pursuing higher-paying jobs with other college football programs.

Whether there are facts to support that line of reasoning is uncertain. It’s unknown how much the Patriots paid Bielema in 2018 and 2019 and whether Bielema was paid market value. Attorneys for the Foundation might assert that Bielema was paid substantially less by the Patriots than what he would have earned with other NFL teams. In effect, the attorneys would argue that Arkansas was subsidizing Bielema’s Patriots employment

Variety predicts a settlement in the article by Michael McCann, an attorney, law professor and sports law reporter. Most civil cases do settle. Litigation is expensive. It can also be costly in the airing of dirty laundry. An athletic department trying yet another fresh start in football while paying off another fired coach — and trying to keep money flowing in a health crisis — might believe the less said the better.