Former Baylor University head football coach Art Briles filed a motion in Waco’s federal court Thursday accusing two lawyers who represent Baylor of a conflict of interest in their representation of Briles, a violation of the State Bar of Texas’ rules of professional conduct, and asking for substitution of counsel.
The letter with the motion also states that Briles was wrongfully terminated and that his firing was a “camouflage” by Baylor to “distract from its own institutional failure to comply” with federal laws regarding sexual assault. On May 26, Baylor suspended Briles “with intent to terminate,” and Briles’ status with the university was not clear Thursday.
Baylor’s board of regents met Monday to discuss his status, and have not released any subsequent announcements.
“The conclusion is inescapable that the motive of Baylor University and the Board of Regents was to use its Head Football Coach and the Baylor Athletic Department as a camouflage to disguise and distract from its own institutional failure to comply with Title IX and other federal civil rights laws,” said Ernest H. Cannon, Briles’ Stephenville-based lawyer, in the Thursday letter. A call placed to Cannon’s office was not returned.
Doug Welch, staff attorney at Baylor’s Office of General Counsel, and Lisa Brown, a Houston attorney, were assigned to represent Briles, Baylor and former Director of Athletics Ian McCaw in a Title IX lawsuit filed by Jasmin Hernandez. Welch and Brown then used information obtained from Briles in the Hernandez matter “in support of Baylor University’s termination of Coach Briles from his job as Head Football Coach on May 26, 2016,” the motion states.
Baylor did not make Doug Welch immediately available for comment, and Brown was not immediately available for comment.
Hernandez, who gave the Tribune-Herald permission to use her name, was raped by former Baylor football player Tevin Elliott, who is serving a 20-year prison sentence for the 2012 crime.
Hernandez claims the university failed to investigate her sexual assault claim. Her lawyer, Alex Zalkin, said he read the motion and found it “interesting.”
“I don’t know if it will be granted,” Zalkin said. “Our plan moving forward is we have scheduled time to try to resolve the case, and we’ll see if we can get that done, and if not, we’ll continue to litigate it.”
“Coach Briles provided his attorneys, Welch and Brown, with extensive personal information related to this case and other matters during the interview,” the motion states. “Coach Briles believed that Welch and Brown were looking after his interests in all respects.”
Briles says Welch and Brown “used statements, text messages, emails, and other personal information obtained for the purpose of (Hernandez’s) litigation in the above-referenced interview with Coach Briles in support of Baylor University’s termination of Coach Briles from his job as Head Football Coach on May 26, 2016.”
Briles’ motion states Welch and Brown, between April 7 and Thursday, waived service of process on behalf of Briles without informing him, publicly commented on behalf of Briles without his permission and requested an extension of time to settle Hernandez’s lawsuit, while implying all defendants agreed, without consulting Briles.
Briles also says Welch and Brown scheduled mediation with Hernandez for Friday without notifying Briles, and he says they “failed to honor attorney-client relationship, the attorney-client privilege, and Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas relating to conflict of interest and confidentiality by continuing to represent Coach Briles after using his personal information obtained for purposes of this litigation, to support his termination and thereby take advantage of a direct conflict of interest.”
“It is also clear that any joint representation of Baylor University and Coach Briles before after (sic) his termination resulted in liability to Coach Briles for damages under Texas statutory and common law for breach of contract, fraud, libel and slander, misrepresentation, breach of fiduciary duty, negligence, and intentional infliction of emotional distress, among others,” the motion states.
In his letter, Cannon asks Baylor to release to him and Briles all investigation documentation, interview notes and materials gathered by Pepper Hamilton, the Philadelphia-based law firm hired in September by Baylor to investigate the school’s response to sexual assault allegations. He also wants any “documentation including minutes of meetings of the Board of Regents which considered or lead to the firing of (Briles),” any material and documentation related to crimes alleged to have been committed by any Baylor athlete and all Baylor policies and procedures in existence at the time of Hernandez’s allegations that applied to Briles and his responsibilities as head coach.
Cannon also asks for all correspondence with opposing counsel, information obtained by Pepper Hamilton from Briles, pleadings and discovery received or filed in any case which Briles is a named defendant with Baylor and all investigation documents and materials obtained by Welch, Brown or Baylor representatives concerning Hernandez or other civil litigation involving allegations against Briles.
Briles first met with Pepper Hamilton LLP in February, Cannon says, and then met with Baylor’s general counsel in April. Pepper Hamilton found “fundamental failure” by Baylor to respond to sexual assault allegations, according to Baylor regents.
Pepper Hamilton’s findings and Briles’ suspension with intent to terminate were announced May 26, the same date former Baylor President Ken Starr was removed from the presidency. Starr resigned as chancellor the following week, but remains as a Baylor Law School faculty member.
C.B. Burns, an El Paso attorney, said she thinks Cannon’s requests in the letter are related to Briles wanting leverage in a potential contract buyout.
“The information he’s trying to obtain — but also the fact that he has filed this motion that he’s raising conflict of interest and other potential ethical violations — raising all of that is part of a tool in order to negotiate a buyout,” Burns said.
She also said Briles may be trying to rehabilitate his image amid the scandal.
Burns said Baylor attorneys must have expected this motion.
“They had to have been concerned that they’re continuing to represent him after they’ve taken actions or allegedly taken actions to terminate his employment,” Burns said. “Maybe that’s one of the reasons they are saying they haven’t formally terminated his employment yet.”
While Zalkin, Hernandez’s lawyer, said his understanding is that Briles is still on suspension with intent to terminate, Cannon’s letter refers to what he and Briles are calling his “wrongful termination” on May 26.
“It is equally clear from the actions of Baylor University and the Board of Regents, both in the media and in its oral and written communications with Coach Briles since his wrongful termination, that they have ignored and repeatedly violated the clear duties that they owe under Texas law and by contract to Art Briles,” the letter states. “Baylor University and the Board of Regents have refused to provide Coach Art Briles with any information or grounds which they used to support the termination of his employment.”