James Cregg v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0127

JAMES CREGG

VERSUS

BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND
MECHANICAL COLLEGE

Judgment Rendered: M;AR_ 0 120bi___

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 710803

The Honorable Wilson E. Fields, Judge Presiding

Christopher L. Whittington Counsel for Plaintiff/Appellee,
Robert L. Campbell James Cregg
Baton Rouge, Louisiana

Leo C. Hamilton Counsel for Defendant/Appellant,
Carroll Devillier Board of Supervisors of Louisiana
Alexandra C. Hains State University and Agricultural
Baton Rouge, Louisiana and Mechanical College

Jeff Landry
Attorney General
Christine S. Keenan
Elizabeth Bailly Bloch
Special Assistant Attorneys General
Baton Rouge, Louisiana

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

He S te, r) . Con C' L-&( s

MILLER, J.

This matter is before us on appeal by defendant, the Board of Supervisors of

Louisiana State University and Agricultural and Mechanical College, from a

judgment of the trial court in favor of plaintiff, James Cregg. For the reasons that

follow, we reverse.

FACTS AND PROCEDURAL HISTORY

In 2018, James Cregg began his employment with Louisiana State

University (" LSU") as the offensive line coach for the football team. Following

LSU' s successful 2019 football season, Mr. Cregg' s employment contract was

renegotiated and extended from April 1, 2020, to March 31, 2022.

In 2019, Mr. Cregg met a prospective student athlete attending a football

camp at LSU and began recruiting him for LSU' s offensive line. In 2020, during

the covid dead period,' the student and his mother attended Tiger Turnout, an event

coordinated by the prospective recruits and their parents on LSD' s campus, for

prospects and their parents over the course of Labor Day weekend. At the end of

the weekend, the prospective student athlete' s mother contacted Mr. Cregg and

inquired about his neighborhood because she intended on relocating to where her

son attended college.
Mr. Cregg provided his address and told them that they

could " stop by" his neighborhood. They subsequently drove to Mr. Cregg' s

neighborhood where he greeted there while on a golf cart and gave the student

recruit a bag of LSU gear. The recruit' s mother later contacted Mr. Cregg and

advised that they were returning to Baton Rouge the following weekend. She

asked Mr. Cregg if they could " swing by" his house and " say hello." Mr. Cregg

gave them permission to do so and spoke to them outside, in front of his home.

During a " dead period," the coaching staff is prohibited by NCAA rules from having in-
person contact with prospective recruits on campus or off campus. However, staff members are
allowed to have contact with recruits via zoom, face time, and telephone. In 2020, the dead
period was extended due to the Covid- 19 virus. This extended period is referred to as the " covid
dead period."

2

The NCAA subsequently conducted an investigation of rule violations

stemming from Mr. Cregg' s in- person contact with the prospective student athlete

and gifting of LSU gear to the student. NCAA investigators requested an

interview with Mr. Cregg, which was conducted on May 14, 2021. In the

interview, Mr. Cregg denied having contact with the student. Shortly after the

interview, Mr. Cregg requested a second interview with NCAA investigators,

which was conducted one week later on May 21, 2021. In his second interview,

Mr. Cregg confessed that he was untruthful in the first interview and admitted to

having contact with the prospective student and his mother and giving the student

gear, in violation of NCAA rules.

By letter dated June 2, 2021, LSD' s Head Football Coach Ed Orgeron

informed Mr. Cregg of LSU' s intent to terminate his employment agreement for

cause for the following reason:

On May 21, 2021, in an interview with Libby Harmon, NCAA
Associate Director of Enforcement, you admitted to visiting with and
providing gear to a team prospect during the COVID recruiting dead
period. You also admitted to knowing such contact was
impermissible when you engaged in the conduct. This knowing
violation of NCAA rules constitutes " cause" under Section
11( A)( 1)( a) of the Employment Agreement.

Pursuant to Section l I( A)(3) of the employment agreement, Mr. Cregg was

given five days to provide a written response to the notice, which he submitted on

June 7, 2021.

By letter dated June 17, 2021, Director of Athletics Scott Woodward notified

Mr. Cregg that after reviewing and considering the notice of intent to terminate his

employment issued by Coach Orgeron on June 2, 2021, as well as Mr. Cregg' s

response, his employment was terminated for cause, effective June 17, 2021,

pursuant to Section I I( A)( 3) of his employment agreement. Mr. Woodward set

forth the following as the basis for Mr. Cregg' s termination:

k

During the interviews with NCAA enforcement staff, you
admitted to multiple violations of NCAA rules related to the recruiting
dead period. In the initial interview, you denied in-person contact
with a prospect and denied providing the same prospect gear but
acknowledged that such conduct would be a violation of the rules. In
the second interview, you admitted to the conduct and again

acknowledged that such conduct was a violation of the rules. Your
knowing violation of NCAA rules, and lack of honesty in the initial
interview, is sufficient basis for termination for cause pursuant to
Section 11( A)( 1) of the Employment Agreement, particularly Sections
I I (A)( 1)( a), I I (A)( 1)( i) and I I (A)( 1)( q).

On June 22, 2021, Mr. Cregg requested an appeal to the University President

pursuant to Section I I( A)(3) of the employment agreement. The matter was heard

on March 9, 2022 before the President' s designee. Thereafter, the President' s

designee issued a decision on March 14, 2022,' finding that Mr. Woodward' s June

17, 2021 decision to terminate Mr. Cregg for cause "[ was] supported by sufficient

evidence of `cause' under the employment agreement" and recommending that it

be affirmed. The recommendation was accepted by LSU President, William F.

Tate IV. The reasons for the President' s decision are as follows:

The NCAA enforcement staff alleged that you violated NCAA
rules by engaging in two separate in-person interactions with a
prospective student -athlete and the student -athlete' s family during two
separate weekends in September 2020 during the NCAA -imposed
COVID dead period.
You were interviewed twice, first on May 14, 2021 and then, at
your own request, again on May 21, 2021. The timing of the
interview was entirely within the domain of the NCAA enforcement
staff.

The differences between the May 14, 2021 and May 21, 2021
interviews are remarkable. During the May 14, 2021 interview by
NCAA enforcement staff, you repeatedly denied any in-person
contact with a prospective student -athlete and denied providing the
prospective student -athlete with
any LSU gear. You did
acknowledge, however, that any such conduct would be a violation of
NCAA rules.

In the May 21, 2021 interview by NCAA enforcement staff,
one week later, the story was completely different. You admitted to
finding out where ( sic) the prospective student -athlete and his family
would be in [ your] neighborhood, giving directions, grabbing some
old gear and putting it in a duffle bag, and riding [ in your] golf cart to
go see them in person. You admitted to having the in-person
interaction, giving the prospective student -athlete LSU gear and

2The letter is incorrectly dated March 14, 2021,

4

knowing that both were impermissible. You also admitted to the
impermissible in-person contact with the student -athlete and [ his]
family the following weekend.
LSU concluded that your conduct in September 2020
constituted either a Level I or II violation under NCAA bylaws, or
material and substantial violations or repeated Level III and/ or IV
violations under NCAA bylaws. By your own admission, the
violations were not inadvertent. Moreover, as you conceded in the
May 21, 2021 interview, you were untruthful in your initial interview
with NCAA enforcement staff. Therefore, the evidence supports
multiple NCAA rule violations.
Although you complain of the timing of Brad Davis' hire, such
is irrelevant to your misconduct in September 2020 and your failure to
truthfully respond during the NCAA interview in May 2021.

Citations omitted.)

In the meantime, while his appeal to the University President was pending,

Mr. Cregg filed a suit for damages on August 18, 2021, against the Board of

Supervisors of Louisiana State University and Agricultural and Mechanical

College ( also referred to herein as " LSU") alleging it intentionally breached its

contract or employment agreement with Mr. Cregg. Mr. Cregg contended therein

that Section l 1( A)( 1)( a) of the employment agreement provides that " cause" for

termination is defined as the commission of a Level I or Level II violation of

NCAA bylaws, or repeated Level III and/ or Level IV violations of NCAA bylaws,

and that the NCAA had not issued a ruling that Mr. Cregg committed such

violations, thus rendering that provision inapplicable; that LSU acted in bad faith

in hiring Brad Davis as the new offensive line coach to replace him on June 10,
2021, before he had been terminated; and that Mr. Woodward cited two additional

grounds for termination in his June 17, 2021 letter that he had not been provided

notice of, namely Sections I I (A)( 1)( i) and 11( A)( 1)( q), which constituted a clear

violation of his procedural due process rights. Mr. Cregg thus sought an award of

liquidated damages as provided for in the employment agreement, lost past and

future earnings, lost future earning capacity, humiliation, and severe emotional

anguish and pain and suffering.

5

The civil suit was set for trial on July 14, 2022. At the conclusion of trial,

the court deferred ruling pending the submission of post -trial briefs.' On August

25, 2022, the trial court issued oral reasons finding that:

1) Mr. Cregg was not provided notice of the two additional grounds for

termination asserted in Mr. Woodward' s June 1. 7, 2021 letter, and thus, that " LSU

did not give [ Mr. Cregg] proper notice of exactly what they were terminating him

for".

2) because the employment agreement was silent as to the consequences for

failure to provide notice, the agreement was terminated without cause pursuant to

Section 11( B)( 1), which provides that in the event that LSU terminates the

agreement without cause, LSU will pay the employee liquidated damages; and

3) the agreement was terminated without cause because LSU did not allow

the appeal process provided in the employment agreement " to run its course"

before hiring a new offensive line coach on June 11, 2018, to replace Mr. Cregg

prior to [ Mr.] Cregg finishing his appeal process."

The trial court thus awarded Mr. Cregg liquidated damages in the amount of

492, 945. 20, plus interest and costs.' The trial court signed a judgment in

conformity with its reasons on September 8, 2022.

Following the denial of its motion for new trial, LSU filed the instant

suspensive appeal, contending that the trial court:

1) erred in rendering judgment in favor of Mr. Cregg where the judgment is

premised on LSU' s failure to provide Mr. Cregg with proper procedural

notice regarding his termination since Mr. Cregg abandoned his claim

that LSU violated his procedural due process rights at trial;

The trial court also indicated that it was going to review the deposition of Coach
Orgeron before issuing its oral reasons. However, we are unable to locate any such deposition in
the record before us on appeal.

In awarding damages, the trial court found that, pursuant to the employment agreement,
the parties agreed to only liquidated damages and that consequential damages were prohibited.

G

2) erred in finding that the June 17, 2021 termination letter violated Section

11( A)(3) of the 2020 employment agreement and Mr. Cregg did not

assert this claim until the eve of trial;

3) erred in finding that LSU breached Section 11( A)(3) of the employment

agreement by not allowing the appeal process to run its course before

hiring a replacement coach;

4) erred in finding that LSU breached Section ll(A)( 1)( a) of the

employment agreement;

5) abused its discretion by denying LSD' s motion for new trial because the

law and evidence do not support a finding that LSU breached Section
11( A)(3) of the employment agreement;

6) abused its discretion in denying LSD' s motion for new trial because the

law and evidence do not support a finding that LSU breached Section
11( A)( 1)( a) of the employment agreement;

7) abused its discretion in denying LSU' s motion for new trial because

previously unavailable evidence acquired after the conclusion of trial

proved that LSU had proper cause to terminate Mr. Cregg' s employment

and that proper notice was given; and

8) erred in preventing LSU from admitting transcripts of Mr. Cregg' s two

interviews with the NCAA and the NCAA' s Notice of Allegations into

the record.

Motion to Dismiss/Answer to Appeal

At the outset, we note that Mr. Cregg filed a motion to dismiss this appeal

contending that, in its motion for suspensive appeal, although LSU references the

September 8, 2022 judgment on the merits and the November 15, 2022 judgment

denying LSU' s motion for new trial, LSU only stated its intention to appeal the

November 15, 2022 judgment. Mr. Cregg contends that an interlocutory judgment

iA

denying a motion for new trial is not appealable, and that the instant appeal should

be dismissed.

We disagree. The assignments of error set forth in LSU' s appellate brief

clearly challenge the judgment on the merits, as well as the judgment denying its

motion for new trial. Generally, where it is clear from the appellant' s brief that the

appellant intended to appeal a judgment on the merits, along with a judgment

denying a motion for new trial, an appellate court will consider the appeal to be an.

appeal of the judgment on the merits even though the notice of appeal only refers

to the judgment denying the motion for new trial. Reed v. Louisiana Horticulture

Commission, 2021- 0657 ( La. App. 1St Cir. 12122121), 341 So. 3d 66, 68 n. 2.

Accordingly, we will consider this matter as an appeal from both the judgment

denying the motion for new trial as well as the judgment in favor of Mr. Cregg on

the merits. See In re Interdiction of Cockerton, 2021- 1316 ( La. App. 11 Cir.

418122), 341 So. 3d 834, 836, n. 1.

In the alternative, Mr. Cregg filed an answer to this appeal contending that

the district court erred in: ( 1) failing to admit and consider certain pieces of

evidence proffered by Mr. Cregg; ( 2) failing to award proven consequential

damages; ( 3) improperly granting leave of court allowing LSU to file untimely

affidavits in support of its motion for new trial; and ( 4) improperly considering

evidence in support of LSD' s motion for new trial that was not offered, filed, or

introduced into evidence.

DISCUSSION

Admission of NCAA Interview Transcripts
Assignment of Error Number Eight

LSU contends that the trial court erred in preventing it from admitting

transcripts of Mr. Cregg' s two interviews conducted by the NCAA as well as the

NCAA' s Notice of Allegations at trial.

8

If a trial court commits an evidentiary error that interdicts its factfinding

process, this court must conduct a de novo review. Thus, any alleged evidentiary

errors must be addressed first on appeal, inasmuch. as a finding of error may affect

the applicable standard of review. Penton v. City of Hammond Police Department,

2007- 2352 ( La. App. I" Cir. 5/ 2/ 08), 991 So. 2d 91, 95. Accordingly, we first

address LSU' s evidentiary challenges. See Spann v. Geny Lane Enterprises, Inc.,

2016- 0793 ( La. App. 111 Cir. 8/ 24/ 10), 256 So. 3d 1016, 1022, writ denied, 2018-

1584 ( La. 12/ 3/ 18), 257 So. 3d 194, and writ denied, 2015- 1649 ( La. 12/ 17/ 18),

258 So. 3d 599.

During LSU' s cross- examination of Mr. Cregg, counsel for Mr. Cregg

objected to LSU' s attempt to introduce transcripts from Mr. Cregg' s NCAA

interviews on the basis that the investigation was ongoing, the interviews were

confidential, and Mr. Cregg has not waived the confidentiality of those

proceedings.' He further noted that the transcripts were not certified or

authenticated. The trial court sustained the objection, but allowed LSU to question

Mr. Cregg about whether the information he provided in the first NCAA interview

was accurate. LSU proffered the transcripts from Mr. Cregg' s first and second

interviews. During counsel for LSD' s examination of Matt Jakoubek, LSU' s

Associate Athletics Director for Compliance, he attempted to question Mr.

Jakoubek about the Notice of Allegations issued by the NCAA against Mr. Cregg.

Counsel for Mr. Cregg objected arguing that President Tate, the party the Notice of

Allegations was directed to, not Mr. Jakoubek, was the proper party to authenticate

this document. The trial court agreed and sustained Mr. Cregg' s objection, but

allowed counsel for LSU to proffer the Notice of Allegations.

5NCAA Bylaw Article 19 sets forth the provisions governing the Infractions Program.
Section 19. 5. 8 requires individuals and institutional representatives to sign a statement of
confidentiality agreeing not to release recordings or interview transcripts to a third parry. Section
19. 01. 3 further provides that an individual or institution shall not make public disclosures about
the case until a final decision has been announced in accordance with prescribed procedures.

N

The trial court is granted broad discretion in making evidentiary rulings,

which will not be disturbed on appeal absent a clear abuse of discretion. Lance

City of Mandeville, 2021- 1362 ( La. App. 1st Cir. 4/ 27122), 342 So. 3d 337, 346,

writ denied, 2022- 00828 ( La. 9127122), 347 So. 3d 155. An abuse of discretion

generally results from a conclusion reached capriciously or in an arbitrary manner,
which means the absence of a rational basis for the action taken. Thus, a trial

court' s discretionary action will not be disturbed on review if reasonable people

could differ as to the propriety of the trial court' s action. Boone Services, LLC v._

Clark Homes, Inc., 2023- 0299 ( La. App. 1st Cir. 1011$ 123), _ So. 3d _, _, 2023

WL 68860721 * 2, citing, Landry, 342 So. 3d at 346.

The trial court allowed LSU to question Mr. Cregg about the accuracy of his

statements in the NCAA interview. Moreover, testimony about the interviews was

elicited through other witnesses, including Bo Bahnsen, Senior Associate Athletic

Director and Head of Compliance for LSU, who was present as the institution

representative during both interviews. With reference to the Notice of Allegations

issued by the NCAA, LSU failed to call an appropriate witness to authenticate the

notice and question about same. Considering that a rational basis exists for the

rulings of the trial court, see Landry, 342 So. 3d at 348, on review, we find no

abuse of the trial court' s vast discretion in precluding introduction of the NCAA

interview transcripts and Notice of Allegations against Mr. Cregg. Also, we

cannot say that LSU established that any of the alleged errors were prejudicial or

otherwise had a substantial effect on the trial court' s judgment such as to interdict

the fact- finding process or warrant de novo review.

As such, we find no merit to this assignment of error.

Breach of Employment Agreement
Standard of Review and Legal Precepts

10

Interpretation of a contract is a question of law. Thus, an appellate court

applies the de novo standard of review to statutory and contract interpretation. See
1st
Lonesome Development, LLC v. Town of Abita_Springs, 2021- 1463 ( La. App.

Cir. 6/ 29/ 22), 343 So. 3d 831, 539, writ denied, 2022- 01158 ( La. 11/ 1122), 349 So.

3d 3. However, where no contract provision applies or where factual findings are

pertinent to the interpretation of the contract, we apply the manifest error standard

of review. Boone Services. LLC, _ So. 3d at _, 2023 WL 6886072 at * 2.

Resolution of assignments of error three and four involve an interpretation of

the contract, which has the effect of law between the parties. See La. C. C. art.

1983; Baldwin v. Board of Supervisors for UniversL of Louisiana System, 2014-

0827 ( La. 10/ 15114), 156 So. 3d 33, 37. The responsibility of the judiciary in

See La_
interpreting contracts is to determine the common intent of the parties.

C. C, art. 2045. Courts begin their analysis of the parties' common intent by

examining the words of the contract itself. When the words of a contract are clear

and explicit and lead to no absurd consequences, no further interpretation may be

made in search of the parties' intent. La. C. C. art. 2046. Most importantly, a

contract must be interpreted in a common- sense fashion, affording the words of the

contract their common and usual significance. Preiean v. Guillory, 2010- 0740 ( La.

7/ 2/ 10), 38 So. 3d 274, 279. A contract provision that is susceptible to different

meanings must be interpreted with a meaning that renders the provision effective,

and not with one that renders it ineffective. Clovelly Oil Co., LLC v. Midstates

Petroleum Co., LLC, 2012- 2055 ( La. 3/ 19113), 112 So. 3d 187, 192. A contract is

to be construed as a whole and each provision in the contract must be interpreted in

light of the other provisions. See La. C. C. art. 2050. One provision of the contract

should not be construed separately at the expense of disregarding other provisions.

Amer v. Roberts, 2015- 0599 ( La. App. 111 Cir. 11/ 9/ 15), 184 So. 3d 123, 131.

Assignment of Error Number Three

11

In its third assignment of error, LSU contends that the trial court erred in

finding that LSU breached Section I I( A)(3) of the employment agreement by not

allowing the appeal process to run its course before hiring a replacement coach.

Section II(A)(3) of the employment agreement explains the process by

which LSU determines whether criteria supporting a termination for " cause" are

met and provides for notice and review of any contemplated termination for cause,

as follows:

Any judgment as to whether the criteria contained in this
Section have been met shall not be made arbitrarily or capriciously by
LSU. Prior to termination for cause, EMPLOYEE shall be provided
with written notice of contemplated termination and a statement of the
grounds and facts in support thereof and shall have five calendar days
from receipt of such notice to respond in writing and/ or present
documents or other written evidence to the Athletic Director.
After review [ of] any such response[,] the Athletic Director or
the Athletic Director' s designee will provide EMPLOYEE written
notice of a decision. Within five calendar days of receipt of the
decision, EMPLOYEE may make a written request for a hearing to
the President. If no such request is made, the decision of the Athletic
Director is final. If a request for hearing is made, the President or the
President' s designee( s) will conduct the hearing. The hearing and
related proceedings will not be open to the public. EMPLOYEE has
the right to an advisor, including legal counsel, at the hearing but the
advisor or counsel may not participate in the hearing, question
witnesses or address the President or President' s designee( s).

Without pointing to any specific provision or language, the trial court

determined that the employment agreement was terminated without cause because

LSU did not allow Mr. Cregg' s appeal process " to run its course" before hiring a

new offensive line coach. After thoroughly reviewing the employment agreement

herein, however, we can find no language, nor does Mr. Cregg identify any

language, prohibiting or restricting LSU from hiring a replacement coach during

the pendency of an appeal of the agreement' s termination or otherwise requiring

that his position remain vacant during the pendency of an appeal.

The words of the contract herein are clear and explicit and lead to no absurd

consequences. See La. C. C. art. 2046. As set forth above, Section I I( A)(3) of the

12

employment agreement provides that " Any judgment as to whether the criteria

contained in this Section [ which defines cause for termination] have been met shall

not be made arbitrarily or capriciously by LSU." Simply put, the employment

agreement precludes LSU from making an arbitrarily or capricious determination

that cause for termination exists.

Here, the hiring of a new offensive line coach does not interdict the process

of identifying and establishing cause for termination. Moreover, LSU' s decision to

hire a new offensive line coach is not subject to an arbitrary or capricious finding

in the context of this process. Mr. Cregg was given a notice of LSU' s intent to

terminate his employment on June 2, 2021. The judgment of the trial court, which

determined Mr. Cregg was terminated without cause, was not signed until

September 8, 2022. The question to be resolved is not whether LSU had the right

to terminate Mr. Cregg' s employment agreement, but whether LSU terminated Mr.

Cregg without cause, and consequently owed Mr. Cregg liquidated damages

associated with a termination without cause. Either way, in the interim, LSU was

without an offensive line coach. Hiring a coach to fill the vacancy in this coaching

staff position prior to its 2021 football season only seems prudent. Where the

employment agreement contained no prohibition on staffing the position before the

appeal process was complete, we find the trial court erred in determining that LSU

breached the employment agreement, and by implication, that LSU acted

arbitrarily and capriciously by filling the vacancy while in the process of

determining whether cause for termination existed.

Assignment of Error Number Four

In its fourth assignment of error, LSU contends that the trial court erred in

finding that LSU breached Section ll(A)( 1)( a) of the employment agreement

where the employment agreement contains no requirement that LSU await a final

decision by the NCAA to conclude that Mr. Cregg committed NCAA infractions

13

and where Mr. Cregg admitted to conduct that was impermissible under NCAA

rules. 6

At the outset, we note that to the extent LSU argues that the trial court erred

in finding that it breached Section l l (A)(1)( a), LSU mis- frames the purported

error.
The trial court did not find that LSU breached Section I I( A)( 1)( a). Instead,

the trial court found, and expressly stated, that LSU terminated Mr. Cregg without
cause as contemplated by Section I I( B)( 1).' Section I I( A)( 1) provides numerous

bases which support a finding of termination for " cause," one of which, Section
I I (A)( 1)( a),
relates to the commission of a Level I or II violation of NCAA bylaws

or other rules violation.
However, this section defining cause does not obligate
LSU in any way. However, Section. I1( A)(3) does obligate LSU to determine

cause in a manner that is neither arbitrary nor capricious. Moreover, Section

11( A)(3) affords the employee due process, requiring that, prior to termination for
cause, the employee be provided with written notice of contemplated termination

and a statement of the grounds and facts in support thereof. If LSU claimed cause

existed when in fact it did not, we may simply conclude, as did the trial court, that
the termination was without cause. We may then conclude, as did the trial court,

that LSU was responsible for, and failed to pay, liquidated damages for such
termination without cause. Thus, in order to resolve this assignment of error, we

must initially determine whether LSU properly found that cause for termination
existed as identified in its notice of termination letter.

Although Mr. Cregg disputes proper notice as required by Section l 1( A)(3) as to

termination for cause as defined in Sections 11( A)(1)( i) and II(A)( 1)( q), he does not dispute
notice for termination for cause based on Section I I (A)( 1)( a).

Section I I( B)( 1) provides:

LSU shall have the right to terminate this Agreement without cause upon
written notice to EMPLOYEE. In such event, LSU will pay EMPLOYEE
liquidated damages, in lieu of any and all other legal remedies or equitable relief
as detailed below.

14

Section 1 I (A) provides that the employment agreement may be terminated

for " cause," by LSU, acting through the President, at any time prior to its

expiration, upon written notice to the employee. Section 11( A)( 1) defines " cause"

and sets forth twenty enumerated circumstances which constitute " cause" for

termination. The basis relied on by LSU herein to terminate its employment

agreement with Mr. Cregg is set forth in Section 11( A)( 1)( a), as follows:

Commission of a Level I or ll violation under NCAA bylaws or
commission of a material and substantial violation ( or repeated Level
III and/ or IV violations) of other Governing Athletics Regulations, or
failing to promptly report any such violation by another person to the
President and the Senior Associate Athletic Director for Compliance,
or committing a material and substantial violation of any LSU
policies, rules, or procedures that are believed or found to be within
the scope and/ or meet the definition of Governing Athletics
Regulations[.]

Applying the principles governing interpretation of contracts set forth above,
we now determine whether Section 11( A)( 1)( a) requires or contemplates a final

decision by the NCAA that its bylaws were violated. Examining the words of the

contract herein, we note that " commission" is defined as "[ t]he act of committing,

doing, or perpetrating; positive doing." Webster' s Dictionary of the English

Language 203 ( Deluxe ed. 1992). The parties agreed to use the language,

commission of a ... violation under NCAA bylaws," without specifying that the

commission must be based on a determination by the NCAA. As demonstrated by

the testimony adduced at trial, the violation of a bylaw and the NCAA' s final
determination that a violation occurred do not occur simultaneously and may occur

years apart. While the parties could have agreed to allow the NCAA to serve as

the arbiter of whether Mr. Cregg committed a violation, they did not choose to do

so. In fact, once an allegation of a violation is made, the NCAA employs its own

procedure ( NCAA Bylaw, Article 19 Infractions Program) to commence an

investigation by its enforcement staff prior to making any such determination.

15

In the instant case, the actions of Mr. Cregg, which he candidly

acknowledged constituted conduct violative of the NCAA bylaws, occurred in May

of 2020. Over two years later, at the time the trial court issued its ruling on August

25, 2422, a decision still had not been issued by the NCAA. Moreover, pursuant to

NCAA Bylaw, Article 19, Section 19. 5. 11, the statute of limitations for allegations

of violations is four years from the date the notice of inquiry is provided to the

institution or the date the institution notifies the enforcement staff of its inquiries

into the matter. Thus, a decision of the NCAA that an infraction occurred may

come years after the " commission of a violation" or " act of committing" a

violation under the bylaws.

In finding that the employment agreement was terminated without cause, we

find the trial court erred in requiring a final decision from the NCAA as a

prerequisite to a finding of cause. The clear and explicit words of the agreement,

interpreted in a common --
sense fashion, provide that cause exists for terminating

the employment agreement when an individual or the institution commits a

violation under NCAA bylaws — not when the NCAA determines the employee

committed a violation.

Importantly, the employment agreement contains no language requiring that

the actions that constitute violations under the NCAA bylaws be deemed as such

by virtue of a final decision of the NCAA. The record herein establishes that Mr.

Cregg' s actions were violative of the NCAA bylaws. Any interpretation of the
employment agreement language that conditions a finding of cause based on a final

decision of the NCAA, which may be rendered years later, when the agreement

contains no such requirement is simply nonsensical.

1)(
Finding that the trial court erred in its interpretation of Section I I (A)(
a)

Because
of the employment agreement, we find merit to this assignment of error.

we find LSU provided sufficient notice of its contemplated termination of the

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employment agreement for cause as defined in Section I l (A)( 1)( a), by virtue of

Coach Orgeron' s June 2, 2021 letter to Mr. Cregg, we find LSU terminated the

employment agreement with Mr. Cregg for cause and reverse the judgment of the

trial court.'

Answer to Appeal

Our resolution of LSU' s assignments of error above renders moot the

assignments of error concerning an award of consequential damages and

evidentiary challenges to evidence submitted in support of LSU' s motion for new

trial urged by Mr. Cregg in his answer to appeal. Mr. Cregg contends in his

remaining assignment of error that the trial court erred in failing to admit and

consider " certain pieces of evidence proffered by [ Mr. Cregg]." Although Mr.

Cregg does not identify the evidence he contends was wrongly excluded, we note

that the record before us contains one proffer by Mr. Cregg, which is an

amendment to an employment agreement between LSU and Frank W. " Will"

Wade. If, in fact, this is the evidence that Mr. Cregg contends was wrongly

excluded, Mr. Cregg does not explain how or why the evidence was wrongly

excluded. Because Mr. Cregg has not briefed this assignment of error, we are

constrained to consider it abandoned and are precluded from addressing it herein.

See Uniform Rules - Courts of Appeal, Rule 2- 12. 4(B)( 4); In re Interdiction of

Is'
Cockerton, 2021- 1316 ( La. App. Cir. 418122), 341 So. 3d 834, 838- 840;

Succession of Poole, 213 So. 3d 18, 26. Accordingly, Mr. Cregg' s answer to

appeal is denied.

CONCLUSION

Based on the above and foregoing reasons, the September 8, 2022 judgment

of the trial court finding the employment agreement was terminated without cause

SConsidering our finding herein that LSU terminated the employment agreement with
cause in accordance with the employment agreement, we pretermit discussion of LSU' s
remaining assignments of error.

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and awarding Mr. Cregg liquidated damages is reversed in its entirety. Mr.

Cregg' s motion to dismiss and alternative answer to appeal is denied. Costs of this

appeal are assessed to the plaintiff/appellee, James Cregg.

REVERSED.

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