1
1 IN THE CIRCUIT COURT OF MONONGALIA COUNTY 2 WEST VIRGINIA 3 WEST VIRGINIA UNIVERSITY ) 4 BOARD OF GOVERNORS, for ) and on behalf of ) 5 WEST VIRGINIA UNIVERSITY, ) ) 6 ) Plaintiff, ) 7 ) vs. ) Civil Action No. 07-C-851 8 ) RICHARD RODRIGUEZ, ) Judge Stone 9 ) ) 10 Defendant. ) 11 12 - - - 13 14 DEPOSITION OF MICHAEL L. BROWN 15 VOLUME I (Morning Session) 16 17 DATE: May 5, 2008 at 9:05 a.m. 18 PLACE: Marriott Courtyard 2435 East Mall Drive 19 Holland, Ohio 20 REPORTER: Casey G. Schreiner, RMR-RDR Notary Public 21 22 - - - 23 24 2
1 APPEARANCES: 2 On behalf of the Plaintiff: 3 FITZSIMMONS LAW OFFICES: Robert P. Fitzsimmons 4 Robert J. Fitzsimmons 1609 Warwood Avenue 5 Wheeling, West Virginia 26003 (304) 277-2700 6 and 7 FLAHERTY, SENSABAUGH & BONASSO, 8 P.L.L.C.: Jeffrey M. Wakefield 9 Jaclyn A. Bryk 200 Capitol Street 10 Charleston, West Virginia 25338 (304) 345-0200 11 12 On behalf of the Defendant: 13 BARKAN & ROBON LTD.: Marvin A. Robon 14 1701 Woodlands Drive Maumee, Ohio 43537 15 (419) 897-6500 16 and 17 DiTRAPANO, BARRETT & DiPIERO, PLLC: 18 Sean P. McGinley (via telephone) 604 Virginia Street, East 19 Charleston, West Virginia 25301 (304) 342-0133 20 21 ALSO PRESENT: 22 Frank Mannino, Videographer Alexander Macia, Vice President for 23 Legal Affairs and General Counsel, West Virginia University 24 3
1 I N D E X 2 EXAMINATION Witness Name Page Line 3 MICHAEL L. BROWN Examination By Mr. Robert P. Fitzsimmons 13 11 4 Examination By Mr. Robon ...... 503 4 Re-Examination By Mr. Robert P...... 532 12 5 Fitzsimmons 6 EXHIBITS Exhibit Description Page Line 7 EX 1 Letter - Brown to Pastilong - .. 250 17 2-15-06 8 EX 2 Letter - Brown to Dorer - ...... 262 19 3-28-06 9 EX 3 E-mail - Brown to tom.dorer - .. 266 6 4-3-06 10 EX 4 E-mail - [email protected] to .. 272 4 [email protected] 11 EX 7 Letter - Brown to Dorer - ...... 280 13 5-22-06 12 EX 8 Letter - Dorer to Brown - 6-6-06 299 6 EX 11 Letter - Dorer to Brown - ...... 303 1 13 8-15-06 EX 12 E-mail - Parsons to ...... 308 19 14 [email protected] - 12-8-06 EX 13 Term Sheet - 12-8-06 ...... 312 16 15 EX 14 Letter - Brown to Pastilong - .. 314 14 2-28-07 16 EX 17 Letter - Dorer to Brown - ...... 324 23 5-17-07 17 EX 20 E-mail - [email protected] to .. 328 1 Craig [email protected] 18 EX 22 E-mail - [email protected] to .. 333 9 Craig [email protected] 19 EX 24 Memo - Walker to Brown - 7-27-07 335 23 EX 25 E-mail - lbfound75 to Craig .... 344 15 20 Walker @mail.wvu.edu - 7-27-07 EX 26 E-mail - Walker to Brown - ..... 347 5 21 8-1-07 EX 27 E-mail - [email protected] to .. 355 7 22 Craig Walker@ mail.wvu.edu - 8-6-07 23 EX 29 E-mail - Walker to ...... 357 20 [email protected] 24 EX 30 E-mail - Wilcox to Walker - .... 362 19 4
1 EX 31 E-mail - Wilcox to Walker - .... 366 9 8-23-07 2 EX 32 E-mail - Wilcox to ...... 367 19 [email protected] 3 EX 33 E-mail - Wilcox to Garrison - .. 370 22 4 8-24-07 EX 35 E-mail - From: Mike Wilcox - ... 374 12 5 8-27-07 EX 40 E-mail - [email protected] to .. 419 5 6 Craig Walker @mail.wvu.edu EX 42 E-mail - Mike Wilcox to Craig .. 427 2 7 Walker - 11-18-07 EX 43 E-mail - Mike Wilcox to Craig .. 429 22 8 Walker - 11-24-07 EX 44 (Not provided to reporter) ..... 432 7 9 EX 46 (Not provided to reporter) ..... 433 7 EX 48 (Not provided to reporter) ..... 437 9 10 EX 50 (Not provided to reporter) ..... 449 2 EX 53 Employment Agreement ...... 121 12 11 EX 54 First Amendment to the ...... 122 21 Employment Agreement for Richard 12 Rodriguez EX 55 Copy of business card ...... 379 14 13 EX 56 E-mail - Brown to Jenkromp - ... 381 6 11-15-01 14 EX 57 Second Amendment to teh ...... 126 14 Employment Agreement for Richard 15 Rodriguez EX 57 Text ...... 388 24 16 EX 58 (Not provided to reporter) ..... 141 10 EX 59 (Not provided to reporter) ..... 518 9 17 EX 60 (Not provided to reporter) ..... 518 9 EX 61 (Not provided to reporter) ..... 520 2 18 EX 62 Letter with handwriting - Dorer 533 18 to Brown - 4-24-07 19 OBJECTIONS 20 By Page Line Mr. Robert P. Fitzsimmons ...... 503 21 21 Mr. Robert P. Fitzsimmons ...... 509 6 Mr. Robert P. Fitzsimmons ...... 509 14 22 Mr. Robert P. Fitzsimmons ...... 510 7 Mr. Robert P. Fitzsimmons ...... 514 10 23 Mr. Robert P. Fitzsimmons ...... 522 14 Mr. Robon ...... 14 6 24 Mr. Robon ...... 14 17 5
1 Mr. Robon ...... 16 7 Mr. Robon ...... 18 7 2 Mr. Robon ...... 19 3 Mr. Robon ...... 19 15 3 Mr. Robon ...... 31 6 Mr. Robon ...... 31 21 4 Mr. Robon ...... 32 4 Mr. Robon ...... 35 5 5 Mr. Robon ...... 38 22 Mr. Robon ...... 39 7 6 Mr. Robon ...... 46 4 Mr. Robon ...... 48 9 7 Mr. Robon ...... 48 24 Mr. Robon ...... 49 24 8 Mr. Robon ...... 56 9 Mr. Robon ...... 57 16 9 Mr. Robon ...... 61 14 Mr. Robon ...... 62 20 10 Mr. Robon ...... 63 13 Mr. Robon ...... 64 2 11 Mr. Robon ...... 64 12 Mr. Robon ...... 64 21 12 Mr. Robon ...... 65 7 Mr. Robon ...... 66 2 13 Mr. Robon ...... 68 7 Mr. Robon ...... 69 1 14 Mr. Robon ...... 69 23 Mr. Robon ...... 72 7 15 Mr. Robon ...... 78 16 Mr. Robon ...... 78 23 16 Mr. Robon ...... 79 22 Mr. Robon ...... 84 16 17 Mr. Robon ...... 86 2 Mr. Robon ...... 87 9 18 Mr. Robon ...... 91 10 Mr. Robon ...... 95 3 19 Mr. Robon ...... 95 12 Mr. Robon ...... 95 23 20 Mr. Robon ...... 96 10 Mr. Robon ...... 96 17 21 Mr. Robon ...... 97 18 Mr. Robon ...... 98 4 22 Mr. Robon ...... 98 12 Mr. Robon ...... 100 17 23 Mr. Robon ...... 102 7 Mr. Robon ...... 103 8 24 Mr. Robon ...... 104 21 6
1 Mr. Robon ...... 107 3 Mr. Robon ...... 107 11 2 Mr. Robon ...... 109 23 Mr. Robon ...... 112 22 3 Mr. Robon ...... 115 6 Mr. Robon ...... 118 18 4 Mr. Robon ...... 119 7 Mr. Robon ...... 121 3 5 Mr. Robon ...... 124 8 Mr. Robon ...... 125 7 6 Mr. Robon ...... 126 8 Mr. Robon ...... 127 22 7 Mr. Robon ...... 129 5 Mr. Robon ...... 129 23 8 Mr. Robon ...... 130 17 Mr. Robon ...... 131 13 9 Mr. Robon ...... 132 17 Mr. Robon ...... 133 10 10 Mr. Robon ...... 135 19 Mr. Robon ...... 136 21 11 Mr. Robon ...... 137 1 Mr. Robon ...... 138 14 12 Mr. Robon ...... 138 21 Mr. Robon ...... 139 1 13 Mr. Robon ...... 140 13 Mr. Robon ...... 141 8 14 Mr. Robon ...... 149 5 Mr. Robon ...... 149 9 15 Mr. Robon ...... 151 9 Mr. Robon ...... 153 22 16 Mr. Robon ...... 154 23 Mr. Robon ...... 155 6 17 Mr. Robon ...... 160 20 Mr. Robon ...... 161 24 18 Mr. Robon ...... 162 15 Mr. Robon ...... 165 10 19 Mr. Robon ...... 166 2 Mr. Robon ...... 166 12 20 Mr. Robon ...... 168 3 Mr. Robon ...... 168 22 21 Mr. Robon ...... 169 4 Mr. Robon ...... 171 14 22 Mr. Robon ...... 173 3 Mr. Robon ...... 179 3 23 Mr. Robon ...... 180 8 Mr. Robon ...... 182 24 24 Mr. Robon ...... 186 3 7
1 Mr. Robon ...... 187 13 Mr. Robon ...... 188 20 2 Mr. Robon ...... 189 15 Mr. Robon ...... 189 23 3 Mr. Robon ...... 190 8 Mr. Robon ...... 190 11 4 Mr. Robon ...... 191 2 Mr. Robon ...... 192 8 5 Mr. Robon ...... 192 16 Mr. Robon ...... 193 6 6 Mr. Robon ...... 193 9 Mr. Robon ...... 196 6 7 Mr. Robon ...... 197 3 Mr. Robon ...... 198 20 8 Mr. Robon ...... 199 21 Mr. Robon ...... 200 17 9 Mr. Robon ...... 200 21 Mr. Robon ...... 201 16 10 Mr. Robon ...... 202 7 Mr. Robon ...... 202 19 11 Mr. Robon ...... 203 5 Mr. Robon ...... 203 10 12 Mr. Robon ...... 204 1 Mr. Robon ...... 204 8 13 Mr. Robon ...... 205 7 Mr. Robon ...... 208 4 14 Mr. Robon ...... 211 5 Mr. Robon ...... 212 6 15 Mr. Robon ...... 216 11 Mr. Robon ...... 219 10 16 Mr. Robon ...... 219 20 Mr. Robon ...... 225 12 17 Mr. Robon ...... 226 5 Mr. Robon ...... 226 22 18 Mr. Robon ...... 227 23 Mr. Robon ...... 228 23 19 Mr. Robon ...... 229 13 Mr. Robon ...... 230 16 20 Mr. Robon ...... 231 7 Mr. Robon ...... 237 2 21 Mr. Robon ...... 237 11 Mr. Robon ...... 237 14 22 Mr. Robon ...... 239 8 Mr. Robon ...... 241 3 23 Mr. Robon ...... 241 8 Mr. Robon ...... 243 1 24 Mr. Robon ...... 247 14 8
1 Mr. Robon ...... 260 13 Mr. Robon ...... 262 2 2 Mr. Robon ...... 268 15 Mr. Robon ...... 270 2 3 Mr. Robon ...... 271 17 Mr. Robon ...... 277 18 4 Mr. Robon ...... 278 13 Mr. Robon ...... 280 5 5 Mr. Robon ...... 284 10 Mr. Robon ...... 284 19 6 Mr. Robon ...... 286 18 Mr. Robon ...... 291 19 7 Mr. Robon ...... 293 16 Mr. Robon ...... 295 19 8 Mr. Robon ...... 296 21 Mr. Robon ...... 305 4 9 Mr. Robon ...... 307 17 Mr. Robon ...... 308 12 10 Mr. Robon ...... 311 3 Mr. Robon ...... 311 6 11 Mr. Robon ...... 311 17 Mr. Robon ...... 312 2 12 Mr. Robon ...... 312 10 Mr. Robon ...... 313 7 13 Mr. Robon ...... 313 11 Mr. Robon ...... 313 19 14 Mr. Robon ...... 314 6 Mr. Robon ...... 316 20 15 Mr. Robon ...... 317 2 Mr. Robon ...... 319 22 16 Mr. Robon ...... 323 5 Mr. Robon ...... 325 14 17 Mr. Robon ...... 327 20 Mr. Robon ...... 331 2 18 Mr. Robon ...... 339 21 Mr. Robon ...... 340 13 19 Mr. Robon ...... 342 22 Mr. Robon ...... 343 14 20 Mr. Robon ...... 343 22 Mr. Robon ...... 344 5 21 Mr. Robon ...... 348 17 Mr. Robon ...... 351 12 22 Mr. Robon ...... 358 22 Mr. Robon ...... 364 6 23 Mr. Robon ...... 370 4 Mr. Robon ...... 373 19 24 Mr. Robon ...... 382 6 9
1 Mr. Robon ...... 386 6 Mr. Robon ...... 387 12 2 Mr. Robon ...... 387 24 Mr. Robon ...... 388 17 3 Mr. Robon ...... 394 6 Mr. Robon ...... 395 21 4 Mr. Robon ...... 398 14 Mr. Robon ...... 399 24 5 Mr. Robon ...... 400 6 Mr. Robon ...... 401 4 6 Mr. Robon ...... 402 9 Mr. Robon ...... 402 20 7 Mr. Robon ...... 403 1 Mr. Robon ...... 403 21 8 Mr. Robon ...... 404 9 Mr. Robon ...... 404 17 9 Mr. Robon ...... 405 17 Mr. Robon ...... 406 2 10 Mr. Robon ...... 406 6 Mr. Robon ...... 406 17 11 Mr. Robon ...... 407 2 Mr. Robon ...... 407 7 12 Mr. Robon ...... 407 15 Mr. Robon ...... 407 19 13 Mr. Robon ...... 408 1 Mr. Robon ...... 408 9 14 Mr. Robon ...... 409 4 Mr. Robon ...... 410 5 15 Mr. Robon ...... 410 14 Mr. Robon ...... 411 6 16 Mr. Robon ...... 411 12 Mr. Robon ...... 412 16 17 Mr. Robon ...... 412 20 Mr. Robon ...... 413 18 18 Mr. Robon ...... 414 5 Mr. Robon ...... 416 19 19 Mr. Robon ...... 417 13 Mr. Robon ...... 418 2 20 Mr. Robon ...... 419 1 Mr. Robon ...... 420 5 21 Mr. Robon ...... 423 5 Mr. Robon ...... 426 14 22 Mr. Robon ...... 437 3 Mr. Robon ...... 442 22 23 Mr. Robon ...... 443 22 Mr. Robon ...... 445 3 24 Mr. Robon ...... 447 23 10
1 Mr. Robon ...... 451 9 Mr. Robon ...... 457 9 2 Mr. Robon ...... 460 8 Mr. Robon ...... 466 5 3 Mr. Robon ...... 470 14 Mr. Robon ...... 470 21 4 Mr. Robon ...... 471 23 Mr. Robon ...... 472 22 5 Mr. Robon ...... 474 12 Mr. Robon ...... 475 5 6 Mr. Robon ...... 477 6 Mr. Robon ...... 477 17 7 Mr. Robon ...... 478 10 Mr. Robon ...... 478 20 8 Mr. Robon ...... 482 13 Mr. Robon ...... 486 8 9 Mr. Robon ...... 489 14 Mr. Robon ...... 490 5 10 Mr. Robon ...... 490 18 Mr. Robon ...... 494 22 11 Mr. Robon ...... 496 6 Mr. Robon ...... 547 20 12 Mr. Wakefield ...... 521 2 Mr. Wakefield ...... 529 16 13 Mr. Wakefield ...... 530 15 Mr. Wakefield ...... 548 16 14 Mr. Wakefield ...... 551 1 Mr. Wakefield ...... 551 8 15 WITNESS INSTRUCTIONS NOT TO ANSWER 16 Page Line 479 10 17 482 10 18 - - - 19 20 21 22 23 24 11
1 THE VIDEOGRAPHER: We are now on
2 the record. This videotape deposition is
3 taken of Michael Brown located at 1435
4 East Mall Drive in Holland, Ohio.
5 Today's date is May 9th, 2008.
6 The time is now 9:05 a.m.
7 This is in the matter of West
8 Virginia University Board of Governors
9 versus Rodriguez, Case No. 07-C-851.
10 This matter is being held before the
11 Honorable Robert B. Stone in Monongalia
12 County Circuit Court in West Virginia.
13 My name is Frank Mannino, legal
14 videographer for Collins Reporting
15 Services, Inc.
16 Madam Court Reporter, would you
17 please swear in the witness.
18 MR. ROBON: No. Do the pan
19 first, please.
20 THE VIDEOGRAPHER: Counsel,
21 would you please introduce yourselves.
22 MR. MACIA: I'm Alex Macia with
23 West Virginia University.
24 MS. BRYK: Jaclyn Bryk appearing 12
1 for West Virginia University.
2 MR. ROBERT J. FITZSIMMONS:
3 Robert J. Fitzsimmons on behalf of West
4 Virginia University.
5 MR. WAKEFIELD: Jeff Wakefield
6 representing West Virginia University.
7 MR. ROBERT P. FITZSIMMONS: Bob
8 Fitzsimmons representing West Virginia
9 University.
10 MR. BROWN: Michael L. Brown,
11 the witness.
12 MR. ROBON: Good morning.
13 Marvin A. Robon from Barkan & Robon in
14 Maumee, Ohio. We represent
15 Coach Rodriguez in the defense of the
16 lawsuit involving West Virginia
17 University.
18 THE COURT REPORTER: Casey
19 Schreiner.
20 THE VIDEOGRAPHER: Madam Court
21 Reporter, would you please swear in the
22 witness.
23 MICHAEL L. BROWN,
24 a Witness herein, called by the Plaintiffs as if upon 13
1 Examination, was by me first duly sworn, as
2 hereinafter certified, deposed and said as follows:
3 THE VIDEOGRAPHER: Thank you.
4 Please continue.
5 MR. ROBON: Do you have your
6 mike on?
7 THE WITNESS: Do I need to put
8 this on?
9 MR. ROBON: Yes, you do. Up on
10 your lapel would probably work better.
11 EXAMINATION
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Mr. Brown, tell me what business
14 relationships you have with Rich Rodriguez, today, as
15 of today.
16 A. Can you define -- can you define what
17 business relationships are?
18 Q. You don't know what the term "business
19 relationships" mean?
20 A. Uh-huh.
21 Q. Okay. Go ahead and answer the question,
22 then.
23 A. I'm his agent representing him in his
24 contract negotiations, and providing advice and 14
1 consultation in regards to his career and his current
2 position at University of Michigan.
3 Q. All right. Any other business
4 relationships you have, including investment
5 relationships as partners in investments?
6 MR. ROBON: Objection. But you
7 can answer.
8 THE WITNESS: Coach Rodriguez,
9 along with some other people are member
10 of an LLC -- actually three different
11 LLCs in regards to real estate
12 development, and currently I am the
13 manager of those LLCs.
14 BY MR. ROBERT P. FITZSIMMONS:
15 Q. All right. Do they have different names,
16 those three particular LLCs?
17 MR. ROBON: Objection.
18 You can answer.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. You have to answer unless he directs you
21 not to answer.
22 A. Okay. Yes, there's three LLCs. One is
23 Palmetto State Enterprises.
24 Q. Palmetto State -- 15
1 A. State Enterprises.
2 Q. Okay.
3 A. The Legends of Tuscaloosa, LLC.
4 Q. The Legends Tuscaloosa --
5 A. The Legends of Tuscaloosa, LLC.
6 Q. Okay.
7 A. And the Legends of Blacksburg, LLC.
8 Q. What is your position with the LLCs?
9 MR. ROBON: Objection. Asked
10 and answered. He indicated he was the
11 manager.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. I'm sorry. Did you hear his statement?
14 A. Say that again.
15 Q. You can answer the question.
16 A. I'm -- I'm currently the manager of the
17 LLCs.
18 Q. Each one of the three?
19 A. Each one of the three separate LLCs. One
20 is in South Carolina; one is in Alabama; and one is in
21 Black -- is in Virginia.
22 Q. Okay. Are you an investor also, a member
23 of the LLC?
24 A. I'm not an investor. 16
1 Q. In any one of the three?
2 A. Not in any one of the three.
3 Q. Have you been in the past?
4 A. No.
5 Q. All right. What do you do as the manager
6 for those businesses?
7 MR. ROBON: Objection.
8 You can answer.
9 THE WITNESS: Handle the
10 day-to-day business of coordinating in
11 each of the three locations with, for
12 example, the realtors, each one, on the
13 status of the sales.
14 I work with the banker and
15 communicate with the banker on the status
16 of loans on each of the three. And
17 that's basically just day-to-day real
18 estate development/property management.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Do you have offices at the three
21 locations as a manager?
22 A. No, I work out of my home in Atlanta.
23 Q. What's the address of your home?
24 A. 1207 -- 17
1 MR. ROBON: Shhh. I would
2 rather do that off the record, not put it
3 in a transcript. I don't want people
4 picketing his house. We'll give it to
5 you off the record.
6 MR. WAKEFIELD: Well, let me --
7 it's listed in a number of exhibits in
8 terms of correspondence.
9 THE WITNESS: That's fine.
10 1207 Oglethorpe Avenue North
11 East, Atlanta, Georgia, 30319.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Okay. So you have a -- you operate as a
14 manager for those three LLCs principally out of your
15 home?
16 A. That's correct.
17 Q. Do those three LLCs have actual offices,
18 business offices?
19 A. No.
20 Q. These are real estate development
21 companies, are they? You build homes and things?
22 A. We do condo developments.
23 Q. In all three of the LLCs?
24 A. All three of the LLCs, a single condo 18
1 development for each one of the LLCs.
2 Q. Okay. How long have you actually been
3 the manager of the oldest LLC of the three?
4 A. I did not become manager until September
5 of '07.
6 Q. Who hired you?
7 MR. ROBON: Objection.
8 You can answer.
9 (Pause.)
10 THE WITNESS: I was hired by
11 three people: Ron West at Clemson
12 University, who is one of the principals
13 in the LLC; Coach Rodriguez; and there
14 was -- there is an attorney involved in
15 handling matters for the LLC that was
16 also involved in my hiring, Chris Olson
17 out of Clemson, South Carolina.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. Chris Olson?
20 A. Yeah.
21 Q. Is he the attorney for the three LLCs?
22 A. He is the attorney for the LLCs, yes, out
23 of Clemson, South Carolina.
24 Q. Are the three of those individuals, 19
1 Mr. West, Mr. Rodriguez, and Mr. Olson, are they also
2 members of the LLC?
3 MR. ROBON: Objection.
4 You can answer.
5 THE WITNESS: The only two
6 members are Ron West and
7 Rich Rodriguez.
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. Is Mr. west in the coaching business?
10 A. Yes, he is.
11 Q. At Clemson?
12 A. At Clemson.
13 Q. How much time do you spend in a week's
14 time with those three LLCs as the manager?
15 MR. ROBON: Objection.
16 You can answer.
17 THE WITNESS: It varies. I can
18 go from --
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Just on the average.
21 A. On the average, I spend about 60 hours a
22 month on the LLCs.
23 Q. Okay.
24 A. Since September of '07. 20
1 Q. Okay. So the two business relationships
2 that you've identified with Coach Rodriguez are the
3 three LLCs in your capacity as the manager of those
4 three, and you also indicated, I think, you're his
5 manager in contract negotiations?
6 A. That's part of my duties.
7 Q. Is there some other duties besides
8 contract negotiations and representing him as a coach?
9 A. Yes.
10 Q. What else do you do?
11 A. What I do as part of my duty in
12 representing Coach, I keep up to speed on data and
13 that on the coaching industry as far as contract data,
14 as far as marketing rights, how different schools are
15 using the Internet sites.
16 I work on behalf of Coach Rodriquez, for
17 example, right now at Michigan, in deciding how the TV
18 shows are going to be done, how the radio shows are
19 going to be done; how in the organization of his
20 camps, you know, whether -- you know, now -- whether,
21 you know, at Michigan he runs the camps under his sole
22 proprietorship. So I work with him on the number of
23 camps he's going to have, what the revenue projections
24 are going to be, what the payout may be for the 21
1 assistant coaches. So it's all-encompassing.
2 Q. Okay. I understood that you had that
3 relationship as an agent and there was duties that
4 you're telling us about.
5 I think my question is a little bit more
6 specific about specific business relationships other
7 than as the agent in these management positions that
8 you have with LLCs that he is an investor in. Are
9 there any other business relationships that you have
10 with Coach Rodriguez?
11 A. No.
12 Q. All right. You said you are an agent.
13 Do you have some license that -- to practice as an
14 agent in the state of Michigan, presently?
15 A. If you represent players, if you
16 represent NFL players, you have to be certified by the
17 NFLPA, and then you also -- different states have
18 different regulations as far as certification and
19 registration.
20 But when you're representing coaches,
21 just coaches only, there is no registration or
22 anything required.
23 Q. So the answer is no, you don't need a
24 license to do what you do so far as an agent in the 22
1 contract part of Mr. Rodriguez's --
2 A. In -- in representing coaches, you do not
3 need a -- you do not need a -- any national type or
4 state type registration.
5 Q. All right. There is a licensing out of
6 South Carolina for some type of sports agent. Do you
7 have some type of license in South Carolina?
8 A. I'm not aware of that.
9 Q. Have you ever applied for any type of
10 sports licensing to do any type of representation?
11 A. Yes, I have.
12 Q. Okay. Where have you applied?
13 A. Previously Alabama, Florida, Georgia, and
14 South Carolina.
15 Q. It's your understanding you don't need a
16 license to hold yourself out as an agent for a coach,
17 football coach, in West Virginia?
18 A. That's correct.
19 Q. Those other states, do they have State
20 licensing requirements that you have to sign up or
21 file some application to represent sports figures
22 other than players?
23 A. No, not that I'm aware of.
24 Q. All right. So those licenses you said 23
1 you would have applied for, what type of licenses are
2 those?
3 A. Say it again.
4 Q. Yeah. The licenses in the three or four
5 states that you identified, what type of license would
6 you be applying for?
7 A. Different states, depending if you are
8 representing a player --
9 Q. Uh-huh.
10 A. -- if you want to represent NFL players
11 that are going to schools in those states that at some
12 point in time are going to graduate and have a chance
13 to play in the NFL, if you want to become their agent
14 and represent them upon the end of their college
15 eligibility, you have to be certified, and each state
16 has different regulations regarding agent
17 certification and registration.
18 Q. Does the NFL Players Association require
19 some type of license or certification before you can
20 represent a player that's going to an NFL team?
21 A. They do.
22 Q. All right. And is there a two-day test
23 that's required for that?
24 A. They do. 24
1 Q. That's a yes?
2 A. Yes.
3 Q. It's a two-day test. They just recently
4 had the test here this week, did they not?
5 A. I'm not aware of it.
6 Q. Did you sit for that test?
7 A. No.
8 Q. Have you ever sat for that test?
9 A. I did.
10 Q. How many times?
11 A. Just once.
12 Q. And how did you do with it?
13 A. Passed it.
14 Q. Did you become a licensed agent with the
15 NFL then at that time?
16 A. I did.
17 Q. All right. Did you maintain your
18 license.
19 A. I did until October of 2006.
20 Q. And was there a reason that you let it
21 lapse or you didn't reapply for it?
22 A. Yes.
23 Q. What was that reason?
24 A. I had started -- my coaching clientele 25
1 had grown to a point where I considered it a conflict
2 of interest to be involved in any type of player
3 representation and that and also representing coaches.
4 So -- and I had not been actively involved for a while
5 in recruiting and representing players. So I decided
6 the best thing to do was just go ahead and resign my
7 position as NFL -- an agent representing players.
8 Q. So did you resign your position or just
9 not take your application and --
10 A. No. I sent a letter of resignation into
11 the NFLPA. Yeah.
12 Q. Did you represent any players at that
13 time, at all?
14 A. At the time, I believe I was on one -- I
15 was on one standard representation agreement at that
16 time.
17 Q. Who was that?
18 A. With Roger McIntosh, a linebacker with
19 the Washington Redskins.
20 Q. Okay. So you've been -- was that before
21 or after you began representing Mr. Rodriguez?
22 A. That I represented Roger --
23 MR. ROBON: If you know.
24 THE WITNESS: Represented Roger 26
1 McIntosh.
2 MR. ROBON: If you don't
3 recall --
4 THE WITNESS: It was after I
5 started representing Coach Rodriguez.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. And was Roger McIntosh, was he already in
8 the NFL at that time, or was he coming out of school
9 to go to the NFL?
10 A. He was coming out of school. Let's see.
11 Last year was his second year so --
12 Q. He would just be graduating?
13 A. So he played '07, '06, so he came out in
14 the spring of '06.
15 Q. What school is he from?
16 A. University of Miami.
17 Q. And did you then resign as his agent or
18 did he pick up somebody else or how did that happen?
19 A. On the agent agreement, there were my
20 name and then also Eric Metz, and Eric just continued
21 to handle his duties full time.
22 Q. Mr. Metz is somebody that's affiliated
23 with a company called LMM?
24 A. That's correct. 27
1 Q. And you're affiliated with them also?
2 A. I work as a consultant/contractor type
3 with them.
4 Q. When you say you're a
5 consultant/contractor with them, do you have a written
6 consulting agreement with LMM?
7 A. No, we have --
8 MR. ROBON: Objection. Give me
9 a chance to always object.
10 You can answer that.
11 THE WITNESS: No. We work off
12 of a verbal agreement.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. So you've never had a written agreement
15 with LMM as a consultant?
16 A. Nope.
17 Q. What do you consult with LMM, Mr. Metz
18 and those folks, they call you up and ask you for your
19 advice?
20 A. Today?
21 Q. Since you've been a consultant under this
22 verbal agreement that you have with this agency.
23 A. What -- what the main role that I work
24 with them in is that we have together an informal 28
1 organization where between myself and Eric Metz, we
2 represent a group of coaches. And so basically Eric
3 and I work together representing various NFL and
4 college coaches.
5 Q. All right. Have you ever been an
6 employee of LMM?
7 A. No.
8 Q. Do you have an office within their
9 offices, which I think their main office is out in
10 Arizona?
11 A. In Arizona. When I am in Arizona -- I
12 don't have a permanent office there -- but I will go
13 in and I will pick out an office and work out of it
14 during the days that I may be out there doing work.
15 Q. Borrow space, basically?
16 A. Yes.
17 Q. You go out there, they let you use their
18 conference room or some offices and --
19 A. Just basically use a -- use a desk and be
20 able to hook my laptop up, do some stuff.
21 Q. I mean, is there any office with your
22 name on it that we can walk down the hall and it would
23 say "Mike Brown"?
24 A. No. 29
1 Q. And you receive no salary or benefits
2 through LMM also; is that correct?
3 A. The only salary, the only compensation I
4 receive is off of fees paid through common coaches
5 that Eric and I represent.
6 Q. All right. Were those coaches that you
7 basically represented and you brought the firm in to
8 help -- also help manage some of their contractual
9 issues?
10 A. Repeat the question.
11 Q. Yes. Would you go, like Coach Rodriguez,
12 would you represent him, and then you would call
13 Mr. Metz or one of the other folks out there to see if
14 their agency could come in and help?
15 A. No. We work together in identifying and
16 retaining clients. And just as in probably your law
17 firm, certain people take certain leads on clients
18 that they have relationships with.
19 So in the coaching area, Eric and I would
20 work together. I handle some guys exclusively myself;
21 if I need or think I need some help, I'll give him a
22 ring, and vice versa. Eric represents some guys that
23 he takes the lead on that I've never talked to.
24 Q. And so Mr. Metz calls you in, Mike Brown, 30
1 to come in on a representation to serve as the agent,
2 co-agent on other coaches that he has pretty much been
3 asked to represent; is that what you're saying?
4 A. No. In some cases we don't even go to
5 that extent.
6 Q. No, I understand that. But does Mr. Metz
7 call you and say, Hey, I got Coach Tressel and we need
8 you to come in, Mike, and help with this after that's
9 all set up?
10 MR. ROBON: You mean on occasion
11 has he done that is what you're saying?
12 THE WITNESS: Yeah. Yeah, on
13 occasion Eric's called me in regards to
14 one of his clients and said, Hey, he's
15 interested in this job, do you have any
16 contacts there, can you help get his name
17 in front of them, for example.
18 You know, he would call me in
19 regards to, you know, asking me questions
20 about up-to-date college coach contract
21 data, what some of the most recent
22 industry standards and things that are
23 going on if he was involved in some type
24 of college contract negotiation, or an 31
1 issue had come up with one of the clients
2 that he mainly handles.
3 BY MR. ROBERT P. FITZSIMMONS:
4 Q. How do you get paid when you represent
5 one of these joint arrangements with a coach?
6 MR. ROBON: Objection.
7 You can answer.
8 THE WITNESS: Basically, Eric
9 and I sit down and we have a gentleman's
10 agreement as to -- in regards to, you
11 know, based on split of work, who's doing
12 most of the work, that kind of thing,
13 whether he or myself are going to, you
14 know, keep the full fee or whether we're
15 going to split it.
16 BY MR. ROBERT P. FITZSIMMONS:
17 Q. Do you charge hourly?
18 A. No.
19 Q. Is it a percentage of, what, the gross
20 value of the contract or how do you arrange that?
21 MR. ROBON: Objection.
22 You can answer.
23 THE WITNESS: It's a percentage
24 of the total guaranteed annual income. 32
1 BY MR. ROBERT P. FITZSIMMONS:
2 Q. Okay. And what is the general percentage
3 which you charge?
4 MR. ROBON: Objection.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. I'm sure there's a range in different
7 fees for different individuals?
8 MR. ROBON: If you're asking
9 generally, I'll let him answer. If
10 you're asking specifically about
11 Rodriguez, I'll instruct him not to
12 answer.
13 MR. WAKEFIELD: On what basis?
14 MR. ROBON: On the basis that
15 it's confidential information.
16 MR. ROBERT P. FITZSIMMONS: I
17 don't know that we have such a privilege
18 if it's confidential information --
19 MR. ROBON: It's irrelevant.
20 MR. ROBERT P. FITZSIMMONS: --
21 certain privileges.
22 MR. ROBON: You can give a
23 range.
24 MR. ROBERT P. FITZSIMMONS: If 33
1 you would have listened, Mr. Robon, I
2 asked generally, what would be the
3 general range.
4 MR. ROBON: Yes.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Go ahead, Mr. Brown, you can answer.
7 A. 2 percent to 3 percent.
8 Q. That's the general market within your
9 business that you handle?
10 A. We've heard of some -- or I have heard of
11 some other agents charging a little bit more.
12 Q. Okay. But that's the general standard
13 fee pretty much in the business itself?
14 A. Again, I can't say that, just because I
15 don't know all of the coaches out there, what their
16 individual agreements are. I do know some agents
17 charge as high as 4 to 5 percent.
18 Q. 45?
19 A. No, 4 to 5.
20 Q. 4 to 5 percent?
21 A. Yeah.
22 Q. Is that the fees for coaches, or is that
23 also the fees for some professional players going to
24 some professional team, in football or basketball? 34
1 A. Each professional league has -- their
2 players' association sets different limits as to what
3 the agents can charge.
4 For example, in the NFL the maximum
5 percentage that an agent can charge a player is 3
6 percent. I believe in basketball and baseball it's
7 higher than that. I'm not sure of the exact number,
8 but it could be as high as 5. I know it's higher than
9 what the NFL charges.
10 Q. So if I understand, if you're
11 representing a football player that's going to go to
12 the NFL or a basketball player to the NBA or major
13 league baseball player, there are regulatory bodies
14 that regulate fees and things that agents can and
15 cannot do; is that a fair statement?
16 A. That's correct.
17 Q. But within your profession, there's no
18 regulatory body overseeing the coaches' portion of
19 what you do?
20 A. That's correct.
21 Q. Is it a fair statement that there is no
22 state organization that you're aware of that in any
23 way regulates the charging of fees or the conduct of
24 agents that represent solely and exclusively football 35
1 coaches in this country?
2 A. To my knowledge, yes.
3 Q. What other coaches do you personally
4 represent besides Mr. Rodriguez?
5 MR. ROBON: Objection.
6 You can answer.
7 THE WITNESS: I can give you a
8 sampling. There are some coaches that
9 have asked that their -- that our
10 relationship be kept confidential and
11 that, but I'll give you a sampling of
12 other coaches.
13 Dabo Sweeney, the assistant head
14 coach at Clemson University.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. Assistant head coach?
17 A. Yes.
18 Q. My question was What head coaches, I
19 thought.
20 A. Oh, what head coaches.
21 Q. Yes, sir, yeah. What head coaches do you
22 represent?
23 A. Ken Whisenhut, the coach of the Arizona
24 Cardinals. Eric and I co-represent him. 36
1 Q. Mr. Metz and you?
2 A. That's correct.
3 Q. Mr. Metz is an attorney?
4 A. No, he's not.
5 Q. He's not an attorney. Is he an NFL
6 player rep?
7 A. Yes, he's a certified NFL agent.
8 Q. Okay.
9 A. Eric and I have -- are co-agents for Mike
10 Mularkey when he was the head coach of the Buffalo
11 Bills.
12 Q. He's not a head coach now?
13 A. No, he's not. He's the offensive
14 coordinator for the Atlanta Falcons.
15 Q. Okay. My question was what head coaches
16 do you represent?
17 A. Now?
18 Q. Presently, yes, sir, besides
19 Mr. Rodriguez.
20 A. Ken Whisenhut would be the only other
21 coach.
22 MR. ROBON: Where is he the
23 coach?
24 THE WITNESS: Arizona Cardinals 37
1 in Phoenix, Arizona.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. What head college Division I coaches have
4 you represented besides Coach Rodriguez in the past?
5 A. Coach Rodriguez is the only one.
6 Q. Okay. So are there other head
7 professional coaches that you've represented in the
8 past besides Whisenhut?
9 A. Other past NFL coaches, head coaches?
10 Q. That was the question.
11 A. Yes, Mike Mularkey.
12 Q. When he was with the Bills?
13 A. With the Buffalo Bills.
14 Q. When was he that?
15 A. Let's go back. '07, '06 -- 2004 and
16 2005.
17 Q. Did he exit his position as head coach in
18 2005?
19 A. At the end of the 2005 season would have
20 been January of 2006.
21 Q. And he has not reentered coaching or --
22 A. No, he left from there and coached the
23 last two years with the Miami Dolphins.
24 Q. Did you represent him with the Dolphins? 38
1 A. Yes. We rep -- Eric and I represented
2 him when he took the position with the Dolphins.
3 Q. All right. So Mularkey was represented
4 by both you and Mr. Metz from this LMM firm?
5 A. That's correct.
6 Q. And Whisenhut also had LMM representing
7 him, Mr. Metz?
8 A. And myself.
9 Q. And yourself.
10 A. Uh-huh.
11 Q. Is that right?
12 A. That's correct.
13 Q. Now, there are assistant coaches that you
14 represent?
15 A. Yes.
16 Q. Do you represent Calvin Magee today?
17 A. Yes.
18 Q. How long have you represented Mr. Magee?
19 A. Since August of '07.
20 Q. Do you have a written contract with
21 Mr. Magee?
22 MR. ROBON: Objection.
23 You can answer.
24 THE WITNESS: No, we work off of 39
1 a verbal agreement.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. Your answer was no?
4 A. No, I do not have one.
5 Q. And do you have a written agreement with
6 Mr. Rodriguez?
7 MR. ROBON: Objection.
8 You can answer.
9 THE WITNESS: No.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. Have you ever had a written agreement
12 with Mr. Rodriguez?
13 A. No.
14 Q. Did you have written agreements with
15 Coach Whisenhut, you and/or Mr. Metz?
16 A. I do not know -- I can't answer that. I
17 don't know if Eric -- Eric's the lead on that. I
18 don't know if Eric's ever gotten an agreement with
19 Ken.
20 Q. And how about Mr. Mularkey?
21 A. I can't recall.
22 Q. If there are contracts with these
23 gentlemen, is that something you would keep in your
24 office also, a copy of those things, as to what duties 40
1 and responsibilities you have between the agent and
2 the actual coach?
3 A. Pardon me?
4 Q. Is that something that you would have in
5 your office and keep in your office, a copy of the
6 contract, if there was such a contract, with Whisenhut
7 and Mularkey?
8 A. Those would be -- I would not probably
9 keep them, but Eric would.
10 Q. Okay. My question was do you.
11 A. No.
12 Q. In your -- you say you have a verbal
13 contract with Mr. Rodriguez?
14 A. That's correct.
15 Q. And did that start in 2006?
16 A. 2005.
17 Q. 2005?
18 A. In the summer.
19 Q. Do you recall when that was?
20 MR. ROBON: If you know.
21 MR. ROBERT P. FITZSIMMONS: Mr.
22 Robon, if somebody doesn't know, they
23 can't answer, can they?
24 MR. ROBON: Well, I don't want 41
1 him to guess. That's what I -- I want
2 you to --
3 MR. ROBERT P. FITZSIMMONS: Well,
4 again, if you wanted to prep the witness
5 ahead of time, you should have done that.
6 You know, this is not the time to be
7 prepping witnesses during a deposition.
8 MR. ROBON: I'm not prepping,
9 I'm suggesting if you know the exact time
10 tell him; if you don't, tell him.
11 MR. ROBERT P. FITZSIMMONS:
12 That's what's wrong. You can't suggest
13 answers, exactly what you said.
14 If you have an objection, I
15 would really appreciate you just putting
16 it on the record, rather than suggesting
17 testimony.
18 THE WITNESS: So what's the
19 question again?
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Do you recall the date when you began
22 this verbal agreement with Mr. Rodriguez in 2005, the
23 summer of 2005?
24 A. Not the exact date. 42
1 Q. Where were you at that time?
2 A. Visiting Coach in his office.
3 Q. You went down to his office in
4 Morgantown?
5 A. That's correct.
6 Q. Okay. Did you know Mr. Rodriguez before
7 that?
8 A. Yes, I did.
9 Q. By the way, does -- are there any other
10 of these, what do you call, coaching agents -- is that
11 what you are?
12 A. Uh-huh.
13 Q. A coaching agent. Are there any other
14 coaching agents that represent Mr. Rodriguez today?
15 A. Not to my knowledge.
16 Q. Including Mr. Metz?
17 A. Pardon me?
18 Q. Including Mr. Metz? Does he not
19 represent Coach Rodriguez as a coaching agent today?
20 A. Eric -- define "represent."
21 Q. Well, if you as a sports agent don't know
22 what that word means, I'll just pass on it.
23 Are you telling us, the jury, that you
24 don't understand what the word "represent" means so 43
1 far as agents are concerned?
2 A. No. I was -- does it go back to the
3 date --
4 Q. My question was do you know what the term
5 "represent" means?
6 A. I do.
7 Q. Okay. Go ahead and answer the question
8 then.
9 A. Can you repeat it?
10 Q. Yes. Does Mr. Metz represent
11 Coach Rodriguez as one of these coaching agents?
12 A. Yes, he does.
13 Q. Today?
14 A. Yes.
15 Q. Okay. Is there some separate agreement
16 that he has with Mr. Rodriguez?
17 A. No.
18 Q. When did he come into the picture of
19 representing Mr. Rodriguez?
20 A. When -- in 2005, when I began acting as a
21 coach's agent.
22 Q. Okay. Is that when you started this
23 business of being a coaching agent, in 2005?
24 A. Actually -- let's go back. It was in the 44
1 spring of 2003.
2 Q. Spring of 2003, is that when you struck
3 up an arrangement with Coach Mularkey?
4 A. No. That was when Eric and I, Eric Metz
5 and I, together decided that we were going to start
6 to -- attempt to represent coaches.
7 Q. Okay. Did you go to Mr. Metz and say,
8 I'm going to go out and try to start a division for
9 actual coaches?
10 A. I can't recall.
11 Q. Prior to the present time, has Mr. Metz
12 also been a coaching agent for Mr. Rodriguez?
13 A. He -- yes, he has.
14 Q. Okay. And did that start in August of --
15 what did you say, August of -- when did you start
16 representing Mr. Rodriguez?
17 A. In the summer of 2005. I can't remember
18 the --
19 Q. 2005?
20 A. I can't remember the exact date.
21 Q. Okay. Did Mr. Metz also meet and strike
22 some agreement to be a coaching agent for
23 Mr. Rodriguez at that same time?
24 A. I can't recall. 45
1 Q. So you're telling us this relationship
2 with Mr. Rodriguez, who's obviously the major --
3 presently the sole, exclusive Division I football
4 coach that you represent in your business, that you
5 can't remember whether Mr. Metz also was on board as a
6 coaching agent when you first started in the summer of
7 2005; is that true?
8 A. No, it's not.
9 Q. Okay. You do know?
10 A. Yeah -- well, you asked the question, was
11 he there at that exact first meeting.
12 Q. Was he a coaching agent also of
13 Mr. Rodriguez at the same time you became his agent?
14 A. Yes. The answer is yes.
15 Q. All right. Was he on the phone or
16 something when you struck this deal?
17 A. At some point in time, I can't remember
18 whether it was that meeting or another meeting soon
19 thereafter, Eric and I met with Coach Rodriguez in
20 Coach's office.
21 Q. Did you have some formal arrangement with
22 LMM at that time?
23 A. No.
24 Q. Had you -- had you been a part of, in any 46
1 way, LMM prior to Coach Rodriguez becoming your client
2 in the summer of 2005?
3 A. I had been --
4 MR. ROBON: I'm going to object
5 to the use of the word "client." I think
6 clients -- it gets used by beauty salons.
7 I think clients are people that lawyers
8 represent. Customers are other people.
9 MR. ROBERT P. FITZSIMMONS:
10 SoRodriguez is a customer?
11 MR. ROBON: Yeah.
12 MR. ROBERT P. FITZSIMMONS: Okay.
13 That's fine. Let's refer to
14 Mr. Rodriguez, that's fine, and say he's
15 a customer of your services.
16 THE WITNESS: So can you repeat
17 the question?
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. In 2005, was Mr. Metz on the phone in
20 this meeting which you had with Rodriguez when the
21 deal was cut that he would become your customer?
22 A. No.
23 Q. Were you affiliated in any way with LMM
24 as of the summer of 2005 at that time when you struck 47
1 this deal with Rodriguez?
2 A. I was affiliated him as a
3 consultant/contractor type role.
4 Q. Were there multiple contractors? Could I
5 call up and say, Hey, I got a coach I'd like you guys
6 to handle also with me and be a consultant? Can
7 anybody pretty much do that, assuming they like you?
8 A. Yeah. LMM has some other similar
9 relationships with other people in that manner.
10 Q. But you were the one that kind of landed
11 Rodriguez as the customer; is that right?
12 A. Yes.
13 Q. I just kind of want to understand how you
14 get to this position of becoming -- are you a seller,
15 agency seller, then, if he's a customer? What do you
16 call yourselves? What do you call your business?
17 A. Coaching representation.
18 Q. Coaching representation, and you would be
19 the representer, is that what you call it?
20 A. Yeah, I would the representative of the
21 coach.
22 Q. Okay. Let's say that I have a child, and
23 we want to -- we want to become somebody like a
24 coaching representative. Does it require any 48
1 education?
2 A. I can't determine what a potential client
3 would determine as what his requirements or check list
4 would be to have a representative.
5 Q. Well, we understand that they're going to
6 look and they have to like you, but so far as
7 qualifications educationally, you don't even have to
8 have a high school education; is that true?
9 MR. ROBON: Objection.
10 You can answer.
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. As far as you understand.
13 A. As far as I understand.
14 Q. You have to have -- you don't need any
15 education, whatsoever, or training in law; is that
16 right?
17 A. As far as I understand.
18 Q. You don't need any training or education
19 in labor-management; is that right?
20 A. As far as I understand.
21 Q. You absolutely -- to become what you are,
22 you need absolutely zero educational qualifications;
23 is that a true statement?
24 MR. ROBON: I'm going to object 49
1 to the phraseology.
2 You can answer if you understand
3 the question.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. You have to answer.
6 A. Repeat the question.
7 Q. You need zero educational qualifications
8 to hold yourself out as what you do?
9 A. No. You have to be educated, you have to
10 be smart, but as far as formal qualifications --
11 Q. That's what I'm talking about. Formal
12 qualifications, you need absolutely zilch so far as
13 what's required to become what you hold yourself out
14 as; is that true?
15 A. I would look at it what is the client or
16 person you're representing, it's each individual
17 person making up their decision as to what they look
18 for in qualifications and education and experience in
19 choosing representation.
20 Q. Mr. Brown, answer the question. You
21 don't need any formal education whatsoever or training
22 to become a -- what you hold yourself out as, a
23 Division I coach representative; is that true?
24 MR. ROBON: Objection. 50
1 You can answer.
2 THE WITNESS: Yes. I could say
3 that there could be somebody who could
4 choose a representation -- representative
5 that falls into that category.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Right. Now, let's talk a little bit
8 about your education. What's the last formal grade of
9 education you have?
10 A. Last formal grade?
11 Q. That was the question, yes, sir.
12 A. I graduated from -- in 1985 I graduated
13 from the Defense Systems Management College at Fort
14 Belvoir.
15 Q. Defense Systems --
16 A. Defense Systems Management College.
17 Q. What is that?
18 A. It's -- I was an employee of the
19 Department of Defense, and it's a full-time school
20 that you go to to obtain a postgraduate degree in
21 program management, with an emphasis on Department of
22 Defense military systems.
23 Q. So you have a degree in program
24 management? 51
1 A. A graduate degree in program management
2 from the Defense Systems Management College, 1985.
3 Q. You say a graduate degree. Is that a
4 master's?
5 A. It's -- it's not a formal master's. It's
6 a special school and qualification if you were working
7 inside the Department of Defense.
8 Q. Okay. You don't have any postcollege
9 master's degree; is that correct?
10 A. That's correct.
11 Q. You have no postcollege Ph.D. degree; is
12 that correct?
13 A. That's correct.
14 Q. So what's your diploma say from the
15 Defense Systems College Department of Defense as a
16 program manager?
17 A. I can't recall. I haven't seen the
18 diploma in years.
19 Q. Did you go to -- attend college?
20 A. I did.
21 Q. Where did you attend?
22 A. Clemson University.
23 Q. And what year did you graduate from
24 Clemson? 52
1 A. December of 1979.
2 Q. And you have a Bachelor of Arts degree
3 or --
4 A. Bachelor of Science in mechanical
5 engineering.
6 Q. Did you do a co-op?
7 A. No.
8 Q. Have you ever been licensed as a
9 mechanical engineer in any state?
10 A. No.
11 Q. Have you ever sat for the test as a
12 mechanical engineer in any state?
13 A. No.
14 Q. Are you qualified, do you have enough
15 educational credentials to even sit for mechanical
16 engineering licensing in any state?
17 A. I can't answer that, because I haven't --
18 Q. You haven't even taken the test or
19 applied to take it?
20 A. I've not taken it.
21 Q. You understand it's a two-part test in
22 order to become licensed as an engineer, mechanical
23 engineer?
24 A. In any of my positions after graduating 53
1 from college, none of the jobs required that I get --
2 become a licensed mechanical engineer.
3 Q. Do you have any formal education in law?
4 A. No.
5 Q. Have you ever practiced mechanical
6 engineering for a business or a living?
7 A. Yes.
8 Q. Okay. How long did you spend doing that?
9 A. From 1981 to 1999, full-time.
10 Q. Okay. On a full-time basis, you were
11 held out as a mechanical engineer?
12 A. I had different job descriptions and
13 titles that did include mechanical engineering.
14 Q. Okay. During that period, were you held
15 out as a mechanical engineer at any time in that
16 18-year period, 1981 to 1999?
17 A. I was held out as an engineer.
18 Q. Just an engineer?
19 A. Yes.
20 Q. Who did you work for?
21 A. Let me see here. American Systems
22 Corporation.
23 Q. Okay.
24 A. The Department of Defense. 54
1 Q. Were you in the military?
2 A. No, I was not. Atlantic Research
3 Corporation, United Technologies, Touchstone Research
4 Corporation.
5 MR. ROBON: How do you spell
6 that?
7 THE WITNESS: T-o-u-c-h-s-t-o-n-e
8 Research Corporation.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. Is that located in Wheeling?
11 A. That's correct. At Grimes Aerospace and
12 Honeywell.
13 Q. Is Honeywell in Indiana?
14 A. No, Honeywell is -- pardon me again.
15 Q. Is Honeywell in Indiana?
16 A. No, it's in Phoenix, Arizona.
17 Q. Now --
18 A. And today I act as a consultant to two
19 companies using my engineering and business background
20 in that industry.
21 Q. Okay. You're still a consultant for
22 engineering also?
23 A. Yes.
24 Q. Okay. What do you call that business? 55
1 A. It's just an engineering consulting
2 business I have.
3 Q. You don't have a name for your business?
4 A. No.
5 Q. What do you call your business for
6 representing coaches, does it have a name?
7 A. Eric and I operated under the auspice of
8 LMM Sports Management Coaching Division.
9 Q. Well, I thought you have your own
10 business and you then consult with them?
11 A. I do. I mean it's under -- I mean, it's
12 LMM Sports Management Coaching Division, and I'm a
13 consultant to them.
14 Q. Is there some reason that on your
15 letterhead when you send out the LMM, you don't
16 identify that you're just a consultant with that
17 business as opposed to a part of the business?
18 A. Repeat the question.
19 Q. Is there some reason you don't designate
20 and advise people that would receive your
21 correspondence that you're only a consultant and you
22 aren't actually part of the business of LMM?
23 A. No.
24 Q. There's no reason that you don't put that 56
1 on there -- you don't put that on there, do you?
2 A. No, I do not.
3 Q. These one, two, three, four, five, six,
4 seven prior employers that you had in that 18-year
5 period --
6 A. Uh-huh.
7 Q. -- did you leave voluntarily in all
8 those, or were you terminated from any of those?
9 MR. ROBON: Objection.
10 You can answer.
11 THE WITNESS: Left
12 voluntarily.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. All seven of them. So you have good
15 reports and rapport with all those individuals still
16 to this day?
17 A. Uh-huh.
18 Q. Is that yes?
19 A. Yes.
20 Q. Is there some reason you never sat for
21 your engineering license, even though you had a
22 Bachelor of Science degree?
23 A. In the industry I worked in for those
24 years, it was in the Department of Defense and 57
1 aerospace industry, and in the type of positions that
2 I had you didn't have -- professional engineering
3 licenses were not required in that industry.
4 Q. All right. So in this other profession
5 that you had, and still have, perform --
6 A. Uh-huh.
7 Q. -- once again, there's no regulatory
8 agency in the country whatsoever that oversees your
9 holding yourself out as an engineer even though you
10 have not been licensed through a program of licensing
11 in any state; is that fair to say?
12 A. That's fair to say.
13 Q. Where did you get your expertise, if any,
14 to negotiate contracts? Is it something you just
15 picked up kind of --
16 MR. ROBON: I'm going to
17 object.
18 You can answer.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Did you get -- were there course books or
21 how-to-do-it books to become a Division I coaching
22 representative that you buy at Barnes & Noble or
23 something like that?
24 A. No, it's just through experience, looking 58
1 at different contracts, keeping databases to what's
2 standard operating procedure in, for example, coaching
3 contracts, and what the market industry is.
4 Q. So what you're telling me, that you hit
5 the Internet and do research to find out what other
6 people are getting within the field so far as benefits
7 and other provisions or contracts?
8 A. No, I do research myself through various
9 sources; I collaborate, for example, with other people
10 in the industry, for example, athletic directors and
11 associate athletic directors and prepare data.
12 Q. Compare data. You just look at state and
13 numbers pretty much, and provisions?
14 A. Yeah. In most -- in today's world with
15 the FOIA requirements, you can go and pull off copies
16 of contracts. I believe there is a website called
17 coacheshotseat.com. You can go pull up any Division I
18 BCS head coach contract if you want to.
19 Q. So if I want to tell one of Mr. Robon's
20 children, if he has any children, here's how you can
21 do this, basically you can, say, Hey, just go start
22 collecting data, try to get into the field, and then
23 you can actually hold yourself out as a Division I
24 football coach representative? 59
1 A. No, there's more to it than that. If I
2 was selecting a representative.
3 Q. I understand if you would select one.
4 But if you wanted to hold yourself out and get -- I
5 assume you have a little business card, right?
6 A. Uh-huh.
7 Q. Yes?
8 A. Uh-huh.
9 Q. Is that a yes, sir?
10 A. Yes, I do.
11 MR. ROBON: Yeah, you can't say
12 "uh-huh" and "huh-uh." She doesn't know
13 what that is.
14 THE WITNESS: Okay. Yes.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. So if you wanted to tell Mr. Robon's
17 children, you can just get in, and then it's just kind
18 of the -- as hard as you work, and just kind of
19 learning and picking up, information gathering,
20 basically; is that it?
21 A. Yes, just like it is in a lot of
22 businesses.
23 Q. We aren't talking about other businesses
24 today, Mr. Brown. We're going to talk a little bit 60
1 about some of your businesses.
2 A. Yes.
3 Q. So basically what you do is you gather
4 information and then compare; is that right?
5 A. That's just one part of it.
6 Q. All right. Did you have any expertise in
7 statistics when you went to college? Do you have a
8 statistics degree or --
9 A. I took economics and statistics classes
10 as an undergraduate at Clemson University.
11 Q. So you had a statistics course?
12 A. Yes, I had one.
13 Q. And you had an economics type of course?
14 A. Yes, I did.
15 Q. Do you recall what that was?
16 A. No, I can't recall.
17 Q. It sounds to me you're kind of pretty
18 much a self-starter; is that a fair way to kind of
19 categorize yourself?
20 A. That's a fair way.
21 Q. Now, down in Atlanta -- is that where
22 your home office is, in Atlanta, where you principally
23 operate?
24 A. That's correct. 61
1 Q. Is that in your house?
2 A. That is.
3 Q. Okay. Is there a sign outside your home?
4 When we go down and -- if I -- Mr. Robon doesn't want
5 the address out, but if I would go down to look at it,
6 can I see a sign out that says Mike Brown, Division I
7 football coach representative?
8 A. No.
9 Q. Is there any type of business sign
10 whatsoever in your home in Atlanta?
11 A. No.
12 Q. Are you licensed to do business within
13 the city of Atlanta out of your home, do you know?
14 MR. ROBON: Objection.
15 If you know.
16 BY MR. ROBERT P. FITZSIMMONS:
17 Q. Most cities have requirements that if
18 you're operating a business, you got to report it for
19 certain purposes.
20 A. Yeah. We -- my -- our accountant handles
21 all that.
22 Q. My question is do you know if you have a
23 license within the city of Atlanta to actually operate
24 your business at that location? 62
1 A. Say it again.
2 Q. Yeah. Do you know if you have a license
3 to operate your business within the city of Atlanta?
4 A. I do not have a license.
5 Q. Do you know if licenses are required in
6 Atlanta?
7 A. I'm not sure. I've never checked it out.
8 Q. How about in Georgia, are you registered
9 as having a business in the state of Georgia? Do you
10 have what's called a business franchise that's, I
11 believe, required in the state of Georgia --
12 A. Not that I know of.
13 Q. -- to operate a business? When you file
14 your income taxes -- I assume you do, if you don't,
15 tell Mr. Robon real quick here.
16 But if you file your income taxes, do you
17 do a profit C schedule and list a certain type of
18 business that you're involved in?
19 A. Yes.
20 MR. ROBON: Objection.
21 Objection. You can answer.
22 THE WITNESS: Yes, I do.
23 BY MR. ROBERT P. FITZSIMMONS:
24 Q. Do you list it as LMM, or do you list it 63
1 under just a sole proprietorship business that you're
2 involved in?
3 A. Sole proprietorship.
4 Q. Do you list with any regulatory body fees
5 that are shared or paid by this Arizona firm, LMM?
6 A. Say that again.
7 Q. Do you list any fees paid by the LMM
8 business in Arizona that are paid to you?
9 MR. ROBON: You mean on the tax
10 return?
11 MR. ROBERT P. FITZSIMMONS: Yes,
12 sir.
13 MR. ROBON: Objection. You can
14 answer.
15 THE WITNESS: Yes, in previous
16 years, when I received or Eric and I
17 split income in regards to coaching
18 clients paying their fees, I've listed
19 that.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Okay. So you would have LMM on your tax
22 returns, then?
23 A. No, I would not.
24 Q. Okay. That's my question. Does LMM send 64
1 you a 1099 at the end of the year --
2 MR. ROBON: Objection.
3 BY MR. ROBERT P. FITZSIMMONS:
4 Q. -- for splitting fees or division of
5 fees?
6 MR. ROBON: You can answer.
7 THE WITNESS: No, they do not;
8 they have not yet.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. What's the fee-splitting arrangement with
11 Mr. Metz on the Rodriguez agreement?
12 MR. ROBON: Objection.
13 MR. ROBERT P. FITZSIMMONS: That
14 means you have to answer.
15 MR. ROBON: I'm thinking. Go
16 ahead and answer.
17 THE WITNESS: It's 50/50.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. And what is the percentage charged
20 Coach Rodriguez?
21 MR. ROBON: Objection.
22 THE WITNESS: Pardon?
23 BY MR. ROBERT P. FITZSIMMONS:
24 Q. What is the percentage that's charged on 65
1 the -- I think you said the guaranteed -- what did you
2 say, based on the guaranteed --
3 A. Annual income.
4 Q. Annual income.
5 A. Uh-huh.
6 Q. What's the percentage charged?
7 MR. ROBON: We're going to have
8 an objection.
9 Go ahead and answer.
10 THE WITNESS: 3 percent.
11 MR. ROBERT P. FITZSIMMONS: Okay.
12 The videographer has indicated that we
13 need to take a break and change the
14 tapes, so we're going to take a break,
15 okay, if you need to use the restroom.
16 THE VIDEOGRAPHER: Going off the
17 record at 10:00 a.m.
18 THE WITNESS: That's fine.
19 (A brief recess was had.)
20 THE VIDEOGRAPHER: Back on the
21 record at 10:15 a.m.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. Mr. Brown, how many other college
24 coaches, whether head or assistant, just number-wise, 66
1 do you represent, approximately?
2 MR. ROBON: Objection.
3 You can answer.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. You told us about Coach Magee, who is an
6 assistant now at Michigan; and Coach Rodriguez, who is
7 the head coach there.
8 A. Uh-huh. How many others?
9 Q. Yes, sir.
10 A. Let me see here.
11 Q. Do you represent Coach Gibson?
12 A. Not formally. I mean, I have times when
13 assistant coaches or coaches will call me up, ask me
14 for advice or counsel, and I would, you know, talk to
15 them, and, you know, give them advice or counsel based
16 on -- on what their situation is, with no formal
17 relationship.
18 Q. Okay. Do you charge hourly on that
19 basis, or is that freebies, with the expectation maybe
20 you'll -- if you're nice to them, you'll end up their
21 agent?
22 A. No, there's no freebies in that. I mean,
23 Eric and I have a policy that when we have assistant
24 coaches, you know, that we know and are friends and 67
1 have a relationship, if they call us up, ask for
2 advice or something, we give it to them, and, you
3 know, there's no need to charge them for that.
4 Q. Okay. So you've advised Coach Gibson
5 also; is that right?
6 A. On a friendly basis, yes. Like just
7 recently --
8 Q. You just didn't charge?
9 A. No, didn't charge, huh-uh.
10 Q. But you did represent him or provide some
11 of your consulting business?
12 A. Yes. He called this week and he was
13 complaining that West Virginia didn't give him a bowl
14 ring.
15 You know what I told Tony? I said, You
16 can't go forward looking backwards. Just forget about
17 it and keep going.
18 Q. Is that what you told him?
19 A. That's what I told him.
20 Q. Is that your philosophy?
21 A. Well, I mean, if -- there's no need to
22 get drug down in the past and worry about stuff.
23 Don't sweat the small stuff.
24 Q. Okay. 68
1 A. That's what I told him.
2 Q. Okay. So that was your consulting advice
3 to him?
4 A. In that instance, that's just an example.
5 Q. Okay. Have you -- have you done other
6 things for Coach Gibson?
7 MR. ROBON: Objection.
8 You can answer.
9 THE WITNESS: In regards to
10 coaching representation?
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. Yes, sir, yeah. It's your business,
13 right, one of your businesses?
14 A. Uh-huh. Yeah. I do recall one instance
15 when he decided that he was going to resign his
16 position at West Virginia.
17 Q. And you consulted with him on that?
18 A. Yeah. He consulted with me and he said
19 he wanted to resign, and so I believe I typed up his
20 resignation letter and said, This is what you need to
21 do.
22 Q. You actually typed up a proposed
23 resignation letter for Coach Gibson at West Virginia
24 when he was at West Virginia? 69
1 MR. ROBON: Objection.
2 You can answer.
3 THE WITNESS: Yes.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. Do you know if that was the resignation
6 letter that was actually sent?
7 A. I have no knowledge of that, what he did
8 afterwards.
9 Q. And you didn't charge for that; is that
10 right?
11 A. No.
12 Q. Coach Magee, was there any type of
13 resignation advice that you gave him?
14 A. No, but we never had a discussion about
15 that.
16 Q. You indicated that you've been
17 representing Coach Magee since August of 2007 --
18 A. That's correct.
19 Q. -- I think is what you told me?
20 A. Uh-huh.
21 Q. Is there a specific date that you recall
22 that you began representing him?
23 MR. ROBON: Show an
24 objection. 70
1 THE WITNESS: I can't recall the
2 exact date, but I had a conversation with
3 him in July, and then he and I had
4 conversations, and I was up in Morgantown
5 and we had scheduled a meeting, I can't
6 remember the exact date, and we sat down
7 and had a discussion.
8 And Coach Magee felt that it was
9 time that he had representation, because
10 he was -- there were some job openings
11 potentially that were going to come open
12 that he was being mentioned as a head
13 coach and candidate.
14 He's very highly respected among
15 his peers, especially after the bowl game
16 against Oklahoma. You know, he's -- I've
17 had writers and other assistant coaches
18 just talk about what a great game plan he
19 put together, the game that he called
20 that night.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Do you do that also, that function --
23 employment agencies, they call it headhunters, looking
24 for positions that come available so you can put 71
1 coaches in there potentially that are your clients?
2 Do you do that, too, that service?
3 A. Well, yeah, as part of being an agent,
4 you got to know what the potential openings are that
5 are going to happen, and who might be some viable
6 candidate. And it's just knowing what's going on out
7 in the market.
8 Q. Okay. So to your -- are there any other
9 businesses that you do? You're a manager, and you
10 told us, about 60 hours a month for the three LLCs,
11 managing real estate and condominiums?
12 A. Uh-huh.
13 Q. And you're a consultant, engineering,
14 generally, I guess, with some training in mechanical
15 engineering?
16 A. Program management and marketing.
17 Q. Okay. Do you do some program management
18 and marketing also as part of your overall businesses
19 that you do?
20 A. In -- yeah, in managing the LLCs?
21 Q. Yeah, I understand that's a function of
22 your management.
23 A. Yeah.
24 Q. But do you do just program management on 72
1 other things other than the real estate?
2 A. No.
3 Q. Okay. And then you have your football --
4 or your coaching representation; and then as part of
5 that, you serve as a headhunter looking for positions
6 for individuals also out in the marketplace?
7 MR. ROBON: I'm going to object
8 to the use of the word headhunter.
9 You can answer.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. That's okay. You agreed that that's
12 what's those are called, pretty much, in your
13 business?
14 A. Not in the -- not in the football
15 coaching industry, it's not called headhunter. It's
16 called representing your client.
17 Q. You've heard that term before used many
18 times?
19 A. Yes. Uh-huh.
20 Q. All right. Okay.
21 A. So go back to your original question.
22 Q. Yeah. I'm just trying to find out if
23 there's any other businesses that you're involved in
24 other than those that we just talked about? 73
1 A. No, there's no other.
2 Q. Is it fair to say that there's no written
3 code of ethics whatsoever that would control your
4 conduct as a Division I representative in coaching?
5 There's no organization that controls ethics within
6 that division?
7 A. There's no organization; however, in
8 dealing with your clients, especially a client like
9 Coach Rodriguez with such an upstanding reputation --
10 Q. I'm sorry. Did anyone ask you that
11 question here?
12 A. No. You asked me to answer the question.
13 Q. My question was was there any type of
14 regulatory body, was the question, that oversees
15 ethics for you?
16 A. No.
17 Q. That's the question, all right.
18 MR. ROBON: Did you want to
19 expand your answer?
20 THE WITNESS: Sure.
21 MR. ROBERT P. FITZSIMMONS: There
22 is no reason to suggest that he expand
23 his answer. That's an improper
24 suggestion, Mr. Robon, you know it. 74
1 The question was whether there's
2 any formal agencies. You know, you have
3 a right to ask questions later today.
4 MR. ROBON: Okay. I just didn't
5 want him cut off --
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Did somebody cut you off, or did you just
8 not answer the question?
9 A. Oh, I answered the question.
10 Q. I thought you did. All right.
11 Now, other coaches -- we have Coach Magee
12 who is an assistant; Coach Rodriguez, who is a head
13 coach --
14 A. Uh-huh.
15 Q. -- and I think -- and you told me there
16 was also a guy at Clemson that you represent?
17 A. Uh-huh.
18 Q. Assistant coach?
19 A. Yeah, Dabo Sweeney.
20 Q. And he's the head --
21 A. Assistant head coach.
22 Q. Okay. So we have two assistant coaches
23 and Coach Rodriguez. Are there other coaches that you
24 represent? 75
1 A. Yes. There is an assistant coach at
2 Clemson, David Blackwell.
3 Q. This all seems to be kind of interrelated
4 with Clemson, Coach Rodriguez had been there and they
5 all had prior experiences with Clemson?
6 A. Well, you know, yeah, but Dabo hadn't --
7 Dabo and David Blackwell weren't there when -- were
8 not there when Rich was there.
9 Q. But they all have a common element,
10 connection --
11 A. Yeah, they all have --
12 Q. -- with Clemson.
13 A. With Clemson, yeah.
14 Q. Okay.
15 A. Other coaches that I have that have asked
16 for help in the past and I've worked with in the past
17 are Mike O'Cain, the quarterback coach at Virginia
18 Tech?
19 Q. Okay. Now are you telling us that you
20 were the formal representative of Coach O'Cain at
21 Virginia Tech.
22 A. No. What I'm saying is he called me up
23 and asked me for help and advice on a certain matter,
24 and I helped him and advised him, and it didn't pan 76
1 out, but if it had, I would -- he -- I would have
2 ended up representing him in that coaching
3 negotiation.
4 Q. But you were not hired --
5 A. No.
6 Q. -- and you were not paid --
7 A. Huh-uh.
8 Q. -- by Coach O'Cain, even though you went
9 down to Virginia Tech to watch the game down there,
10 did you not? Or spring practice, was it?
11 A. Say it again.
12 Q. Didn't you go down to Virginia Tech to
13 watch a spring practice when Coach O'Cain was down
14 there?
15 A. Yeah.
16 Q. Okay. All right. Okay. Who else have
17 you represented where there's --
18 A. As far as assistant coaches?
19 Q. As far as coaches.
20 A. The Kirby Wilson --
21 Q. Okay.
22 A. -- the African-American running back
23 coach for the Pittsburgh Steelers.
24 Q. He's the African-American -- 77
1 A. He's an African-American, and he's the
2 running back coach for the Pittsburgh Steelers.
3 Q. He is an African-American.
4 A. That's correct.
5 Q. Okay. I just need to know the name.
6 Okay.
7 You represent him -- represented him in
8 the past?
9 A. Yep, represent him today.
10 Q. And you represent him today?
11 A. Yeah.
12 Q. Is he coaching today --
13 A. Yeah.
14 Q. -- with the Steelers still?
15 A. That's correct.
16 Q. Okay. He's one of your clients today?
17 A. That's -- he's one of mine and Eric's
18 clients.
19 Q. Yours and Eric's?
20 A. Uh-huh.
21 Q. Coach O'Cain, you've met, had some
22 discussion, kind of a freebie, and, it did not work
23 out to a contract or a fee; is that right?
24 A. Yeah, that's correct. 78
1 Q. Coach Magee is a fee-paying client?
2 A. He doesn't pay any fees until he gets a
3 head-coaching job.
4 Q. Oh, okay. So he's a freebie right now --
5 A. That's correct.
6 Q. -- that you're providing advice and
7 representation to him --
8 A. Uh-huh.
9 Q. -- and it's contingent upon him getting
10 some head-coaching job?
11 A. Yeah. When it comes time that he gets a
12 head-coaching position, then at that time we would
13 charge him a fee and he would pay it.
14 Q. Is there some formal agreement that he
15 has to employ you if he gets a head-coaching position?
16 MR. ROBON: Objection.
17 You may answer.
18 THE WITNESS: No, there's not.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. And Coach Gibson, those are freebies
21 also?
22 A. Yeah.
23 MR. ROBON: Objection.
24 You can answer. 79
1 BY MR. ROBERT P. FITZSIMMONS:
2 Q. All right. So we have Coach Wilson, the
3 Steelers. Anybody else?
4 A. Yes, Russ Grimm, the assistant head coach
5 for the Pittsburgh Steelers.
6 Q. Russ Grimly?
7 A. Russ Grimm, G-r-i-m-m.
8 Q. Russ Grimm, okay. He's an assistant --
9 A. He's the assistant head coach, a line
10 coach for the Pittsburgh Steelers.
11 Q. Okay. And you represent them presently?
12 A. Eric and I represent Russ.
13 Q. Eric --
14 A. Metz.
15 Q. Eric Metz --
16 A. Yes.
17 Q. -- is involved in both of the Steelers'
18 assistant coaches?
19 A. Yes.
20 Q. And are there formal agreements with them
21 for representation?
22 MR. ROBON: Objection.
23 You can answer.
24 THE WITNESS: I know with Kirby, 80
1 there's not. I've never asked Kirby to
2 sign anything.
3 I'm not sure with Russ. Eric's
4 in the Phoenix office and Russ is out
5 there, but Russ is a fee-paying client.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Okay. Anybody else?
8 A. Assistant coaches?
9 Q. Any kind of coach, whether it's head
10 coach or assistant?
11 A. Yes, Pat Flaherty.
12 Q. Where is Mr. Flaherty?
13 A. He's the line coach for the New York
14 Giants.
15 MR. ROBON: He's not related to
16 Tom, is he?
17 THE WITNESS: No. I take great
18 pride in that out of the last two out of
19 three Super Bowl winners, I represent
20 their line coaches.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Okay. Coach Flaherty. And is that a
23 fee-paying client?
24 A. Yeah. We have an agreement with him as 81
1 an assistant coach. It's not a fee-paying client, we
2 provide services and recommendations, and then going
3 forward, if at any point in time we negotiate a
4 contract where it increases his pay above the current
5 contract, then we would get paid the fee difference.
6 Q. Okay. So he's a freebie also, but if he
7 gets more money, then you guys will get some
8 percentage?
9 A. Yes, uh-huh.
10 Q. Okay. Is that based on increases, the
11 fee?
12 A. It will be -- as an assistant coach, it
13 would be 2 percent; and if he became head coach, it
14 would be 3 percent.
15 Q. Of the guaranteed --
16 A. Of total guaranteed.
17 Q. Total guaranteed. Annual income?
18 A. Uh-huh.
19 Q. Is Mr. Metz involved in that one also?
20 A. Yes, he is.
21 Q. All right. Anybody else?
22 A. That I'm involved with or that --
23 Q. We're here as to your involvement. We
24 know Mr. Metz and those folks represent a lot of other 82
1 people.
2 A. Yeah.
3 Q. You are not involved whatsoever. But
4 what kind of involve -- we're kind of interested a
5 little bit in what you do today, Mr. Brown.
6 A. Okay. That's fine. That's all I can
7 recall at this time.
8 Q. When I had asked you those questions,
9 would that include other divisions other than -- other
10 than Division I coaches and/or professional teams? I
11 assume that you were telling me all the coaches that
12 you have some representation, whether it be freebies
13 or actual fee-paying clients?
14 A. Actually, I forgot another one that I
15 represent is Freddie Kitchens, a tight-end coach for
16 the Arizona Cardinals.
17 Q. Freddie Kitchens?
18 A. That's correct.
19 Q. Is that with Mr. Metz also?
20 A. With Mr. Metz and myself.
21 Q. Okay. So was that question that you
22 answered, does that include all coaches, whether it's
23 Division I, II, III, pro sports, semipro?
24 A. That's all I can -- that's all I can 83
1 recall at this time.
2 Q. Do you have a website for your business?
3 A. For what business?
4 Q. For any of your businesses?
5 A. I do not have a website.
6 Q. For any business?
7 A. On the LLCs, for each of the LLC projects
8 that I work with -- the LLCs I work with, there are
9 websites right now for each one of those --
10 Q. For listings and rentals and things like
11 that?
12 A. No, just -- there's just for the
13 development itself, a description of the development,
14 what units are available for sale, pictures and that.
15 Q. Do you involve yourself in the actual
16 sale of those units also?
17 A. I will if -- for example, in the project
18 in Tuscaloosa right now, if there are some potential
19 buyers that are interested in the unit, the realtor
20 may contact me and ask me that I give them a call and
21 have a discussion with them also.
22 Q. Okay. You don't actively try to sell
23 these units and things like that?
24 A. No, I do not. 84
1 Q. Do you have any real estate licenses?
2 A. No.
3 Q. Have you ever been to any specific
4 courses or seminars where they instructed individuals
5 about sports law in representing coaches?
6 A. As far as representing coaches
7 specifically?
8 Q. Yes, sir.
9 A. No, not in the course of specifically
10 representing coaches. And I really don't know of any
11 courses that exist out there.
12 Q. How about generally sports
13 representation, whether it be players, coaches or
14 other people associated with sports teams, have you
15 been to any seminars or courses?
16 MR. ROBON: Objection.
17 You can answer.
18 THE WITNESS: The only course
19 that I was required to go to, went to,
20 was the NFLPA's class and then
21 certification test.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. So any seminars or that, that was a
24 requirement for your test? 85
1 A. Right.
2 Q. Do you have a business card with you?
3 A. No, I do not.
4 Q. How does it identify you on your business
5 card, do you recall?
6 A. It's been so long since I've looked at
7 one. I think it's either player -- the older ones
8 used to be "player representative," and I think I have
9 new cards back at the house that says "coach's
10 representative" since 2000 -- since I quit
11 representing players.
12 Q. Let me ask you a little bit about the fee
13 structure. You told us that Mr. Metz was involved on
14 a 50/50 fee-splitting basis with you in representing
15 Coach Rodriguez since '05, December of '05.
16 A. That's correct.
17 Q. Is that correct?
18 A. That's correct.
19 Q. Has that remained the same, that fee
20 division, from '05 up until the present time?
21 A. That's correct.
22 Q. All right. And so through this Michigan
23 contract also, or the agreement, whatever that is,
24 with Michigan, Mr. Metz also was serving as 86
1 co-representative with you of Coach Rodriguez?
2 MR. ROBON: Objection.
3 You can answer.
4 THE WITNESS: Yeah. He was a
5 co-representative. Again, when you're
6 doing agent business, just like probably
7 in your firm, there is a lead, who --
8 you're the lead person in representing
9 that client, and then if you feel
10 necessary that you get back in touch with
11 them and ask them questions and things
12 like that.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. So far as responsibility, though, you and
15 Mr. Metz equally share the responsibility with
16 Coach Rodriguez, at least since summer of '05,
17 although you've pretty much been the face person or
18 the person out front?
19 A. That's correct.
20 Q. Okay. You've had access to their entire
21 firm since the summer of '05?
22 A. That's correct.
23 Q. As far as if you need information or
24 advice from them on an issue, you can go to them; is 87
1 that right?
2 A. Yeah, but in -- as far as between Eric,
3 myself, and the other two partners out there, I have
4 probably the most knowledge of the college football
5 industry, the most number of contacts and that so --
6 Q. You're probably the most experienced and
7 smartest person within the firm as to coaches; is
8 that --
9 MR. ROBON: Objection to the
10 characterization.
11 THE WITNESS: No, I would say I
12 spend more time than any of the three --
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. That's why I said experience.
15 A. -- working with coaches. And I would say
16 as far as specifically college coaches, yes.
17 Q. So you're the go-to guy at the firm so
18 far as college coaches in football?
19 A. That's true.
20 Q. Is that correct?
21 A. Yeah.
22 Q. All right. And is one of those
23 individuals a lawyer that's one of the partners down
24 there? 88
1 A. Ethan Lock is a tenured law professor at
2 Arizona State.
3 Q. Do they have research facilities there to
4 research contract issues and things like that if they
5 need it?
6 A. At the office?
7 Q. At their office, uh-huh.
8 A. Not that I'm aware of.
9 Q. They don't have the Internet and things
10 like that that have come into vogue here in the last
11 few years?
12 A. Yeah, they have the Internet.
13 Q. So they have some research tools, at
14 least to your knowledge?
15 MR. ROBON: If you know.
16 THE WITNESS: I have no
17 knowledge of what research tools they
18 have.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Who was Coach Rodriguez's attorney in
21 '05?
22 MR. ROBON: If you know.
23 THE WITNESS: Prior to my taking
24 over? 89
1 MR. ROBERT P. FITZSIMMONS: Wait
2 one second. We went down that road a
3 little bit earlier about the message
4 that's being conveyed about "if you
5 know."
6 A person can't answer a question
7 if they don't know, Mr. Robon.
8 MR. ROBON: Just don't guess on
9 that, Mr. Brown.
10 MR. ROBERT P. FITZSIMMONS: You
11 already told him that advice. If you
12 want -- I tell you what: If you want to
13 write it down, and you can show the
14 camera and everybody that you want to
15 suggest it.
16 MR. ROBON: You were asking
17 specific years, and I just don't know if
18 he remembers who was in a particular
19 year.
20 MR. ROBERT P. FITZSIMMONS: I
21 understand. But I'm not asking you the
22 question.
23 MR. ROBON: I understand.
24 BY MR. ROBERT P. FITZSIMMONS: 90
1 Q. Go ahead and answer my question.
2 A. When in '05.
3 Q. You began representing Coach Rodriguez in
4 '50, you went to his office, I can't recall whether or
5 not Mr. Metz was on the phone at that time.
6 Was there an attorney at that time
7 representing Coach Rodriguez?
8 A. Prior to that time?
9 Q. At that time.
10 A. At that time or prior to that time?
11 Q. At that time.
12 A. I'm not sure at that time.
13 Q. Did he have an attorney -- did he have an
14 attorney that generally represented his interest at
15 that point in time that was the go-to person, like
16 Brown was the go-to person for condominiums and things
17 like that?
18 A. Repeat the question, please.
19 Q. Was there an attorney that he commonly
20 would contact at that time for legal advice?
21 A. I have no knowledge of who he was
22 contacting in regards to legal advice.
23 Q. Did you advise anybody that you were the
24 sole and exclusive agent of Rich Rodriguez for 91
1 purposes of all contract negotiations at West
2 Virginia?
3 A. I can't recall.
4 Q. Are you?
5 A. Pardon me?
6 Q. Are you the sole and exclusive agent for
7 Rich Rodriguez on all contract issues at West Virginia
8 University?
9 A. I am the point person --
10 MR. ROBON: I'm going to object
11 to that, because he's no longer at West
12 Virginia.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. Well, there's still contract issues, are
15 there not?
16 A. As far as his sports-agent
17 representation, I am the first -- I am the lead person
18 in his representation.
19 Q. Are you the exclusive person is my
20 question.
21 A. No, I'm not.
22 Q. Have you ever been the exclusive person
23 to represent Coach Rodriguez at West Virginia
24 University on his contract issues? 92
1 A. The exclusive? I have been the lead
2 person between Eric and myself in representing him.
3 Q. Mr. Brown, did you not hear the question?
4 The question was are you the exclusive person?
5 A. I am not the exclusive person.
6 Q. Who besides you has represented -- is
7 representing Coach Rodriguez in 2005 on his contract
8 issues with West Virginia University?
9 A. Say that again.
10 Q. Who besides you, if anybody --
11 A. Uh-huh.
12 Q. -- was representing Coach Rodriguez on
13 his contract issues at West Virginia University?
14 A. Eric Metz.
15 Q. In '06, who besides you was representing
16 Coach Rodriguez on his contract issues with West
17 Virginia?
18 A. Eric Metz.
19 Q. And in 2007, who besides you was
20 representing Coach Rodriguez on his contract issues
21 with West Virginia?
22 A. Eric Metz.
23 Q. All right. Are you telling us that there
24 were no attorneys for Coach Rodriguez during any of 93
1 those three-year periods on these contract issues?
2 A. On the contract issue, not to my
3 knowledge.
4 Q. Okay. Do you know a guy by the name of
5 Bennett "Spare" or "Speyer"?
6 A. Speyer. Yes, I do.
7 Q. Did he represent Coach Rodriguez on
8 contract issues?
9 A. He represented Coach Rodriguez on
10 contract issues, I believe. Yes, in financial
11 deferred-compensation issues, he represented
12 Coach Rodriguez.
13 Q. So to some extent then -- he's an
14 attorney, do you understand?
15 A. I have no knowledge whether he's an
16 attorney or not.
17 Q. So you don't know if Mr. Speyer -- is it
18 "Speyer"? Is that how you pronounce that?
19 A. "Speyer," yeah.
20 Q. "Speyer."
21 A. Uh-huh.
22 Q. You don't know if Mr. Speyer is an
23 attorney; is that your testimony?
24 A. Yes, I do not know if he's an attorney. 94
1 Q. And do you know a gentleman by the name
2 of Mike Wilcox?
3 A. Yes, I do.
4 Q. And did Mr. Wilcox assist in representing
5 Coach Rodriguez in some aspects of contracts in 2005,
6 2006, and 2007 with West Virginia University?
7 A. Only in 2007.
8 Q. In 2007 he did?
9 A. Yes, he did.
10 Q. Okay. Who else was providing advice to
11 Coach Rodriguez so far as contracts, whether it be a
12 person like you as a coach representative or an
13 attorney or financial advisor?
14 A. The only one that I'm aware of is
15 Dave Hammack, a CPA.
16 Q. Dave Hammack?
17 A. Yes.
18 Q. You understand Mr. Hammack is a certified
19 accountant?
20 A. That's correct.
21 Q. And where is Mr. Hammack from?
22 A. Somewhere in the Toledo area here.
23 Q. Have you ever recommended or suggested
24 Coach Rodriguez employ any attorneys in any legal 95
1 matters that he had involving West Virginia
2 University?
3 MR. ROBON: Objection.
4 You can answer.
5 THE WITNESS: Repeat the
6 question.
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. Yes, sir. Have you ever referred or
9 suggested an attorney represent Coach Rodriguez in any
10 legal matters involving West Virginia University,
11 including contracts?
12 MR. ROBON: Objection.
13 You can answer.
14 THE WITNESS: No.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. Now, as I understand this entire period
17 of time, then, that you were one of the team
18 representing Coach Rodriguez, you and Metz and some of
19 these other folks, you would have at all times during
20 that period of time had access and the ability to
21 consult with an attorney at the LMM firm, the sports
22 firm; is that correct?
23 MR. ROBON: Objection.
24 THE WITNESS: Repeat the 96
1 question.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. Yes. You had access to LMM, including
4 one of the member attorneys, who is an attorney there,
5 during the period of time that you represented
6 Coach Rodriguez from '05 --
7 A. Yes.
8 Q. -- through his leaving West Virginia; is
9 that correct?
10 MR. ROBON: Show an objection
11 to the question.
12 THE WITNESS: Yes.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. Would you talk with the attorney member
15 of the firm on occasion about Coach Rodriguez's
16 contract?
17 MR. ROBON: Objection.
18 THE WITNESS: No.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. You never did?
21 A. Nope.
22 Q. Why not?
23 A. Because there weren't any legal issues
24 that I thought during that time that needed to be 97
1 discussed.
2 Q. We're going all the way through 2007, you
3 understand?
4 A. Uh-huh.
5 Q. Is that true, you never contacted the
6 attorney member of the LMM firm out in Arizona during
7 any periods of time that you were representing
8 Coach Rodriguez --
9 A. Repeat the question.
10 Q. -- from 2005 through December of 2007?
11 Yeah. You interrupted me before I
12 finished.
13 A. Okay.
14 Q. You never consulted any attorney at the
15 LMM firm, who was the member, from 2005 all the way
16 through the end of 2007 concerning any West Virginia
17 issues or contracts with Mr. Rodriguez; is that true?
18 MR. ROBON: Objection.
19 You can answer.
20 THE WITNESS: No.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. That's a true statement?
23 A. That's a true statement.
24 Q. Now, was there some agreement that you're 98
1 aware of that this Attorney Speyer limited his advice
2 to only certain provisions of the contract at West
3 Virginia University involving Mr. Rodriguez?
4 MR. ROBON: Objection.
5 You can answer.
6 THE WITNESS: I have no
7 knowledge of any agreements involving
8 Bennett Speyer.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. Did you talk to Mr. Speyer about the
11 contract?
12 MR. ROBON: Objection.
13 You can answer.
14 THE WITNESS: In '06 and '07, I
15 had conversations in regards to -- with
16 Bennett Speyer by phone and by e-mail as
17 to where he was in preparing the
18 deferred-compensation language, so that
19 we could proceed on -- that we could
20 continue having discussions with
21 Craig Walker and Mike Garrison to
22 continue the discussions on getting the
23 contract signed.
24 BY MR. ROBERT P. FITZSIMMONS: 99
1 Q. Have you proposed contract language for
2 any of Rich Rodriguez's contracts with West Virginia
3 University?
4 A. Yes, I have.
5 Q. Who's taught you to draft contract
6 provisions in an employment contract? Is there some
7 person, individual you would hold responsible and say
8 so-and-so has taught me and trained me to --
9 A. No, there's no one that has trained me.
10 It's just experience, using my education, knowing
11 exactly what the common standards are in the industry,
12 and having negotiations and discussions with the
13 attorneys and representatives on the other side.
14 Q. Do you consider contracts, employment
15 contracts like Coach Rodriguez's '06 and '07 contracts
16 with West Virginia, legal documents?
17 A. Do I consider them as legal documents?
18 Would you repeat the question?
19 Q. Did you not hear it?
20 A. Well, you --
21 Q. Just state it verbatim?
22 A. Repeat the question, please.
23 Q. Did you not hear it, or did you not
24 understand it? 100
1 A. I didn't understand it. What's the
2 question again?
3 Q. Did you consider the contracts of '06 and
4 '07 with Rodriguez and West Virginia University as
5 legal documents?
6 A. I did consider them as legal documents
7 after they were signed by all parties.
8 Q. Okay. And did you consider the
9 provisions within the contracts in '06 and '07 as
10 legal provisions?
11 A. Yes.
12 Q. Have you generally, then, held yourself
13 out as having legal knowledge enough to draft contract
14 provisions, make suggestions, at least, for
15 Mr. Rodriguez in West Virginia?
16 A. Yes.
17 MR. ROBON: Objection.
18 MR. ROBERT P. FITZSIMMONS: Did
19 you get the answer "yes"?
20 Was that your answer, "yes," so
21 there's no mistake?
22 THE WITNESS: Repeat the
23 question, please.
24 MR. ROBERT P. FITZSIMMONS: Would 101
1 you read that back?
2 MR. ROBON: Why don't you
3 just -- give me a chance, so we're --
4 give me a chance to decide whether I want
5 to object.
6 THE WITNESS: All right.
7 MR. ROBON: We can't talk at the
8 same time. Okay.
9 (Court Reporter read back the
10 following:
11 "Question: Have you generally,
12 then, held yourself out as having legal
13 knowledge enough to draft contract
14 provisions, make suggestions, at least,
15 for Mr. Rodriguez in West Virginia?"
16 MR. ROBON: And I objected.
17 You can answer.
18 MR. ROBERT P. FITZSIMMONS: He
19 answered "yes." Did you -- you have that
20 on your transcript?
21 MR. ROBON: Is that correct, you
22 answered "yes"?
23 BY MR. ROBERT P. FITZSIMMONS:
24 Q. This firm that you have some relationship 102
1 with, I guess, LMM.
2 A. Uh-huh.
3 Q. If you have -- if you have a customer, do
4 they have to join in if you ask for their assistance?
5 Do they have to serve as co-representatives, or can
6 they say, no, we don't want to be involved in that?
7 MR. ROBON: Objection.
8 You can answer.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. They have the right to turn you down,
11 don't they?
12 A. Say it again.
13 Q. Yeah. If you -- if you go out and you
14 land a coach at a Division II school, and you call him
15 up, say Mr. Metz, Eric, can you help, and you want to
16 split the fee on this guy, and we'll do the work
17 together, he doesn't have to accept that; is that
18 correct?
19 A. That's correct, yes.
20 Q. Now, when you -- when you met with
21 Rodriguez in '05, the summer of '05, you can't
22 remember the exact date --
23 A. Uh-huh.
24 Q. -- summer you told me, at that time, did 103
1 you at that time tell Rodriguez that Metz was going to
2 be a 50/50 sharing partner of yours in this
3 arrangement?
4 A. I did not disclose to Coach Rodriguez how
5 Eric and I split fees.
6 Q. Have you ever disclosed to Rodriguez how
7 you split the fees?
8 MR. ROBON: Objection.
9 You can answer.
10 THE WITNESS: No.
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. When you talk about the guaranteed annual
13 income, how do you compute that on these fees? Just
14 take Rodriguez's contract that he had in August of
15 '07, are you generally familiar with that?
16 A. Yes.
17 Q. Okay. Just generally tell me how you
18 would do the math for that?
19 A. Whatever his base salary and supplemental
20 income was on the contract, add those two numbers
21 together, and that was his total guaranteed annual
22 income.
23 Q. Okay. Do you receive the fee just once,
24 even though the contract was multiyear? 104
1 A. What we do is we will, like, for example,
2 work with his accountant, and ask them what is the
3 best way as far as -- and we do this with all our
4 clients -- what's the best way for the client in
5 regards to paying fees as to whether it's done
6 annually or biannually depending on what's the tax
7 advantage to him as far as business expenses.
8 Q. Okay. Let me just ask the question
9 again.
10 A. Yeah.
11 Q. In '07, the contract extended -- that was
12 signed by Mr. Rodriguez was extended to 2014?
13 A. Uh-huh.
14 Q. That's a yes?
15 A. Yes.
16 Q. All right. Is the guaranteed annual
17 income you get paid, each yearly guaranteed annual
18 income as the year rolls around in '07, '08, '09,
19 2010, 2014, would you receive your percentage that you
20 told us earlier about each year?
21 MR. ROBON: Objection.
22 You can answer.
23 THE WITNESS: He would -- at the
24 end of each calendar year, he could 105
1 choose to pay annually, or, for example,
2 biannually, depending on what was more
3 advantageous to him.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. Okay. But it's not a one-time fee that
6 you landed a seven-year contract?
7 A. No, no. He does not pay upfront for the
8 full seven years, if that's what you're asking.
9 Q. That's one of the questions I was going
10 to ask you.
11 A. Yeah.
12 Q. All right. But you get paid -- what he
13 gets on his gross salary during the year, you get paid
14 a percentage every year of a seven-year contract?
15 A. That's correct.
16 Q. And once the contract is entered into --
17 A. Uh-huh.
18 Q. -- signed by the parties, it becomes a
19 binding contract at that point, does it?
20 A. Yes.
21 Q. All right. Once it becomes that, what do
22 you have to do for the contract to keep it alive as a
23 coaching representative?
24 MR. ROBON: Are you referring to 106
1 Rodriguez or just generally coaching?
2 MR. ROBERT P. FITZSIMMONS: He
3 only has, really, Rodriguez, I think, as
4 the head coach. But, yeah,
5 Coach Rodriguez is a good one to use.
6 MR. ROBON: Objection.
7 You can answer.
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. I mean, what duties and responsibilities
10 do you have with that contract? You got the contract;
11 it's in existence to 2014.
12 A. All right.
13 Q. You're entitled to a fee even though you
14 don't have an agreement, written agreement with
15 Coach Rodriguez?
16 A. In Coach Rodriguez's case, are you --
17 Q. I mean, are there some other services you
18 have to perform for him, do you have to look for new
19 jobs to get out of the contract; is your obligation to
20 try to figure out how to get out of the contract, or
21 how to change the contract, even though it's in
22 existence for seven years?
23 A. No.
24 Q. Are you employed to look for ways to 107
1 breach the contract or to get out of it for the coach?
2 A. No.
3 MR. ROBON: Objection.
4 THE WITNESS: No.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. You really have no duties and
7 responsibilities once the contract is signed, like
8 Coach Rodriguez, until 2014 or sometime shortly before
9 that when you would be renegotiating it; is that
10 right?
11 MR. ROBON: Objection.
12 You can answer.
13 THE WITNESS: Yeah, I have some
14 obligation. For example, in
15 Coach Rodriguez's instances -- instance,
16 when he signed the contract in August,
17 there were verbal promises made to him by
18 Mike Garrison and Craig walker.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Where were those written?
21 A. They were summarized, for example, in the
22 e-mail by Mike Garrison August 27th.
23 Q. That that was part of his contract?
24 A. That that was -- there was a meeting in 108
1 which Coach Rodriguez met with Mike Garrison,
2 Craig Walker, myself, Rita Rodriguez and he were
3 there. They discussed issues.
4 Mike Garrison made some statements, some
5 promises to Coach Rodriguez. I don't feel
6 Coach Rodriguez would have signed the contract unless
7 those promises were made. Those promises were made to
8 Coach Rodriguez, and there were some time frames put
9 in to when certain things were going to be done and
10 looked at.
11 And so recently, in 2007, as
12 Coach Rodriguez's agent, I felt it was my fiduciary
13 duty to stay in touch with West Virginia and track
14 their progress in keeping to those verbal promises
15 which were made to Rich, and I feel the only reason he
16 signed the contract was because of those verbal
17 promises by Mike Garrison and Craig Walker.
18 Q. That's your feeling, right?
19 A. It's my feeling, since --
20 Q. Did you tell him not to sign the contract
21 in August?
22 MR. ROBON: Let him finish the
23 first question, please.
24 BY MR. ROBERT P. FITZSIMMONS: 109
1 Q. Did you tell him not to sign --
2 MR. ROBON: No, no, no. Let
3 him --
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. -- the contract in August?
6 MR. ROBON: Let him finish the
7 answer to your prior question about the
8 feelings.
9 THE WITNESS: As time has gone
10 on and I've looked back and I have seen
11 some discovery stuff that's been turned
12 over, some e-mails from Mike Garrison and
13 Mike Wilcox, a memo from Craig walker to
14 Eddie Pastilong, a memo from Russ Sharp
15 to them and so forth, I felt that, you
16 know, that -- that Mike Garrison
17 intentionally was -- told anything he
18 would say at that time to Coach Rodriguez
19 to get him to sign the contract.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Mr. Brown, did you tell him not to sign
22 the contract?
23 MR. ROBON: Objection.
24 You can answer. 110
1 BY MR. ROBERT P. FITZSIMMONS:
2 Q. August of '07, did you?
3 A. Yes, I told him not to sign the contract.
4 Q. All right. So this man went ahead,
5 against your advice, and signed the contract of August
6 24th, 2007; is that right, Mr. Brown?
7 You don't have to look to him for
8 answers. Look right in that camera and tell those
9 folks.
10 A. Yes, yes.
11 Q. You told him not to, and this man went
12 ahead and did it on his own, right?
13 A. He signed the contract.
14 Q. Because he was the final decision-maker
15 that could overrule anything you said, Metz said and
16 everybody else, right?
17 A. That's the way it is. He's the client.
18 Q. And because you warned him not to sign
19 this contract, Don't do this because this is going to
20 have legal effects and binding effects upon you, you
21 told him not to sign it, didn't you? Didn't you?
22 A. I told him not to sign it, and --
23 Q. And he went ahead and did it, didn't he?
24 MR. ROBON: Would you let him 111
1 finish, please.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. Mr. Brown, it's a simple yes or no.
4 MR. ROBERT P. FITZSIMMONS: Mr.
5 Robon, we're not going to have your
6 suggestions. You go ahead --
7 MR. ROBON: I'm not suggesting.
8 MR. ROBERT P. FITZSIMMONS: --
9 and let him testify.
10 MR. ROBON: I just -- I want to
11 let him answer his questions.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. He went ahead and signed it against the
14 advice of his -- of your representation, didn't he?
15 A. Yes, he did.
16 Q. And Mr. Metz's representation?
17 A. Yes, he did.
18 Q. And Bennett Speyer was involved in the
19 case, who was an attorney, at least at that time,
20 wasn't he?
21 A. Bennett Speyer was not present at the
22 meeting that day.
23 Q. But he had talked to Coach Rodriguez on
24 all these pension funds and deferred compensation and 112
1 some of the financial matters, hadn't he?
2 A. Yes, he had.
3 Q. And his wife Rita was there telling him,
4 also at that meeting, wasn't she?
5 A. She was at the meeting.
6 Q. And Mike Wilcox, a sophisticated
7 financial advisor, had been in constant communications
8 was him also, right?
9 A. Yes.
10 Q. And Rich Rodriguez, despite all those
11 people and all that advice, and this big firm from --
12 where are they from, Arizona, LMM?
13 A. I wouldn't call us a big firm.
14 Q. What?
15 A. We aren't a big firm.
16 Q. You're just a little guy, aren't you?
17 A. Yeah.
18 Q. Right. -- all the way from Arizona, and
19 your office down in Georgia, and despite all that,
20 Rich Rodriguez went ahead and signed it, despite being
21 warned by all of you professionals, right?
22 MR. ROBON: Objection.
23 You can answer that question.
24 Listen to it carefully. 113
1 BY MR. ROBERT P. FITZSIMMONS:
2 Q. He went ahead and signed it because he
3 was the final decision-maker.
4 MR. ROBON: That wasn't the
5 question.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Is that right, sir?
8 MR. ROBON: The question was --
9 MR. ROBERT P. FITZSIMMONS: I'll
10 withdraw the question.
11 MR. ROBON: He was warned by all
12 the decision-makers.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. He had been warned by these
15 decision-makers, Don't sign, and he went ahead and
16 signed, didn't he?
17 A. I only have knowledge of what I told Rich
18 to do.
19 Q. Well, you were the big guy. You were
20 pretty much the head guy, you told me, you were the
21 face guy in this representation team. You told him,
22 Don't do it, Rich, and he did it. Is that true or
23 not?
24 A. I advised Rich not to signed the contract 114
1 because it was -- it put too much risk on Rich and put
2 West Virginia in a situation where they did not have
3 to follow up on the promises.
4 The 4 million dollars was a penalty that
5 was going to be stuck on Rich, and because of that 4
6 million dollar penalty, West Virginia, Mike Garrison
7 would be in a position for a period of time that they
8 would not have to follow through on any of the
9 promises that they made to Rich Rodriguez that day he
10 signed the contract.
11 And I advised Rich of that risk and of
12 that issue and of the potential of Mr. Garrison and
13 Craig Walker not following through on their promises,
14 and also brought up to him the previous behavior
15 pattern in the West Virginia organization, community,
16 Eddie Pastilong, the Board of Governors and the
17 Governor.
18 And I told Rich that it was a risk to
19 sign that contract based on those verbal promises in a
20 4 million dollar buyout, because there was no leverage
21 or commitment, or West Virginia was not going -- was
22 going to be in a position for a period of time where
23 Rich was going to be held hostage by such a large
24 penalty, and West Virginia would not have to follow 115
1 through on the verbal promises they made to him.
2 Q. You couldn't leverage the University to
3 get them back to the bargaining table after that
4 contract became binding on August 24th, 2007, could
5 you?
6 MR. ROBON: Objection. You can
7 answer.
8 THE WITNESS: Repeat the
9 question.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. There was nothing that you could do to
12 get them back to the bargaining table to obligate West
13 Virginia to ever come back until 2014 with Coach
14 Rodriguez with that contract?
15 A. There was a verbal promise made by
16 Mike Garrison on August the 24th that he would revisit
17 the contract in December of '07 or January of '08, to
18 address the fairness of the contract and the terms and
19 conditions of the contract at that time.
20 Mike Garrison stated to Rodriguez on
21 August 24th that he would be -- Rich would be doing
22 him a favor and -- by signing the contract. There is
23 an e-mail. Let me pull out this e-mail here.
24 Q. Well, you already answered the question, 116
1 but --
2 A. I'm -- I'm --
3 Q. -- go ahead with your speech.
4 A. Sure.
5 Q. And then we'll ask questions.
6 A. Here is a copy of an e-mail from Mike
7 Garrison to Mike Wilcox dated August 9, 2007. Mike
8 Garrison --
9 Q. This is before the contract was signed,
10 sir?
11 A. Yeah, this is before the contract was
12 signed.
13 (Reading:) Thanks very much for your
14 follow-up e-mail and your participation in this
15 process. I'm pleased that your sense is that things
16 are moving ahead very well, and want to reiterate my
17 previous sentiments about bringing this process to a
18 close very soon.
19 As chairman of the board, I'm sure that
20 you can appreciate the fact that our next scheduled
21 WVU board of Board of Governors meeting is likely to
22 be moved up to August 31st from September 6th and 7th,
23 and we will be asked to report on the contract issue.
24 Our WVU Board of Governors Chairman anticipates with 117
1 certainty that this matter will be finalized by no
2 later than by the above-referenced meeting, and I have
3 assured him that at least from the University's
4 perspective, that it will be completed on or before
5 that date.
6 Thanks for your involvement and please
7 feel free to contact me, Craig, or Alex.
8 So the way I look at it, and now that
9 I've seen this e-mail, Mr. Garrison was under a lot of
10 pressure to promise and say whatever he had to to
11 Rich Rodriguez to get him to sign the contract that
12 day.
13 Q. First of all, when did you get that
14 e-mail? Yesterday --
15 A. I got --
16 Q. -- Mr. Brown?
17 A. I did not get this yesterday.
18 Q. Within the last week?
19 A. Let me see. I can't recall when I got
20 this e-mail.
21 Q. Were you at Mr. Robon's office, was he
22 with you someplace meeting?
23 MR. ROBON: You mean with regard
24 to the e-mail? 118
1 THE WITNESS: I remember how I
2 got the e-mail now. It was part of the
3 discovery that was turned over to -- in
4 regards to the request of discovery by
5 Mr. Robon and Mr. McGinley.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Within the last week is approximately
8 when you got it?
9 A. No. I've had it -- I think I've had --
10 let me see here.
11 I've had this -- I can't recall, but it's
12 been within the last 30 to 45 days, maybe, that I've
13 had it.
14 Q. And do you -- do you realize -- so you've
15 been actively involved in this lawsuit, in discovery
16 and going through records and documents in the
17 lawsuit, too, then; is that right?
18 MR. ROBON: Objection. You can
19 answer.
20 THE WITNESS: Yes, I have.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Okay. And you know that two weeks after
23 that letter, your customer signed an agreement that
24 said there were no other agreements or understandings 119
1 whatsoever. You're aware of that language, aren't
2 you?
3 A. Yes.
4 Q. In fact, you actually recited it several
5 times in contract proposals that you submitted to West
6 Virginia University, that exact language, did you not?
7 MR. ROBON: Objection. You can
8 answer.
9 THE WITNESS: Yes.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. And you're familiar with those types of
12 provisions, right?
13 A. Yes.
14 Q. And why do you put those provisions in,
15 that there are no other agreements or understandings,
16 oral or in writing, other than this contract? Why do
17 you do that?
18 A. That --
19 Q. Why do you put them in?
20 A. Repeat the question.
21 Q. Why do you suggest language like that in
22 some of the contracts you process?
23 A. I did not put that language in there.
24 That language was in there from the original 2005 120
1 employment agreement, and so going forward on the
2 follow-on amendments, the language remained in there.
3 Q. Do you ever propose language like that?
4 MR. ROBON: You mean on Rich's
5 contract or others?
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. In any contract. In any contract. It's
8 common, that's a standard clause in a lot of
9 contracts.
10 A. In a lot of contracts, it is. It can be
11 put in; it cannot be put in. Each individual contract
12 is different.
13 Q. And in this contract, on August 24 of
14 '07, it was in there, wasn't it?
15 A. In the second amendment, it was in there.
16 Q. Did you ever tell anybody --
17 A. No, no, excuse me now. The second
18 amendment was an amendment by itself to the original
19 employment agreement, so that language is only valid,
20 I believe, in regards to the original employment
21 agreement.
22 Q. Well, the second amendment -- Mr. Robon
23 doesn't have to shake his head over there. But the
24 second amendment incorporates all the language of the 121
1 first contract, does it not, unless it's specifically
2 addressed?
3 MR. ROBON: Objection. It's
4 calling for a legal opinion.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. And is that right, Mr. Brown?
7 A. I can't recall because it's been months
8 since I sat down and looked at the document.
9 MR. ROBERT P. FITZSIMMONS: Okay.
10 Let me show it to you, then. First of
11 all, Exhibit 53.
12 (Brown Exhibit 53 was marked
13 for identification.)
14 BY MR. ROBERT P. FITZSIMMONS:
15 Q. I'll hand it to Mr. Robon, and then show
16 you Exhibit 53, Brown 53.
17 Turn to page 13, Mr. Brown.
18 A. Uh-huh.
19 Q. Are you familiar with that Roman numeral
20 X there? This is the 2002 contract. Do you see that,
21 sir?
22 A. Uh-huh.
23 MR. ROBON: Whoa. What page is
24 that? 122
1 MR. ROBERT P. FITZSIMMONS: Is
2 that yes, Mr. Brown?
3 THE WITNESS: Page 13. I see
4 page 13.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Would you read that into the record,
7 please?
8 A. All right. What paragraph?
9 Q. Roman numeral X.
10 A. Roman numeral X, Entire Agreement:
11 Amendment. "It is mutually understood that this
12 Agreement contains all of the terms and conditions to
13 which the parties have agreed and that no other
14 understandings or representations, either oral or
15 written, unless referenced in preceding paragraphs,
16 regarding the subject matter of this Agreement shall
17 be deemed to exist or to bind the parties hereto. Any
18 modification, amendment or addendum to this Agreement
19 shall be effective only if made in writing and signed
20 by both parties."
21 (Brown Exhibit 54 was marked
22 for identification.)
23 MR. ROBERT P. FITZSIMMONS: All
24 right. Now, I would like to show you 123
1 Exhibit 54.
2 MR. ROBON: Am I to presume
3 there are at least 54 other exhibits if
4 you marked them like that?
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Mr. Brown, I'm showing you Exhibit 54.
7 This is the June of '06 agreement; is that right?
8 A. That's correct.
9 Q. Are you familiar with this first
10 amendment?
11 A. Yes, I am.
12 Q. Did you participate in some of the
13 language in negotiations for the first amendment?
14 A. Yes, I did, and so did Eric Metz.
15 Q. Mr. Metz did also?
16 A. Yes. In fact, I remember one time
17 Mr. Metz and I traveled together and had a meeting
18 with Tom Dorer in his office regarding this first
19 amendment.
20 Q. And did the first amendment incorporate
21 the entire second -- the entire provision of Roman
22 numeral X? It's the last page, item No. 6.
23 Did it incorporate the entire agreement?
24 A. Let me see here. You want me to read it 124
1 for the record?
2 Q. Yeah, that would be good.
3 A. All right. No. 6, "Except as set forth
4 in this first amendment, the Agreement remains in full
5 force and effect and unamended."
6 Q. So did that provision survive, then, this
7 amendment and become part of it?
8 MR. ROBON: Objection. Calls
9 for a legal conclusion.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. You negotiated it, didn't you?
12 MR. ROBON: You can answer if
13 you know.
14 THE WITNESS: I can't provide a
15 legal opinion on it, if that's what
16 you're asking for.
17 BY MR. ROBERT P. FITZSIMMONS:
18 Q. All right. So you don't know if that
19 provision, then, would apply? And you're this big
20 sports agent, coaching agent, you don't know if that
21 provision applies in a contract; is that your
22 testimony?
23 A. I --
24 Q. Is that your testimony, you don't know if 125
1 it applies, sir?
2 A. In a legal court with all different
3 issues and that, I'm not sure what legal opinion --
4 Q. Let me ask you as an agent with your
5 customers, do you tell them it applies or it doesn't
6 apply?
7 MR. ROBON: Objection.
8 You can answer.
9 MR. ROBERT P. FITZSIMMONS: 57.
10 MR. WAKEFIELD: Is there some
11 reason why you have to keep looking at
12 Mr. Robon?
13 THE WITNESS: Well, because he
14 asked me to, you know, make sure I slowed
15 down and give him a chance after each
16 question if he wants to interject. So
17 that's why I just slowed down.
18 MR. ROBON: Yeah, I'm not
19 signaling him or anything.
20 THE WITNESS: No.
21 MR. ROBON: Actually, I'm ready
22 to go to the bathroom, if you guys want
23 to take a break.
24 BY MR. ROBERT P. FITZSIMMONS: 126
1 Q. Answer the question, Mr. Brown. As an
2 agent, are you telling us that you don't know enough
3 to tell us whether or not the paragraph you just read,
4 paragraph 6 in the first amendment, incorporates that
5 clause in Roman numeral X that says there's no other
6 agreements whatsoever other than what's in the
7 contract?
8 MR. ROBON: Objection.
9 You can answer.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. You don't know enough as an agent?
12 A. I know enough as to what, on face value,
13 yes, it does incorporate it.
14 (Brown Exhibit 57 was marked
15 for identification.)
16 BY MR. ROBERT P. FITZSIMMONS:
17 Q. All right. And then Exhibit 57, this is
18 the agreement that you said to Rodriguez, Don't sign,
19 but he signed it anyway, 57.
20 MR. ROBERT P. FITZSIMMONS: Here
21 you go, Marv.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. Do you see that one?
24 A. I see it. 127
1 Q. You see that language at the end in -- I
2 think it's paragraph 13.
3 A. Uh-huh.
4 Q. Is that a yes?
5 A. Uh-huh.
6 Q. Was that a yes, Mr. Brown, that you saw
7 it?
8 A. I see it now.
9 Q. Okay. That's a yes? Is that the same
10 paragraph -- would you read that to the -- I think
11 Mr. Robon asked people to talk in the camera to read
12 to the jury, so maybe we can do that.
13 Would you read that, August 24, 2007,
14 signed by your customer, Rodriguez. Right?
15 A. Paragraph 13, "Except as set forth in the
16 Second Amendment, the Agreement remains in full force
17 and effect and unamended."
18 Q. And does that mean what it says, that
19 there are no other agreements other than this
20 agreement and whatever precedes it in the first
21 amendment in the contract --
22 MR. ROBON: Objection.
23 BY MR. ROBERT P. FITZSIMMONS:
24 Q. -- as you understand it as an agent? 128
1 MR. ROBON: Show an objection on
2 two bases: Number one, it calls for a
3 legal conclusion; and number two, it's
4 not clear by that paragraph whether or
5 not the first amendment is totally
6 annihilated by the second amendment.
7 MR. ROBERT P. FITZSIMMONS: That
8 is a speaking objection, Mr. Robon. In
9 West Virginia, we don't do those, they
10 aren't permitted.
11 MR. ROBON: Well, it's because
12 it's a legal conclusion you're asking.
13 MR. ROBERT P. FITZSIMMONS: Well,
14 I appreciate that. This is the third or
15 fourth time I've asked you that, and I
16 would certainly provide the same courtesy
17 to you. We know speaking objections,
18 that they are improper, and I would
19 appreciate you not doing that.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Let's go ahead, Mr. Brown, and go ahead
22 and tell the jury, that provision once again indicates
23 that the contract provision survives and becomes part
24 of this, that there are no other agreements other than 129
1 these contracts, the '02 contract, the first amendment
2 and the second amendment, there is no other
3 understandings unless they are in writing signed by
4 the parties; is that true?
5 MR. ROBON: Objection.
6 If you know.
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. It's provision X, Roman numeral X?
9 A. In the second amendment?
10 Q. It's in the contract, sir.
11 A. Okay. Hold on a second.
12 MR. ROBERT P. FITZSIMMONS: How
13 are we doing time-wise?
14 Go ahead.
15 THE WITNESS: What's the
16 question, again?
17 BY MR. ROBERT P. FITZSIMMONS:
18 Q. That provision, that there is no other
19 agreements, oral, verbal, or any other way, unless
20 it's actually in the contract signed by the parties,
21 that survived and became part of the August 24, 2007,
22 second amendment; is that true?
23 MR. ROBON: Objection.
24 You can answer. 130
1 THE WITNESS: According -- on
2 the paper, yes, it is. But again, I want
3 to state that there were verbal promises
4 made by Mike Garrison and Craig Walker
5 that Rich Rodriguez based his decision on
6 to sign the contract.
7 Now, what happens after that in
8 a legal court of law, I'm not a legal
9 expert.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. We know -- we know that, that you're not
12 an expert.
13 If this provision was signed -- and this
14 is one of the reasons you told Rodriguez not to sign,
15 but he went ahead and signed it anyway, against your
16 advice; is that right?
17 MR. ROBON: Objection.
18 THE WITNESS: Answer?
19 MR. ROBON: You can answer.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. You have to answer.
22 A. Yes.
23 MR. ROBERT P. FITZSIMMONS: How
24 close are you? 131
1 THE VIDEOGRAPHER: About a
2 minute and a half.
3 MR. ROBERT P. FITZSIMMONS: That
4 is pretty good.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. The 4 million dollars in liquidated
7 damages --
8 A. Uh-huh.
9 Q. -- do you have to pay part of that?
10 A. No.
11 Q. Kick back money to Rich Rodriguez on
12 that?
13 MR. ROBON: Objection.
14 THE WITNESS: No.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. Is that a separate agreement that you
17 have, that's part of -- it's not to be subtracted from
18 the annual compensation?
19 A. There's no separate agreement.
20 Q. You haven't talked to Mr. Rodriguez about
21 whether you have to pay back a portion of it when --
22 when ordered by the court?
23 A. No.
24 MR. ROBERT P. FITZSIMMONS: This 132
1 is a good time.
2 THE VIDEOGRAPHER: We're going
3 off the record at 11:14 a.m.
4 (A brief recess was had.)
5 THE VIDEOGRAPHER: Back on the
6 record at 11:32 a.m.
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. Mr. Brown, as to the first amendment,
9 which is Brown Exhibit 54 --
10 A. Uh-huh.
11 Q. -- to Mr. Rodriguez's contract, which is
12 dated June 24, 2006, the specific provision at the end
13 of that amendment, No. 6, which incorporates all the
14 language from the first agreement unless specifically
15 set forth in that amendment, did you ever specifically
16 request that that language be deleted?
17 MR. ROBON: Objection.
18 You can answer.
19 THE WITNESS: No, I did not.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. And I take it, then, you have not seen
22 any documents that anybody ever requested that
23 paragraph 6 be removed or deleted from the first
24 amendment; is that a true statement? 133
1 A. That's true.
2 Q. As to the second amendment to the
3 employment agreement for Richard Rodriguez, the
4 provision that you had read into the record, paragraph
5 13, which also incorporates the entire agreement
6 unless it's specifically set forth in the second
7 amendment, did you ever have any writings where you
8 directed or suggested that that paragraph be removed
9 from Mr. Rodriguez's contract with West Virginia?
10 MR. ROBON: Objection.
11 You can answer.
12 THE WITNESS: No.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. Did you ever make such a recommendation
15 to Mr. Rodriguez or any representative of West
16 Virginia University or anybody else on the team
17 advising Mr. Rodriguez at that time?
18 A. No.
19 MR. ROBON: Sean, are you back
20 with us.
21 MR. McGINLEY: I'm here.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. Did you ever specifically --
24 A. Before you go on, something does catch my 134
1 eye here, except -- the paragraph 13 is, "Except as
2 set forth in this second amendment, the agreement
3 remains in full force and effect and unamended."
4 Q. All right.
5 A. I believe there is some ambiguity there
6 in that that should probably, for legal purposes, have
7 read, Except as set forth in this second amendment,
8 the original agreement and first amendment remains in
9 full force.
10 Q. Correct. And the --
11 A. So I think there's -- now that you look
12 at it, I think there is some ambiguity there.
13 Q. What's that mean to you?
14 A. That --
15 Q. Is that a legal defense, as you
16 understand it?
17 A. No, it's not a legal defense, but it's
18 something that I would raise to an attorney to look
19 into that has real expertise and years of experience
20 in contract law.
21 Q. So we know you missed it as his paid-for
22 customer representative, agent or whatever, you missed
23 it, didn't you? Is that what you're saying, you
24 messed up there, and didn't pick out something? 135
1 A. No, I'm not saying that I messed up.
2 Based on where we're at today, both your side and our
3 side, if you look at it --
4 Q. Your side?
5 A. Well, the West Virginia side and the Rich
6 Rodriguez side, that paragraph 13 may have some, you
7 know -- by not clarifying that it says, The original
8 and first agreement remains in full force. You know,
9 when you talk about agreement, exactly what -- what of
10 the agreements are you talking about.
11 Q. Well, you approved of the language
12 defining what the agreement was, didn't you? Doesn't
13 the contract define it?
14 A. The contract defines the language, yes.
15 Q. It defines what the agreement is, so
16 there's no ambiguity. It defines it right in the
17 initial second paragraph of the agreement -- of the
18 amendment.
19 MR. ROBON: Objection. Being
20 argumentative.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Did you see that --
23 A. Yes.
24 Q. -- or did you miss that part, too? 136
1 A. No, I didn't miss that one.
2 Q. Okay. It's not one of the ones you
3 missed. Exhibit 57, Brown Exhibit 57 that you looked
4 at earlier --
5 A. Which is?
6 Q. Which is the one you were just talking
7 about --
8 A. Oh, the second amendment.
9 Q. Yeah, the one that's in your hand.
10 Second paragraph, how does it define the agreement?
11 The second paragraph, would you read that into the
12 record.
13 A. "Whereas the University and Coach entered
14 into an Employment Agreement effective December 21,
15 2002," paragraph [sic] the Agreement.
16 Q. What does that mean when it says the,
17 quote, Agreement, unquote, is that a definition term,
18 then, throughout the contract?
19 A. Yes, it is.
20 Q. Okay. So there's no ambiguity, right?
21 MR. ROBON: Objection.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. It's clear from the definition what
24 they're talking about. 137
1 MR. ROBON: Objection.
2 THE WITNESS: I can't render a
3 full legal opinion on that.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. Okay. You don't have a full legal
6 opinion on that one?
7 A. No.
8 Q. All right. Now, paragraph Roman numeral
9 X in the agreement, quote, the Agreement.
10 A. Uh-huh.
11 Q. The December '02 agreement?
12 A. That's correct.
13 Q. All right. Do you have -- first of all,
14 do you have any writing that ever suggests or directs
15 that that provision be removed or stricken from any of
16 the two amendments that were signed by Mr. Rodriguez?
17 A. What -- what paragraph is that again?
18 Q. It's Roman numeral X.
19 MR. WAKEFIELD: Page 13.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. We're talking about Exhibit 53, which is
22 the contract, be sure what we're talking about.
23 There's two amendments to it.
24 A. Yes. 138
1 Q. Do you have any writings in the world
2 that tell us you suggested or hinted or told anybody
3 that that language should be removed?
4 A. No.
5 Q. Okay. And that would have pertained to
6 when you participated and guided and advised, provided
7 advice on this contract to Mr. Rodriguez in the first
8 amendment; is that true?
9 A. That's correct.
10 Q. And it also then lasted from the first
11 amendment all the way through the second amendment
12 that was then executed August 24, 2007; is that true?
13 A. Yes.
14 MR. ROBON: Objection.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. And do you -- did you tell anybody that,
17 Hey, this provision, which is, I think you said
18 earlier, a legal provision and a binding provision
19 when parties sign off on it, that it should be
20 removed --
21 MR. ROBON: Objection.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. -- from Mr. Rodriguez's contract of
24 August 24, 2007, the second amendment? 139
1 MR. ROBON: Objection.
2 You can answer.
3 THE WITNESS: I never told -- I
4 never asked or requested that be
5 removed.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. How many times do you think you read the
8 proposed language in these -- let's talk about the
9 first amendment. You participated in that, didn't
10 you?
11 A. Uh-huh.
12 Q. Yes?
13 A. Yes, I did.
14 Q. Okay. How many times -- are you pretty
15 careful about reading contracts, or you just kind
16 of -- just pick and choose what you want to read?
17 A. I'm pretty careful.
18 Q. Pretty careful. You're very careful,
19 you're very meticulous; in fact, you actually point
20 out single words sometimes, don't you, if you feel
21 that it's not in your client's best interest?
22 A. Yes, contracts.
23 Q. That's how thorough you are going through
24 these contracts, right? 140
1 A. Yes.
2 Q. All right. And that would apply to the
3 first amendment and the second amendment, right?
4 A. Yes.
5 Q. And so you probably read each of those
6 documents, what, a dozen times, a couple dozen times?
7 MR. ROBON: Are you
8 suggesting -- is that before or total
9 now?
10 MR. ROBERT P. FITZSIMMONS: You
11 can ask that question. That's a proper
12 question maybe for you to ask.
13 MR. ROBON: I'm going to
14 object.
15 You can answer.
16 THE WITNESS: Prior to him
17 signing it?
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. I would hope that you did that. You're
20 representing him, you're getting paid a percentage of
21 his guaranteed annual --
22 A. Prior to him signing it, I read it
23 multiple times. I can't define the exact number, but
24 it was more than one. 141
1 Q. More than 12?
2 A. I can't tell you the exact number, but I
3 read it multiple times.
4 Q. So thoroughly that you would have read
5 each and every word, punctuation and that in each and
6 every one of these contracts -- or amendments; is that
7 true?
8 MR. ROBON: Objection.
9 THE WITNESS: Yes.
10 (Brown Exhibit 58 was marked
11 for identification.)
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Now, let me show you Brown Exhibit 58.
14 A. Uh-huh.
15 Q. I'll represent to you -- well, maybe you
16 can tell us. This was a provision that was in the
17 second amendment.
18 A. Uh-huh.
19 Q. Do you see that?
20 A. Yes.
21 Q. Are you familiar with that provision?
22 A. Yes, I am.
23 Q. You wrote that provision did you not, or
24 participated in writing it? 142
1 A. I participated. I can't remember whether
2 it was first put in by the University or suggested by
3 myself. I can't recall who first suggested it.
4 Q. All right. You would agree that the
5 products of the first amendment and second amendment,
6 so far as your involvement, that those were a joint
7 product between both you and Mr. Rodriguez's other
8 team members and the University's. These were joint
9 contracts put together and authored generally by both
10 parties; is that -- is that a fair statement?
11 A. When I define -- what I would define both
12 parties as myself, other representatives of
13 Rich Rodriguez, Rich Rodriguez himself.
14 Q. And himself.
15 A. And on the other side, it would be a
16 group of individuals that all at one time
17 participated, whether it be Tom Dorer or Alex or Eddie
18 Pastilong or Mike Garrison or Craig Walker or the
19 Governor or Steve Goodwin --
20 Q. Okay.
21 A. -- or Steve Farmer.
22 Q. The Governor didn't put any language in
23 here, did he?
24 A. Not that I'm aware of. 143
1 Q. Have you ever talked to our Governor?
2 A. I've met him and been introduced to him
3 and talked to him a few times.
4 Q. Did you ever negotiate a contract with a
5 governor, or in this case with the Governor?
6 A. Not directly.
7 Q. Okay. Have you ever received
8 correspondence from the Governor? Is that something
9 you communicate and somehow negotiate provisions --
10 A. No.
11 Q. -- from the Governor? You know the
12 Governor, you know he's also a friend of your
13 customer, Mr. Rodriguez, right?
14 A. And he's also a friend of Eddie
15 Pastilong's and --
16 Q. Probably a friend of a lot of people to
17 get elected.
18 A. Yep, uh-huh.
19 Q. All right. The point I'm trying to make,
20 Mr. Brown, when you get an insurance contract in the
21 mail for your car, they just send you a contract and
22 Erie or Allstate or State Farm, they send it to you, a
23 contract, and you take it or leave it.
24 A. Uh-huh. 144
1 Q. You understand.
2 A. Uh-huh.
3 Q. You have cars and you have insurance
4 policies you've seen before where you don't
5 participate in the actual contract language.
6 A. That's correct.
7 Q. All right. This particular amendment is
8 the product of both parties, you would suggest
9 something, other members of the team on Rodriguez's
10 side would suggest things, the University would
11 suggest things, and it was a joint product between the
12 two of them basically; is that right?
13 A. Yes, uh-huh.
14 Q. Yes?
15 A. Yes.
16 Q. Okay. This particular provision says
17 renegotiation, is that something that you had
18 suggested initially for the second amendment?
19 A. I can't recall whether I suggested or
20 whether the university suggested it.
21 Q. All right. And what it says is that the
22 parties will sit down if there is a BCS championship
23 game --
24 A. Uh-huh. 145
1 Q. -- and the parties would sit down and
2 talk in good faith about the contract, what's the
3 status of it, with no obligations on either side,
4 other than to sit down and talk?
5 A. Yes.
6 Q. Is that fair to say?
7 A. Uh-huh.
8 Q. All right. Just that we'll have some
9 meeting and then we can talk with things, but nobody
10 was obligated with this provision to actually agree to
11 anything?
12 A. That's correct.
13 Q. Okay. And do you see your customer's
14 initials there, is that Mr. Rodriguez's initials, RAR?
15 A. I believe it is.
16 Q. Okay. And so Mr. Rodriguez signed off
17 and took that provision to even renegotiate the August
18 24th, 2007, second amendment; is that true?
19 A. He did.
20 Q. And you knew about that?
21 A. Yes. It was a product of the discussions
22 with Mike Garrison and Craig Walker in that meeting
23 where, after Mike Garrison promised that he would
24 review the contract and the status of the program in 146
1 December and January, Rich and everyone in the room
2 agreed based on that promise by Mike Garrison that he
3 was going to reevaluate the contract, the fairness and
4 that, in December, January time frame, which I believe
5 is mentioned in Mike Wilcox's e-mail summarizing it,
6 we all agreed there was no need to even have this
7 provision remain in there.
8 Q. Because the men agreed at that time that
9 they were going to look at things and they would keep
10 their eye on the contract, basically, with no firm
11 understanding as to what would or would not be done;
12 is that fair?
13 A. That's incorrect.
14 Q. Well, that's what this provision says.
15 A. As far as when you say provision -- in
16 the contract, what was agreed upon then were there
17 were promises made by Craig Walker and Mike Garrison,
18 that I asked Mike Garrison in that meeting, How are
19 you going to judge the progress of putting those
20 things in, and even covered and got into the
21 performance of the athletic director.
22 I asked him, because they talked about
23 cultural change and things they were going to do. And
24 so I asked Mike Garrison, I said, Mike, how are you 147
1 going to measure progress and whether or not these
2 promises you made got put in. I said, Are you going
3 to metric system, is it going to be year, year and a
4 half.
5 He got real mad. He got up from the
6 table and said, I'm the president of the University.
7 If this thing's not done by December or January, I'll
8 change the athletic director.
9 And so that conversation led into an
10 agreement, made by everyone there, that -- and so Mike
11 Wilcox said to Garrison, he said, So you're willing to
12 sit down in December and January and reevaluate the
13 contract from A to Z, the fairness of it, the buyout,
14 the progress of the promises, whether they're being
15 inserted or not, the cooperation of the athletic
16 director and the cultural change and that.
17 So as part of that, everyone sitting
18 there decided, Hey, there's no need to have this
19 renegotiation clause in there because Mike Garrison
20 promised he was going to sit down and review all
21 aspects of the fairness of the contract and the status
22 of the promises that he made to Rich Rodriguez that
23 day to entice Rich to sign the contract.
24 Q. And as smart as you are, Mr. Brown, and 14 8
1 all the expertise you have as this big sports agent
2 representing people, you didn't have an agreement on
3 anything that your own people mention in here, did
4 you?
5 A. No, there was no agreement. There were
6 verbal promises made by Mike Garrison, which at this
7 time I feel were fraudulently put out there, because
8 he had no intention to follow up on them.
9 Q. And you understand even the renegotiation
10 of this agreement was taken out in that provision, and
11 that was done in your presence, too, was it not?
12 A. It was agreed to in my presence. I
13 believe afterwards, I do not remember witnessing Eddie
14 Pastilong signing it, and I don't remember Rich --
15 ever witnessing Rich Rodriguez put his initials on it.
16 Q. But those are his initials, to the best
17 of your knowledge?
18 A. To the best of my knowledge.
19 Q. You aren't alleging that's some forgery
20 or anything?
21 A. No, I'm not alleging that.
22 Q. So you were present; you watched your
23 client put his signature on the second amendment,
24 agreed to it on August 24, 2007, you were actually 149
1 physically present watching him sign this agreement
2 that has this provision that there's no other
3 understandings or verbal agreements whatsoever and
4 everything has to be in writing.
5 MR. ROBON: Objection.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. You were present at that time, were you
8 not?
9 MR. ROBON: Objection.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. You were present.
12 A. I was present, yes, I was.
13 Q. You watched your client actually sign the
14 agreement, right?
15 A. Yes, I did.
16 Q. Did he ever ask you for your approval?
17 A. Prior to the meeting, he did.
18 Q. No, at the meeting, did he ever ask you?
19 A. At the meeting?
20 Q. Yes, sir.
21 A. He didn't ask for my approval.
22 Q. Did you run over and try to stop him from
23 signing the agreement?
24 A. No. 150
1 Q. He appeared sane at the time, didn't he?
2 A. Yes.
3 Q. He was not under any disability
4 whatsoever, was he?
5 A. Huh-uh.
6 Q. That's a no, he was not?
7 A. No, he was under no disability, to my
8 knowledge.
9 Q. His wife was there also?
10 A. Rita was there.
11 Q. Was Mr. Wilcox there?
12 A. Mr. Wilcox was there.
13 Q. So four members of your team were there,
14 right?
15 A. At that point in time, I was thinking
16 that we were all one team, but evidently we weren't.
17 But, yes, there were four members of our team there.
18 Q. When you're saying that you were not all
19 the same team, are you excluding Mr. Wilcox after
20 having seen his --
21 A. No, no. No, what I was talking about was
22 Mike Garrison and Craig Walker, I thought we were all
23 on the same page, and they got up and shook hands, and
24 I even got an e-mail at the end where it says -- 151
1 Q. Excuse me one second.
2 MR. ROBON: Let him finish his
3 answer.
4 MR. ROBERT P. FITZSIMMONS: He's
5 not going to ramble on making speeches.
6 He's going to answer questions here
7 today.
8 THE WITNESS: Uh-huh.
9 MR. ROBON: Show an
10 objection.
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. Was your team present of Wilcox, you, Mr.
13 and Mrs. Rodriguez at that time?
14 A. Yes.
15 Q. All right. Any other members of your
16 team, the Rodriguez so-called team?
17 A. There was Rich, Rita, Mike Wilcox and
18 myself sitting in the meeting. Do you want me to draw
19 you a map of where everyone was sitting?
20 Q. No, I don't think you need to do that.
21 A. Okay.
22 Q. I don't think -- I'm not sure that we
23 need that.
24 A. All right. 152
1 Q. Would you like to do something like that?
2 A. I mean, I have a vivid memory of that
3 meeting that day.
4 Q. Okay. My question is would you like to
5 draw something or --
6 A. No -- yeah. I tell you what, I would.
7 Q. Okay.
8 A. I can tell you exactly that day.
9 Q. Mr. Brown, would you -- you're going to
10 take --
11 A. Okay.
12 Q. I'll give you a piece of paper.
13 A. Give me a piece of paper.
14 Q. Or maybe Mr. Robon. Is there some --
15 some reason you need to draw --
16 A. No, I don't want -- I just want you to
17 realize the vivid memory and where everyone was
18 sitting and the three-and-a-half hours that went
19 through that meeting and --
20 Q. Have you heard anybody ask the question
21 about where everyone was seated here?
22 A. No.
23 Q. Okay. Let's just stick to the answers to
24 the questions, could you do that with no problem? 153
1 A. I can do that for you.
2 Q. All right. Okay. Now, have you had
3 experience in liquidated damage clauses before?
4 A. Define "experience."
5 Q. Well, if you don't know what that word
6 means, that's okay. We can skip to the next question.
7 Do you have -- have you had any
8 experience in notifying individuals of breaches of
9 contracts in writing? Have you ever had any
10 experience with that, on writing provisions like that?
11 A. I've never had to do that before.
12 Q. Do you have any experience in writing
13 legal provisions like that in contracts or approving
14 of legal provisions in contracts that provide that?
15 A. As far as liquidated damages,
16 notifications --
17 Q. No, no. No, no one asked you. The
18 question had to do with notice provisions and
19 breaches, Mr. Brown.
20 A. All right.
21 Q. Stick to the question.
22 MR. ROBON: Objection. You can
23 answer.
24 BY MR. ROBERT P. FITZSIMMONS: 154
1 Q. Do you have any experience in writing,
2 drafting or approving those types of languages?
3 A. Yes.
4 Q. You have a great deal of experience in
5 that, don't you?
6 A. I would say -- as you said, I'm very
7 meticulous.
8 Q. Uh-huh.
9 A. And so, you know, I look at all the
10 clauses very carefully. And so, you know, I'm very --
11 I read over, and, yes, I -- I am fully aware of any
12 contract that's entered into, what that language is
13 and what the requirements are.
14 Q. Do you have a written notice to West
15 Virginia University that they have breached any aspect
16 of any contract with Rich Rodriguez?
17 A. No, I do not.
18 Q. How about your Rodriguez team, Wilcox,
19 Mr. and Mrs. Rodriguez, Speyer --
20 A. Not that I'm aware of.
21 Q. -- Metz --
22 A. Not that I'm aware of.
23 MR. ROBON: Show an objection.
24 BY MR. ROBERT P. FITZSIMMONS: 155
1 Q. So is it fair to say that, to your
2 knowledge, nobody from your side of the table has ever
3 given written notice to West Virginia that they had
4 any type of material or substantial breach of an
5 agreement with Mr. Rodriguez?
6 MR. ROBON: Objection.
7 THE WITNESS: Not that I'm aware
8 of.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. Does the contract require that, the
11 second amendment that you approved?
12 A. According to the contract, yes.
13 Q. Did you ever request that that language
14 be removed from the contract?
15 A. No, I did not.
16 Q. And do you understand what the purpose of
17 those types of provisions are?
18 A. Yes, it's to give the other side time to
19 correct the issue. But in Rich's case --
20 Q. My question is did you -- do you know
21 what those provisions are for?
22 MR. ROBON: Can you let him
23 finish the answer, please?
24 MR. ROBERT P. FITZSIMMONS: No, 156
1 I'm not -- I'm not going to let him
2 ramble on, which I know -- I guess you're
3 objecting and want him to do that.
4 MR. ROBON: I don't want him to
5 ramble, I want him to finish answering --
6 MR. ROBERT P. FITZSIMMONS: Excuse
7 me, Mr. Robon. Can I speak in reference
8 to your objection?
9 The question was as to whether
10 he had any -- knew the purpose of that.
11 I didn't ask him about Mr. Rodriguez.
12 MR. ROBON: The purpose of what?
13 MR. ROBERT P. FITZSIMMONS: Of
14 those provisions.
15 MR. ROBON: And he answered
16 that.
17 MR. ROBERT P. FITZSIMMONS: That
18 is fine.
19 MR. ROBON: But he hasn't
20 finished his answer.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Okay. Finish your answer as to that
23 question, as to the purpose of those types of clauses.
24 A. The purpose of those types of clauses are 157
1 to give the other party ample time to correct what, if
2 they agreed is a breach or an issue, to get it
3 corrected within a certain amount of time.
4 Q. So the contract can survive, assuming the
5 two parties fix whatever seems to be a breach; is that
6 right?
7 A. That's correct.
8 Q. All right. That's because people want
9 the contracts to continue to survive for whatever
10 benefit it is to his or her client or to whatever
11 party it is?
12 A. Well, in most cases, that is the case,
13 but in the case of Rich Rodriguez and West Virginia,
14 that turned out not to be the case.
15 Q. Well, Mr. Rodriguez never fulfilled that
16 provision in the contract in giving written notice to
17 West Virginia on any breach, did he?
18 A. No, because on December 15th, after his
19 meeting with Craig Walker and Eddie Pastilong and in
20 the follow-on one with Mike Garrison, and the fact
21 that they told him they were not going to honor the
22 verbal promises made in the contract, that there was
23 really no need to follow on.
24 And, you know, since then, I've even 158
1 found out that Ken Kendrick had a conversation that
2 Saturday with Craig Walker, prior to meeting with
3 Rich Rodriguez, and Craig Walker even told
4 Ken Kendrick at that time that the University had no
5 intention of, on that day, telling Rich Rodriguez that
6 they were going to follow up on the -- that they were
7 going to execute the verbal promises made to him on
8 August 24th. Ken Kendrick told me that Craig Walker
9 said to him prior to a meeting with Rich that the
10 University is not going to honor those verbal promises
11 that were made to him.
12 And since, since I found out in
13 conversations with Larry Aschebrook that there was a
14 meeting in mid October with Larry Aschebrook and
15 Russ Sharp and Eddie Pastilong where Larry Aschebrook
16 had knowledge of those promises made on August 24th,
17 and Larry Aschebrook brought up to Eddie Pastilong and
18 Russ Sharp, Here are the promises that were made to
19 Rich, are you going to execute them.
20 And Ed Pastilong and Russ Sharp told
21 Larry Aschebrook, No, we aren't going to honor those
22 promises.
23 So in hindsight, I look back and say, in
24 a way, the University verbally stated among itself 159
1 more than 30 days prior to December the 15th that they
2 weren't going to honor the verbal promises that were
3 made, which induced -- that induced Rich Rodriguez to
4 sign the contract on August 24th.
5 Q. That's your story now as to why you
6 didn't send it, right?
7 A. Pardon me?
8 Q. That's why you didn't send the written
9 notice; is that right?
10 A. The --
11 Q. Is that right?
12 A. What's the question again?
13 Q. You didn't send the written notice
14 required by the contract, did you?
15 A. I never sent a written notice required by
16 the contract.
17 Q. And neither did Rodriguez?
18 A. Neither did Rodriguez.
19 Q. Neither did anybody from his team of all
20 these advisors, did they?
21 A. That's -- that's correct.
22 Q. All right. And so --
23 A. But -- but -- but --
24 Q. You made that decision -- 160
1 A. But what we have learned since then --
2 Q. Whoa, whoa, whoa --
3 MR. ROBON: Let him --
4 THE WITNESS: What we have
5 learned since then is that the --
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Mr. Brown, the question was, Did you send
8 it?
9 A. Uh-huh. No, I did not.
10 Q. All right. It's a simple question. You
11 can answer the question. Can you do that?
12 A. I can answer questions.
13 Q. Okay. All right. Now, did you -- you
14 were the person responsible for that as his agent,
15 weren't you?
16 A. Yes, I am.
17 Q. Have you notified any malpractice carrier
18 or claims person that you didn't send the written
19 notice as required by this contract for a breach?
20 MR. ROBON: Objection.
21 I instruct you not to answer
22 that question.
23 MR. ROBERT P. FITZSIMMONS: You
24 have to answer the question. 161
1 MR. WAKEFIELD: On what basis?
2 MR. ROBON: On the basis that
3 that's something that -- whether he has
4 malpractice insurance --
5 MR. ROBERT P. FITZSIMMONS:
6 Answer the question, Mr. Brown.
7 MR. ROBON: -- or not, I think
8 that's irrelevant in this case.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. Have you notified any claims person? You
11 have to answer the question.
12 MR. ROBON: You can answer that
13 question.
14 Go ahead.
15 MR. ROBERT P. FITZSIMMONS: Mr.
16 Robon, first of all, you don't represent
17 Mr. Brown, or do you, today?
18 THE WITNESS: No, I have not
19 sent a claim in.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Okay. Have you told Coach Rodriguez that
22 you screwed up and didn't send a notice, written
23 notice?
24 MR. ROBON: Objection. 162
1 BY MR. ROBERT P. FITZSIMMONS:
2 Q. Have you guys had discussion about that?
3 A. We've never had discussion on that
4 subject.
5 Q. Do you plan on informing him that you
6 failed to file a written notice on his behalf if you
7 were going to even allege that there was some type of
8 breach of contract?
9 A. Repeat the question.
10 Q. Do you have some plans to inform him at
11 some time in the near future that you failed to file a
12 written notice as required by the contract if
13 allegations of breach of contract were being made
14 against West Virginia?
15 MR. ROBON: Objection.
16 THE WITNESS: I've never had
17 that discussion with Rich in regards to
18 this specific incident; but I have had
19 discussions with him as we were going
20 through the fall and into December of the
21 verbal promises that were not made --
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. Mr. Brown, I didn't ask you that. My
24 question is do you plan on telling him in the 163
1 future --
2 MR. ROBON: He's -- let him
3 answer the question.
4 MR. ROBERT P. FITZSIMMONS: That
5 has to do with our future, Mr. Robon, so
6 I think you're encouraging the witness to
7 be non-responsive in the questions.
8 MR. ROBON: I just want him to
9 be able --
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. Do you plan on telling him?
12 A. No.
13 Q. Okay. You've had those kind of contract
14 provisions before, too, have you not?
15 A. In regards to --
16 Q. In other contracts.
17 A. -- liquidated damages?
18 Q. No, sir, just notice provision as to
19 breach so that people would have an opportunity to
20 cure it?
21 A. Yes.
22 Q. Now, we have before you the contract,
23 first amendment and the second amendment.
24 A. Uh-huh. 164
1 Q. You first felt that West Virginia was in
2 breach of contract in the fall of '07; is that true?
3 A. Rich and I had discussions as --
4 Q. Is that true? Was it the fall of '07
5 that you felt that West Virginia was in breach of the
6 contract?
7 A. I was starting to raise concerns that
8 they were getting to that point.
9 Q. When do you feel West Virginia breached
10 this contract with Mr. Rodriguez?
11 A. On Saturday, December the 15th when he
12 went in and met with Mike Garrison in one meeting, and
13 then with Craig Walker and Eddie Pastilong in another.
14 Q. That -- hold it. The question was the
15 date, when.
16 A. December the 15th.
17 Q. That's the question, Mr. Brown, is when.
18 A. December the 15th.
19 Q. All right. Now, on December the 15th,
20 that's the first time you felt West Virginia was in
21 breach of the contract; is that right?
22 A. Yes.
23 Q. Okay. And I take it from your
24 discussions with Rodriguez that it was also his 165
1 opinion at that time?
2 A. Yes.
3 Q. And was there anyone else that
4 participated in that decision as to -- you allege the
5 breach by West Virginia was made on December 15th,
6 anybody else participate in that decision?
7 A. Not that I can recall.
8 Q. How many days before that had you
9 contacted the University of Michigan?
10 MR. ROBON: Objection.
11 THE WITNESS: I contacted --
12 MR. ROBON: You can answer.
13 THE WITNESS: I contacted
14 University of Michigan on Tuesday,
15 December 11th.
16 BY MR. ROBERT P. FITZSIMMONS:
17 Q. So you had already been in contact with
18 the University of Michigan four days before this
19 decision was made that you allege they breached -- you
20 and Rodriguez allege West Virginia breached the
21 contract; is that correct?
22 A. That's correct.
23 Q. What negotiations had you had or
24 Rodriguez had before December 15th with University of 166
1 Michigan about the coaching position?
2 MR. ROBON: Objection.
3 You can answer.
4 THE WITNESS: What do you define
5 as "negotiations"?
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Let me just say this: If you, as this
8 big sports agent, coach agent or whatever, don't know
9 what "negotiations" are, I'll skip the question. We
10 can move on. Just tell everybody you don't know what
11 that means.
12 MR. ROBON: Objection to the
13 characterization of "big sports agent."
14 BY MR. ROBERT P. FITZSIMMONS:
15 Q. Go ahead.
16 A. The negotiations -- Coach Rodriguez was
17 offered a contract -- or offered the job on Friday,
18 December the 14th. At that time, Bill Martin, the
19 University of Michigan athletic director, presented me
20 with a term sheet.
21 Q. Had you talked to Mr. Martin, or did this
22 thing just come in the mail, perchance, from the
23 University of Michigan on the 14th?
24 A. I had had discussions with Bill Martin in 167
1 regards to just basically salary range if this thing
2 ever went down the road in regards to a formal offer
3 being made.
4 Q. Who contacted Martin?
5 A. In regards to? I told you I contacted
6 Bill Martin on Tuesday, December the 11th.
7 Q. Did you know Bill Martin personally?
8 A. I did not.
9 Q. Was that the first time you ever talked
10 to Athletic Director Bill Martin?
11 A. Tuesday, December the 11th.
12 Q. That was the first time?
13 A. Yes.
14 Q. Called him by phone?
15 A. Called him by phone.
16 Q. Told him you had a coach?
17 A. I called and left a message for -- when I
18 called, he did not answer -- his assistant took a
19 message. And I told him who I was, and who I
20 represented, and I would like to speak with him. And
21 that was around 11:00 or something, I would say, in
22 the morning.
23 Q. So you were shopping Coach Rodriguez out
24 on the 11th of December of '07 when he had a contract 168
1 with West Virginia that obligated him to stay there
2 until 2014?
3 MR. ROBON: Objection to the
4 characterization.
5 THE WITNESS: I wasn't shopping.
6 I called Bill Martin to ask him what the
7 status of the coaching search was.
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. How did Rodriguez's name come into this
10 thing, then, if you were just calling, I guess as a --
11 just somebody inquiring in case one of your other
12 personnel would be involved?
13 A. No. I had a conversation with Bill,
14 and -- when we called back. And I asked him what the
15 status was, and I asked him if he would be -- if he
16 might --
17 Q. Be interested in Rich Rodriguez?
18 A. In Rich Rodriguez as a candidate.
19 Q. Now, you knew there was a contract that
20 was binding on Rich Rodriguez until the year 2014,
21 didn't you?
22 MR. ROBON: Objection.
23 THE WITNESS: I knew that.
24 BY MR. ROBERT P. FITZSIMMONS: 169
1 Q. So why are you calling other
2 universities, Mr. Brown, on December 11th shopping
3 your client -- you customer around?
4 MR. ROBON: Objection.
5 Characterization of "shopping."
6 THE WITNESS: Do you want an
7 answer?
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. I sure hope so.
10 A. Because Rich and Rita had felt they had
11 hit the end of the road with being able to continue to
12 coach at West Virginia.
13 Q. Right?
14 A. The verbal promises that had been made on
15 August the 24th had not -- no sign of them being met.
16 They had had conversations with Mike Garrison and
17 Craig Walker in regards to, you know, Are we going to
18 have the follow-up meeting in December.
19 I had a conversation with Coach Rodriguez
20 on Friday, that would be December the 7th, where he
21 expressed his displeasure with the University; he
22 expressed the deteriorating relationship with
23 Ed Pastilong, the fact that they had rarely spoken
24 during the year; that Ed had made -- I still haven't 170
1 got it exactly clarified yet, but made a statement to
2 Rich the week after the Pitt game that really Rich did
3 not take kindly to; and, again, the fact that there
4 was -- it appeared that they were not going to follow
5 up on the promises made on August the 24th.
6 I had another conversation with Rich on
7 December the 10th, on a Monday. He was still in the
8 office there. We went through, and again, I -- he
9 talked about how dysfunctional it was, how hard it was
10 to continue to coach in that environment; again, they
11 weren't going to make up the promises -- or follow
12 through on the promises made.
13 And I had a conversation with Rita on
14 Tuesday morning, December the 11th, at which time, you
15 know, she expressed, you know, how they just did not
16 feel that there was a situation where they could go on
17 there in regards to the breach, they would continue to
18 try to make it work --
19 Q. On what date did you say?
20 A. December the 11th.
21 Q. 11th?
22 A. Tuesday morning. And so based on that, I
23 did what any other agent would do representing his
24 client when you have such a great job as Michigan is 171
1 open, with its tradition; the fact that they have a
2 great president and athletic director; and they
3 give -- people earn their degrees there instead of
4 giving them out for free. So, you know, I --
5 Q. What did that mean? Who's talk -- are
6 you here just to try to blast West Virginia? I take
7 it you don't like West Virginia, right?
8 A. No, I'm just saying what's facts in the
9 newspaper.
10 Q. What's that have to do with this?
11 A. No, I'm just saying about --
12 Q. What's that have to do with this question
13 that I asked you about, what you talked about?
14 MR. ROBON: Objection.
15 Argumentative. Let him finish his
16 answer.
17 MR. ROBERT P. FITZSIMMONS: Okay.
18 You're just rambling on.
19 THE WITNESS: I'm not --
20 MR. ROBERT P. FITZSIMMONS: If
21 you want to badmouth --
22 THE WITNESS: So -- so --
23 MR. ROBERT P. FITZSIMMONS: You
24 can do that outside here with other 172
1 people --
2 THE WITNESS: So -- so --
3 MR. ROBERT P. FITZSIMMONS: --
4 but you aren't going to do it here.
5 THE WITNESS: So I'll go on and
6 answer the question.
7 MR. WAKEFIELD: Please do.
8 Please do.
9 THE WITNESS: So based -- so
10 based on that, and the -- and the
11 feelings and the facts of the case at
12 West Virginia, I placed a call to
13 Bill Martin at University of Michigan.
14 BY MR. ROBERT P. FITZSIMMONS:
15 Q. On December 11th?
16 A. December 11th.
17 Q. All right.
18 A. Tuesday.
19 Q. And what other schools had you talked to
20 before December 11th?
21 A. What other schools I had talked to?
22 Q. Yes. Did you talk to Arkansas?
23 A. I had one conversation with the athletic
24 director at Arkansas. 173
1 Q. And when did you shop him to Arkansas,
2 December 9th?
3 MR. ROBON: Objection on the
4 characterization.
5 THE WITNESS: I can't exactly
6 recall. I just made a call --
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. Who did you talk to?
9 A. Jeff Long, the athletic director there.
10 Q. Jeff who?
11 A. Jeff Long, the athletic director.
12 Q. You knew that Arkansas was looking for a
13 head coach at that time?
14 A. I did.
15 Q. And so you pick up the phone, as the
16 representative of Rich Rodriguez, and called Arkansas,
17 right, on December 9th? Did you or did you not?
18 A. I can't recall what day it was.
19 Q. You contacted them?
20 A. I contacted Jeff Long.
21 Q. All right. And what did you tell
22 Mr. Jeff Long?
23 A. I had a -- just asked him how his
24 coaching search was going. He and Rich knew each 174
1 other since he was the AD at Pitt, and --
2 Q. Did you ask if he was interested in
3 Rich Rodriguez as being the potential coach there?
4 A. I can't recall the exact words, but we
5 had a conversation in regards to the position opening,
6 and we talked about Rich a little bit. He told me he
7 knew Rich and the background and that.
8 And I believe after that, he placed a
9 call to Rich, they had a short conversation; I believe
10 Rich, in fact, told the president about it, and said
11 he wasn't interested --
12 Q. Did you give Arkansas Rodriguez's phone
13 number?
14 A. I can't recall.
15 Q. Did you send any e-mails to Arkansas?
16 A. No, I did not.
17 Q. So the only conversation you had was with
18 this athletic director, Jeff Long?
19 A. That's correct.
20 Q. And you told him that Rich Rodriguez may
21 be interested in the Arkansas position?
22 A. I didn't say he might be interested. I
23 just wanted to know what the status was.
24 Q. So you just happened to pick up the phone 175
1 on December 9th just to find out how Arkansas was
2 doing on their coaching search? Is that what you're
3 telling us? Is that what you're testifying under
4 oath, sir?
5 A. I called and asked them how their
6 coaching search was going; and I told them I
7 represented Rich and I just wanted to see how the
8 coaching search was going and --
9 Q. You asked if they were interested in
10 Rich Rodriguez, didn't you, generally?
11 A. I can't recall.
12 Q. That's the only reason you would be
13 placing the call. You had a client, and you were
14 trying to shop him around at that time.
15 MR. ROBON: Customer.
16 BY MR. ROBERT P. FITZSIMMONS:
17 Q. He's a customer, right. That's right,
18 he's not a client, he's a customer.
19 Is that right, you were trying to find
20 out if you could land another deal for him that he may
21 be interested in?
22 A. No. One of the things I was doing was
23 just finding out what the status of the coaching
24 search was. It was just a very preliminary thing. I 176
1 had talked with people about the job there at
2 Arkansas. I was doing my due diligence on an opening
3 like that, and found --
4 Q. Let me ask you why would you be searching
5 and doing what you call due diligence when
6 Rich Rodriguez had a contract for a period of seven
7 more years in place at that time? Why were you
8 calling these other folks?
9 A. Because in working with Rich Rodriguez
10 and Rita, there were big issues at West Virginia
11 that -- that I was -- my evaluation was it was a
12 marriage that was headed down the wrong road because
13 of promises and that that were made by Mike Garrison
14 and Craig Walker that weren't being fulfilled, a
15 dysfunctional management situation between the
16 Governor, Eddie Pastilong, the Board of Governors, and
17 the administration, it had gotten to the point where
18 for my client -- I thought it was in my client's best
19 interest that when an opportunity came up, it needed
20 to be examined.
21 MR. ROBERT P. FITZSIMMONS:
22 Two-hour question.
23 MR. ROBON: Can you wait for one
24 minute while I run to the potty. Off 177
1 camera for a second.
2 Our VIDEOGRAPHER: We are going
3 off the record at 12:10 p.m.
4 (A brief recess was had.)
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Mr. Brown, we want to try to get through
7 today, okay?
8 A. That's fine.
9 Q. I'm sure you do, too. Or maybe you enjoy
10 this, we can come back an extra day if you want.
11 I'm interested in the contacts that we've
12 been talking about. We have on December -- just so I
13 know, December 9, 2007, you initiated the phone call
14 to Arkansas's athletic director.
15 A. I can't remember exactly what date it
16 was.
17 Q. It was before you initiated the call to
18 Billy Martin at Michigan, though; is that true?
19 A. Yes.
20 Q. So -- and that call took place the 11th,
21 you told us?
22 A. Yeah.
23 Q. Now --
24 A. You know, it couldn't have been the 9th, 178
1 because the 9th was a Sunday, right?
2 Q. I don't know. Evidently, you've checked
3 already --
4 A. No. I'm just looking back as -- it
5 wasn't the 9th.
6 Q. So it may have been as early as the 7th
7 or 5th of December?
8 A. Yeah. I would say it was during the
9 workweek.
10 Q. Okay. So it was probably, then, before
11 December 9th you contacted Arkansas?
12 A. Yeah.
13 Q. Okay. Prior to Arkansas, since the time
14 you represented Mr. Rodriguez -- which you told me was
15 in the summer of '05.
16 A. Uh-huh.
17 Q. Is that right?
18 A. Uh-huh.
19 MR. WAKEFIELD: You have to say
20 yes or no.
21 THE WITNESS: Yes.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. And since the summer of '05, what other
24 schools have you talked to concerning -- which in any 179
1 way related to Mr. Rodriguez as a football coach where
2 there was a potential opening?
3 MR. ROBON: Objection. You can
4 answer.
5 THE WITNESS: What other
6 schools? There was LSU and Alabama.
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. Did you ever contact any of the North
9 Carolina schools, make a call?
10 A. I cannot recall. I believe I did not
11 contact the schools in North Carolina.
12 Q. Did you have someone else contact them
13 and make an inquiry on your behalf to see if there was
14 an opening potentially available for Mr. Rodriguez
15 from one of the Carolina schools?
16 A. No, I did not, that I can recall.
17 Q. So your testimony under oath is that
18 nobody, to your knowledge, on behalf of Rich Rodriguez
19 contacted any Carolina school for purposes of
20 potential of any coaching position, including South
21 Carolina and North Carolina both?
22 A. Carolina schools?
23 Q. Yes, sir.
24 A. The schools directly? 180
1 Q. Directly or indirectly, any way that you
2 did, through another person.
3 A. I did have a conversation with Chuck
4 Neinas, who was representing North Carolina in their
5 search.
6 Q. All right. When was that?
7 A. That would have been in --
8 MR. ROBON: Show an objection.
9 You can answer.
10 THE WITNESS: That would have
11 been in November of '06.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Okay. Right before the Alabama contacts?
14 A. Yes.
15 Q. All right. And this -- it was Chuck --
16 A. Neinas.
17 Q. Neinas?
18 A. That's correct.
19 Q. And what was --
20 A. That's spelled N-e-i-n-a-s.
21 Q. N-e-i-n-e-s?
22 A. a-s.
23 Q. a-s?
24 A. Uh-huh. 181
1 Q. All right. And what was Mr. Neinas's
2 position with North Carolina?
3 A. Mr. Neinas is -- has a search firm that
4 most schools -- well, not most schools, but schools
5 hire when they're conducting a coaching search to --
6 when they're conducting a coaching search to do the
7 upfront investigative work, et cetera, actually
8 contact the coaches to see if they might have an
9 interest. It's --
10 Q. True headhunter-type position?
11 A. For -- acting on behalf of the
12 universities, yes.
13 Q. They would represent the university's
14 interest and go out and look for people that may fill
15 the vacancy?
16 A. Come back with a recommended list of
17 candidates to interview and that.
18 Q. Okay. And that had to do with a position
19 that was open at North Carolina University, at that
20 time?
21 A. That's correct.
22 Q. And that was November of '06?
23 A. Of '06, correct.
24 Q. Do you recall the day at all, was it near 182
1 Thanksgiving or anything, in '06?
2 A. I can't recall the day.
3 Q. All right. Did you call Mr. Neinas or
4 did he contact you?
5 A. I called Mr. Neinas.
6 Q. All right. And did you know Mr. Neinas
7 before that day?
8 A. Before that day?
9 Q. Yes, sir.
10 A. No, I did not.
11 Q. All right. What -- what precipitated you
12 in calling Mr. Neinas? Did you hear that, had he
13 given information that he may be looking for some
14 candidates to fill the North Carolina position through
15 his office?
16 A. Someone at -- I've been told, I can't
17 remember by who, that North Carolina had hired
18 Mr. Neinas to handle their search.
19 Q. And was Rich Rodriguez the only head
20 coach that you were talking about at that time?
21 A. Yes.
22 Q. What did you generally talk about?
23 A. I --
24 MR. ROBON: Show an objection. 183
1 You can answer.
2 THE WITNESS: I confirmed that
3 he was going to be -- that he was -- that
4 he was working --
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Looking for candidates?
7 A. Looking for candidates, and had a
8 discussion with him about the job position there; and
9 based on the buyout and also, too, he informed me that
10 they had a preferred candidate that they had targeted
11 in on, I believe even before they terminated the
12 previous head coach there, that they were going to go
13 after.
14 Q. Okay. So for two reasons, then, you
15 didn't have further communication with him: The first
16 was that they had somebody they thought was already
17 being looked at pretty closely; and secondly, one of
18 the contract provisions, the liquidated damage, or
19 what you refer to as a buyout clause you felt was
20 unacceptable to your customer, Mr. Rodriguez?
21 A. No. That the University of North
22 Carolina felt that they -- they did not want to pay or
23 be involved in any buyouts --
24 Q. All right. 184
1 A. -- in regards to hiring a new candidate.
2 And the person they hired was Butch Davis, who came
3 from the NFL where there were no buyouts or that
4 involved. He was unemployed at the time.
5 Q. Who was it, the candidate?
6 A. Butch Davis.
7 Q. All right. And he got the position?
8 A. He got the position.
9 Q. And you had indicated that one of the
10 provisions was you were -- on behalf of Mr. Rodriguez,
11 you insisted that they would have to pay his
12 liquidated damage clause?
13 A. No, I never insisted on that, but he --
14 Q. But you inquired as to that?
15 A. No, I never even inquired of that.
16 Chuck Neinas made a statement, that the University of
17 North Carolina wanted to hire a coach that did not
18 have a current contract or anything with any buyout
19 provisions. And basically, it makes sense now,
20 because they had already decided who they were going
21 to hire.
22 Q. All right. Let me see if I have this
23 right, then, from a timing standpoint.
24 You had just participated in months of 185
1 negotiation in advising and guiding Rodriguez to sign
2 the June of '06 contract, which is called the first
3 amendment.
4 A. Uh-huh.
5 Q. Is that right?
6 A. Uh-huh.
7 Q. Yes?
8 A. Yes.
9 Q. And within five months after that, you
10 were on the phone talking to one of these agencies
11 that looks for coaches; you initiate the call and call
12 them about your client Rich Rodriguez within five
13 months?
14 A. Yes.
15 Q. All right. Now, the contract at that
16 point, the first amendment, as I recall, was an
17 agreement that Rodriguez would have to stay on as the
18 coach through the year 2013. Were you aware of that?
19 A. Yes.
20 Q. And there was a liquidated damage clause
21 also in that first amendment at that time?
22 A. Yes.
23 Q. Why were you looking for another position
24 for Rich Rodriguez in November after having just gone 186
1 through months of negotiations? The guy was
2 contracted to be our coach until 2013.
3 MR. ROBON: Objection.
4 BY MR. ROBERT P. FITZSIMMONS:
5 Q. Why were you looking for other positions
6 for Rodriguez?
7 MR. ROBON: Objection. You can
8 answer.
9 THE WITNESS: I was doing my due
10 diligence as a sports representative
11 looking at various potential
12 opportunities, knowing what the market
13 is.
14 And, you know, it's like any
15 executive: You know, you sit there and
16 jobs come up at another place, you always
17 have an interest and want to know what
18 the -- what the status is.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. So basically, one of your functions,
21 then, through all this representation with Rodriguez
22 was you were looking for better opportunities to
23 present to him, which would allow him to leave West
24 Virginia if you and he decided there were better 187
1 opportunities out there?
2 A. It wouldn't be my decision. It would
3 be -- it would be his decision.
4 Q. He's the final decision-maker always.
5 A. That's correct.
6 Q. Just like on the contract, despite what
7 you said or anyone else said, he makes the final
8 decision.
9 A. That's correct.
10 Q. But you were looking for other positions
11 that you felt may be more financially rewarding to you
12 and him?
13 MR. ROBON: Objection.
14 You can answer.
15 THE WITNESS: We never had
16 discussions about financially
17 rewarding.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. Well, that was the criteria you talked
20 about with this Chuck Neinas. One of the issues was
21 that if they weren't going to pay his liquidated
22 damage clause at West Virginia, that was -- that was a
23 stumbling block right from the beginning?
24 A. No, Chuck Neinas stated that they did 188
1 not -- that North Carolina did not want to deal or
2 have to deal with any coach that had any buyout
3 provision, that no -- regardless of who was going to
4 pay it, who was going to buy it or whatever, they had
5 set a parameter, I guess, in their search, I would
6 have surmised, that said this is -- these are the
7 criteria in blocks -- or within these criteria of the
8 candidates we were going to look at.
9 Q. Well, it wasn't the fact that there was
10 just a liquidated damage clause; it was the fact that
11 that would probably cost North Carolina more money in
12 those types of negotiations, because it's a financial
13 loss?
14 A. I can't speak on what the criteria was
15 for North Carolina as to how they made the decision.
16 Q. And you presented this, then, to
17 Rodriguez? Did you guys sit down and talk about, Hey,
18 there is at least an opening there, but it doesn't
19 look that great?
20 MR. ROBON: Objection.
21 You can answer.
22 THE WITNESS: I can't recall.
23 BY MR. ROBERT P. FITZSIMMONS:
24 Q. You can't recall whether you're out 189
1 talking about Rodriguez and a potential position, and
2 you didn't communicate that to your customer?
3 A. I can't recall if I had a conversation
4 with Rich after I had a conversation with
5 Chuck Neinas.
6 Q. Is there some reason you would not want
7 your customer to know that you were out looking for
8 other positions for him?
9 A. No.
10 Q. Did you call West Virginia and ask them
11 if it was okay if you made inquiries into other
12 opportunities for Rodriguez that would eventually
13 cause him to leave the University and his -- and these
14 contracts?
15 MR. ROBON: Objection.
16 THE WITNESS: No, I'm not
17 required to.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. Did you figure out any plan or strategy
20 as to how you would get out of the liquidated damage
21 clause that was in the first amendment when you called
22 North Carolina at that time?
23 MR. ROBON: Objection.
24 THE WITNESS: No, I didn't 190
1 figure it out.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. When did you figure that out?
4 A. Pardon?
5 Q. When did you figure that out, as to how
6 to get out of the liquidated damage clause so you
7 wouldn't have to --
8 MR. ROBON: Objection.
9 BY MR. ROBERT P. FITZSIMMONS:
10 Q. -- you wouldn't have to pay that?
11 MR. ROBON: Objection.
12 THE WITNESS: It never happened.
13 Nothing ever -- there was --
14 BY MR. ROBERT P. FITZSIMMONS:
15 Q. You never analyzed that?
16 A. No.
17 Q. You've never once, to this day, looked at
18 the liquidated damage clause to figure out ways to get
19 around it or to avoid it with Coach Rodriguez; is that
20 your testimony?
21 A. You asked me in regards to the North
22 Carolina job.
23 Q. Okay. And then I asked -- my next
24 question was when did you do that? You did that with 191
1 the Michigan analysis, basically, right?
2 MR. ROBON: Objection.
3 You can answer.
4 THE WITNESS: I -- after
5 Saturday, December the 15th, when --
6 when -- after Rich had those meetings
7 with Mike Garrison and Craig Walker, and
8 they said no to him, I had conversations
9 with Rich on that Sunday morning, and we
10 had no discussions at that time how we
11 were going to -- or how the buyout was
12 going to be addressed.
13 And I told Rich at that time
14 that I thought that West Virginia was in
15 breach and had committed fraud in the
16 contract by not fulfilling the verbal
17 promises, and that was on Sunday morning
18 at Rich's house.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. You said that -- the 15th of December?
21 A. That's correct.
22 Q. And you accused West Virginia of fraud on
23 December 15th?
24 A. I told Rich that, you know -- 192
1 Q. Just answer my question. Did you accuse
2 them of fraud on December 15th?
3 A. No, that would have been on Sunday,
4 December 16th. I made a mistake on my dates.
5 Q. So it wasn't until December 16th of '07
6 that you then accused West Virginia of fraud?
7 A. That I told --
8 MR. ROBON: Objection.
9 You can answer.
10 THE WITNESS: That I told Rich
11 the fact that Garrison --
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Is that correct? Did you accuse West
14 Virginia of fraud on December 16th, 2007, for the
15 first time; is that what your testimony is?
16 MR. ROBON: Objection.
17 THE WITNESS: Define "accuse"
18 and who am I talking about.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Okay. I suspect in your business you've
21 heard the word "accuse" before, right?
22 A. Yes.
23 Q. Yes?
24 A. Yes. 193
1 Q. Okay. So you know what it means?
2 A. Uh-huh.
3 Q. Did you accuse and make the allegation
4 against West Virginia that they were guilty of fraud
5 on December 16th, 2007?
6 MR. ROBON: Objection.
7 MR. ROBERT P. FITZSIMMONS: For
8 the first time.
9 MR. ROBON: Objection.
10 You can answer.
11 THE WITNESS: I can't recall. I
12 may have had some other instant --
13 correspondence or discussions with them
14 in regards to earlier.
15 But if you're talking in regards
16 to other previous histories and issues
17 there, I can't -- I may have. I can't
18 recall. There may be some documentation,
19 I'm not sure.
20 But in regards to specifically
21 on Sunday, December the 16th, after Rich
22 told me what had happened the previous
23 day, I told Rich that West Virginia had
24 committed fraud on the contract by not 194
1 following through on the verbal promises
2 that they made to him to sign it.
3 BY MR. ROBERT P. FITZSIMMONS:
4 Q. Is that the first recollection you have
5 of having made that statement as to accusing West
6 Virginia of fraud, December 16th, '07?
7 A. That's all I can at this time. This
8 thing goes back to this --
9 Q. Is that a yes?
10 A. Say it again.
11 Q. Is that the first time --
12 A. It's not my best recollection.
13 Q. Well, give me your worst recollection,
14 then, whatever you have.
15 A. There may have been some -- I believe
16 after the -- in -- in going through the first
17 amendment stuff with West Virginia, I believe I had
18 some correspondence with Tom Dorer and Ed Pastilong in
19 regard to actions there.
20 Q. That would have been when?
21 A. Probably would have been in 2006,
22 possibly.
23 Q. Before or after the first amendment?
24 A. After the first -- before or after the 195
1 first amendment? I can't recall.
2 Q. You can't recall whether there was -- you
3 allowed your client to sign the amendment after you
4 felt the University was guilty of fraud?
5 MR. ROBON: Customer.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Or your -- yeah, you're right, customer.
8 A. Say the question again.
9 Q. You, as the customer representative here
10 for Rodriguez, are you telling me you can't recall
11 whether you permitted your customer to sign the first
12 amendment written -- first amendment to the contract
13 after you felt the University had committed fraud; is
14 that your testimony?
15 A. No, I never -- I never -- if you were
16 going to go back and say the word "fraud," that means
17 I would have to send in a 30-day notice letter --
18 Q. Because you knew that?
19 A. Yeah, because I never did that.
20 Q. Right. We understand you didn't do that.
21 But you knew, clear back then, if it happened, you had
22 to send that 30-day notice to cure to the University
23 for fraud or any breach, right?
24 A. That's correct. 196
1 Q. And you didn't do that back then in '06
2 when you were telling us that you believe that there
3 was some fraud committed?
4 A. I --
5 MR. ROBON: Whoa, whoa, whoa.
6 Show an objection to the prior question
7 he answered so fast about notice of
8 fraud. I object to that question.
9 THE WITNESS: So what's the
10 question?
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. You sent no notice at any time?
13 A. No, I never sent any notice.
14 Q. All right. Okay. Now -- okay. So now
15 we know that you contacted in November of '06 a person
16 who was being employed by North Carolina University
17 for looking for a football coach and had discussions
18 with him about Rich Rodriguez as a possible candidate
19 for that position?
20 A. Uh-huh.
21 Q. Yes?
22 A. Yes.
23 Q. All right. What other schools in '06 did
24 you talk to, even just call, to see if there would be 197
1 any interest in potentially shopping Rodriguez, back
2 in '06?
3 MR. ROBON: Objection.
4 You can answer.
5 THE WITNESS: In '06?
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Besides Carolina -- North Carolina?
8 A. I had a conversation with Skip Bertman,
9 the athletic director at LSU.
10 Q. Okay. His name is Skip.
11 A. Yeah. He's no longer the AD. He's
12 retired, I believe. Skip Bertman.
13 Q. Skip Burton?
14 A. Bertman, B-e-r-t-m-a-n.
15 Q. All right. Okay. Let's hold that LSU
16 here for a second. Tell me what month that was in
17 '06.
18 A. That would not have been -- excuse me. I
19 thought it was '06, but it would actually have been in
20 December of '05.
21 Q. December of '05?
22 A. Yeah.
23 Q. Okay. For LSU?
24 A. Yeah. It was a follow-up call. Rich had 198
1 received a call from a headhunter asking him some
2 questions in regards to the LSU job, and I just placed
3 a call to Skip to follow up on it and --
4 Q. Okay. Hold one second.
5 A. Uh-huh.
6 Q. He needs to take a swap on the video.
7 THE VIDEOGRAPHER: Going off the
8 record at 12:38 p.m.
9 (A brief recess was had.)
10 THE VIDEOGRAPHER: Back on the
11 record at 12:50 p.m.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Mr. Brown, we were talking about LSU, and
14 you had contacted Skip Bertman, and I think you told
15 me that was around December of 2005.
16 A. That's correct.
17 Q. And how did you come about contacting
18 Mr. Bertman?
19 A. Rich had --
20 MR. ROBON: Show an
21 objection.
22 THE WITNESS: Rich had contacted
23 me and told me that he had been contacted
24 by one of those search firms in regards 199
1 to -- what these search firms do, they
2 never state what job. They would call up
3 a coach and they have a list of set
4 questions they will go down and ask the
5 coach.
6 And Rich informed me that he had
7 had a call from somebody in regards to
8 that. And since LSU was the only job
9 open at that time, I thought I would
10 follow up and give Skip a call. I --
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. Well, let me -- hold on one second. Did
13 Mr. Rodriguez, after telling you that, did he request
14 that you call LSU and look into the job?
15 A. No, I did that on my own.
16 Q. Just on your own?
17 A. That's correct.
18 Q. Why were you doing that at that point
19 when you knew Coach Rodriguez had a contract that was
20 effective at that point in December of '05 until 2010?
21 MR. ROBON: Objection.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. Why were you looking?
24 A. I wasn't looking. I was doing my 200
1 fiduciary duty as an agent. He had been contacted,
2 LSU is a premier job, so you always want to go find
3 out exactly what the circumstances are and --
4 Q. Well, isn't West Virginia a premier job?
5 A. West Virginia is a very good job.
6 Q. It's a premier job?
7 A. It all depends on who you're looking at
8 it from.
9 Q. I'm looking at it from you, sir. You as
10 an agent, if it was a premier job, why are you looking
11 at LSU?
12 A. I never said it was a premier job.
13 Everyone had their opinion.
14 Q. Well, I'm asking your opinion, Mr. Brown.
15 Are you telling us you did not consider West Virginia
16 a premier job --
17 MR. ROBON: Objection.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. -- in '05, that you were going out
20 looking at other schools?
21 MR. ROBON: Objection to the
22 categorization.
23 THE WITNESS: Say it again.
24 BY MR. ROBERT P. FITZSIMMONS: 201
1 Q. So are you saying West Virginia was not a
2 premier job for a football coach back in 2005?
3 A. West Virginia is a good job.
4 Q. I asked premier, sir.
5 A. It's not a premier job.
6 Q. You're saying LSU's better?
7 A. In the industry, there is a group of
8 schools that are -- that -- everyone has their
9 different opinions.
10 Q. I asked as to LSU.
11 A. Is LSU a better job? I would consider
12 LSU a better job than West Virginia.
13 Q. So if you could get Mr. Rodriguez, he
14 could step up, then, in your opinion, back in December
15 of '05 to a better job; is that right?
16 MR. ROBON: Objection.
17 THE WITNESS: It never got to
18 that point.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. That's why you called --
21 A. You're always, as -- a representative,
22 it's your fiduciary duty to go out, if there is a job
23 that you think that possibly your client might be a
24 candidate for, you always just want to go check on it, 202
1 get the status of it, and if it -- if it warrants
2 anything, then you go back and talk to your client
3 about it.
4 Q. So you're looking into it for the purpose
5 of potentially having your client leave his job, or
6 her job, and go to another school; is that right?
7 MR. ROBON: Objection.
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. That's why you look into it?
10 A. Not to potentially leave, but to go
11 back -- if you think it warrants it, you go back and
12 you relay information to your client, and then however
13 it proceeds, it proceeds after that.
14 Q. Did you tell West Virginia as the
15 representative of Rich Rodriguez in December of '05
16 that you were making inquiries to LSU to see what the
17 specifics of their search for a football coach were?
18 A. No, that's --
19 MR. ROBON: Objection.
20 THE WITNESS: No. That's not
21 the way the industry works.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. I didn't ask you that.
24 A. Yes. 203
1 Q. You did not do that?
2 A. No, I did not.
3 Q. You didn't do that for North Carolina?
4 A. No.
5 MR. ROBON: Objection.
6 BY MR. ROBERT P. FITZSIMMONS:
7 Q. Now, did you have a conversation with
8 Rodriguez after speaking with Mr. Bertman about the
9 LSU specifics of the job?
10 MR. ROBON: Objection.
11 You can answer.
12 THE WITNESS: I can't recall.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. As part -- has anybody ever asked you to
15 check on e-mails and that to see whether or not you
16 save e-mails or letters, copies of letters, concerning
17 any of these schools like North Carolina by and
18 through Chuck Neinas, and LSU by and through their
19 former athletic director, Mr. Bertman?
20 A. Say it again?
21 Q. Have you made any search or attempt to
22 find any records concerning these inquiries that you
23 were making on behalf of Rodriguez in December of '05
24 and November of '06 for those two schools? 204
1 MR. ROBON: Objection. You can
2 answer.
3 THE WITNESS: In regards to the
4 conversations with --
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. The question was have you made a search
7 for records, Mr. Brown?
8 MR. ROBON: Objection.
9 You can answer.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. For any of those records?
12 A. I've made a search for e-mail records
13 that have been requested by you guys in discovery.
14 Q. And I think all of those were destroyed
15 or whatever they do in computers?
16 A. No, I don't save them. And I made an
17 inquiry to AOL, I used my AOL account, and AOL came
18 back and said that they don't keep -- there's no way
19 to pull those e-mails back up.
20 And did I pass that notice along to --
21 Q. We've seen that. The question is you
22 don't have any of those records because they've been
23 removed from your system to your knowledge; is that
24 correct? 205
1 A. That's correct.
2 Q. All right. Okay. LSU. What other
3 schools have you contacted during periods of time that
4 your customer, Rodriguez, was under contract for long
5 term with West Virginia, that you've been out
6 contacting?
7 MR. ROBON: Objection.
8 You can answer.
9 THE WITNESS: I was contacted --
10 I did not contact, but I was contacted by
11 the University of Alabama.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Alabama called you?
14 A. That's correct.
15 Q. Had somebody told them that you were the
16 representative of Rodriguez and they would have to go
17 through you, to your knowledge?
18 A. It was common knowledge among the -- out
19 in the industry among the athletic directors and that
20 that I represented Coach Rodriguez. I have no idea
21 how they came specifically to know to contact me.
22 Q. All right. Did you talk to them on the
23 first call, or did you have to call them back? Do you
24 recall how that happened? 206
1 A. Actually, I was out of the country on
2 vacation, and they had left a message with me.
3 Q. All right. And did you then call them
4 back?
5 A. They -- I didn't know it was -- I didn't
6 know what the subject matter was. I got back, there
7 was a message on my phone; and yes, I did return the
8 call without knowing what the subject matter was.
9 Q. And was that in -- what year was that in?
10 A. That would have been in '06.
11 Q. In December of '06 or before that?
12 A. It would have been -- I got the message
13 when I got back in the country on the Saturday after
14 Thanksgiving of '06.
15 Q. So the Saturday after the Thanksgiving of
16 '06, whenever that was?
17 A. That's correct.
18 Q. It may have been -- it probably was
19 November?
20 A. I don't have a calendar.
21 Q. Who did you speak with at Alabama?
22 A. I spoke with Kevin Almond, the associate
23 athletic director.
24 Q. Did you fly down to Alabama? 207
1 A. No, I did not.
2 Q. Did you ever meet with him in person?
3 A. Who, Kevin?
4 Q. Any representative of Alabama.
5 A. Yes, I did.
6 Q. Who did you meet with in person?
7 A. In person I met on, I believe it was
8 Thursday, December the 7th -- and correct me if I'm
9 wrong on the -- on the -- on Thursday, December the
10 7th, I went to Tuscaloosa.
11 Q. Where is Tuscaloosa?
12 A. It's in Alabama west of Birmingham by
13 about 45 to 50 minutes.
14 Q. So you did meet in Alabama?
15 A. I did.
16 Q. Okay. I thought I asked you that, and
17 you said no, but be that as it may.
18 You did meet with a representative of the
19 University of Alabama in Alabama in the early part of
20 December of 2006; is that true?
21 A. That's correct.
22 Q. Was Mr. Almond present or other
23 representatives?
24 A. Other representatives were there. 208
1 Q. Had you had discussions with Rodriguez
2 between the Saturday after Thanksgiving and Thursday,
3 December 7th, when you flew down to Alabama?
4 MR. ROBON: Objection.
5 You can answer.
6 THE WITNESS: I didn't fly, I
7 drove.
8 BY MR. ROBERT P. FITZSIMMONS:
9 Q. You drove?
10 A. Yeah.
11 Q. I'm sorry.
12 A. It's 2 hours and 45 minutes from my house
13 to Tuscaloosa.
14 Q. Okay. You drove a motor vehicle there?
15 A. That's correct.
16 Q. All right. Who else was present for that
17 meeting?
18 A. The first meeting was on that Thursday,
19 was Mal Moore.
20 Q. Mal?
21 A. Mal, M-a-l, M-o-o-r-e. And then I met
22 with him; and then Finus Gaston joined us. He's the
23 associate athletic director for financial matters at
24 Alabama. 209
1 Q. Finus --
2 A. F-i-n-u-s, G-a-s-t-o-n.
3 Q. And he -- it's a he?
4 A. Yes, it is.
5 Q. -- takes cares of financial matters for
6 the University?
7 A. Alabama athletic department.
8 Q. All right.
9 A. And then I was later joined by President
10 Witt. And all this was after that week. I believe
11 Mal Moore had placed a call to Ed Pastilong and had
12 informed -- had left a message for Ed.
13 Ed returned the phone call. He thought
14 it was a prank call, so he called back to Mal Moore's
15 secretary on that Tuesday, saying that he thought he
16 had gotten a prank call about Coach Moore wanting to
17 talk to Rich about the job.
18 And the Alabama secretary told Ed that,
19 no, it was not a prank call, that Mal Moore did want
20 to talk to Rich about the job.
21 Rich and Mal Moore and Rita met in New
22 York City on that preceding Tuesday of the Thursday
23 that I drove over there.
24 Q. Okay. Hold one second. 210
1 A. Uh-huh.
2 Q. I thought my question was who all was
3 there. You're going into a little bit more detail,
4 and I want to try to break this down a little bit.
5 A. Uh-huh.
6 Q. You drive on the 7th to Alabama?
7 A. That's correct.
8 Q. You meet with Mal Moore, you meet with
9 Finus Gaston --
10 A. Gaston.
11 Q. -- and President Witt?
12 A. That's correct.
13 Q. Anybody else present for that meeting?
14 A. There were multiple meetings. That was
15 the first meeting.
16 Q. Okay. That's the first meeting. Was
17 anyone else present for that meeting?
18 A. No, there weren't.
19 Q. Was anybody by phone? Did you have
20 anybody conferenced in --
21 A. No.
22 Q. -- during that meeting?
23 A. No.
24 Q. From the Saturday after Thanksgiving up 211
1 until December 7th, when did you tell Rodriguez that
2 you were going to Alabama to talk to these people?
3 Would it have been shortly after the call on Saturday
4 after Thanksgiving of '06?
5 MR. ROBON: Objection.
6 You can answer.
7 THE WITNESS: No. Coach
8 Rodriguez and Mal Moore met in New York
9 on that Tuesday. I believe Coach Moore
10 also met with some other candidates
11 there.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. My question was when did you talk to
14 Rodriguez after the Saturday after Thanksgiving?
15 A. About going to Tuscaloosa?
16 Q. Yeah. You find out that there is a job
17 and you have some discussion --
18 A. On late Wednesday night, the night before
19 that Thursday, so that would have been -- the 8th, the
20 7th -- on late Wednesday night, the 6th, around 11:30
21 or 11:45 p.m.
22 Q. That's the first discussion you had with
23 Rodriguez?
24 A. In regard -- you asked me when did I talk 212
1 to Rodriguez prior to driving over there and him
2 knowing I was going to drive over there.
3 Q. When did you talk to Rodriguez about the
4 Alabama job? Was it shortly after this call on the
5 Saturday after Thanksgiving?
6 MR. ROBON: Objection.
7 You can answer.
8 THE WITNESS: I -- I can't
9 recall, but it was that following week.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. Well, was it -- is there some reason you
12 wouldn't tell Rich Rodriguez that the Alabama -- "The
13 University of Alabama had contacted me about a
14 potential position for you as the head football coach
15 there"?
16 A. I did contact Rich.
17 Q. Okay. It would have been shortly after
18 the initial call on that Saturday --
19 A. I got -- no, I got back -- I returned the
20 call on that Saturday to Kevin Almond.
21 Q. Right.
22 A. He did not get back to me until that
23 Monday.
24 Q. Who didn't? 213
1 A. Kevin Almond.
2 Q. Okay. You called back, so you didn't
3 tell Rich that, Hey, these guys have called, I left a
4 message --
5 A. No, no.
6 Q. -- here's a --
7 A. Will you listen, buddy?
8 Q. I'm not your buddy, sir.
9 A. All right. I got back from vacation, out
10 of the country, I get a phone message on that Saturday
11 afterwards that Kevin Almond called.
12 Q. Right.
13 A. All right?
14 Q. Right.
15 A. He said, Call me. So I called and left
16 him a message. I did not hear from him until the
17 following Monday, because he was in Hawaii with his
18 golf team.
19 Q. I understand.
20 A. So he called me back on that Monday, and
21 he told me, he said, Mike, I think we may be making a
22 change here in the coaching thing, and I believe your
23 guy Rodriguez may be a candidate. And I said fine.
24 Q. My question was between that time, did 214
1 you call Rodriguez and say, I got a call from Alabama,
2 I'm not sure what it's about, but they may have --
3 A. I did not call Rich until after the -- I
4 did not call Rich until after Mike Shula was fired,
5 and they -- and Alabama had called me back again
6 saying that they -- that they wanted to talk to Rich.
7 Q. So on this phone call, which is Monday, I
8 think it's December 4th of '06?
9 A. No. That would have been the week
10 before.
11 Q. The week before?
12 A. Uh-huh.
13 Q. Clear back in November, then?
14 A. Yeah. I told you I got back after
15 Thanksgiving on a Saturday, got a message, returned
16 the call on that Monday.
17 Q. Okay. Did you get a call on that Monday
18 and you speak with -- who called you?
19 A. Kevin Almond, the associate athletic
20 director.
21 Q. And he tells you that they may be
22 interested?
23 A. They said they may be making a coaching
24 change. 215
1 Q. All right. Did you call Rich then?
2 A. No. I waited until after the -- it
3 didn't happen until after the coaching change was
4 done, and I received a call back from Kevin saying
5 that Alabama, that Rich was one of the candidates that
6 they wanted to talk to.
7 Q. Okay. When would that have been?
8 A. Sometime after that Monday.
9 Q. When you go down to Alabama on the 7th,
10 is it between Monday and Thursday you talk to
11 Rodriguez and tell him Alabama may be interested in
12 you?
13 A. Rich had a game, still one remaining game
14 with Rutgers that week. I informed Rich that Alabama
15 may want to talk to him, and Rich instructed me to
16 relay back to Alabama do not call and ask for
17 permission, if they did want to talk to him, until
18 after the regular season was completed.
19 Q. Did he direct you not to contact Alabama
20 again also?
21 A. No.
22 Q. But you were his representative, and you
23 went ahead then and continued, then, with your
24 communications with Alabama? 216
1 A. That's correct.
2 Q. Were you reporting to him as to what
3 Alabama was saying during those discussions and
4 meetings?
5 A. No, not that week. He was focused on
6 Rutgers.
7 Q. So you totally kept secret the
8 discussions that you had with Alabama, even though
9 Rodriguez knew you had had some discussions with
10 Alabama?
11 MR. ROBON: Objection.
12 Answer.
13 THE WITNESS: The only
14 discussions were, our guy -- we may be
15 interested in talking with your guy.
16 The only discussions was I went
17 back to them and said, Do not contact him
18 and ask for permission to talk to him
19 until after the Rutgers game.
20 BY MR. ROBERT P. FITZSIMMONS:
21 Q. Okay. You go to, December 7th, Thursday,
22 down to Alabama. When is the Rutgers game?
23 A. The preceding Saturday.
24 Q. It had already taken place? 217
1 A. That's correct.
2 Q. So Rodriguez knew you were going down
3 then to Alabama?
4 A. No, he did not know I was going down to
5 Alabama until Wednesday, December the 6th.
6 Q. Okay. But he knew before you went?
7 A. He instructed me to go.
8 Q. Okay. So on December the 6th, you and
9 Rodriguez had talked about the job, potential opening,
10 and he had gone ahead and directed that you go down to
11 Alabama and meet with these folks?
12 A. No. On Wednesday night, December 6th,
13 sometime late in the evening, Rich called me up and
14 said Mal Moore had called and offered him the job at
15 Alabama.
16 Q. All right.
17 A. That's Wednesday night, December the 6th.
18 Q. So on December 6th, Alabama made an offer
19 for a job?
20 A. They told Rich Rodriguez -- Mal Moore
21 talked to Rich Rodriguez, and Mal said, I would like
22 to offer you the job.
23 Q. What was offered?
24 A. At that point in time there were no 218
1 details.
2 Q. So a job was offered with no details?
3 A. At that point. Because it was a job
4 offer, and what Rich instructed and told Mal was, My
5 representative will meet with you tomorrow, and you
6 guys work up a term sheet and present it to me, and
7 I'll review it.
8 Q. All right. So Alabama offers
9 Rich Rodriguez on December 6th, according to what
10 you've been told, because you weren't privy to the
11 conversation, right?
12 A. That's correct.
13 Q. December 6th, Alabama offers
14 Rich Rodriguez the coaching position at Alabama, but
15 not -- no terms are discussed, to your knowledge?
16 A. Yeah.
17 Q. There's not a dollar mentioned, terms,
18 time --
19 A. No.
20 Q. -- where you're going to be?
21 A. No.
22 Q. Zero, so far as the specifics of a
23 contract?
24 A. That's correct. 219
1 Q. Is that right?
2 A. That's correct.
3 Q. And how did you find out about that? Did
4 Alabama tell you or did Rodriguez tell you that?
5 A. Rich told me that.
6 Q. And at that point, did he then direct you
7 as his agent to go down and start working on specifics
8 of the contract?
9 A. What he did --
10 MR. ROBON: Objection.
11 You may answer.
12 THE WITNESS: What he did was he
13 told Mal Moore -- what Rich told me --
14 because I think Rich hung up the phone
15 after talking with Mal Moore -- Rich
16 called me and said, Mike, Alabama is
17 offering me the job.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. Was he pretty excited at that time?
20 MR. ROBON: Objection.
21 THE WITNESS: I can't recall.
22 BY MR. ROBERT P. FITZSIMMONS:
23 Q. How about you, were you pretty excited
24 about Alabama at that time? 220
1 A. I can't recall.
2 Q. Was that one of those, what do you call
3 them, premier programs?
4 A. When you win 13 national championships,
5 that's a premier program.
6 Q. You consider that premier?
7 A. You're daggone right, I do. I'm from the
8 south, buddy.
9 Q. That's big time, isn't it?
10 A. That is.
11 Q. Boy, that would have been great to get
12 Rich Rodriguez down there at Alabama, wouldn't it?
13 A. It's a great job. It's his decision to
14 go.
15 Q. Yep. And it was special to you, too,
16 wasn't it?
17 A. No.
18 Q. Pardon me?
19 A. It wasn't special, but I mean --
20 Q. It's Alabama.
21 A. It is Alabama.
22 Q. It's Michigan --
23 A. Just like Michigan is Michigan.
24 Q. Michigan is Michigan, right? 221
1 A. Yep.
2 Q. And what's West Virginia?
3 A. West Virginia is a good job.
4 Q. Just a good job?
5 A. Everyone has their opinion.
6 Q. Right.
7 A. Uh-huh.
8 Q. Okay. So you go down then on the 7th?
9 A. Uh-huh.
10 Q. You drive two hours and 45 minutes to
11 meet with these folks that you talked about?
12 A. That's correct.
13 Q. Do you have a term sheet?
14 A. No.
15 Q. Did you have a proposal?
16 A. No.
17 Q. Had you talked to Rich Rodriguez about
18 maybe what he would require, since he's the guy that,
19 I guess, is going to be the coach, right, run the
20 program?
21 A. Yeah.
22 Q. Take any notes?
23 A. As far as --
24 Q. The specifics that he would want? These 222
1 things are a little bit intricate?
2 A. No, no. Over a period of time in my
3 conversations and knowing Rich, I knew what was
4 important to him.
5 Q. You were just going to try to get the
6 best deal you could?
7 A. The best deal for him and his assistant
8 coaches and the strength coach and the whole program.
9 Q. Were you going to move the whole program
10 from West Virginia down there?
11 MR. ROBON: Objection.
12 THE WITNESS: No, no. Just
13 certain people. Rich does the hiring and
14 that. What I was going to do was get him
15 the maximum salary pool for his assistant
16 coaches that that -- I could negotiate
17 for him.
18 BY MR. ROBERT P. FITZSIMMONS:
19 Q. All right. So you go down -- had Rich
20 told you what he wanted you to -- did he want you to
21 obligate him?
22 A. No.
23 Q. Did you have the authority to obligate
24 him at that time? 223
1 A. No, I did not.
2 Q. And you were the sole and exclusive
3 representative for him on all contract matters,
4 weren't you?
5 A. I walked into the meeting. When I met
6 with Mal Moore and Finus Gaston and the president,
7 this is what I told them.
8 Q. Were you by yourself?
9 A. I was by myself.
10 Q. All right. So you're in there. Did
11 you -- I don't want to use that word "negotiate," you
12 remember we talked about that a little bit.
13 Did you go in and negotiate terms at that
14 time?
15 A. Well, the first thing I did, I informed
16 Mal Moore, present with Finus Gaston, that what I was
17 authorized to do by Rich was to come down there, work
18 with them that day on a term sheet and an offer, and
19 that I had no obligation authority, and that --
20 Q. You did not have that authority?
21 A. I did not have that authority.
22 Q. You told them that?
23 A. I told them that. And that -- that my
24 instructions and the way it was going to play out was 224
1 that I would work that day on a term sheet -- Rich had
2 been very busy that week. I think he had a function
3 in Charleston on that Thursday. I think he was at a
4 Gator Bowl press conference --
5 Q. I'm just interested in you and the
6 meeting. Stick to the question.
7 A. Okay. Okay. I told them, I said, Here's
8 how the process is going to work.
9 Q. You told them how it was going to work,
10 Alabama?
11 A. Yeah. I told them, I said, We're going
12 to sit here and do a term sheet today, I will get it
13 back to Rich as soon as we finish, and that Rich will
14 sit down with -- the first time that he will have a
15 chance to evaluate or make any decisions to accept the
16 job would be the following day on Friday.
17 Q. Right. Now --
18 A. That there would be three steps to the
19 process, I told them. I said, We get the term sheet
20 together; we get the term sheet back to Rich; Rich
21 would have an -- Rich would be able to go through and
22 review it, ask questions, and also have an opportunity
23 to ask Alabama more questions, because of -- he felt
24 that he had not had time to do his full due diligence 225
1 on the Alabama job.
2 So, again, I informed them I did not have
3 the authority to obligate them; told them the only
4 thing and my objective that day was it to get a term
5 sheet and take it back to my client and present it to
6 him.
7 Q. Now, did you have note -- notes at that
8 time as to what you were going to look for in the
9 agreement in comparison to West Virginia's agreement,
10 or did you know West Virginia's agreement so well that
11 you didn't need that?
12 MR. ROBON: Objection.
13 BY MR. ROBERT P. FITZSIMMONS:
14 Q. Notes.
15 A. I didn't go back and look at the West
16 Virginia contract.
17 Q. Because you knew it pretty well --
18 A. I knew it pretty well.
19 Q. -- you went through the thing. You had
20 actually helped negotiate it and helped write certain
21 provisions.
22 A. That's correct.
23 Q. Is that right?
24 A. Uh-huh. 226
1 Q. Okay. So you have that knowledge already
2 at that point of the contract, and you go down -- and
3 you go down. Did you negotiate the terms, since you
4 were kind of running the show at that time?
5 MR. ROBON: Objection.
6 THE WITNESS: No. What we did,
7 then, is after a -- after a meeting at
8 Mal Moore's house with myself and Mal
9 Moore and Finus Gaston and President
10 Witt, they told me, you know, that they
11 wanted to sit down and work up a term
12 sheet.
13 And so we agreed we would go
14 back to the president's office, and I
15 would sit down with -- I can't recall, a
16 couple of their legal counsel people, and
17 work up the terms -- work up the term
18 sheet.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. Was a term sheet worked up, then, in
21 Alabama?
22 MR. ROBON: Objection.
23 THE WITNESS: Yes. It was
24 worked up by the close of business that 227
1 day.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. On the 6th?
4 A. On Thursday, December 7th.
5 Q. 7th, all right. Did you bring it back or
6 did you fax it or did you read it to Rodriguez on your
7 way back home?
8 A. Rich and I did not have any communication
9 the rest of the day on Thursday. He was in -- he was
10 in Jacksonville at the Gator Bowl function. It was
11 late. I don't think he got back into Morgantown to
12 his house until, I think, after midnight or 1:00 in
13 the morning.
14 Q. So you called him the next morning, then?
15 A. The next morning, I called Rich in the
16 morning.
17 Q. Did you fax him a copy of this term
18 sheet?
19 A. I did fax him a copy of the term sheet.
20 Q. Did you fax it at his office at West
21 Virginia or some other location?
22 A. Faxed it to his --
23 MR. ROBON: Objection. You can
24 answer. 228
1 THE WITNESS: I faxed it to his
2 office at West Virginia.
3 BY MR. ROBERT P. FITZSIMMONS:
4 Q. Did you have to make any arrangements so
5 nobody would see that fax coming in from Alabama, the
6 term sheet?
7 A. No, because Rich went into the office
8 early in the morning, and I believe he was the only
9 one there.
10 Q. To the best of your knowledge, he was the
11 only one there when you faxed it on the 8th to --
12 A. I have no knowledge -- I have no
13 knowledge of who else was there.
14 Q. You don't have any knowledge that anyone
15 else was present?
16 A. I have no knowledge.
17 Q. All right. Now, had you called West
18 Virginia, since you are the representative of
19 Mr. Rodriguez, and the contract at that time spanned
20 clear until 2013, did you call them and tell them you
21 were -- actually in active negotiations for a contract
22 position at Alabama?
23 MR. ROBON: Objection.
24 BY MR. ROBERT P. FITZSIMMONS: 229
1 Q. Did you call and tell anybody from West
2 Virginia up till that morning of the 7th?
3 A. I believe I recall a conversation I had
4 with Ed Pastilong.
5 Q. When was that?
6 A. It was either on the Tuesday -- that
7 would have been the -- let me see, the 8th, the 7th --
8 either on Tuesday the 5th or Wednesday the 6th I had
9 conversation with Ed Pastilong.
10 Q. What did you tell Mr. Pastilong? Did you
11 tell him you were negotiating with Alabama for Rich at
12 that time?
13 MR. ROBON: Objection.
14 You can answer.
15 THE WITNESS: I told Ed that I
16 thought that -- first of all, in
17 conversation, I confirmed in the
18 conversation with Ed that Rich did talk
19 to Alabama. That's when Ed relayed to me
20 the story about how he thought the call
21 asking for permission or informing them
22 they were going to talk was a prank call.
23 And then I told Ed that I
24 thought there was going to be -- that 230
1 they were going to make an offer.
2 BY MR. ROBERT P. FITZSIMMONS:
3 Q. Did you talk to him about the specifics
4 of the offer?
5 A. There wasn't an offer at that time. I
6 just -- I kept -- I wanted to be fair to Ed, and I --
7 and so -- I wanted to be fair, so I made contact with
8 West Virginia, and let Ed know what the status was.
9 Q. All right. So you didn't tell him
10 anything about the specifics or whatever?
11 A. There wasn't -- there wasn't a term-sheet
12 offer at that time drawn up.
13 Q. Well, is it your position that West
14 Virginia had breached or whatever that agreement with
15 Mr. Rodriguez at that time?
16 MR. ROBON: Objection.
17 You can answer.
18 THE WITNESS: I had no -- that
19 had not -- I had not -- I had not even
20 thought or spent time reviewing that.
21 BY MR. ROBERT P. FITZSIMMONS:
22 Q. Well, you knew you were participating in
23 an event that potentially would cause Rodriguez to
24 breach his contract with West Virginia that was 231
1 obligated up to 2013, didn't you?
2 A. Uh-huh.
3 Q. That didn't bother you that you were
4 participating in helping a person breach a contract, a
5 promise that they had made to a university? That
6 didn't bother you?
7 MR. ROBON: Objection.
8 THE WITNESS: I was fulfilling
9 my obligation to Rich Rodriguez to act as
10 his representative.
11 BY MR. ROBERT P. FITZSIMMONS:
12 Q. You were soliciting or getting the
13 information for anything that would potentially be
14 better for him, that he could move on in his life a
15 little bit better, basically; is that right?
16 A. My job as an agent is to get it back to
17 him, present the opportunity to him. It's his
18 decision whether or not he determines it to better
19 himself.
20 Q. Well, you make the initial decision,
21 because if it's not something realistic or something
22 beneficial, you aren't going to spend much time on it;
23 here you spent a considerable amount of time on
24 Alabama, from what I understand. 232
1 A. I did spend a considerable amount of
2 time.
3 Q. So did you feel that the potential was
4 there, that this could be much better, and as you say,
5 "It's Alabama."
6 A. Well, you have to look at it, get the
7 details together, go back to Rich, and then he makes a
8 decision as his own individual.
9 Q. All right. So the first time anybody
10 from West Virginia was notified, at least to your
11 personal knowledge, about Alabama was you calling
12 Mr. Pastilong, and he had relayed that he may have
13 received a call before?
14 A. Repeat that question.
15 Q. Yeah. The first time you ever notified
16 West Virginia about the Alabama discussions was when
17 you called Mr. Pastilong?
18 A. Say it again now.
19 Q. The first time you ever notified any
20 representative of West Virginia about the Alabama
21 negotiations was when you spoke with Mr. Pastilong?
22 A. Yes, myself, but I was aware, and we --
23 and that no discussions were going to take place with
24 Alabama unless Mal Moore went through and contacted 233
1 Eddie Pastilong. And I knew that had been done.
2 Q. All right. So the term sheet comes in on
3 the 8th, and you fax it to Rodriguez's office; is that
4 right?
5 A. That's correct.
6 Q. All right. What happens on the 8th,
7 then? You meet with Rodriguez?
8 A. I think Rich and I had a -- a telephone
9 conversation, and he was in his office and Rita was in
10 the office.
11 Q. Discussing the term sheet?
12 A. Discussing the term sheet.
13 Q. Anybody else present on that phone
14 conversation?
15 A. I only have knowledge of Rich and Rita.
16 Q. The only people that identified
17 themselves; is that right?
18 A. (Witness nods head.)
19 Q. Yes?
20 A. Yes.
21 Q. And do you know if anyone else was in
22 Rodriguez's office with his wife at that time?
23 A. I can't answer. I wasn't there.
24 Q. All right. What's the decision at that 234
1 time?
2 A. There was no decision.
3 Q. No decision either way at that time?
4 A. No decision either way.
5 Q. Were you planning on meeting, or
6 Rodriguez planning on meeting West Virginia that same
7 day?
8 A. I have no -- I had no -- I was in
9 Tuscaloosa, Alabama. I had no idea what Rich's
10 schedule was or who was contacting him or who he was
11 talking with that day, at that time in the morning.
12 Q. Well, you know a term sheet was signed
13 with West Virginia that same very day?
14 A. Later in the day, yes.
15 Q. So is it your testimony under oath that
16 you as this sports agent had no clue that Rodriguez
17 was going to be talking to West Virginia about a term
18 sheet at that point, that day?
19 A. In the morning?
20 Q. At any time that day before the term
21 sheet was signed?
22 A. Now say that again now.
23 Q. Is it your testimony that you had no clue
24 that Rodriguez was going to meet with West Virginia 235
1 officials about the contract, his contract with West
2 Virginia that day?
3 A. Later in the morning, Rich called me and
4 told me that West Virginia representatives or West
5 Virginia people had contacted him and wanted to meet
6 with him.
7 Q. So as you understood it at that time, it
8 was West Virginia that contacted Rodriguez on December
9 8th, 2006, for the purpose of meeting concerning their
10 contract after the term sheet had already been sent to
11 him for Alabama?
12 A. Uh-huh.
13 Q. Is that right?
14 A. Now when you say "West Virginia," I don't
15 know whether it was with Bob Garrett; I didn't know
16 whether it was Eddie Pastilong; I don't know whether
17 it was Steve Farmer or Steve Goodwin. But it was late
18 in the morning that I had a conversation with Rich,
19 and he said, I've been contacted and they want to
20 talk.
21 Q. Well, you as his agent at that time,
22 weren't you going to be involved in the discussions
23 with West Virginia?
24 A. At that point in time, I was in 236
1 Tuscaloosa, Alabama, Rich was up there in West
2 Virginia, and I was holding the fort down there. And
3 I had no idea until later, early afternoon, that he
4 had had a conversation and a meeting, I believe, with
5 Ed Pastilong, I don't know if Whit Babcock was there
6 or not, but I got impressions afterwards that either
7 Steve Farmer and/or Steve Goodwin were involved in
8 phone conversations with him.
9 Q. So you stayed in Alabama the 7th and 8th,
10 then.
11 A. That's correct.
12 Q. Did you meet with Alabama officials
13 during the day on December 8th?
14 A. I did -- the only -- during the day at
15 various times I had interaction with different
16 officials down there.
17 Q. Did you speak with the press on December
18 8th, 2006, any reporter?
19 A. December the 6th, did you say?
20 Q. December 8th of 2006.
21 A. On Friday? I can't recall. I may have.
22 Q. Who would you have talked to?
23 A. If I have -- I can't remember.
24 Q. Why would you be talking to the press on 237
1 December 8th, 2006?
2 MR. ROBON: Objection.
3 THE WITNESS: I believe maybe I
4 did talk to somebody in the press after
5 Rich made his decision to stay at West
6 Virginia. I can't recall.
7 BY MR. ROBERT P. FITZSIMMONS:
8 Q. So it's your testimony you didn't have
9 any discussion with the press or any reporter prior to
10 Rodriguez deciding to stay at West Virginia?
11 MR. ROBON: Objection.
12 BY MR. ROBERT P. FITZSIMMONS:
13 Q. Is that your testimony?
14 MR. ROBON: Objection.
15 THE WITNESS: I can't recall.
16 That's a long time ago. I can't recall
17 who -- it got very crazy during the 8th
18 and that. I can't recall.
19 BY MR. ROBERT P. FITZSIMMONS:
20 Q. What got crazy?
21 A. Just the media reports and things that
22 got out there.
23 Q. My question was -- I guess your answer
24 is -- under oath your testimony is that you never 238
1 talked to anybody from the press December 8th, 2006,
2 prior to speaking to somebody and telling them
3 Rodriguez was not -- was staying at West Virginia?
4 A. That's my testimony.
5 Q. That's your testimony?
6 A. Yeah.
7 Q. You're sticking to that?
8 A. I'm sticking to that.
9 Q. I thought so.
10 A. Now, you want to know how the leak got
11 out there.
12 Q. Pardon me?
13 A. I know where you're headed. There was a
14 leak out there --
15 Q. Mr. Brown, I doubt you know where I'm
16 headed.
17 A. Okay.
18 Q. I'm pretty sure.
19 A. Okay. No, no, I -- I will -- I want to
20 make this statement, is --
21 Q. You're asking to make just a statement
22 here?
23 A. No. When you talk about the press, is
24 that it had been proven at the -- at the University of 239
1 Alabama, that there was a leak between the president's
2 office and Board of Governors in regards to the
3 contract negotiations, what was going on in Tuscaloosa
4 on that Thursday and Friday.
5 Q. Who all did you meet with on the 8th from
6 Alabama? I'm talking about in person first, and then
7 we'll talk about --
8 MR. ROBON: I'm going to
9 object. I thought that was asked and
10 answered.
11 THE WITNESS: On the 8th? In
12 the morning, I met with their university
13 legal counsel who keeps offices in both
14 Birmingham and Tuscaloosa.
15 BY MR. ROBERT P. FITZSIMMONS:
16 Q. What was the purpose of that meeting,
17 since you had already sent the term sheet to Rodriguez
18 and he was considering it?
19 A. He asked me had I heard from Rich and
20 what's the status.
21 Q. So you went over to meet with him
22 personally?
23 A. I went over to the president's office
24 that morning and faxed from the president's office to 240
1 Rich the term sheet. I remained in the president's
2 office, in the area there through the morning. I
3 can't remember the gentleman's name, but we took a
4 break and went over and had a mid morning brunch.
5 Q. Why were you remaining in the president's
6 office? Were you waiting to hear a response from
7 Rodriguez?
8 A. That's correct.
9 Q. Even though you knew he was going to meet
10 with West Virginia representatives?
11 A. I did not -- I was not aware that he was
12 going to meet with West Virginia representatives until
13 later in the morning, early afternoon.
14 Q. All right. So you were waiting there,
15 just basically waiting for him to have considered the
16 term sheet, and then you found out later he was going
17 to meet with representatives, people -- west Virginia
18 representatives?
19 A. That's correct.
20 Q. All right. Did you suggest that he go
21 back to West Virginia and talk to some of the
22 representatives from West Virginia University at that
23 time?
24 A. I did not. 241
1 Q. Did you recommend to him that he accept
2 the Alabama job?
3 MR. ROBON: Objection.
4 THE WITNESS: Yes, I did.
5 BY MR. ROBERT P. FITZSIMMONS:
6 Q. Did you know at that time that that would
7 breach his contract with West Virginia?
8 MR. ROBON: Objection. Calls
9 for a legal conclusion.
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. In your opinion.
12 A. Yes.
13 Q. Did the LSU job ever get to the point of
14 any financial offers or anything like that?
15 A. No.
16 Q. They weren't interested in Rodriguez?
17 A. They were not interested.
18 Q. After Alabama, up until the time of
19 Arkansas, what schools did you contact or make inquiry
20 to in performing what you call some duty that you have
21 to Mr. Rodriguez?
22 A. Say it again now.
23 Q. What schools did you contact from the
24 Alabama incident up until Arkansas, which occurs in 242
1 the later part of November '07? What schools did you
2 contact, directly or indirectly?
3 A. None.
4 Q. Zero?
5 A. Zero.
6 Q. Did you recommend also that Rodriguez
7 take the offer at Michigan?
8 A. Yes, I did.
9 Q. That would have been done, what, sometime
10 around the 14th of December?
11 A. That would have been on Sunday morning,
12 December the 13th, 14th, 15th -- on Sunday morning,
13 December the 16th.
14 Q. You had a meeting before that, though,
15 didn't you, up in Toledo?
16 A. Yeah, I did.
17 Q. The 14th?
18 A. Yes.
19 Q. Did you recommend against the Michigan
20 job at that time?
21 A. I didn't make any recommendation one way
22 or another at that time.
23 Q. You just weren't sure, even though it was
24 discussions where an offer had been made? 243
1 MR. ROBON: Objection. Asked
2 and answered.
3 THE WITNESS: The way I work
4 with a client, if is an offer is made, we
5 work up a term sheet, I present it to
6 them. We -- we get to a point where if
7 it does work, he has to make a decision.
8 I sit down with him, discuss it, make up
9 the chart, go through with him, sign --
10 BY MR. ROBERT P. FITZSIMMONS:
11 Q. My question has to do with
12 recommendation. Are you saying you did not recommend
13 one way or another on the 14th, even though the offer
14 had been made?
15 A. That's correct.
16 MR. ROBERT P. FITZSIMMONS: Mr.
17 Robon, did you want to eat today or --
18 MR. ROBON: I would love at
19 least 10 minutes.
20 MR. ROBERT P. FITZSIMMONS: 10
21 minutes, okay.
22 MR. WAKEFIELD: I need to check
23 out of my room, too, so if now is a good
24 time -- 244
1 MR. ROBERT P. FITZSIMMONS: Okay.
2 What time is it?
3 MR. WAKEFIELD: It's 1:30. Is
4 this a good time, probably? Do you want
5 to get a sandwich or something,
6 Mr. Brown?
7 THE WITNESS: I'm fine. I've
8 been eating these power bars all day, so
9 if Marv needs a bite, we'll take time
10 and --
11 MR. ROBERT P. FITZSIMMONS: Okay.
12 Do you want to hit it?
13 THE VIDEOGRAPHER: Going off
14 record at 1:31 p.m.
15 (A luncheon recess was taken
16 from 1:31 p.m. to 1:55 p.m.)
17 - - -
18
19
20
21
22
23
24
25 IN THE CIRCUIT COURT OF MONONGALIA COUNTY 26 WEST VIRGINIA 245
1 WEST VIRGINIA UNIVERSITY ) 2 BOARD OF GOVERNORS, for ) and on behalf of ) 3 WEST VIRGINIA UNIVERSITY, ) ) 4 ) Plaintiff, ) 5 ) vs. ) Civil Action No. 07-C-851 6 ) RICHARD RODRIGUEZ, ) Judge Stone 7 ) ) 8 Defendant. ) 9 10 - - - 11 12 DEPOSITION OF MICHAEL L. BROWN 13 VOLUME II (Afternoon Session) 14 15 DATE: May 5, 2008 at 1:55 p.m. 16 PLACE: Marriott Courtyard 17 2435 East Mall Drive Holland, Ohio 18 REPORTER: Casey G. Schreiner, RMR-RDR 19 Notary Public 20 21 - - - 22 246
1 APPEARANCES: 2 On behalf of the Plaintiff: 3 FITZSIMMONS LAW OFFICES: Robert P. Fitzsimmons 4 Robert J. Fitzsimmons 1609 Warwood Avenue 5 Wheeling, West Virginia 26003 (304) 277-2700 6 and 7 FLAHERTY, SENSABAUGH & BONASSO, 8 P.L.L.C.: Jeffrey M. Wakefield 9 Jaclyn A. Bryk 200 Capitol Street 10 Charleston, West Virginia 25338 (304) 345-0200 11 12 On behalf of the Defendant: 13 BARKAN & ROBON LTD.: Marvin A. Robon 14 1701 Woodlands Drive Maumee, Ohio 43537 15 (419) 897-6500 16 and 17 DiTRAPANO, BARRETT & DiPIERO, PLLC: 18 Sean P. McGinley (via telephone) 604 Virginia Street, East 19 Charleston, West Virginia 25301 (304) 342-0133 20 21 ALSO PRESENT: 22 Frank Mannino, Videographer Alexander Macia, Vice President for 23 Legal Affairs and General Counsel, West Virginia University 24 247
1 THE VIDEOGRAPHER: Back on the
2 record at 1:55 p.m.
3 BY MR. FITZSIMMONS:
4 Q. Mr. Brown, the West Virginia University
5 term sheet of December 8th, 2006, you're generally
6 aware of that?
7 A. Yes, I am.
8 Q. After the Alabama term sheet had been
9 faxed to Mr. Rodriguez and before that term sheet was
10 signed by Mr. Rodriguez, the West Virginia one being
11 signed, did you have any discussions with
12 Mr. Rodriguez in that period of time about the West
13 Virginia University term sheet?
14 MR. ROBON: Objection.
15 You can answer.
16 THE WITNESS: Yes, I did.
17 BY MR. FITZSIMMONS:
18 Q. Did you -- did you get a copy of that
19 term sheet?
20 A. I did not.
21 Q. Did Mr. Rodriguez relay the information
22 on it to you by phone?
23 A. Yes, he did.
24 Q. And that's when you were down -- were you 248
1 still in the president's office at Alabama at that
2 time?
3 A. No. At that point in time in the day in
4 the afternoon, I had left the president's office, and
5 gone over to Mal Moore, the athletic director's
6 residence. So I was at Mal Moore's residence at that
7 time.
8 Q. And did Rodriguez call you there or did
9 you call him?
10 A. He called me.
11 Q. Did you discuss the various terms between
12 the two term sheets?
13 A. Yes, we did.
14 Q. Did you compare those?
15 A. Yes, we did.
16 Q. When you said "we," would that be you and
17 Rich by phone?
18 A. By phone, correct.
19 Q. Was anybody else participating, to your
20 knowledge, in that comparison?
21 A. To my knowledge, I have no knowledge of
22 anybody that was standing next to Rich or anybody
23 while he was on the phone with me.
24 Q. Did you compare dollars and cents, 249
1 basically?
2 A. I came to talk.
3 Q. Obviously, that was part of the material
4 terms of the agreement was the salary, compensation,
5 and things like that?
6 A. Yeah. I believe what he brought up with
7 the salary and compensation was going to be at his
8 end, what West Virginia was proposing at that time.
9 Q. Did you advise Rodriguez not to sign the
10 West Virginia term sheet?
11 A. I did.
12 Q. And despite that, he's a grown-up,
13 competent person, he elected to go against your advice
14 and sign the West Virginia University term sheet of
15 December 8, 2006; is that true?
16 A. That's correct.
17 Q. That term sheet included a 4 million
18 dollar liquidated damage clause?
19 A. Yes, it sure did.
20 Q. For both parties?
21 A. That's correct.
22 Q. If Rodriguez was to leave West Virginia
23 without cause, according to the term sheet as you
24 understood it, he would have to pay the University 4 250
1 million dollars, depending -- in either installments
2 or as a lump sum depending on when that occurred?
3 A. That's correct.
4 Q. And you had actually recommended also in
5 prior negotiations with the University that the -- the
6 University of West Virginia, that if there was to be a
7 liquidated damage clause, in your opinion, they should
8 be the same between the University and Rodriguez?
9 A. Say that again.
10 Q. Yes. On occasion in the past had you
11 recommended -- you and Eric Metz recommended that if
12 there was to be liquidated damage clauses in these
13 contracts, they should be the same amount?
14 A. I can't recall.
15 MR. FITZSIMMONS: 1, we'll start
16 with 1.
17 (Brown Exhibit 1 was marked for
18 identification.)
19 BY MR. FITZSIMMONS:
20 Q. What were the reasons that you
21 recommended that the term sheet at West Virginia
22 should not be signed in December of -- 8th of '06?
23 A. I thought that the liquidated damages and
24 penalty was excessive, being 4 million dollars, in 251
1 regards to the compensation amount that Rich was going
2 to be paid. And also, again, there were promises
3 being made to Rich in regards to if he signed the
4 contract, this would be done, that would be done, and
5 again, there was no urgency or anything that would
6 hold West Virginia to those promises.
7 Q. So you had specifically warned and
8 cautioned Rodriguez December 8th of 2006 that, in your
9 opinion, the liquidated damage clause for West
10 Virginia was just too much, in your opinion?
11 A. That's correct.
12 Q. And despite that, on that occasion, your
13 customer went ahead and said, I'm not going to take
14 your advice, I'm going to sign this anyway, and did
15 sign it?
16 A. When we had discussions, he said that
17 in -- that while I was not present he was meeting and
18 having discussions with Steve Goodwin and Eddie
19 Pastilong --
20 Q. Mr. Brown --
21 A. -- and Steve Goodwin --
22 Q. -- the question was did he not take your
23 advice and signed the term sheet?
24 A. He did not -- he did not take my advice; 252
1 he signed the term sheet.
2 MR. ROBON: He's explaining
3 why.
4 MR. FITZSIMMONS: I didn't ask
5 him why. Mr. Robon, if you want to ask
6 questions, you ask your questions later
7 on.
8 BY MR. FITZSIMMONS:
9 Q. All right. Did you guys get into an
10 argument over it?
11 A. I wouldn't say it was an argument, but I
12 spoke very firmly.
13 Q. Terse words, that were used very firmly,
14 that he was crazy or anything?
15 A. No, not -- no, not terse words. And he
16 explained to me what his logic was.
17 Q. He wanted to stay at West Virginia?
18 A. He wanted to stay at West Virginia, and
19 that Steve Goodwin had told him that there were --
20 there were some members --
21 Q. I'm sorry, that --
22 A. -- there were some members putting up the
23 funds to fund --
24 Q. Mr. Brown, I don't believe anybody's 253
1 asked you what anyone else said here.
2 A. Well, you're asking me what Rich told me.
3 Q. No, no, no. That wasn't the question.
4 A. Uh-huh.
5 Q. That's your -- your response?
6 A. Uh-huh.
7 Q. Did he send you a copy, then, of the
8 signed term sheet?
9 A. It was, I believe, a few days later I got
10 a signed copy of the term sheet from him.
11 Q. Did you also keep in your files the
12 original contract for Rodriguez, the original letter
13 agreement in 2000, and the contract in December of
14 2002?
15 A. The other thing I had in my file was the
16 original contract in 2002. I never got a copy of
17 the -- I didn't even know there was a letter contract
18 before the original contract in 2002.
19 Q. So all you had was the December of '02
20 original contract, and then at that time you would
21 have had the amendment, first amendment, that you
22 helped negotiate and helped draft?
23 A. I not only had that, but I had the first
24 amendment term sheets also. 254
1 Q. You had the first amendment term sheets
2 also?
3 A. That's correct.
4 Q. And you then had now a copy of the term
5 sheet, and that was actually in your file, which was
6 signed by Rodriguez?
7 A. That's correct.
8 Q. Okay. Let me show you Exhibit 1. Did
9 LMM, did they give you letterhead and authorize you to
10 use their letterhead at any time?
11 A. Uh-huh.
12 Q. Is this a letter that was authored by
13 you, Exhibit No. 1, which is dated February 15, 2006?
14 A. Uh-huh.
15 Q. Is that a yes?
16 A. Yes.
17 Q. Okay. In the second paragraph, I see
18 that you're talking about a contract, where you're
19 talking about the execution of the subject agreement
20 in 2002, that there has been a substantial, quote, and
21 then you have it italicized, material change in
22 circumstance, unquote, and you say that affects the
23 employment terms, compensation and benefits bargained
24 for? 255
1 A. Uh-huh.
2 Q. What did you mean by that?
3 A. That -- that the conditions and the
4 overall conditions of the Big East, the West Virginia
5 University standing, what was -- how the job was
6 advertised to Rich in 2002, there was a change in
7 material circumstances at that time.
8 Q. Were you alleging that there was not an
9 agreement that was binding because of that?
10 A. I'm not alleging that there wasn't an
11 agreement that was binding.
12 Q. Is that one of the tools of the trade in
13 your business that can void or eliminate a contract if
14 you have, in your opinion, material changes in
15 circumstances in these agreements?
16 A. That's employment law.
17 Q. That's something you know, right?
18 A. I don't know, but I know well enough that
19 I've researched it and that.
20 Q. And you were alleging that clear back in
21 February 15th of 2006; is that right?
22 A. I raised the issue with West Virginia,
23 yes.
24 Q. Did you feel that that would create 256
1 bargaining power to -- even though the contract at
2 that time obligated Rodriguez for another four years
3 on his contract, that you would be able to up the
4 ante, so to speak, compensation?
5 A. No. It had nothing to do with
6 compensation at that point in time. I just had to
7 make sure everything was kept current, and the
8 circumstances in which the contract was signed on
9 needed to be examined and looked at.
10 A big -- a big problem, especially in
11 sports contracts, is not all the terms and conditions
12 are defined up front, and then as a contract goes on,
13 it creates problems between a coach and a university.
14 Q. Well, isn't that what you were trying to
15 allege, that Rodriguez's market value had increased,
16 and, therefore, you would ask pretty regularly to try
17 to increase his salary just about every year?
18 A. No, that's not the case.
19 Q. Wasn't it market value of
20 Richard Rodriguez that you were trying to sell to West
21 Virginia, even though there was a binding contract at
22 that point?
23 A. No. If you notice in the letter, one of
24 the things I brought up is the assistant coaches' 257
1 salary pool.
2 Q. On the third page there, last paragraph,
3 it says, basically, that Coach Rodriguez is concerned
4 on two fronts, first in regard to head coach salary.
5 A. Uh-huh.
6 Q. Do you see that?
7 A. Yes.
8 Q. Whose salary as head coach there, is that
9 your customer, Rodriguez?
10 A. That's correct.
11 Q. And you're saying that wasn't a concern
12 of yours then, that's not what you were trying to do?
13 A. No, that's one -- that is one of the many
14 concerns. It was not the highest one. There were
15 equal and many concerns.
16 Q. You only say there's two fronts, and that
17 was the first. That's how you labeled it in your own
18 letter back in February of '06.
19 A. "First in regards to head coach salary,
20 assistant coach budget, facilities and academic
21 comparisons."
22 Q. Mr. Brown, is that what it says, ""First
23 in regards to head coach salary, assistant coach
24 budget, facilities and academic comparisons"? 258
1 A. That's what it says.
2 Q. First item listed is head coach salary?
3 A. That's correct.
4 Q. And when you talk about change in
5 circumstances, you're just guessing as to certain
6 things about what happens with the leagues and stuff
7 like that, right?
8 A. No, I'm not guessing.
9 Q. Isn't the Big East, didn't it turn out to
10 be a pretty good conference, sir?
11 A. It did.
12 Q. During the contract period that Rodriguez
13 was employed for, right?
14 A. Correct.
15 Q. Through 2010, we have another two years?
16 A. In the BCS, yes.
17 Q. We have one of the better conferences so
18 far as getting people into bowl games?
19 A. At the time this letter was written,
20 there were issues going forward inside the BCS of the
21 Big East's viability.
22 Q. And on page 2, you talk about the Notre
23 Dame team, they're going to pretty much always get an
24 automatic bid, they were one of the worst teams this 259
1 last year, didn't do too well the year before, either,
2 did they?
3 A. That's correct.
4 Q. So a lot of the things you were actually
5 saying turned out to be totally untrue and unfounded,
6 both about the Big East conference, and about, at
7 least, Notre Dame, which is one of the items you say
8 is important in this letter.
9 MR. ROBON: Objection to the
10 characterization of "untrue" as opposed
11 to not happening.
12 BY MR. FITZSIMMONS:
13 Q. Is that true, sir?
14 A. They did not happen.
15 Q. And, in fact, if salaries weren't a major
16 issue, the head coach salaries, what you did is you
17 ran an entire comparison on your program or your
18 computer of all the salaries of the top 25 college
19 football teams at that time ranking-wise, did you not?
20 A. I did.
21 Q. Well, if salary wasn't what you were just
22 trying to up every year at this period of time, why
23 would you give the University at that time, the
24 athletic director, some type of calculation as to what 260
1 other schools are paying, top 25 schools?
2 A. Why would I?
3 Q. Yeah. If you weren't trying to just come
4 in, back in these contracts and trying to jack up the
5 salary every year?
6 A. I wanted to make him aware of what the
7 industry standards were, and as we go forward what
8 would potentially be fair.
9 Q. There wasn't anything to go forward, the
10 contract Was good for four more years, Mr. Brown, at
11 that time. What were you trying to do at that point?
12 Create some bargaining issues?
13 MR. ROBON: Objection. Asked
14 and answered.
15 THE WITNESS: No, I wasn't
16 trying to create bargaining issues.
17 BY MR. FITZSIMMONS:
18 Q. Trying to create some legal issues in the
19 contract, making allegations of reasons not to honor a
20 contract --
21 A. No, I wasn't.
22 Q. -- substantial and material --
23 A. No, I wasn't.
24 Q. -- circumstances? 261
1 A. No, I wasn't.
2 Q. You do understand that that's some theory
3 in law that people can use for certain contracts, that
4 there is change -- a material change of circumstance?
5 A. That's correct. But let me --
6 Q. That's not what you were trying to do, is
7 that your testimony, back on February 15th, 2006?
8 MR. ROBON: He didn't have an
9 opportunity to finish his last answer.
10 THE WITNESS: Actually, this
11 correspondence was follow-on to
12 discussions that Eddie Pastilong had
13 initiated in December of '05 in regards
14 to doing an extension for Rich, which led
15 up to the first amendment.
16 BY MR. FITZSIMMONS:
17 Q. Weren't you trying to plan for some type
18 of exit strategy for your customer, Mr. Rodriguez,
19 clear back in February of 2006, some type of
20 separation from employment?
21 A. No, I was not.
22 Q. Because that would be wrong for any
23 person to try to intentionally interfere with a
24 contract and to set up those types of problems in a 262
1 contract. That's not good, is it?
2 MR. ROBON: Objection. Legal
3 conclusion.
4 BY MR. FITZSIMMONS:
5 Q. Is that correct, Mr. Brown?
6 A. Are you speaking in regards to that
7 document right there?
8 Q. No, sir, just in general.
9 A. What's the question again.
10 Q. That's not something that is good is for
11 people to try to go around and try to create problems
12 in contracts for two individuals, for two -- an entity
13 and an individual that have honored their agreement?
14 A. It's what you -- it all depends on
15 what --
16 Q. Or is that your job, to try to figure out
17 how to get out of these things?
18 A. No, it's not my job.
19 (Brown Exhibit 2 was marked for
20 identification.)
21 BY MR. FITZSIMMONS:
22 Q. Let me show you Exhibit 2, Mr. Brown.
23 Just a second.
24 It's a letter from you dated March 28th, 263
1 2006, on LMM stationery.
2 A. Uh-huh.
3 Q. Yes, is that what this is?
4 A. Yes.
5 Q. Is this a letter that was signed by you?
6 A. That's correct.
7 Q. Copied to your customer, Rodriguez?
8 A. That's correct.
9 Q. All right. And you indicate that you're
10 "the single person specified by Coach Rodriguez to
11 represent his interests regarding contractual issues
12 with the West Virginia University," on February 28th,
13 2006.
14 Did I read that correctly?
15 A. That's correct.
16 MR. WAKEFIELD: March 28th.
17 MR. ROBERT P. FITZSIMMONS: March
18 28th, 2006.
19 BY MR. FITZSIMMONS:
20 Q. Did I read that correctly?
21 A. In regards to -- yeah, in regards to
22 point of contact, the first point of contact, the
23 reason this letter was initiated was because Tom Dorer
24 was confused and had not been notified that -- 264
1 Q. I just asked if I read that --
2 A. -- Ricky Davis did not no longer
3 represent him.
4 Q. Mr. Brown, I did read that correctly?
5 A. Yes.
6 Q. All right. Did you ever revoke that
7 representation?
8 A. Say it again?
9 Q. Did you ever revoke this representation
10 you made to West Virginia that you're the single
11 person specified by Coach Rodriguez to represent his
12 interests regarding contractual issues with West
13 Virginia University?
14 A. No, I did not.
15 Q. Is that a true statement?
16 A. In regards to as far as communications
17 and point of contact, I'm the first one they're
18 supposed to get in contact with.
19 Q. Well, I thought you and Metz were both --
20 there was another person involved and that was Metz,
21 you told me, clear back in '05?
22 A. That's correct. He was -- he is involved
23 and was involved.
24 Q. Is there some reason you didn't disclose 265
1 him as also the representative?
2 A. I didn't want Tom Dorer to be confused
3 and say, Do I call this guy or this guy first.
4 The purpose of the letter was to let Tom
5 know that I was the first point of contact he should
6 have. Maybe I should have worded it different.
7 Q. And in the second-to-last paragraph on
8 Exhibit 2 --
9 A. Uh-huh.
10 Q. -- you also indicate that Rich and Rita
11 had concerns as to whether West Virginia really wants
12 them, this is in 2006, as part of the University?
13 A. That's correct.
14 Q. Well, were you suggesting that they were
15 going to leave at that time because they had hard
16 feelings or bad feelings that the University didn't
17 want the Rodriguezes there?
18 A. No, I never suggested at one time that
19 they wanted to leave.
20 Q. Weren't you trying to suggest subtly at
21 this time and setting up for a -- kind of an amicable
22 separation so Rodriguez could go out and get one of
23 these, what you call premier jobs?
24 A. No. 266
1 Q. You would never say something like that,
2 would you?
3 A. No.
4 MR. ROBERT P. FITZSIMMONS: Okay.
5 3.
6 (Brown Exhibit 3 was marked for
7 identification.)
8 BY MR. FITZSIMMONS:
9 Q. Let me show you an e-mail -- first of
10 all, at the top up there it has an e-mail address, it
11 has a sign, less than -- I don't know what they call
12 that -- less than lb -- is that -- lb --
13 A. found.
14 Q. lbfound75 --
15 A. @aol.com.
16 Q. -- @aol.com, forward marker, whatever
17 that thing is.
18 A. Uh-huh.
19 Q. Do you see that?
20 A. Yes.
21 Q. Is that your e-mail?
22 A. Yes, it is.
23 Q. And did you -- is this an e-mail you sent
24 to Attorney Tom Dorer, who was the counsel for West 267
1 Virginia University at the time?
2 A. Uh-huh.
3 Q. Is that a yes?
4 MR. WAKEFIELD: You have to say
5 yes or no.
6 THE WITNESS: Yes, uh-huh.
7 BY MR. FITZSIMMONS:
8 Q. And it indicates that you had been
9 raising issues, specifically item No. 8.
10 A. Uh-huh.
11 Q. About what you called a lack of fairness
12 on behalf of West Virginia University on negotiating
13 specific terms when taking into account the material
14 changes in circumstances.
15 A. Uh-huh.
16 Q. Is that yes?
17 A. Yes.
18 Q. And that's April 3rd of 2006, right?
19 A. That's correct.
20 Q. And there's four more years left on this
21 contract --
22 A. Uh-huh.
23 Q. -- still at that time, is there not?
24 A. Yes, there is. 268
1 Q. It's only halfway through the actual
2 contract the two parties had agreed to clear back in
3 December of '02, right?
4 A. Yes, it is.
5 Q. And No. 8, you raise that fairness, and
6 use that language that you put in bold-face,
7 italicized characters, "The material changes in
8 circumstances," again, right?
9 A. That's correct.
10 Q. And it sure looks like, aren't you
11 setting up for some type of, at that point, contract
12 separation, to break this contract or to get out of it
13 for your client?
14 A. No.
15 MR. ROBON: Objection.
16 Argumentative.
17 THE WITNESS: No, that's not the
18 case.
19 BY MR. FITZSIMMONS:
20 Q. Well, I thought you were -- wasn't your
21 MO to come up with some amicable separation to save
22 your client some money at that time so you could move
23 him on to higher grounds, in your opinion?
24 A. No. 269
1 Q. You would never say something like that,
2 would you?
3 A. No.
4 Q. Would you read the next paragraph out
5 loud in the record.
6 A. Yeah. "Before you and I can begin" --
7 Q. Slowly.
8 A. Okay. "Before you and I can begin any
9 discussions on behalf of our clients, we need to
10 determine whether we are discussing an amicable
11 separation in the near future or a true commitment and
12 desire by both parties to continue together."
13 Q. Is that language that you chose and
14 selected, the "amicable separation," clear back in
15 April 3, 2006, after using this other language here
16 that we talked about?
17 A. The "amicable separation"?
18 Q. Are those your words?
19 A. Yes, it is.
20 Q. "Amicable separation in the near future."
21 A. That's correct.
22 Q. You were setting up trying to breach this
23 contract back in April 3 of 2006, looking for grounds,
24 weren't you? 270
1 A. No, Rich --
2 MR. ROBON: Objection.
3 THE WITNESS: Rich and --
4 MR. ROBON: Ah, ah, ah -- let me
5 speak, please.
6 THE WITNESS: Sure.
7 MR. ROBON: I'm not -- I'm just
8 not a wallflower here.
9 Objection. Argumentative.
10 THE WITNESS: Do you want me to
11 answer it?
12 MR. ROBON: You can answer it.
13 THE WITNESS: No. Rich and Rita
14 Rodriguez were quite upset emotionally,
15 and they had true questions whether or
16 not President Hardesty and the people at
17 West Virginia really wanted them there.
18 BY MR. FITZSIMMONS:
19 Q. Would you read the last paragraph into
20 the record?
21 A. The very last one?
22 Q. Yes.
23 A. On the last page?
24 Q. Yes, there's only two pages, sir. 271
1 A. Okay.
2 Q. It's right before your name.
3 A. "Again, I request a meeting as soon as
4 possible in this matter between Mr. Hardesty, you and
5 the Rodriguezes to see if it's best to be working
6 toward an amicable separation or a commitment fair to
7 both parties and within industry standards that exist
8 today and not three years ago. Dates available are,"
9 such and such, such and such, such and such.
10 Q. So you certainly, on at least two
11 occasions in that e-mail clear back to April 3, 2006,
12 at least threatened the school that there was going to
13 be some type of separation between Rodriguez and the
14 university, despite a contract existing for at least
15 four more years at that point?
16 A. I did not --
17 MR. ROBON: Objection.
18 THE WITNESS: Okay.
19 MR. ROBON: To the use of the
20 word threatening.
21 THE WITNESS: I did not
22 threaten. I brought up the issue again
23 that Rich and Rita wanted to meet with
24 President Hardesty and Tom Dorer; they 272
1 had issues that they wanted to address;
2 they were very emotionally upset about
3 some of the things that were going on.
4 (Brown Exhibit 4 was marked for
5 identification.)
6 BY MR. FITZSIMMONS:
7 Q. Let me show you Exhibit 4, Mr. Brown.
8 A. Uh-huh.
9 Q. Is this an e-mail that you forwarded to
10 Attorney Tom Dorer representing the University on
11 April 3rd, also the same day? Do you see your e-mail
12 address at the top where it says "from"?
13 A. Uh-huh.
14 Q. Does that look like something you would
15 have sent?
16 A. Yes, it is.
17 Q. It's an article about Rodriguez?
18 A. That's correct.
19 Q. And you're saying that it wasn't all
20 about salary and trying to jack up Rodriguez's salary
21 every year.
22 Would you read that second paragraph on
23 the front of your note from Sporting News?
24 A. I don't have a second page with a note. 273
1 Hold on a second.
2 Q. It's the first page, sir, right on the
3 first page after it says, "You have received this from
4 Mike Brown."
5 A. Uh-huh.
6 Q. And then what's typed in there?
7 A. (Reading:) According to this, Rich, his
8 staff and the WVU program was worth a lot more than
9 what the WVU administration and representative feel.
10 Q. Why were you saying that? They had a
11 contract for four more years at that point where
12 salaries had been specified, increases every year had
13 been specified; weren't you trying to set it up, sir,
14 just alleging that Rodriguez somehow had had a couple
15 good seasons and you wanted more money on salary?
16 A. No. This was in the middle of
17 negotiations with West Virginia.
18 Q. There's four more years on the contract;
19 west Virginia didn't have to sit down with Rodriguez
20 at all and even talk to him about the contract.
21 A. Ed Pastilong met with me and requested a
22 meeting at the Sugar Bowl in 2005, and we started
23 discussing an extension in the first amendment there.
24 This was still in the process there, and we were 274
1 having conversations going back and forth that led up
2 to the June 1st amendment.
3 Q. West Virginia had a binding contract at
4 that time clear to 2010, didn't they?
5 A. They did.
6 Q. And you were sending things about the
7 value of your customer, Rodriguez, on a regular basis,
8 right?
9 A. Yeah. Because we were in the middle of
10 negotiations leading up to the first amendment. They
11 had started in December of '05.
12 Q. And you were making allegations of
13 changed circumstances, which potentially could affect
14 the validity of the contract; on a regular basis you
15 were doing that, weren't you?
16 A. No. It had to be looked into, as we were
17 addressing the first amendment.
18 Q. The prior e-mail that we've talked about,
19 Exhibit 3 --
20 A. Uh-huh.
21 Q. -- looks like a lot of the items that you
22 wanted to address were kind of just like hard
23 feelings, that the Rodriguezes maybe felt that
24 somebody had said something and they were maybe 275
1 offended by statements that had been made by some
2 people associated with the -- with the university; is
3 that --
4 A. Oh, what letter are you looking at there?
5 Q. It's Exhibit 3 that you just looked at
6 right before.
7 A. Oh, Exhibit 3.
8 MR. ROBON: Why don't you hold
9 on a second.
10 BY MR. FITZSIMMONS:
11 Q. For example -- Brown 3.
12 A. Okay.
13 Q. -- unprofessional comments made by
14 Hardesty and the fact that the athletic director
15 didn't go down and shake hands after a win or
16 something, one time after a game?
17 A. No, it didn't have to do with that.
18 Q. It didn't?
19 A. No.
20 Q. No. 5 there says -- it says that
21 you're -- "Lack of visual support by the University
22 President and Athletic Director of a Top Twenty BCS
23 program."
24 A. Uh-huh. 276
1 Q. "Most top programs I am associated with
2 and visit, their President and AD meet the team as
3 they are leaving the field for every home and away
4 game."
5 Is that something -- I mean, does our
6 football coach, Rodriguez, does he have to have people
7 wave good-bye and hello to him, is that something
8 important for some type of agreement that exists for
9 four more years?
10 A. What's important with Rich is that he has
11 the full support of the athletic director and the
12 president, and they want to have an active involvement
13 in the program, want to see it do well and be
14 involved. He likes to have a team and have everybody
15 included in the whole athletic department and
16 administration. He likes to see them involved in the
17 program.
18 Q. By the way, most top programs that you
19 were associated with, what football program were you
20 associated with? I thought you were a customer rep.
21 A. Say it again now.
22 Q. It says, "Most top programs I'm
23 associated with."
24 A. Uh-huh. 277
1 Q. Who were you talking about?
2 A. I have contacts and friends at various
3 universities that I go and visit, talk with. I'm
4 their guest, and things like that.
5 Q. Well, who are you associated with? I
6 mean, did you have any formal programs that somehow
7 they had hired you for some job or something --
8 A. No.
9 Q. -- that you knew about?
10 A. Huh-uh.
11 Q. No?
12 A. No.
13 Q. Can you identify what those top programs
14 are that you were associated with, that you were -- or
15 were you just kind of maybe just shooting the bull a
16 little bit?
17 A. No, I'm --
18 MR. ROBON: Objection.
19 THE WITNESS: Objection. I
20 represent coaches at other schools that I
21 often would go watch their games, see, as
22 the team leaves and that, the involvement
23 of the president and the athletic
24 director in their programs. 278
1 BY MR. FITZSIMMONS:
2 Q. How many of these top programs do you go
3 to? Do you go to USC or something and go watch to see
4 the president wave good-bye on the bus or plane to the
5 teammates, team players --
6 A. No.
7 Q. -- and stuff?
8 A. No.
9 Q. Notre Dame, have you been to Notre Dame,
10 have you been to Notre Dame and watched their
11 president and athletic director every time wave to the
12 players when they leave and come back?
13 MR. ROBON: Objection.
14 Argumentative.
15 THE WITNESS: No.
16 BY MR. FITZSIMMONS:
17 Q. I just want you to identify these --
18 A. What schools --
19 Q. -- top programs that you allege you are
20 associated with?
21 A. I've been to see games at Virginia Tech;
22 I've been to Clemson; I've been to Alabama; I've --
23 Q. I'm not asking what games. I've been to
24 a lot of games, too. I'm asking you what programs 279
1 you're associated with where the president and
2 athletic director always goes out and welcomes and
3 says good-bye to the players?
4 A. I was naming programs. I had
5 associations with coaches that are involved in those
6 programs and I've been able to go down there and
7 witness those things.
8 Q. Okay. So you're saying that Virginia
9 Tech, is that one of the schools you picked out?
10 A. Uh-huh.
11 Q. What other schools?
12 A. Florida.
13 Q. The University of Florida?
14 A. That's correct.
15 Q. Okay. The University of Florida.
16 A. Alabama.
17 Q. And Alabama?
18 A. Yeah. Clemson.
19 Q. And Clemson. You go and you watch the
20 presidents and the athletic directors always wave
21 good-bye to their players when they --
22 A. I've been there and witnessed it, been
23 very impressed by it.
24 Q. Is that something that Rich Rodriguez, 280
1 did he just feel that he needed that type of
2 involvement from the University, that people had to
3 come and say hello and good-bye when they were leaving
4 for a game or whatever?
5 MR. ROBON: Objection.
6 Argumentative.
7 BY MR. FITZSIMMONS:
8 Q. Was that something important enough that
9 you put it in a letter in April of '06?
10 A. It was important enough that he wanted
11 the athletic director and the president to be a part
12 of the program.
13 (Brown Exhibit 7 was marked for
14 identification.)
15 BY MR. FITZSIMMONS:
16 Q. Let me show you Exhibit 7. This is May
17 22nd of 2006.
18 A. Uh-huh.
19 Q. Sports Management, LLM -- LMM, sorry. Is
20 this a letter that you would have authored back then?
21 A. May 25th, 2006, yes.
22 Q. And I notice next to your name when you
23 sign these, there's no initials. Sometimes my
24 secretary puts her initials next to that. 281
1 Do you type your own letters --
2 A. I do.
3 Q. -- in your office?
4 A. Uh-huh.
5 Q. You don't have a secretary?
6 A. No.
7 Q. In the -- in this letter you talk about
8 liquidated damages. Do you see that?
9 A. Yes.
10 Q. All right. And you acknowledge that your
11 customer Rodriguez did request the 2 million dollars
12 in the liquidated damage clause.
13 That's about midway through the third
14 paragraph. It says, "Coach Rodriguez did request the
15 2M," I assume million, "Liquidated Damages clause in
16 the event he was terminated."
17 Do you see that?
18 A. Uh-huh.
19 Q. Is that yes?
20 A. Yes.
21 Q. Did I read that correctly?
22 A. Yes.
23 Q. And then you're, clear back in May of
24 '06, talking about liquidated damages, and you 282
1 indicate in the fourth -- I think it's the fourth
2 paragraph, it says, "We concurred, again since neither
3 of us was involved in the 2002 negotiation, the basis
4 behind the current terms is the amount should be the
5 same for both sides, i.e., in case the University
6 terminated Coach Rodriguez without cause or
7 Coach Rodriguez did not fulfill his contract."
8 Did I read that correctly?
9 A. Where are you at again?
10 Q. I'm in the fourth paragraph of what you
11 wrote there, about it should be the same for both
12 sides.
13 A. Uh-huh.
14 Q. Is that right?
15 A. Okay. Yeah -- okay. Hold on a second.
16 So what's your question again?
17 Q. You concurred, at least according to
18 that -- my question was, Did I read that correctly.
19 It says, "we concurred," meaning you,
20 "again since neither of us was involved in the 2002
21 negotiation, the basis behind the current terms is the
22 amount should be the same for both sides, i.e., in
23 case the University terminated Coach Rodriguez without
24 cause or Coach Rodriguez did not fulfill his 283
1 contract."
2 Did I read that correctly?
3 A. That's correct.
4 Q. All right.
5 A. That was -- eric Metz and I had a meeting
6 with Tom Dorer in his office sometime before that
7 date, and that was one of the outcomes of the meeting
8 that we both agreed to.
9 Q. And back at that time, Rodriguez was
10 making less than a million dollars, and you felt that
11 the 2 million in liquidated damages was at least fair
12 at that time, back then?
13 A. Say it again now.
14 Q. Yes. I think Coach Rodriguez was making
15 less than a million at that time, and you felt at that
16 time, at least, the 2 million in the first amendment
17 was fair, so far as liquidated damages?
18 A. I thought -- no, I never did say that the
19 2 million was fair. You stated what is fair -- what
20 is fair when Eric asked that amount on both sides be
21 the same.
22 Q. A month later, you agreed to the first
23 amendment of 2 million dollars in liquidated damages,
24 did you not? 284
1 A. Rich Rodriguez did.
2 Q. And so did you. You approved that first
3 amendment?
4 A. I gave him counsel and advice on that.
5 Q. Did you tell him not to sign the first
6 amendment?
7 A. No, I did not.
8 Q. Okay. So you approved of the first
9 amendment, at least, up to that point?
10 MR. ROBON: Objection.
11 Argumentative.
12 THE WITNESS: He's the one to
13 approve it.
14 BY MR. FITZSIMMONS:
15 Q. He has the final decision, doesn't he?
16 A. That's correct, yeah, he does.
17 Q. But you didn't object to the 2 million as
18 unfair?
19 MR. ROBON: Objection.
20 THE WITNESS: I can't recall.
21 BY MR. FITZSIMMONS:
22 Q. You can't recall. In that Exhibit No. 7,
23 you also talked about websites, and you wanted to have
24 a website so that additional money could be generated 285
1 towards the football program.
2 A. That's correct.
3 Q. You actually talked about the Virginia
4 Tech program and Frank Beamer?
5 A. That's correct.
6 Q. And you understand that there were
7 problems that ultimately arose as a result of that
8 particular website function down at Virginia Tech.
9 Were you aware of that?
10 A. I'm not aware of any.
11 Q. And the additional revenue, what would
12 that be? Would you get a commission on that?
13 A. No, I would not. I spoke with Coach
14 Beamer about his website, and he never indicated to me
15 about any problems with it down there. And also the
16 person who runs it for them.
17 Q. Was there some -- is there a problem that
18 potentially that gamblers or people that are sports
19 bettors and stuff like that can get on websites and
20 get information?
21 A. I don't know of any problem. I know
22 Coach Beamer's website still exists today. He has, I
23 think, thousands of subscribers to it, and Virginia
24 Tech still lets him run it. 286
1 Q. I mean, you would agree with me things
2 like access or information that people would have in
3 Division I college sports, if the information is used
4 for betting purposes or gambling purposes, that's a
5 very bad, terrible thing, isn't it?
6 A. It is. But there's lots of universities
7 that allow their head coaches to have websites.
8 Q. I understand. But, I mean, certainly in
9 that business, whether it be coaches or even agents,
10 even though you don't have anybody overseeing and
11 directing your ethics, that would be a terrible,
12 terrible thing for people to be betting or obtaining
13 information as to Division I programs through any
14 source, whether it be a website or somebody just
15 calling and giving inside information; that's bad
16 stuff, isn't it?
17 A. It is.
18 MR. ROBON: Objection.
19 THE WITNESS: The NCAA guards
20 against that regularly. The NCAA hasn't
21 banned coaches from having their
22 websites.
23 BY MR. FITZSIMMONS:
24 Q. I didn't ask you that, did I? I just 287
1 asked about gambling, betting on sports, in particular
2 football, how bad and terrible a problem it would be
3 if there was inside information or people --
4 A. That's correct.
5 Q. -- betting on games in your profession,
6 in your business and coaching business; is that right?
7 A. That's correct.
8 Q. Because you're an agent of the coach, so
9 you have inside information, right?
10 A. Uh-huh.
11 Q. Yes?
12 A. Yes.
13 Q. All right. I know it's a little bit out
14 of order, Mr. Brown, but I just wanted to go back so I
15 don't forget.
16 When you had the discussions with
17 Rodriguez on the term sheet of 12-8-06, what did --
18 who did Rodriguez tell you he had spoken to, if
19 anybody, before he signed that term sheet?
20 A. He had told me he had spoken with
21 Ed Pastilong, Steve Goodwin, and Steve Farmer. He had
22 spoken to Rita. Those are the four that I have
23 knowledge of.
24 Q. What did he -- did he tell you as to 288
1 individuals what they said, or did he just tell you
2 generally?
3 A. He told me -- I specifically remember two
4 comments he made that individuals said to him.
5 Q. Okay. Tell me which individual. What
6 did he say as to each individual?
7 A. He told me that Steve Farmer --
8 Q. As best as you can recall, specific
9 language.
10 A. Best -- he told me that Steve Farmer --
11 let's go back.
12 Coach said he objected to the 4 million
13 dollar buyout. Steve Farmer told him that he and
14 other Board of Governors members were told by donors
15 putting up the money for the salary raise, the
16 renovations and that, that the 4 million dollar --
17 that the buyout had to be in there.
18 Q. "There" is for the term sheet?
19 A. For the term sheet.
20 Q. Okay. So Farmer basically said the
21 buyout, because of other people, has to be in the term
22 sheet?
23 A. And it has to be 4 million -- that they
24 recommended the 4 million dollars. 289
1 Q. Okay.
2 MR. ROBON: "They," the donors
3 or --
4 THE WITNESS: The donors, the
5 donors. That's one comment.
6 BY MR. FITZSIMMONS:
7 Q. All right. What's the other one?
8 A. The other comment was that Steve Farmer
9 kept telling him over and over that things will be
10 okay, that, you know, the improvements --
11 Q. There is Farmer again, that's who you
12 said --
13 A. Farmer -- Farmer -- yeah, Rich told me
14 that Farmer told him that things were going to be
15 okay, that the athletic department, things will change
16 after a new president is put in, and that
17 Mike Garrison is going to be the new president. And
18 that was on December 8, 2006.
19 Q. Okay. Was there any specifics made as to
20 who these alleged donors were that you say Rodriguez
21 told you about?
22 A. I remember he -- I do remember at some
23 point in time he did mention Ken Kendrick and
24 Bob Reynolds. 290
1 Q. Did he mention specifics as to how much
2 or --
3 A. No, he did not.
4 Q. Did he allege that if the donors somehow
5 didn't come through and pay their contributions that
6 somehow the -- the University would come back and try
7 to change his salary, the increase that they gave him,
8 according to the term sheet?
9 A. Say it again?
10 Q. Yeah. Did he say that if donors somehow
11 die or don't give money to the University, that
12 somehow his salary is going to decrease, and he's
13 going to lose his salary or anything like that?
14 A. No, he never said that.
15 Q. All right. Okay. And did you say
16 another person, also you cited information as to
17 another person saying something in this conversation.
18 You identified Steve Farmer.
19 A. Yeah. He only made two comments to me,
20 one -- in both of them, he referenced Steve Farmer.
21 Q. Okay.
22 A. As being the one who made those two
23 different statements.
24 Q. Nothing was said specifically as to 291
1 Pastilong, Goodwin, or his wife Rita?
2 A. No.
3 Q. Did you ask how Rita felt about it?
4 A. No, I did not.
5 Q. Now, you told me earlier that at some
6 point, I think your date was December 16th, you
7 felt -- strike that.
8 The ownership of the website, who was to
9 own the website that you had referenced in a previous
10 e-mail, the website?
11 A. I can't recall whether it would have
12 been -- whether it would have been -- I can't recall
13 exactly who would have the ownership of it.
14 Q. You've talked about what you call your
15 due diligence and that. I assume through your due
16 diligence you would have run liquidated damage clauses
17 through Mr. Metz or other members of LMM if you didn't
18 feel totally 100 percent comfortable with the amount?
19 MR. ROBON: Objection.
20 You can answer.
21 THE WITNESS: Repeat the
22 question.
23 BY MR. FITZSIMMONS:
24 Q. Yeah. Did you talk about the liquidated 292
1 damage with your fee-sharing person, Mr. Metz?
2 A. Yeah. We've -- we've had discussions on
3 it, as you can tell on the previous letter on the
4 meeting that we had with Tom Dorer.
5 Q. So Mr. Metz participated in prediscussion
6 about the liquidated damages as you went along from
7 '05, the summer of '05, all the way until the last
8 amendment, and that would have been August 24th of
9 '07.
10 A. At certain points in time, I may have
11 contacted Eric, and we had discussions about it, but
12 it wasn't on a constant basis.
13 Q. By the way, did you ever calculate the
14 damages that would occur to Rich Rodriguez if the
15 University got rid of him?
16 A. No, I did not.
17 Q. Did you ever attempt to do that?
18 A. No, I did not.
19 Q. Do you know if anybody did?
20 A. No, I do not.
21 Q. You understand liquidated damages are a
22 prediction, a prognostication, what are reasonable as
23 to what damages a certain person or entity would have
24 in the event a contract is terminated? 293
1 A. Yes.
2 Q. Did you ever calculate the University's
3 damages when you were advising him as to the
4 liquidated damage provisions in the first amendment
5 and second amendment?
6 A. Repeat the question.
7 Q. Did you ever calculate or attempt to
8 calculate the University's damages for either the
9 first amendment or the second amendment?
10 A. No.
11 Q. So as you sit here today, is it fair to
12 say that you basically don't have any specific clue as
13 to what damages either party would have in the event
14 of a termination of contract as it relates to
15 liquidated damages?
16 MR. ROBON: Objection.
17 You can answer that.
18 THE WITNESS: Say it again
19 now.
20 BY MR. FITZSIMMONS:
21 Q. Yes. Back when these agreements were
22 entered into, the first amendment and the second
23 amendment, did you have any clue as to what damages
24 would be occasioned by either party in the event of a 294
1 termination at that time, or is that something that
2 you just didn't consider?
3 MR. ROBON: At the time, you
4 mean?
5 MR. FITZSIMMONS: I said "at the
6 time." I used that specific language.
7 THE WITNESS: Yeah. At the time
8 I didn't sit down and make a bunch of
9 assumptions and put a bunch of numbers in
10 and calculate a number, no, I did not.
11 BY MR. FITZSIMMONS:
12 Q. You didn't do that. As meticulous as you
13 are, you didn't do that, is that right?
14 A. Uh-huh.
15 Q. That's a yes, you did not?
16 A. Yes, I did not do that.
17 Q. You didn't do it in writing. Did you
18 talk to somebody and break down the damages as to
19 substantial damages that could occur?
20 A. I have -- I reviewed my data; I had
21 discussions with other people in the industry. It's
22 not a common practice for either athletic directors or
23 agents to sit down and, prior to doing contracts, go
24 opinion by opinion, assumption by assumption, what 295
1 liquidated damages are.
2 What I did do was constantly do a review
3 of standard language in all BCS Division I coaches'
4 contracts, from the data that I could get hold of, and
5 reviewed all kinds of contract terms and conditions.
6 Q. Did you believe that West Virginia's
7 program, the level that it rose to in '06 and '07 --
8 which we can agree rose to a very high level, did it
9 not?
10 A. It did.
11 Q. And in your opinion, that principally,
12 almost exclusively, was as a result of your customer,
13 Rich Rodriguez?
14 A. It was the result of a great team effort
15 by a lot of people.
16 Q. Was it -- was it principally headed by
17 Rodriguez?
18 MR. ROBON: Objection. Asked
19 and answered.
20 You can answer again.
21 THE WITNESS: He was the head
22 football coach.
23 BY MR. FITZSIMMONS:
24 Q. So is that a yes? 296
1 A. It's like in football. The quarterback
2 gets too much credit when they win and takes too much
3 blame when they lose. It's a team effort.
4 Q. So you think -- you think Rodriguez got
5 too much credit for the level it was; is that what
6 you're saying?
7 A. It all depends on what your level of
8 credit is. I mean, he headed up a football program
9 that was successful.
10 Q. Did you feel that he had risen through
11 that program to a high market value as a coach?
12 A. I though he did a great job of
13 representing West Virginia and coaching those young
14 men and getting the most out of them that he could.
15 Q. Did you approve of the Michigan
16 liquidated damage clause of 4 million dollars?
17 A. Did I approve of it?
18 Q. Yeah. The same clause, same amount that
19 West Virginia had?
20 MR. ROBON: Same objection.
21 You can answer.
22 THE WITNESS: Rich Rodriguez
23 instructed me to --
24 BY MR. FITZSIMMONS: 297
1 Q. My question was did you approve it or
2 not.
3 A. I approved.
4 Q. Did you allege to Michigan that the
5 liquidated damage or buyout clause, whatever they call
6 it, in the term sheet was a penalty?
7 A. Say it again.
8 Q. Did you ever tell Michigan when you
9 were -- I take it you did talk with Michigan and
10 Mr. Martin?
11 A. I did.
12 Q. Did you ever tell them that you felt the
13 4 million dollar -- they call it a buyout clause in
14 their term agreement, or liquidated damage clause, did
15 you ever tell them that you felt it was a penalty?
16 A. No. I cannot recall.
17 Q. You can't recall from a couple -- couple
18 months ago --
19 A. Uh-huh.
20 Q. -- but you can recall --
21 MR. ROBON: It's more than a
22 couple months ago. It's five months
23 ago.
24 BY MR. FITZSIMMONS: 298
1 Q. Okay. A few months, five months,
2 whatever it is --
3 A. Uh-huh.
4 Q. -- back in --
5 A. I can't recall.
6 Q. January -- when was it signed? December
7 of --
8 A. It was signed on --
9 Q. December of '07?
10 A. It was signed on December 16th of '07.
11 His letter --
12 Q. Okay. You don't recall telling -- you
13 have no specific recollection of telling Mr. Martin,
14 Mr. Martin, this is a penalty for my client, my
15 customer?
16 A. I can't recall.
17 Q. You don't recall ever having used those
18 words to Michigan in those negotiations; is that true?
19 A. I can't remember.
20 Q. I said, You can't recall --
21 A. I can't recall.
22 Q. -- having ever said that to Michigan; is
23 that a true statement?
24 A. That's a true statement. 299
1 Q. All right.
2 MR. ROBON: Keep feeding him
3 those questions, we're going to be here
4 until midnight.
5 (Brown Exhibit 8 was marked for
6 identification.)
7 BY MR. FITZSIMMONS:
8 Q. The exhibit you have -- let me show you
9 Exhibit 8.
10 MR. ROBON: We don't have 8.
11 MR. WAKEFIELD: We haven't used
12 it yet.
13 MR. FITZSIMMONS: Oh, that's
14 right.
15 MR. WAKEFIELD: You can use
16 mine. 8, number 8.
17 MR. ROBERT P. FITZSIMMONS: I'll
18 grab it.
19 BY MR. FITZSIMMONS:
20 Q. This is a letter of June, 2006. Do you
21 see that?
22 A. Uh-huh.
23 Q. Is that a yes, sir?
24 A. Yeah, I see the letter from Tom Dorer. 300
1 Q. June 6, 2006.
2 A. Uh-huh.
3 Q. Do you have any reason to allege that you
4 didn't receive this letter from Mr. Dorer to you?
5 A. No, I do not have any reason.
6 Q. That is your address there; is it not?
7 A. That is correct.
8 Q. And on the bottom of the first page,
9 Mr. Dorer specifically advised you in June of '06 they
10 were aware of these Virginia Tech arrangements you
11 talked about, the website, and they had been informed
12 by the Virginia Tech officials that the model, talking
13 about the website, has created hardships for the
14 institution.
15 Do you see that?
16 A. I see it.
17 Q. Did you investigate that to determine
18 whether that statement was correct, whether the
19 officials of Virginia Tech indicated they had had
20 hardships as a result of the website program that was
21 up and running?
22 A. Yeah. You know what I did? I called
23 Frank Beamer, the head coach at --
24 Q. Did you investigate, is that yes? 301
1 A. Yes, I did.
2 Q. Are you aware of Texas Tech's problems --
3 MR. WAKEFIELD: Texas A & M.
4 BY MR. FITZSIMMONS:
5 Q. Texas A & M.
6 A. Yes, I am aware of the Texas A & M's.
7 Q. Oh, so you are aware of other schools
8 having problems with the website so far as their
9 football programs were concerned; is that right?
10 A. There was one -- there was one program
11 that had an issue with.
12 Q. You're aware of Texas A & M having
13 problems with it?
14 A. I am aware.
15 Q. Mr. Dorer's statement as to the Virginia
16 Tech officials advising him that they had had
17 hardships as a result of that also --
18 A. Uh-huh.
19 Q. -- did you ever specifically investigate
20 and ask for names of officials so that you could
21 verify or not verify that information?
22 A. I did not ask Tom Dorer, but I got on the
23 phone and called Frank Beamer, the head coach at
24 Virginia Tech, directly and asked him about it. 302
1 Q. Okay. Did you ever talk to the officials
2 at the University as to whether it was causing a
3 hardship for the university as opposed to these
4 coaches that were --
5 A. The only official I knew down at Virginia
6 Tech was Frank Beamer. That's who he called.
7 Q. So you didn't call any officials from the
8 school then; is that true?
9 A. No, I did not -- yes, I did. I called
10 Frank Beamer. He's an official at the school.
11 Q. One of the administrative officials,
12 Mr. Brown.
13 A. No, none of the administrative officials.
14 MR. FITZSIMMONS: Now, I'm going
15 to show you Exhibit 11. Before I show
16 you that, our videographer has advised us
17 we have two minutes, so we'll accommodate
18 him at this time, okay.
19 THE VIDEOGRAPHER: Going off the
20 record at 2:53.
21 (A brief recess was had)
22 THE VIDEOGRAPHER: Back on the
23 record at 3:03 p.m.
24 (Brown Exhibit 11 was marked 303
1 for identification.)
2 BY MR. FITZSIMMONS:
3 Q. Let me show you Exhibit 11, Mr. Brown.
4 A. Uh-huh.
5 Q. Do you see that?
6 A. Uh-huh.
7 Q. Is that a yes?
8 A. Yes, I do.
9 MR. ROBERT P. FITZSIMMONS: Could
10 you answer "yes" so I don't have to
11 remind you?
12 THE WITNESS: Yes.
13 MR. ROBON: Yeah. The court
14 reporter can't put the shakes of the head
15 or "uh-huh" or "huh-uh."
16 MR. ROBERT P. FITZSIMMONS: Well,
17 she can --
18 MR. ROBON: It's confusing.
19 MR. ROBERT P. FITZSIMMONS: --
20 but it's subject to interpretation at
21 times.
22 BY MR. FITZSIMMONS:
23 Q. Second-to-last paragraph, this is a
24 letter from West Virginia's counsel on August 15, 304
1 2006, which is nine days before the second amendment
2 was signed by Mr. Rodriguez; is that correct?
3 A. That's correct.
4 Q. All right. This is after you had milled
5 through the agreements looking at the provisions,
6 adding provisions, subtracting provisions and advising
7 your customer; is that right?
8 A. Yeah. And after all of the
9 correspondence --
10 Q. Is that correct?
11 A. After all the correspondence back and
12 forth that you previously referred to, yes.
13 Q. All right. In the second-to-last
14 paragraph, you were specifically advised again as to
15 the meaning of provision Article X, Roman numeral X,
16 that if there is going to be any agreement between
17 these parties, it has to be in writing.
18 A. What paragraph again?
19 Q. Second to the last. Is that correct?
20 A. That's correct.
21 Q. So not only did you read it numerous
22 times in doing the first amendment and preparing for
23 this second amendment, which was nine days later,
24 Mr. Dorer specifically advised you by letter also that 305
1 any agreement has to be in writing and signed by the
2 parties; is that true?
3 MR. ROBON: Objection. You can
4 answer.
5 BY MR. FITZSIMMONS:
6 Q. After the first amendment, I'm sorry.
7 A. Yeah, after the first amendment, yes.
8 Q. You were advised again in writing that
9 after having executed the first amendment just shortly
10 before this, a couple of months before this particular
11 letter, that anything in writing, anything that was
12 going to be agreed upon by the parties had to be in
13 writing and signed by the parties; is that correct?
14 A. He sent that letter with that statement
15 in it, yes.
16 Q. Well, did you write back at any point and
17 tell him, You're wrong, you could have all kinds of
18 side agreements, these things don't really mean what
19 they say, did you ever write back and tell him that?
20 A. No, I did not.
21 Q. Did you ever write to anybody in the
22 world and tell them?
23 A. No, I did not.
24 Q. All right. Okay. Did you present that 306
1 to your -- Mr. Metz, also, that letter?
2 A. No, I did not.
3 Q. How about to Mr. Rodriguez?
4 A. No, I did not.
5 Q. Just kept it to yourself about everything
6 had to be in writing and signed by the parties?
7 A. No. In regards to Coach Rodriguez, I
8 can't recall. I usually did keep him informed of
9 every letter that I received from the University, and
10 then also he looked at every letter prior until I sent
11 it in to the University.
12 I had a long-standing policy on that.
13 Prior to sending any letter, he would look at it,
14 review it, and approve it before I would send it in.
15 Q. Now, do you know what time,
16 approximately, the day Rodriguez had signed the term
17 agreement with West Virginia in December of '06?
18 A. Do I know approximately what time?
19 Q. Yes, sir.
20 A. I do not know approximately what time he
21 signed it.
22 Q. All right. But you said the first thing
23 you did early in the morning was fax the term sheet,
24 the offer from Alabama, to Rodriguez on December 8th 307
1 of '06?
2 A. On Friday, December 8th, yes.
3 Q. And that was early in the morning.
4 A. That's correct.
5 Q. You said you got up and you did that
6 first thing and he was in the office by himself, you
7 think?
8 A. Yes.
9 Q. You understood he received it, because
10 you guys talked about it then?
11 A. Yes.
12 Q. The term agreement that West Virginia had
13 in December, did you consider that an agreement that
14 was to be signed by the parties, at least at that
15 point?
16 MR. ROBON: Objection. Calls
17 for a legal conclusion.
18 THE WITNESS: Say it again.
19 BY MR. FITZSIMMONS:
20 Q. The term sheet that was signed, is that
21 an agreement with the parties when they sign it, as
22 you understand, as an agent?
23 A. It's an agreement where I believe it's
24 stated in there that both parties will work together 308
1 and move forward to turn it into a contract.
2 Q. It's kind of a predecessor agreement to a
3 full written contract; is that how it's done in your
4 business?
5 A. Yeah. But more -- it's -- some people do
6 it that way; some people just go straight to a
7 contract.
8 Q. All right. But it's a term -- it's an
9 agreement?
10 A. It's an agreement.
11 MR. ROBON: Objection.
12 THE WITNESS: Both -- as it says
13 in the term sheet, both parties are going
14 to work and abide by the confidentiality
15 agreement, they're going to move forward
16 and try to get an agreement in place, I
17 believe.
18 (Brown Exhibit 12 was marked
19 for identification.)
20 BY MR. FITZSIMMONS:
21 Q. Let me show you Exhibit 12. This is an
22 article that was published --
23 A. Uh-huh.
24 Q. -- on December 8th, which hit the 309
1 afternoon papers.
2 A. Uh-huh.
3 Q. This says in the one, two, three, four,
4 five, "While Rodriguez admitted that Mike Brown, his
5 agent, had talked at length with UA officials," which
6 is University of Alabama, "he said he didn't know
7 anything about any agreement ready for him to sign or
8 approve."
9 Your understanding was he had already had
10 a term sheet in hand the morning of December 8th, and
11 the day before that, you went in and basically
12 hammered out, at least, proposals to present to your
13 client some agreement; is that right?
14 A. So what's the question again?
15 Q. I was pointing out that. Do you see
16 that, that paragraph, Rodriguez says he wasn't aware
17 of any type of agreement ready for him to sign or
18 approve?
19 A. At what point in time?
20 Q. Whatever time we have the publication for
21 that thing. I'm just asking you, time-wise.
22 A. Well, it says this thing is on December
23 8, 2006, at 3:07 a.m., and at that point in time, on
24 that Friday morning, that point in time, Rich did not 310
1 know that there was an agreement that I had in hand
2 and was getting ready to fax to him.
3 Q. All right.
4 A. I had not talked to Rich Rodriguez since
5 about midday on that Thursday until I talked to him on
6 Friday morning. He was busy going down to the Gator
7 Bowl press conference and flying back.
8 Q. So there shouldn't be any cell phone
9 calls from you on the 7th; is that right?
10 A. That's -- to Rich?
11 Q. Yes.
12 A. There may have been some calls that were
13 not answered, or maybe left a message or something,
14 but I did not talk to Rich personally until Friday
15 morning on December 8th, 2006.
16 Q. Well, you went back on the 7th to your
17 hotel room with a term sheet, did you not?
18 A. I did.
19 Q. Ready to be signed and approved and
20 presented to Mr. Rodriguez; is that right?
21 A. Ready to be presented to him so he could
22 evaluate it.
23 Q. Do you agree that the 4 million dollar
24 liquidated damage clause or buyout clause with 311
1 Michigan is not a penalty?
2 MR. ROBON: Objection.
3 BY MR. FITZSIMMONS:
4 Q. Based on your experience as an agent.
5 MR. ROBON: Objection. Calls
6 for a legal conclusion.
7 THE WITNESS: Say it again.
8 BY MR. FITZSIMMONS:
9 Q. Do you agree that the 4 million
10 liquidated damage or buyout clause at Michigan is not
11 a penalty?
12 A. In Rich's case, that's not a penalty.
13 Q. And do you agree that that's a valid,
14 effective, binding provision on Rich Rodriguez at
15 Michigan?
16 MR. ROBON: Objection.
17 THE WITNESS: Do it -- say it --
18 repeat the question.
19 BY MR. FITZSIMMONS:
20 Q. Let me ask you this way: You certainly
21 wouldn't want -- or wouldn't advise your clients, your
22 customers, to sign any contract that had improper or
23 illegal provisions in it, or void provisions, would
24 you? 312
1 MR. ROBON: Objection.
2 THE WITNESS: To the best of my
3 knowledge, I would not.
4 BY MR. FITZSIMMONS:
5 Q. All right. So anything that you would
6 have approved or allowed your client to ultimately
7 sign, you would not have felt that those provisions
8 were improper?
9 MR. ROBON: Objection.
10 THE WITNESS: No. Because
11 previously I had advised Rich that I
12 thought like, for example, that they were
13 improper, and I advised him not to sign
14 it, but he did.
15 (Brown Exhibit 13 was marked
16 for identification.)
17 BY MR. FITZSIMMONS:
18 Q. All right. The term sheet, which is
19 Exhibit 13, this is the term sheet signed December 8,
20 '06, by Rodriguez?
21 A. Uh-huh.
22 Q. You've seen that before?
23 A. Yes, I have.
24 Q. It provides for 4 million dollars in 313
1 liquidated damages for both parties, right?
2 A. That's correct.
3 Q. And did you advise Mr. Rodriguez that
4 that was an illegal provision on behalf of the
5 University?
6 MR. ROBON: Objection.
7 BY MR. FITZSIMMONS:
8 Q. As to the University -- the University
9 paying Rodriguez 4 million dollars?
10 MR. ROBON: Objection.
11 THE WITNESS: I advised him that
12 I thought the buyout amount was unfair
13 and advised him not to sign the term
14 sheet.
15 BY MR. FITZSIMMONS:
16 Q. Did you advise him that in your opinion
17 you felt it was not binding?
18 MR. ROBON: Objection.
19 THE WITNESS: No, I did not.
20 BY MR. FITZSIMMONS:
21 Q. All right. You understood that was your
22 advice, just your opinion, but Rodriguez was the final
23 decision-maker that would make the ultimate decision?
24 A. That's correct. 314
1 Q. And he, to your knowledge, agreed to do
2 that and signed this agreement?
3 A. He did.
4 Q. And you understand --
5 MR. ROBON: I'm going to object
6 to the term "term sheet" as an agreement.
7 BY MR. FITZSIMMONS:
8 Q. You understand that Dave Hardesty was the
9 president at West Virginia University at that time?
10 A. Yes, I do understand that.
11 MR. ROBERT P. FITZSIMMONS: Let's
12 get 14.
13 (Brown Exhibit 14 was marked
14 for identification.)
15 BY MR. FITZSIMMONS:
16 Q. The bottom of Exhibit 14 -- it's a, first
17 of all, letter from you; is that correct?
18 A. That's correct.
19 Q. All right. And this particular letter
20 that you wrote, it has a -- on the letterhead it has
21 an Arizona address, although you sign off your name
22 with your home address where your office is?
23 A. That's correct.
24 Q. Is that correct? 315
1 A. That's correct.
2 Q. All right. It says, Mr. Wilcox and his
3 team, how many team members were there for the Wilcox
4 team that was helping Rodriguez?
5 A. Where is that at now?
6 Q. It's in the second- and the third-to-last
7 lines, "Mr. Wilcox and his team."
8 A. It was Mr. Wilcox, Dave Hammack, and
9 Bennett Speyer.
10 Q. Is Hammack an attorney?
11 A. He's a CPA.
12 Q. CPA.
13 A. Uh-huh.
14 Q. So they -- a CPA, an attorney, and Wilcox
15 is what, a financial advisor?
16 A. When I wrote this at this time, I was not
17 aware that Mr. Speyer was an attorney.
18 Q. I understand. But this team, I'm just
19 trying to get the credentials of those people.
20 A. Sure.
21 Q. Wilcox, is he rather a reputable
22 financial advisor up here in the Toledo area?
23 A. Internationally --
24 Q. He's an international financial guy on 316
1 Rodriguez's team?
2 A. That's correct.
3 Q. Speyer is a lawyer, does pensions,
4 deferred tax-type stuff, right?
5 A. That's correct.
6 Q. And who else did you say was there?
7 A. Dave Hammack.
8 Q. Dave Hammack, who is a CPA, right?
9 A. That's correct.
10 Q. And you were part of that team also,
11 right?
12 A. That's correct. Well, yeah.
13 Q. And this is before the second amendment
14 was signed, this letter; is that right?
15 A. That's correct.
16 Q. So Mr. Rodriguez had all those
17 professionals advising him and still signed the
18 contract -- or the amendment, August 24th, '07?
19 MR. ROBON: Objection.
20 BY MR. FITZSIMMONS:
21 Q. They were still all part of the team,
22 were they not?
23 A. They were all part of the team.
24 Q. All right. 317
1 MR. ROBON: Move to strike.
2 BY MR. FITZSIMMONS:
3 Q. The attachment that's on this letter, who
4 typed that, do you know?
5 A. I did.
6 Q. These suggestions that you made to be
7 included in the contract or to be deleted from the
8 contract, both?
9 A. Hold on a second. Those were changes
10 that I had recommended.
11 Q. These were changes that you, yourself,
12 had requested; is that right?
13 A. That's correct.
14 Q. This is for the second amendment to the
15 employment contract; is that right?
16 A. That's correct.
17 Q. Did you request that the liquidated
18 damage clause for either party be deleted?
19 A. Not at this time.
20 Q. All right. And there were some specific
21 things that were being negotiated that you asked be
22 included as part of the negotiations; is that right?
23 A. Yes.
24 Q. Okay. One was item No. 6, the assistant 318
1 coach salary pool?
2 A. Yes.
3 Q. Was that added to the second amendment --
4 the second amendment?
5 A. Can you give me -- can I have a copy of
6 the second amendment, or do I already have it?
7 Q. You don't recall -- you have it there.
8 It's one the first documents you have.
9 MR. ROBON: Way at the bottom.
10 MR. FITZSIMMONS: It's 50 --
11 MR. ROBON: 53, I think. It's
12 toward -- I think the second-to-the-last
13 page, those two items, that and Puskar.
14 BY MR. FITZSIMMONS:
15 Q. Was the subject matter addressed in the
16 contract in the second amendment?
17 A. It was.
18 Q. Okay. The Puskar Center renovations were
19 included in the second amendment?
20 A. It was.
21 Q. And those were also part of the term
22 sheet from December 8th of '06 also, right?
23 A. That's correct.
24 Q. And so there was specific discussions as 319
1 to other items that don't directly relate to salary,
2 like the Puskar Center renovations and other people's
3 salaries, coaches', assistant coaches', that were
4 included in the contract at your request?
5 A. That's correct.
6 Q. So if there was anything outside the
7 typical employment agreement, you knew that you could
8 request that, and the University then could pass on
9 it, whether it was agreed to or not, and include it;
10 is that right?
11 A. That's correct.
12 Q. And the right to renegotiate, that's
13 something you wanted, and that was actually stricken
14 out by the University and Rodriguez at the time of
15 execution of the second amendment, item No. 8 of your
16 letter?
17 MR. ROBON: No. 8.
18 MR. ROBERT P. FITZSIMMONS: Is
19 that true?
20 MR. ROBON: Objection.
21 THE WITNESS: Yes.
22 BY MR. FITZSIMMONS:
23 Q. And item No. 9, that was a specific item
24 actually discussed with -- involving the website that 320
1 was not included in the second amendment; is that
2 correct?
3 A. That's correct.
4 Q. That's because the University had said,
5 at least so far as the contract, the second amendment,
6 it was not to be included in that agreement?
7 A. No. That letter that you showed me was
8 prior to the first amendment being signed.
9 Q. No, no. I'm not talking about -- this
10 website, item No. 9 --
11 A. Uh-huh.
12 Q. -- your attachment, you wrote the
13 language that you requested, and the university did
14 not agree to put that in the second amendment, did
15 they?
16 A. Repeat the question.
17 Q. Yeah. The website request that you make
18 for specific inclusion that you were requesting in
19 this agreement --
20 A. Uh-huh.
21 Q. -- was not put into the agreement, was
22 it?
23 A. No, it was not. But it was promised on
24 December 8, 2006, in, I believe, one of the 321
1 conversations that Rich Rodriguez was having with
2 Farmer and the Board of Governors. And also -- what's
3 the date on this letter?
4 Q. That's February 28th of '07 that you're
5 requesting it.
6 A. Yeah, by that time, Rich and I had had
7 conversations. And Rich had told me that he had
8 had -- Steve Farmer had again told him in February of
9 '07 that there would be a new president, it would be
10 Mike Garrison, and that when Garrison got in office,
11 Rich was going to get some of those things that had
12 been previously discussed, including the website.
13 MR. ROBERT P. FITZSIMMONS: Let's
14 get 15.
15 BY MR. FITZSIMMONS:
16 Q. In fact, Mr. Dorer told you a few weeks
17 later specifically that he was not going to include
18 the website -- this website request that you folks had
19 on page 3 of Exhibit 5; is that true? He was not
20 going to include it in any employment contract with
21 Rodriguez?
22 A. On what page now?
23 Q. It's on page 3.
24 A. Uh-huh. 322
1 Q. The third -- I guess those are
2 paragraphs. It says item 9, Website?
3 A. That's correct.
4 Q. And also Mr. Dorer indicated that the
5 term sheet provision as to the assistant coaches'
6 salary pool and the Puskar Center, he would include
7 specifically what was in the term sheet and was not
8 going to modify, as you had requested in your letter
9 of February of '07, February 28th of '07, Exhibit
10 No. 14.
11 A. Uh-huh.
12 Q. Is that correct?
13 A. That's correct.
14 Q. In the actual draft that was provided to
15 you, April 24, 2007, by Mr. Dorer, attached to that is
16 a proposed second amendment to the employment
17 agreement for Rodriguez; is that correct?
18 A. That's correct.
19 Q. In that proposal, as early as April 24,
20 2007, this 4 million dollars liquidated damage clause
21 was being written, in writing, as a proposed contract?
22 A. That's correct.
23 Q. Did you write to Tom Dorer, since you
24 were the single negotiating person on behalf of 323
1 Rodriguez, and advise him to take that out or that it
2 was illegal or void --
3 MR. ROBON: Objection.
4 BY MR. FITZSIMMONS:
5 Q. -- Mr. Brown?
6 A. Not at that point in time.
7 Q. Well, you were talking about later on the
8 Puskar Center renovations, salary pool, 5 dollar high
9 school football tickets, things like that.
10 At any time did you, prior to the
11 execution of the second amendment contract, second
12 amendment, August 24, 2007, request that that
13 provision on liquidated damages, the 4 million
14 dollars, be deleted?
15 A. Yes, I did request that.
16 Q. Do you have a writing that says that?
17 A. Not in -- yes. I have to go back and
18 look at when Mike Garrison and Craig Walker came back
19 in to -- and started doing the negotiations in -- in
20 July and August, that I did forward -- I'd have to go
21 back and check -- I did forward some graphs and that
22 to Craig that had the -- that changed the buyout --
23 that I think addressed the buyout amounts and also the
24 years and things like that. 324
1 Q. And none of those were agreed to, were
2 they, in the second amendment in the actual document?
3 A. There was -- the 4 million dollars was
4 taken out of the -- there was 4 million dollars in
5 year 1, and then the amount brought down in year 2 and
6 3 from the time the term sheet was signed until the
7 contract was signed in August.
8 Q. So they -- so the University actually
9 made concessions changing the 4 million for a period
10 of time, and then decreased and stepped it down over a
11 period of time at your request?
12 A. At Coach Rodriguez's request and my
13 request.
14 Q. So we know that provision was actually
15 bargained back and forth by the two parties, West
16 Virginia, and then you and Rodriguez on other side; is
17 that right?
18 A. It was. It was, and then there were some
19 extenuating circumstances.
20 MR. ROBERT P. FITZSIMMONS: 17.
21 (Brown Exhibit 17 was marked
22 for identification.)
23 BY MR. FITZSIMMONS:
24 Q. Let me show you Exhibit 17. And these 325
1 documents we're talking about, Mr. Brown, generally
2 relate to negotiations of this second amendment --
3 A. Uh-huh.
4 Q. -- back and forth, the tugging and
5 pulling between two parties to a contract, basically;
6 is that right?
7 A. Say it again.
8 Q. Yeah. These letters that we've -- the
9 last several letters that we're talking about are the
10 negotiations back and forth between the parties as to
11 the second amendment to the contract, basically?
12 MR. ROBON: Objection.
13 You can answer.
14 THE WITNESS: Yes.
15 BY MR. FITZSIMMONS:
16 Q. Mr. Dorer, in his letter of May 17th,
17 2007, indicates in the third paragraph that there were
18 issues that you had been raising that the University
19 was not willing to include in any type of an
20 employment agreement; is that correct?
21 A. That's correct.
22 Q. And did you stop negotiations on May
23 17th, 2007, since the university said there are
24 several things that you're talking about that they 326
1 aren't willing to include in any type of an employment
2 agreement?
3 A. I stopped negotiations after
4 conversations with Rich Rodriguez when he told me that
5 he had been told by the Board of Governors and some
6 other people that Mike Garrison and Craig Walker would
7 be coming in to take over and just to go ahead and
8 suspend talking. They told Rich to have me stop
9 talking with Tom Dorer and the University, and that we
10 would just wait until Craig Walker and Mike Garrison
11 came into office.
12 So based on a conversation with
13 Rich Rodriguez after this letter where he told me that
14 he had been told by the members -- some members of the
15 Board of Governors and some people just to hold off
16 and have no further conversation with Tom Dorer until
17 Mike Garrison and Craig Walker took over.
18 Q. So are you telling me that you ceased
19 representing Rodriguez after May 17th of 2007?
20 A. No. What I did was I --
21 Q. My question --
22 A. -- I ceased having any -- any further
23 discussions in regards to the second amendment with
24 Tom Dorer and anybody at West Virginia at that time. 327
1 Q. Were you still representing Rodriguez?
2 A. I was.
3 Q. And at that time, still the contract was
4 binding up until 2013 that existed at that point; is
5 that correct?
6 A. That's correct.
7 Q. Up to that point of May 17th of 2007, had
8 you advised anybody that West Virginia had in any way
9 breached any provisions of the term sheet agreement
10 that had been entered on December 8th of '06?
11 A. No.
12 Q. Had they fulfilled all those promises in
13 the agreement, the University, at that time?
14 A. Repeat the question again.
15 Q. Had the University fulfilled all those
16 provision of the term sheet agreement as of May 17th,
17 '07, to the best of your knowledge?
18 MR. ROBON: Objection.
19 You can answer.
20 BY MR. FITZSIMMONS:
21 Q. To the best of your knowledge?
22 A. To the best of my knowledge.
23 (Brown Exhibit 20 was marked
24 for identification.) 328
1 BY MR. FITZSIMMONS:
2 Q. Let me show you Exhibit 20. This is an
3 e-mail from you to Craig Walker, who was chief of
4 staff at West Virginia; is that what you understand?
5 A. He was in the process of becoming chief
6 of staff. He had not officially assumed that position
7 yet. But he had started to take some active roles, I
8 believe. And I do know in this situation.
9 Q. This is actually a contract proposal that
10 you put together, is it not?
11 A. That's correct.
12 Q. And in the negotiations with the
13 University, on page -- at the bottom right, there is a
14 page stamped 0290, you actually attempted to include a
15 website provision in the contract, did you not?
16 A. I did.
17 Q. And the University had stricken that, not
18 included that; is that correct?
19 A. What's your term "stricken" or "not
20 included that"?
21 Q. They did not include it in the final
22 amendment, the website provision?
23 A. It was discussed and it was one of the
24 promises that were made in regard -- 329
1 Q. Just answer the question, Mr. Brown. You
2 don't have to make speeches.
3 Was it included in the second amendment
4 or not?
5 A. No, it was not.
6 Q. So there was this negotiation between two
7 parties, one asking for it and the other saying no,
8 right?
9 A. At that point in time?
10 Q. At least according to the written
11 agreements.
12 A. Yes.
13 Q. And you had actually asked for it in
14 writing, and the University did not include it in what
15 they agreed to and presented as the second amendment;
16 is that true?
17 A. That's true.
18 Q. And as part of your provision, you also
19 included as to the liquidated damage clauses that if
20 there was a breach by the University, a material and
21 substantial breach, in your own provision that you
22 drafted, that Rodriguez had to give notice to the
23 University so they would have a 30-day period to fix
24 the problem or the breach? 330
1 A. That's correct.
2 Q. You also included in that, on the last
3 page, a provision that's called Entire Agreement, and
4 it then says, colon, semicolon, Amendment. You
5 also --
6 A. On what page?
7 Q. Yes, it's the last page. It's your
8 number Roman numeral XI. You, yourself, included a
9 provision in your draft contract that says that there
10 are no oral agreements or verbal understandings
11 between the parties, and that if it's to be part of
12 the agreement, it has to be in writing and signed by
13 both parties?
14 A. At that point in time on 7-16-2007, yes.
15 Q. Is that true?
16 A. Yes.
17 Q. So you knew the significance and
18 importance of making sure things are in writing and
19 signed by the parties?
20 A. Yes.
21 MR. ROBON: I'm going to make --
22 MR. FITZSIMMONS: You also --
23 MR. ROBON: Whoa, whoa, wait a
24 minute. I'm going to make an objection. 331
1 The CW0293 page just has Entire
2 Agreement: Amendment.
3 MR. ROBERT P. FITZSIMMONS: That
4 is correct.
5 MR. ROBON: It doesn't say what
6 you said it says.
7 MR. FITZSIMMONS: That is what
8 the title is if you read the agreement,
9 Mr. Robon.
10 MR. ROBON: And I'm just looking
11 at --
12 MR. ROBERT P. FITZSIMMONS: That
13 is the title of the agreement in the
14 provision.
15 MR. ROBON: The title of the
16 provision, right. But there's no other
17 language in it.
18 MR. FITZSIMMONS: Is what it's
19 there for.
20 MR. ROBON: Okay.
21 BY MR. FITZSIMMONS:
22 Q. And then you also have a provision for
23 Roman numeral XIV to be included, rather than typing
24 it out again, Legal Counsel, which means that all the 332
1 parties have had full legal counsel -- in fact,
2 probably some of the best representation of advisors,
3 agents, CPAs, internationally-renowned financial
4 advisors, tax attorneys -- that are entering into the
5 agreement?
6 A. At this point in time, this was just a --
7 Q. Is that true?
8 A. What's the question?
9 Q. That you put that provision and ask that
10 it be included in the agreement?
11 A. I just referred to it in this document
12 here.
13 Q. For inclusion into your proposal?
14 A. Yes.
15 Q. And that's as late as July 16th, 2007,
16 right?
17 A. That's correct.
18 Q. And those things mean something when
19 people make promises in writing and contracts and sign
20 off; isn't that significant in your business?
21 A. When they make them in writing or
22 verbally, yes.
23 Q. Did somebody else ask a question?
24 A. No. I'm answering the question. 333
1 Q. We're talking about a contract, and the
2 contract says there are no verbal understandings or
3 agreements; is that right?
4 A. At the -- yes.
5 Q. You understand that. All right.
6 (Brown Exhibit 22 was marked
7 for identification.)
8 BY MR. FITZSIMMONS:
9 Q. No. 22. This looks like you have another
10 opportunity in 22 to decide again that you have this
11 revision. This is something that you're doing your
12 third revised agreement in the negotiations; is that
13 right? This is attached to version 3, your e-mail on
14 the front page.
15 A. Uh-huh. Okay. Hold on a second.
16 Q. Do you see that?
17 A. Yeah. Hold on.
18 Q. Is that what it says?
19 A. Yes, it does.
20 Q. And in this agreement, revision, this
21 proposal that you're submitting to the University, on
22 page 336, you try to -- you request that the website
23 provision be added?
24 A. That's correct. 334
1 Q. All right. And on page 339, just so
2 there's no misunderstanding as to the objection that
3 Rodriguez's counsel had made earlier, you've now added
4 on to provision Number Roman numeral XI where it has
5 Entire Agreement: Amendment, you actually specifically
6 say insert -- "Insert same clause as original
7 agreement."
8 A. That's correct.
9 Q. That's your directive, right?
10 A. Uh-huh.
11 Q. And that's --
12 MR. WAKEFIELD: You have to say
13 yes or no.
14 THE WITNESS: Yes.
15 BY MR. FITZSIMMONS:
16 Q. And that's a provision that says there
17 are no verbal or oral understandings or agreements,
18 and everything must be in writing to be effective as a
19 contractual provision and signed by both parties.
20 A. On that day, 7-17-2007, yes.
21 Q. Is it your understanding that the reason
22 for those types of provisions are so people don't come
23 back and try to change and create records, the
24 agreement, so that -- to stop people from coming in 335
1 and saying that there was some type of verbal promise
2 or agreement? Is that the purpose of that, pretty
3 much?
4 A. Yes.
5 Q. And also so there is no misunderstanding,
6 also, as to Exhibit 22, you again, then, in provision
7 Roman numeral XIV specifically requested that the
8 legal counsel provision be added that both parties
9 have had full and fair opportunity to employ counsel
10 of their choosing, lawyers, and that they are making
11 this agreement which they each believe is fair.
12 You requested that provision be added
13 also in your third version?
14 A. That's correct.
15 Q. All three versions, up to this point,
16 you've requested both of those provisions; is that
17 right?
18 A. That's correct.
19 Q. All right. Is that -- strike that.
20 (Brown Exhibit 24 was marked
21 for identification.)
22 BY MR. FITZSIMMONS:
23 Q. 24. According to this Exhibit No. 24
24 Brown, this is a draft that Mr. Walker had sent you on 336
1 July 27, 2007; is that correct?
2 A. That's correct.
3 Q. And it was a draft of the second
4 amendment in getting -- working up towards this August
5 24th, '07, second amendment. These are the
6 negotiations and the drafts being exchanged by you and
7 the University back and forth?
8 A. That's correct. On this date, no one
9 knew what was going to happen the next day or predict
10 the future, but on this day, this was when there was a
11 draft exchanged again.
12 Q. I'm sorry. Is somebody -- you aren't
13 hearing somebody else ask questions, are you?
14 A. No.
15 Q. Okay.
16 A. I'm just trying to clarify --
17 Q. Could you stick to my questions --
18 A. I will.
19 Q. I didn't hear anybody else ask a
20 question. All right. July 27th, Mr. Walker sends you
21 a draft?
22 A. Uh-huh.
23 Q. And the University agrees to lessen, to
24 some extent, the liquidated damage clause in 337
1 time-wise, as to when it would apply, the 4 million
2 dollars. There was actually negotiations that the
3 University conceded and gave in some benefit or
4 lessening of that liquidated damage clause.
5 A. They changed the term and condition in
6 this amendment draft that they proposed, yes.
7 Q. And that was being requested that there
8 be some changes as to the liquidated damage, and they
9 actually made a change of a year or less period when
10 he would be -- have that 4 million dollar liquidated
11 damages, did they not?
12 A. Yes. This was a result, I believe, of
13 conversations with myself and Alex and Craig Walker in
14 Craig Walker's office.
15 Q. Good, fair negotiations back and forth
16 between you and Mr. Walker, right? You're doing your
17 job; he's doing his job?
18 A. Yeah, he's doing his job, and as part of
19 those negotiations, he made a statement to me that,
20 Mike, we cannot change the 4 million dollar buyout
21 even in the first year, because the Board of Governors
22 and that would not accept it, there was too much
23 publicity already released about it, and it would show
24 a sign of weakness on the part of the Board of 338
1 Governors and the administration.
2 During those negotiations, I had constant
3 conversations with Craig Walker, showed him industry
4 data and that. But his statement coming back was that
5 they -- there was no way the Board of Governors would
6 be able to accept a figure of no less than 4 million
7 dollars because of the publicity and that surrounding
8 it.
9 Q. Are you done with your speech?
10 A. Sure.
11 Q. So what happens, you and Mr. Walker are
12 together, you're asking to try to change the
13 liquidated damage clause, Mr. Walker agrees to change
14 the time period by a year, concedes that, and then
15 forwards to you the product of your two discussions at
16 that time for your consideration; is that correct?
17 A. In regards to this amendment?
18 Q. In regards to this document, Brown
19 Exhibit No. 24.
20 A. Yeah. This document --
21 Q. Is that right?
22 A. -- this document was a result of
23 conversations with myself and Craig walker and Alex
24 Macia -- 339
1 Q. All right.
2 A. -- in Craig Walker's office.
3 Q. That was a benefit to Rodriguez, was it
4 not?
5 A. Say that again.
6 Q. That was a benefit -- potentially
7 beneficial provision to Rodriguez by lessening it by a
8 year?
9 A. It was more fair. It was going --
10 Q. It was a benefit to him.
11 A. It was going toward being more fair. I
12 can't -- I can't determine whether it was a benefit.
13 It was starting to be along the lines of being more
14 fair within industry standards.
15 Q. Industry standards are not the
16 determining measuring stick for liquidated damages,
17 are they?
18 MR. ROBON: Objection.
19 You can answer.
20 BY MR. FITZSIMMONS:
21 Q. Do you have something that says that
22 that's how it is to be done?
23 A. In -- in the industry, as I mentioned
24 earlier -- 340
1 Q. I didn't ask you that question. Was
2 there some standard -- written standard that says
3 that's how you determine these things? I thought it
4 was supposed to be an assessment of damages. Or do
5 you even know, Mr. Brown?
6 A. Say -- what's the question again?
7 Q. Do you even know how liquidated damages
8 are arrived at?
9 A. Yeah, I know.
10 MR. ROBON: Wait a minute.
11 Objection. You've asked four questions.
12 He hasn't had a chance to answer the
13 first one yet.
14 BY MR. FITZSIMMONS:
15 Q. Do you know how?
16 A. Yes, I do.
17 Q. Okay. Industry standards are not a
18 measuring tool for those. You know that.
19 A. No, no. Hold it. In regards -- you
20 asked the question in regards to --
21 Q. No, just answer that, please.
22 A. You asked the question in regards to
23 industry standards, okay.
24 Q. No, no. I said, Industry standards are 341
1 not the measuring stick of liquidated damages. You
2 know that?
3 A. Uh-huh, I know that.
4 Q. Okay. All right. Now, in this provision
5 that's sent to you, you know, once again, you have to
6 give written notice if there is a breach by West
7 Virginia, right?
8 A. That's correct.
9 Q. You never did that, right?
10 A. Never did that.
11 Q. Never sent any written notice at any
12 time --
13 A. No, I did not.
14 Q. -- for breach, and neither did Rodriguez,
15 right?
16 A. No, I did -- no, he did not.
17 Q. And we have about three or four
18 agreements now passing back and forth that you, in
19 your meticulous evaluation of these things, have seen
20 have notice provision, right?
21 A. That's correct.
22 Q. Still never did, right?
23 A. No.
24 Q. That's a true statement? 342
1 A. That's a true statement.
2 Q. And once again, then, we get in -- here's
3 another provision provided to you, the legal counsel
4 provision is once again set forth, as is the -- the
5 legal counsel provision that each party has entered
6 into this agreement freely and voluntarily and with
7 the full intent to be bound thereby.
8 Would you look at that language on
9 Exhibit 24?
10 A. Exhibit 24, what page is that again.
11 Q. It's -- the Bates stamp on the right is
12 353.
13 A. Yes, it's in there.
14 Q. All right. And you understand that
15 Mr. Rodriguez signed that provision intending to be
16 fully -- enters into the agreement freely and
17 voluntarily with the full intent to be bound thereby.
18 Both parties did, didn't they --
19 MR. ROBON: Objection. That
20 document was never signed.
21 MR. ROBERT P. FITZSIMMONS: That
22 provision?
23 MR. ROBON: This document, no,
24 this document. 343
1 MR. ROBERT P. FITZSIMMONS: I
2 suggest you read the contract, Mr. Robon.
3 MR. ROBON: This document was
4 never signed, Exhibit 24.
5 BY MR. FITZSIMMONS:
6 Q. I'm asking about the provision. That
7 provision was part of the contract, was it not?
8 A. That's correct.
9 Q. All right. So both parties acknowledge
10 with their own signature --
11 MR. ROBON: I move to strike --
12 wait a minute. Move to strike, because
13 that calls for a legal conclusion of what
14 was in the contract by reference.
15 BY MR. FITZSIMMONS:
16 Q. So are you saying that Rodriguez did not
17 intend to be fully bound, but signed off, telling
18 people he did in that second amendment?
19 MR. ROBON: Objection.
20 BY MR. FITZSIMMONS:
21 Q. Is that what you're saying?
22 A. All I know -- all I know is that
23 Rich Rodriguez signed the contract.
24 Q. And he signed a provision saying he fully 344
1 intended to be bound by that written contract only?
2 MR. ROBON: Objection.
3 BY MR. FITZSIMMONS:
4 Q. Is that right, Mr. Brown?
5 A. He signed a contract that had that clause
6 in it.
7 Q. Well, do you have your customers sign
8 contracts and lie about what their intent is, or do
9 you expect them to honor that?
10 A. I know Rich Rodriguez to be an honest and
11 truthful man.
12 (Brown Exhibit 25 was marked
13 for identification.)
14 BY MR. FITZSIMMONS:
15 Q. 25. Let me show you Exhibit 25. By the
16 way, do you go by any nicknames?
17 A. Yeah. I have lots of nicknames.
18 MR. ROBON: Let's go back for a
19 moment. I want to make a comment on the
20 record that counsel asked questions about
21 the integration clause in the second
22 amendment, which is Exhibit --
23 MR. FITZSIMMONS: You can ask
24 questions later on, sir. 345
1 MR. ROBON: No. It just doesn't
2 have an integration clause; it has an
3 adoption clause, and the question was
4 whether the adoption cause allows
5 integration.
6 MR. FITZSIMMONS: No, no.
7 There's no question. He said, please
8 insert the thing. There's no question
9 about the original --
10 MR. ROBON: I'm saying what
11 the -- what the document is.
12 BY MR. FITZSIMMONS:
13 Q. All right. Go ahead, Mr. Brown. You're
14 looking at Exhibit 25?
15 A. Uh-huh.
16 Q. Yes?
17 A. Yes.
18 Q. And when you received that contract, that
19 agreement, second amendment agreement -- second
20 amendment getting ready for this August 24th, '07,
21 second amendment and the negotiations, you actually
22 not only looked at it meticulously yourself on
23 multiple occasions, but you sent it off to your
24 customer, Mr. Rodriguez? 346
1 A. At this point in time, there had not been
2 a meeting set yet for August the 24th.
3 Q. I understand. But this provision, as
4 we're working towards that, these revisions back and
5 forth, the tugging and pulling between the two
6 entities, you sent it off and reviewed it with your
7 customer, hopefully?
8 A. Yeah, I sent it to Coach.
9 Q. Okay. Actually, it indicates, I think,
10 Mr. Walker, at the bottom, he sent it off to
11 Rich Rodriguez. I suspect you probably did also, or
12 made sure that he got a copy, right?
13 A. Yeah, at that time, Craig was e-mailing
14 me copies and brought me copies by Coach Rodriguez's
15 office.
16 Q. All right. Without question, you were
17 trying to keep Rodriguez up to speed on what the
18 negotiations were back and forth at this point in time
19 from a general standpoint; is that fair to say?
20 A. Yes.
21 Q. Whether you were giving Rodriguez the
22 revisions, or Walker, you were making sure somebody
23 was getting it to him so he would fully participate
24 also in these negotiations, right? 347
1 A. That's correct.
2 (Brown Exhibit 26 was marked
3 for identification.)
4 BY MR. FITZSIMMONS:
5 Q. Exhibit 26. Could you tell me some of
6 the -- and I don't want to know when you were a kid,
7 when you were 5 years old what your mom or whoever
8 called you.
9 But generally, do you go by any
10 particular nicknames?
11 A. A lot of guys, like in the profession --
12 the NFL stuff and in the coaching ranks, my nickname
13 is "Brownie."
14 Q. Brownie. Waterboy?
15 A. No, huh-uh.
16 Q. You never heard that nickname.
17 A. Yeah, I've heard that nickname.
18 Q. On occasion they call you that on --
19 A. I had one friend who called me that.
20 Q. Okay. Because somebody said, Is that
21 Waterboy? I don't know. Okay.
22 A. I grew up -- my dad owned an ice cream
23 store when I was growing up, so I got the nickname
24 "Ice Cream." 348
1 Q. Ice Cream.
2 A. And so during my days at -- in -- I got
3 recruited to go to Clemson for sports, and my nickname
4 followed me there, followed me all the way to guys who
5 play in the league now.
6 Q. Did you play college sports?
7 A. I played high school sports, and then
8 went to Clemson and then suffered an injury, and
9 then --
10 Q. I thought you said you were recruited at
11 Clemson.
12 A. I was.
13 Q. What were you recruited for?
14 MR. ROBON: Objection.
15 You can answer.
16 THE WITNESS: Pardon me?
17 BY MR. FITZSIMMONS:
18 Q. What were you recruited for?
19 A. As a student athlete for the football
20 program.
21 Q. Football at Clemson?
22 A. Yeah.
23 Q. What year would that have been?
24 A. 1970 -- I graduated in the spring of '75. 349
1 Q. From college?
2 A. No, from --
3 Q. High school?
4 A. From high school, yeah.
5 Q. So you would have been recruited in the
6 '75 season at Clemson, one of their recruits?
7 A. I was -- yeah, uh-huh.
8 Q. You were offered a scholarship?
9 A. Yes, I received a grant-in-aid to
10 Clemson.
11 Q. Were you offered an athletic scholarship?
12 A. Yeah, it was athletic grant-in-aid.
13 Q. For football?
14 A. Football, and then also was involved in
15 the baseball program.
16 Q. Were you on the football team, then, for
17 four years?
18 A. No, I wasn't.
19 Q. Did you ever play?
20 A. I suffered a knee injury, and then became
21 a student coach and trainer.
22 Q. Did you suffer your knee injury in high
23 school or when you went to Clemson?
24 A. Actually, it was way before then. I had 350
1 had knee problems in high school.
2 Q. Okay. So -- I mean, they awarded you a
3 football scholarship.
4 A. It was a grant-in-aid, yeah.
5 Q. Well, grant-in-aid --
6 A. Uh-huh.
7 Q. Grant-in-aid's a little different than a
8 football scholarship?
9 A. Yeah, uh-huh.
10 Q. You understand that?
11 A. I understand that.
12 Q. Okay. You got the grant-in-aid, you had
13 been, you're saying, recruited but you ended up
14 getting a grant-in-aid, which is different than an
15 athletic scholarship.
16 A. It was an athletic scholarship, through
17 the athletic department. I got scholarship, tuition,
18 books, everything.
19 Q. Okay. To play football, as opposed to
20 being a trainer or whatever?
21 A. Uh-huh.
22 Q. Is that right?
23 A. Uh-huh.
24 MR. WAKEFIELD: You have to say 351
1 yes or no.
2 BY MR. FITZSIMMONS:
3 Q. Yes?
4 A. Yes.
5 Q. Okay. And you have been referred to by
6 at least one person or a few friends in the past as
7 Waterboy?
8 A. Yeah.
9 MR. ROBON: Objection. Move to
10 strike.
11 BY MR. FITZSIMMONS:
12 Q. And you were a manager on the football
13 team at Clemson, then, for four years?
14 A. Became a student trainer.
15 Q. Student trainer.
16 A. Uh-huh.
17 Q. I don't know if you ever answered my
18 question. Did you ever suit up?
19 A. No.
20 Q. Who was the head coach at that time?
21 A. At Clemson?
22 Q. Yes, when you recruited -- when you were
23 being recruited.
24 A. Actually, I remember a coach named Ed 352
1 Emory.
2 Q. He was the head coach?
3 A. No, he wasn't the head coach.
4 Q. Who was the head coach when you were
5 being recruited?
6 A. I believe a guy named Red Parker.
7 Q. Do you know if Coach Parker is still
8 alive?
9 A. I have no idea.
10 MR. FITZSIMMONS: 26. How are
11 we doing with time there?
12 THE VIDEOGRAPHER: About six
13 minutes.
14 MR. ROBERT P. FITZSIMMONS: Oh,
15 you've got 26 there.
16 MR. ROBON: I think another half
17 an hour, your pilot is going to charge
18 you double time. Your seven hours on the
19 ground is up.
20 BY MR. FITZSIMMONS:
21 Q. You have Exhibit 26 there?
22 A. Yes, I do.
23 Q. Okay. And this is another proposal, the
24 same -- the contract that ultimately ends up as the 353
1 second amendment, not that these provisions did, but
2 working towards the second amendment of August 24 of
3 '07; is that right, Mr. Brown?
4 A. That's correct.
5 Q. And this also includes in this the notice
6 provision, as of August 1st. It's on page 377.
7 A. Uh-huh.
8 Q. That you have to give notice for a breach
9 to West Virginia and they get 30 days to fix it or
10 cure the problem?
11 A. Yes.
12 Q. Do you see that?
13 A. Yes. That is correct.
14 Q. Okay. And you also have a liquidated
15 damage clause of 4 million dollars in the event
16 Coach Rodriguez would leave the University?
17 A. Yes, it was in there, in the amendment
18 that Craig Walker sent to me.
19 Q. And that provision lessening the time
20 period when that would apply was in this particular
21 draft; is that correct?
22 A. That's correct.
23 Q. And also in here, there is the counsel
24 statement, that everybody has counsel. It's on page 354
1 383.
2 A. That statement's in there.
3 Q. And the provision about incorporating the
4 original agreement, which provided that there cannot
5 be any oral or verbal agreements or promises was
6 incorporated also, the last provision?
7 A. Yes. On 8-1-2007, yes.
8 Q. Yes. So here's another opportunity
9 you've been through, has the 4 million dollars
10 liquidated damage clause, and also has these other
11 provisions about oral and verbal promises not being
12 binding on the parties?
13 A. That's correct.
14 Q. Did you write any letters and ask that
15 those provisions, the counsel provision, the provision
16 about no other promises, oral or verbal, other than
17 what's in the written contract applies between the
18 parties, did you ever write --
19 A. No, I did not.
20 Q. -- anything asking that that be taken
21 out?
22 A. No, I did not.
23 Q. And the provision about whoever signs
24 this contract intends to be -- with full intent to be 355
1 bound thereby, did you ever ask that that be taken
2 out?
3 A. No, I did not.
4 (Brown Exhibit 27 was marked
5 for identification.)
6 BY MR. FITZSIMMONS:
7 Q. Let me show you Exhibit 28 -- or 27. I'm
8 sorry.
9 A. Uh-huh.
10 Q. This is an e-mail from you to Mr. Walker,
11 August 6, 2007. See, we're kind of getting closer up
12 to that 8-27-2007 date.
13 Do you see that?
14 A. That's correct.
15 Q. This is an e-mail you wrote. And could
16 you read into the record what you told the chief of
17 staff, Mr. Walker, who was handling some of these
18 revisions and forwarding those to you at that time,
19 right before your name?
20 A. Just that sentence or everything above
21 it?
22 Q. Just that sentence where it says, The
23 main thing --
24 A. "The main thing with Rich is he wants to 356
1 get it right this time and if it takes time to do so
2 that is OK."
3 Q. All right. So at least at that time, you
4 expressed the intent that Rodriguez wanted this
5 contract to be the contract and get it right at that
6 point?
7 A. That's correct.
8 Q. Is that what you're saying?
9 A. That's correct.
10 Q. And on the third page of that document
11 No. 27 --
12 A. Uh-huh.
13 Q. -- you also advised Mr. Walker that
14 you're going to be in town, Morgantown, for a
15 three-day period. I assume you were going to be
16 talking to Rodriguez about this --
17 A. What's that again now?
18 Q. Yes. On the third page, it's in the
19 third paragraph, it says you're going to be in
20 Morgantown between the 16th and 19th of August 2007?
21 A. What page is that?
22 Q. It's the third page.
23 A. 04 -- 0410?
24 Q. Yes, uh-huh. 357
1 A. Uh-huh.
2 Q. You were going to be in Morgantown, I
3 assume, to talk with Coach Rodriguez about this second
4 amendment and the provisions?
5 A. Yes, I was.
6 MR. FITZSIMMONS: Okay. We have
7 to change tape.
8 THE VIDEOGRAPHER: Going off the
9 record at 4:01 p.m.
10 (A brief recess was had.)
11 THE VIDEOGRAPHER: Back on the
12 record at 4:14 p.m.
13 MR. ROBON: That was my
14 paralegal. I have an exhibit list of a
15 hundred-and-some exhibits for this trial
16 I have on Monday.
17 (Brown Exhibit 29 was marked
18 for identification.)
19 BY MR. FITZSIMMONS:
20 Q. Okay. This is Exhibit 29, Mr. Brown, I'm
21 showing you. This actually verifies that you actually
22 stayed with the Rodriguezes for that three-day -- two-
23 or three-day period, August 16th of 2007.
24 A. Uh-huh. 358
1 Q. Is that right?
2 A. That's correct.
3 Q. And I assume that since you're talking
4 about the draft of the amendment, you had multiple
5 discussions with the Rodriguezes concerning the second
6 amendment?
7 A. While I was staying there?
8 Q. Yes, sir.
9 A. I can't recall if we had any discussions
10 at that time.
11 Q. All right. So you had this major second
12 amendment agreement which provides an agreement for
13 your customer, for a period of seven years it's going
14 to tie up his employment life, and for the two or
15 three days you stay with him on the weekend of August
16 16th, '07, you can't even recall if you even talked
17 about contracts -- the amendment; is that true?
18 A. That's correct.
19 MR. ROBON: Objection to the
20 connotation.
21 MR. FITZSIMMONS: What, his
22 answer?
23 MR. ROBON: No, the connotation
24 of your question. 359
1 BY MR. FITZSIMMONS:
2 Q. Now, these provisions, including the
3 liquidated damage clause, have been circulated back
4 and forth -- including the liquidated damage clause,
5 and we talked about where it was -- the time periods
6 where the 4 million would be applied and when it would
7 be stepped down from the 4 million. Those had been
8 exchanged and discussed by you and with
9 Coach Rodriguez; is that correct?
10 A. That's correct.
11 Q. All right. And as of the first time you
12 spoke with Mike Garrison or Craig Walker about the
13 second amendment was at the August 24th, '07, signing;
14 is that right?
15 A. What's the question again?
16 Q. Had you spoken to President Garrison
17 prior to the meeting of August 24, '07, when the
18 second amendment was actually signed?
19 A. Yes, I had.
20 Q. You had indicated some, I think,
21 fraudulent statements were made, is that what you
22 characterize them, by the University at some point?
23 A. I don't recall. In what areas?
24 Q. As to the -- this second amendment. 360
1 A. Okay. Say it again now.
2 Q. Yeah. Was there some point where you
3 allege West Virginia committed a fraud or made
4 fraudulent statements, you told me about, that you
5 discovered that December 16th of '07, after the
6 Michigan term sheet had been signed?
7 A. Repeat the question again.
8 Q. Yes. Is there some point --
9 A. Because you're going from July, August
10 to --
11 Q. That was -- you had testified earlier
12 that West Virginia, in your opinion, had -- you had
13 discovered they -- you felt they had committed a fraud
14 on August 16th, '07 -- or December 16th, '07.
15 A. On December 16th of --
16 Q. My question to you is --
17 A. On that Sunday morning --
18 MR. ROBON: Hold on. Let him
19 finish the question.
20 BY MR. FITZSIMMONS:
21 Q. Are you alleging that in August that
22 somebody from the University made fraudulent
23 statements to you or to Rodriguez concerning the
24 employment contract? 361
1 A. As of today, yes, I allege that on August
2 24th, Mike Garrison made fraudulent statements.
3 Q. On August 24th?
4 A. Yes.
5 Q. Right?
6 A. That's correct.
7 Q. Okay. So you're saying that the
8 Rodriguezes were not on board to sign this second
9 amendment, then, until August 24th, '07; is that true?
10 A. That is correct.
11 Q. And you had talked generally to Rich, but
12 Rita is pretty active in this whole thing, too, is she
13 not?
14 A. That's correct.
15 Q. And they communicate back and forth and
16 convey messages as to what one says to the other, and
17 then they convey that to you as their agent; is that
18 right?
19 A. That's correct.
20 Q. All right. So I assume, as you
21 understood it, still as of the time you were there at
22 the signing on August 24th, prior to that, the
23 Rodriguezes really weren't on board to sign yet at
24 that point, there was still a question. 362
1 A. They had not -- Rich had not made up his
2 mind to sign the contract.
3 Q. But Rita had, hadn't she?
4 A. No, she had not.
5 Q. She was on board before August 24th,
6 wasn't she?
7 A. No, she was not.
8 Q. You've positive of that?
9 A. Uh-huh.
10 Q. Yes?
11 A. Yes.
12 Q. Because they were both involved actively
13 in the contract, in the decision as to whether he
14 would sign this second amendment; is that right?
15 A. That's correct.
16 (Brown Exhibit 30 was marked
17 for identification.)
18 BY MR. FITZSIMMONS:
19 Q. Okay. Let me show you an e-mail, Exhibit
20 No. 30. I'm interested right in the middle -- these
21 are several e-mails that are printed out on this page.
22 A. Uh-huh.
23 Q. You're -- Mr. Walker's -- Mr. Wilcox --
24 A. Uh-huh. 363
1 Q. -- e-mail. Do you see that?
2 A. I -- I see the e-mail, yeah.
3 Q. Mike Wilcox, he's one of the team members
4 on the Rodriguez side?
5 A. That's correct, uh-huh.
6 Q. Right in the middle of the page on August
7 21st, 2007, at 3:38 p.m., Wilcox wrote an e-mail. Do
8 you see that?
9 A. Uh-huh.
10 Q. Right here (indicating) --
11 A. Uh-huh.
12 Q. -- Mr. Brown?
13 A. Uh-huh.
14 Q. Would you read that to the jury and the
15 into the camera there as to what that says?
16 A. It says, "Craig - we're set from our end
17 on the deferred language and please confirm that you
18 concur. I had an excellent discussion with Rita this
19 a.m. and she concurs with my recommendation to execute
20 on Friday."
21 Q. "Talk soon. MRW." That's one of the
22 team members?
23 A. That's correct.
24 Q. Okay. So Rita, at least according to 364
1 this, she wants to execute that second amendment as of
2 August 21st, 2007; is that correct?
3 MR. ROBON: Objection.
4 MR. ROBERT P. FITZSIMMONS: At
5 least according to this.
6 MR. ROBON: Objection. This is
7 a document not from him. He doesn't
8 understand intent. He can't -- he can't
9 possibly comment on that.
10 BY MR. FITZSIMMONS:
11 Q. Well, were you team members all fighting
12 back then and disagreeing, or was Wilcox, this
13 international expert in financing, and Rita, the wife,
14 that talk all the time -- were there differences,
15 fighting going on among the team?
16 A. No, there was no fighting going on among
17 the team.
18 Q. All right. So this certainly looks --
19 assuming it's true, assuming Mr. Wilcox is making a
20 truthful statement to our chief of staff at West
21 Virginia University, we have Rita on board to sign and
22 execute this second amendment as of August 21st, and
23 Wilcox recommending also that the second amendment be
24 signed as of August 21st, at least according to this. 365
1 That's what it says, right?
2 A. That's Mike Wilcox's statement. I can't
3 say what -- what the background was and why he said
4 that.
5 Q. Well, let me ask you about Wilcox. Is he
6 somebody that doesn't tell the truth a whole lot?
7 A. He tells the truth, very truthful.
8 Q. Okay. If you go down a little bit,
9 August 21st, earlier that morning, at 10:39, the
10 attorney who's on the team, Speyer, Bennett Speyer --
11 A. Bennett Speyer, yeah.
12 Q. S-p-e-y-e-r?
13 A. Uh-huh.
14 Q. He indicates as of August 21st, 2007,
15 that the final version is what Craig has at that time,
16 at least based on what he knows; is that right?
17 A. That's correct. In regards --
18 Q. I'm sorry.
19 A. In regards to what I considered from
20 Bennett, it would be in regards to the deferred
21 language.
22 Q. He says he resolved the language and he
23 "expects that Craig has what we anticipate to be the
24 final version," period. Is that what it says? 366
1 A. That's what it says.
2 Q. It doesn't make any exceptions to the
3 final version; it just says "final version," at least
4 according to that e-mail?
5 A. It says "final version."
6 (Brown Exhibit 31 was marked
7 for identification.)
8 BY MR. FITZSIMMONS:
9 Q. Now, 31. This is an e-mail, Exhibit 31.
10 On August 23, the day before the second amendment was
11 signed by your customer, Rodriguez, Wilcox is making
12 arrangements to travel down to Morgantown, West
13 Virginia, making plans to be there Friday; that's for
14 purposes of, what, the signing of the contract?
15 A. The purpose of the meeting was to get
16 Mike Garrison and Craig Walker in a room so Rich could
17 discuss all of the issues that he had with the program
18 and the contract; and based on those discussions, Rich
19 at that time would make a decision whether he was
20 going to sign the contract or not.
21 But he was not going to sign this
22 contract until he sat down with Craig walker and Mike
23 Garrison and addressed a number of issues.
24 Q. And a final version of the contract was 367
1 to be presented; is that right?
2 A. That's correct.
3 Q. Do you have any information that
4 indicates that Wilcox advised anybody at the
5 University that Rodriguez would not sign the contract
6 unless he met with someone? Has that ever been
7 conveyed to you?
8 A. Repeat the question.
9 Q. Has anybody ever told you that Wilcox
10 insisted that Rodriguez has to meet with somebody from
11 the University before he would sign the final version?
12 A. That Wilcox insisted, no. I do know that
13 Rich Rodriguez told me he would not sign the final
14 contract until he sat down and had a talk with
15 Mike Garrison -- with Mike Garrison and Craig Walker.
16 (Brown Exhibit 32 was marked
17 for identification.)
18 BY MR. FITZSIMMONS:
19 Q. This is Exhibit 32.
20 A. Uh-huh.
21 Q. And it's Wilcox -- team member Wilcox
22 to -- our chief of staff of West Virginia.
23 A. Uh-huh.
24 Q. Do you see that? 368
1 A. Yeah.
2 Q. And he congratulated -- Wilcox
3 congratulated our chief of staff on getting the
4 contract completed and executed; is that correct?
5 A. That's correct.
6 Q. He says everybody stuck with it, they got
7 into the end zone as of at least August 24th, 2007, at
8 2:08 in the afternoon; is that correct?
9 A. Hold on a second.
10 Q. Is that what the e-mail says, sir?
11 A. Yeah.
12 Q. Then it says in the last paragraph, it
13 says, "I'll fill you in next week on my meeting last
14 night with Rich and Mike Brown." That's you, right?
15 A. That's correct.
16 Q. "A very interesting session."
17 A. Uh-huh.
18 Q. Was that an interesting session on the
19 23rd?
20 A. I can't recall the exact details of what
21 we talked about in that meeting on the 23rd.
22 Q. So as you sit here today, you have no
23 recollection --
24 A. No, we did meet. 369
1 Q. -- of that very interesting session?
2 A. I can't recollect everything that we
3 discussed at that meeting. Mike Wilcox got in late,
4 Rich got in late, and we didn't meet up back at the
5 house, at Rich's house, until 10:30, 11:00, and we
6 stayed there for about an hour.
7 Q. Before the execution of the contract, you
8 had been through that contract with Coach Rodriguez
9 inside and out pretty much, hadn't you?
10 A. I had been -- yes, I had reviewed that
11 contract with Coach Rodriguez quite a number of times.
12 Q. Being a good agent, I'm sure you would
13 have told him that the one clause provided that there
14 was an incorporation of any other terms in the
15 December '02 agreement unless they were specifically
16 changed in --
17 A. Say that again.
18 Q. I'm sure you would have advised your
19 customer that under the terms of this second
20 amendment, that the original contract provisions would
21 all apply and be incorporated unless they were
22 specifically changed in either the first or the second
23 amendment.
24 A. I don't recall -- 370
1 MR. ROBON: Objection. You can
2 answer.
3 THE WITNESS: I don't recall
4 having a specific conversation in regards
5 to that while we were discussing the
6 contract.
7 BY MR. FITZSIMMONS:
8 Q. So you're dealing with
9 multimillion-dollar contracts, and you would not have
10 advised your customer that that provision would
11 survive concerning -- that everything had to be in
12 writing and there were no oral or verbal agreements;
13 is that true, you didn't tell them?
14 A. I can't recall all of the detailed
15 discussions on every paragraph that we had.
16 Q. Did you and Mr. Wilcox have some
17 problems?
18 A. Mike and I worked very well together.
19 (Brown Exhibit 33 was marked
20 for identification.)
21 BY MR. FITZSIMMONS:
22 Q. Exhibit 33, Mr. Brown, is that an e-mail,
23 looking at the second one down, from you to President
24 Garrison and Mr. Walker at our University? 371
1 A. Uh-huh.
2 Q. Is that a yes?
3 A. Yes, it is.
4 Q. All right. And you thanked both of those
5 gentlemen for their time today on August 24th, for all
6 their efforts over the past two months in negotiating
7 and getting this contract put together for Rodriguez;
8 is that correct?
9 A. Yes, I did.
10 Q. For completing the deal, right?
11 A. I did.
12 Q. And you sent that thank-you note, didn't
13 you?
14 A. Yeah, I did. And when I sent it, there
15 were a couple of things that I wanted to make sure
16 were there based on the meetings and discussions of
17 the 24th, and that is their promise of a culture
18 change that they were going to implement.
19 And then also the reason I put
20 "face-to-face Commitment from one mountaineer to
21 another future contract items will take care of
22 themselves naturally," was I wanted to reinforce the
23 fact that Mike Garrison stood up and shook
24 Rich Rodriguez's hand and told him that he would take 372
1 care of all those verbal promises that he made, and
2 the contract --
3 Q. Sir, did somebody ask you a question --
4 MR. ROBON: Let him finish,
5 please.
6 THE WITNESS: -- and the
7 contract would be revisited again in
8 December and January. Those were the
9 facts behind that e-mail.
10 BY MR. FITZSIMMONS:
11 Q. You can't do it in January because your
12 customer took off in December, didn't he? How could
13 you have revisited it in January?
14 A. I said December and January. Go back,
15 read the summary of the e-mail that Mike Wilcox made
16 summarizing the events of August 24th, I believe
17 December was listed in there.
18 Q. Mr. Brown, you couldn't do it in January
19 because your client, your customer, bolted in early
20 December.
21 A. What's your question?
22 Q. You can't have any type of revisiting the
23 contract when Rodriguez took off and left mid -- I
24 think December 16th, didn't he? 373
1 A. Yeah. They had a meeting on the December
2 the 15th that addressed these issues, and
3 Mike Garrison and Craig Walker said, no, they weren't
4 going to honor the verbal promises, so they did end up
5 having that meeting in December.
6 Q. The same verbal promises that you had
7 half a dozen to a dozen contracts that said that those
8 don't apply and can't be an agreement that you
9 reviewed in the second amendment?
10 A. Pardon me?
11 Q. The verbal agreements, the provision in
12 the second amendment that says that no verbal
13 agreements would be binding on either party unless
14 they were reduced to writing and signed by the
15 parties?
16 MR. ROBON: Objection.
17 BY MR. FITZSIMMONS:
18 Q. Isn't that what you're talking about?
19 MR. ROBON: That's not what the
20 second amendment says.
21 BY MR. FITZSIMMONS:
22 Q. Is that what you're saying?
23 A. Repeat the question again.
24 Q. Yes, sir. Are we talking about verbal 374
1 agreements that you watched your client sign a second
2 amendment that incorporated a provision that said no
3 verbal agreements would be binding unless in writing
4 and signed by the parties?
5 A. I'm talking about the verbal agreements
6 that Mike Garrison made to Rich Rodriguez that I feel
7 Rich Rodriguez made the decision to go ahead and sign
8 the second amendment.
9 (Brown Exhibit 35 was marked
10 for identification.)
11 BY MR. FITZSIMMONS:
12 Q. Let me show you, Mr. Brown, Exhibit 35.
13 A. Uh-huh.
14 Q. This is an e-mail from Mike Wilcox.
15 A. Uh-huh.
16 Q. You see that?
17 A. I see it.
18 Q. On the second page --
19 A. Yes.
20 Q. -- about the middle of the page --
21 A. Uh-huh.
22 Q. -- there is a paragraph that says, "The
23 issue of 'fairness'," do you see that? Right here,
24 Mr. Brown. 375
1 A. Yes.
2 Q. Okay. Now, all that this, which is
3 Wilcox, one of the team members from Rodriguez, all he
4 said that was discussed was that the issue of fairness
5 would be discussed originally in January, and Garrison
6 said he would actually talk about it in December, just
7 talk about it.
8 A. Uh-huh.
9 Q. Is that right?
10 A. That's correct.
11 Q. No promises or agreements, other than
12 just talking about fairness of the contract?
13 A. No. In --
14 Q. Is that what that says, that paragraph?
15 A. No, it does not.
16 Q. It does not?
17 A. No.
18 Q. Why don't you read it into the record,
19 and we'll let the jury decide that, then.
20 A. Okay. "The issue of 'fairness' came up
21 and Rich asked if Mike and Craig felt the contract was
22 fair and [sic] it was not fair, in six to ten months
23 would they make it fair."
24 Q. "If it was not fair." 376
1 A. Mike --
2 Q. Whoa, whoa. I want you to go back and
3 read that, because you misread it.
4 A. You want me to read it again?
5 Q. I want you to read it correctly.
6 A. Okay. "The issue of 'fairness' came up
7 and Rich asked if Mike and Craig felt the contract was
8 fair and if it was not fair, in six to ten months
9 would they make it fair."
10 Q. Go ahead. Keep reading.
11 A. "Mike Garrison responded that he feels
12 it's 'fair for the time' but that this is an
13 evolutionary process and Mike wants to work with Rich,
14 Mike Brown, and myself to improve it.
15 "I suggested a complete review in January
16 Mike [sic] and he said he would be willing to discuss
17 it in December."
18 Q. People were going to talk; there was no
19 promises of anything other than to talk, right?
20 A. No. If you were at the meeting in
21 regards --
22 Q. What does this say, Mr. Brown? I'm
23 asking you as to the e-mail.
24 A. It says -- it says "a complete review." 377
1 Q. To review what, the contract?
2 A. To review the contract and the status of
3 the verbal promises made to Rich Rodriguez.
4 Q. Did you see the word "verbal promises"
5 made to Rich Rodriguez in those two paragraphs you
6 just read?
7 A. I saw --
8 Q. Did you?
9 A. I did not.
10 Q. You did not, all right.
11 A. That's correct.
12 Q. So all they agreed to was, hey, we're
13 going to sit down, we're grown-ups here and we'll look
14 at things then, and we'll talk about it; is that
15 right?
16 A. No. No, as I said earlier today --
17 Q. This provision, Mr. Brown.
18 A. I said -- no, when you're talking about
19 review, and you're talking about this sentence here --
20 Q. Yes.
21 A. -- "I suggested a complete review in
22 January Mike" -- "in January, and Mike said he'd be
23 willing to discuss it in December."
24 Q. Sure. 378
1 A. If you go back to what I earlier said
2 today --
3 Q. Sure.
4 A. -- that in that meeting, I asked
5 Mike Garrison in regards to the verbal promises and
6 the culture change, How are you going to measure
7 change and that in the athletic department.
8 And he said is it going -- I said, Is it
9 going to take a year and a half, is it going to take
10 two, what are going to be your metrics.
11 And he said, No, if they don't start
12 acting the way that we want them to, I'll make a
13 change with the athletic director in December or
14 January.
15 And so then that's when, in regards to
16 that, it had to do with the verbal promises and things
17 that were being made, and that's when Mike Wilcox
18 said, Okay, so you'll be willing to sit down and
19 review everything in December and January; and Mike
20 Garrison agreed to it.
21 So if you were at the meeting, you would
22 understand a complete review not only included the
23 contract, but also the verbal promises that they made
24 that day to Coach Rodriguez and also the culture 379
1 change that they promised in the athletic department.
2 Q. Mr. Brown, as you have already admitted,
3 "verbal promises" is not mentioned once in those two
4 paragraphs, that people would sit down and talk in
5 January or December about fairness issues and a review
6 of this contract, not once in those two paragraphs, is
7 there?
8 A. Nope.
9 Q. Did you get a copy of this, this e-mail?
10 A. I sure did.
11 (Brown Exhibit 55 was marked
12 for identification.)
13 MR. ROBERT P. FITZSIMMONS: I'm
14 going to show you Exhibit 55.
15 Do you have any stickers?
16 MR. WAKEFIELD: We do.
17 MR. ROBERT P. FITZSIMMONS: Okay.
18 BY MR. FITZSIMMONS:
19 Q. Is this a copy of a business card of
20 yours, Michael Brown, Director of Marketing?
21 Touchstone, that's one of the companies I thought you
22 told me you worked at.
23 A. That's correct.
24 Q. Okay. And do you -- this would be your 380
1 address in Triadelphia, West Virginia, for that
2 business?
3 A. That's correct.
4 Q. Did you have an office there?
5 A. I maintained an office there and also an
6 office in my home in Atlanta when I worked for them.
7 Q. Okay. This is an e-mail there, mlb --
8 A. @trl.com.
9 Q. @trl.com.
10 A. That's correct.
11 Q. Was that your e-mail address?
12 A. At that -- for --
13 Q. For that business?
14 A. Yeah, Touchstone.
15 Q. That's your personal e-mail address
16 there?
17 A. Yeah. Those are my initials, Michael L.
18 Brown.
19 Q. And a website here also --
20 A. That was the company website.
21 Q. That was the company's website?
22 A. That's correct.
23 Q. Okay. All right.
24 MR. FITZSIMMONS: Do you have 381
1 any stickers?
2 MR. WAKEFIELD: Yeah.
3 (Brown Exhibit 56 was marked
4 for identification.)
5 BY MR. FITZSIMMONS:
6 Q. Let me show you Exhibit 56.
7 A. Uh-huh.
8 Q. Is that an e-mail from you, Mr. Brown?
9 A. Yes, it is.
10 Q. It says Subject: vegas vic show.
11 A. Yeah, uh-huh.
12 Q. It says, "Waterboy's free pick." Is that
13 you?
14 A. Yeah. Well, in other words, what I did
15 was record for a guy --
16 Q. Is "Waterboy" referring to you in this
17 e-mail, sir?
18 A. Yeah. Yeah, there was a character made
19 up by Waterboy, yeah, uh-huh.
20 Q. This is November 15th of 2001?
21 A. Yeah.
22 Q. Okay. It says, "To get the Waterboy's
23 free pick."
24 A. Uh-huh. 382
1 Q. What are we talking about, "picks"?
2 Sports betting?
3 MR. ROBON: Objection. This is
4 in 2001. It's irrelevant and immaterial,
5 has nothing to do with this case.
6 You can answer.
7 THE WITNESS: Yeah, yeah. In
8 other words, I did radio show stuff in
9 Cleveland, Ohio, I was a common -- I was
10 an NFL insider on WKNR and never got
11 compensation for it.
12 And then because of my southern
13 accent and that, I would go on and do
14 voice-overs for this -- for the radio
15 station.
16 BY MR. FITZSIMMONS:
17 Q. Let's talk about -- this is, "For his top
18 three college and pro picks each week," call a certain
19 number, and, what, you would give them tips on sports
20 betting for college and pro games?
21 A. No, all I did --
22 MR. ROBON: Objection. It
23 doesn't say "sports betting."
24 BY MR. FITZSIMMONS: 383
1 Q. Well, I'm asking you. Is that what
2 that's talking about, "For the top three college and
3 pro picks"?
4 MR. FITZSIMMONS: I don't know
5 too much more that's not sports betting,
6 Mr. Robon, but maybe you're right.
7 THE WITNESS: Uh-huh.
8 BY MR. FITZSIMMONS:
9 Q. Look at the next one.
10 A. Say it again now.
11 Q. Did you actually have problems with
12 Touchstone's because of running a sports-betting
13 operation with college and --
14 A. I never ran a sports-betting operation.
15 I just did voice-overs and that in regards to -- and
16 that.
17 Q. It says these numbers; it says, "You get
18 the top three college and pro picks for $99 per
19 weekend."
20 A. Uh-huh.
21 Q. Some fee was being charged for this
22 service?
23 A. I guess, yeah, the guy was charging a
24 fee. 384
1 Q. And you were part of that --
2 A. No, huh-uh, I wasn't employed, no.
3 Q. It says, "Last week the Waterboy was a
4 perfect 3 and 0 for both his college and pro picks."
5 A. Say it again.
6 Q. It says, "Last week the Waterboy" -- I
7 guess that's you, right?
8 A. Yeah.
9 Q. That's your nickname, you told us that
10 already.
11 A. Yeah, at that time, yeah.
12 Q. -- "was a perfect 3 and 0 for both his
13 college and pro picks."
14 A. I don't recall. I mean, I would be given
15 a script and read it.
16 Q. Well, this is actually an e-mail that you
17 sent --
18 A. Uh-huh.
19 Q. -- about yourself picking college and pro
20 sports, right?
21 A. No, I was just show -- I was going
22 over --
23 Q. Who was it from?
24 A. It was from me. 385
1 Q. And who is it to?
2 A. A friend of mine.
3 Q. In Vegas?
4 A. No, huh-uh. She lived in Atlanta, I
5 think, at the time.
6 It says here, right there, I will get you
7 on a three-way when I record today.
8 And so basically I recorded voice-overs
9 for her.
10 Q. You were picking -- according to this,
11 you were telling people you're picking -- you're the
12 Waterboy, you're picking college and pro picks, and
13 there is a phone number to dial in, and people pay 99
14 bucks to get tips on games at that time.
15 A. I did not make picks; I did not -- all I
16 did was just do voice-overs.
17 Q. It says, "100 percent just like he
18 handles all his phillies."
19 A. Uh-huh.
20 Q. What's that mean?
21 A. It's -- it's the script that was typed up
22 that I read for.
23 Q. It was a script that you typed up and
24 provided to her, didn't you? 386
1 A. It was a script that --
2 MR. ROBON: Show a continuous
3 objection on this line of questioning,
4 and move to strike, irrelevant,
5 immaterial.
6 THE WITNESS: Uh-huh.
7 BY MR. FITZSIMMONS:
8 Q. She was reading on the -- on the air?
9 A. Yeah.
10 Q. Did you actually --
11 MR. ROBON: What was struck out
12 on this exhibit that I can't read on top?
13 MR. ROBERT P. FITZSIMMONS: I
14 didn't strike anything out, sir.
15 MR. ROBON: I know. What's
16 written on there?
17 THE WITNESS: "Sports betting."
18 BY MR. FITZSIMMONS:
19 Q. Sports betting?
20 A. Yeah.
21 Q. So you weren't involved in sports betting
22 with that e-mail; is that what your testimony is, sir?
23 A. I was not involved in sports betting. I
24 read voice-overs and that for the radio. I never made 387
1 any --
2 Q. What's The Chicken Shack?
3 A. That's probably part of the script we
4 made up when we were reading the scripts and that.
5 Q. Did you provide a script to people to
6 read on the air so people could pay money to get
7 sports-betting tips, I guess?
8 MR. ROBON: Objection.
9 You can answer.
10 THE WITNESS: Say it again.
11 BY MR. FITZSIMMONS:
12 Q. Did you write a script, help write a
13 script so that there would be some sports betting and
14 you would give tips that --
15 A. I wouldn't give tips.
16 Q. You didn't give any -- the Waterboy
17 doesn't give tips; that's a false thing that the
18 Waterboy is picking games? Is that a false statement?
19 A. I would -- I would --
20 MR. ROBON: Objection.
21 You can answer.
22 THE WITNESS: To the best of my
23 recollection, I was given scripts to read
24 and to play along with them, or whatever, 388
1 but I never actually made the picks or
2 whatever --
3 BY MR. FITZSIMMONS:
4 Q. So you were reading false statements to
5 the public over the FCC airwaves, then, as to Waterboy
6 picking 6 and 3 and 3 and 0 in pros; that's a false
7 statement you were representing?
8 A. Say that again.
9 Q. You were having scripts read that the
10 Waterboy was 6 and 3 in college games and 3 and 0 in
11 pro games, you were making false representations on
12 the airwaves, FCC airwaves, then; is that right?
13 MR. ROBON: Objection.
14 THE WITNESS: I have no
15 knowledge of that. I mean, I can't
16 answer that. That's back in 2001, and I
17 was doing this guy a favor, never got
18 paid for it, in writing scripts and doing
19 voice-overs for him.
20 (Brown Exhibit 57 was marked
21 for identification.)
22 BY MR. FITZSIMMONS:
23 Q. Let me show you 57. Is that a script
24 that was read, then, on the airwaves? 389
1 A. Uh-huh.
2 Q. Is that a yes?
3 A. Yes, it is.
4 Q. And it says, "Waterboy's the proprietor
5 of that business."
6 A. Uh-huh.
7 Q. You see it? You see where it says the
8 word "proprietor"?
9 A. That's correct.
10 Q. Is that -- as the sports agent that you
11 are, that means that you own the business?
12 A. This was a -- I don't own this -- I never
13 have, never owned --
14 Q. I didn't ask you --
15 A. Never received any compensation for any
16 sports betting. This was a script that I came up with
17 and reviewed and talked to the guy Vic about, and then
18 I would read it for him.
19 Q. Okay. So you came up with the actual
20 script and read this on FCC airwaves; is that right?
21 A. Uh-huh.
22 MR. WAKEFIELD: Is that a yes or
23 no?
24 THE WITNESS: Yes. 390
1 BY MR. FITZSIMMONS:
2 Q. Okay. You indicate your normal business
3 hours are 9 to 5 seven days a week.
4 A. Uh-huh. Not mine, it's a company that I
5 was --
6 Q. It says, "Our normal business hours."
7 A. I was recording a script to be played for
8 Vic.
9 Q. And you say you were recording -- you
10 say, "Our normal business hours are 9 to 5 7 days a
11 week." Is that what that says?
12 A. Yep.
13 Q. Who came up with Chicken Shack as the
14 name? Is that something that you came up with?
15 A. No. I think Vic came up with that.
16 Q. And it was 99 dollars a week or for, I
17 guess -- is that a good price -- 999 dollars for the
18 season, you can get your 100 percent proof top three
19 college and top three pro picks plus some bonuses
20 during the year.
21 Is that a script that you helped right?
22 A. No. He would -- on some of this stuff, I
23 would come up with some of the fun stuff, and then he
24 would provide the information in regards to the phone 391
1 numbers, the prices, and the business and that.
2 And then I would come up, and we would
3 review it and say, Okay, is this what you want me to
4 read; and I'd say, Okay, I'll read it.
5 Q. When did you tell me you had your NFL
6 Players' Association license?
7 A. In, let me see here. That would have
8 been '99, and that would have been in 2000.
9 Q. You had it one year?
10 A. I mean, that's when I first got it was in
11 2000.
12 Q. And you had that license in 2001?
13 A. Yes.
14 Q. Did you report to the NFL Players
15 Association that you were reading things like this and
16 writing picks for pro sports?
17 A. I wasn't writing picks. I was reading a
18 script.
19 Q. Well, you told us that you put it
20 together in part, you said earlier.
21 A. Yeah. I would put together the fun part;
22 they would -- he would supply me the information in
23 regards to how he wanted that. Also at the same
24 time -- 392
1 Q. So it's your testimony --
2 A. Also --
3 MR. ROBON: Let him finish,
4 please.
5 THE WITNESS: Also at the same
6 time, I was on the air at KNR and other
7 stuff, and they asked me to do -- every
8 now and then to do voice-overs for them
9 also there.
10 BY MR. FITZSIMMONS:
11 Q. So as I understand, you have a pro
12 license as an agent at this time back in 2001; is that
13 right?
14 A. That's correct.
15 Q. All right. You're holding yourself out
16 as an agent for coaches at that time; is that right?
17 A. No. No, I had not started representing
18 coaches.
19 Q. You hadn't started yet, then?
20 A. No, huh-uh.
21 Q. And you were helping to write these
22 statements and e-mails relating to sports betting; is
23 that true?
24 A. Say it again. 393
1 Q. You were helping to write at least a
2 message to be read on the air about sports betting; is
3 that true?
4 A. I was helping a guy write a script for
5 his business and do voice-overs.
6 Q. And you wrote a personal e-mail to an
7 individual calling yourself the Waterboy and saying
8 that you have picks and that for money you can get
9 your picks, the Waterboy's picks, for 99 dollars a
10 week or 999 dollars a season.
11 A. Uh-huh.
12 Q. That's a personal e-mail that you sent
13 from your business up at Touchstone's?
14 A. Touchstone.
15 Q. Right?
16 A. Uh-huh.
17 Q. While you're working for Touchstone's?
18 A. Uh-huh. What's the question again?
19 Q. And that has to do with sports betting;
20 is that right?
21 A. What's the question again?
22 Q. Does the e-mail have to do with sports
23 betting?
24 A. It does. 394
1 Q. And --
2 MR. ROBON: Objection. Move to
3 strike.
4 BY MR. FITZSIMMONS:
5 Q. Do you know -- Mr. Robon pointed out
6 something that had been blurred out of the e-mail that
7 we obtained.
8 A. Uh-huh.
9 Q. Is the "sports betting," do you know
10 whose writing that was that was blurred out?
11 A. I have no idea.
12 Q. You've seen this e-mail before, haven't
13 you?
14 A. Yeah.
15 Q. You wrote it?
16 A. Yeah.
17 Q. Nobody else wrote it?
18 A. No.
19 Q. All right. Did you say yes?
20 A. That no one else wrote it?
21 Q. Yes.
22 A. Yeah, no one else wrote it.
23 Q. You solely and exclusively wrote
24 Exhibit -- is that -- the e-mail with your hands over 395
1 it is 57?
2 MR. WAKEFIELD: It's 55.
3 THE WITNESS: 55, 56, which are
4 you talking about?
5 BY MR. FITZSIMMONS:
6 Q. 56. It's 56?
7 A. Say that again.
8 Q. The e-mail --
9 A. I did not solely, exclusively write this.
10 Q. The e-mail?
11 A. Oh, as far as the e-mail --
12 Q. The e-mail, 56?
13 A. Yeah, the e-mail, I wrote that. The
14 content was, again, provided by the company I was
15 doing the voice-over for.
16 Q. Okay. Who is Jennifer?
17 MR. ROBON: Objection.
18 You can answer.
19 THE WITNESS: Jennifer is a
20 friend, is a person who worked for me as
21 an intern when I was a sports agent in
22 1999 and 2000.
23 BY MR. FITZSIMMONS:
24 Q. Jennifer Kromp? 396
1 A. Krompass, yes.
2 Q. That's who you wrote the e-mail to also,
3 then?
4 A. That's correct, yeah.
5 Q. And you have her listed in the actual
6 thing that you read on the air, that she's one of the
7 people that will receive the calls for people calling
8 for sports betting services.
9 A. Uh-huh.
10 Q. Do you see that, sir?
11 A. That's correct.
12 Q. Same person?
13 A. Uh-huh.
14 Q. Yes?
15 A. Uh-huh. Say it again.
16 Q. Same person?
17 A. Yeah. I -- I asked her if she wanted to
18 do one of the voice-overs for fun, and she said, yes,
19 she would do it.
20 Q. Same person who the e-mail was sent to on
21 Exhibit 56, right?
22 A. Yeah.
23 Q. And that's who you advise on the
24 advertisement will be one of the persons answering the 397
1 phone calls for people purchasing or inquiring into
2 this sports-betting-tip service; is that true?
3 A. That's correct. Jennifer knew Vic and
4 had knew -- had met and knew him, and so Vic came up
5 with the idea of why don't we have Jennifer do one of
6 the voice-overs.
7 Q. Who is Sandy?
8 A. Say it again.
9 Q. Who is Sandy?
10 A. Where does it say that?
11 Q. It's right after Jennifer. She's another
12 girl that answers like sports-betting calls?
13 A. That was one of Jennifer's roommates.
14 Q. Jennifer's roommates?
15 A. Yes.
16 Q. Jennifer Krompass?
17 A. Yeah, uh-huh.
18 Q. Yes?
19 A. Yes.
20 Q. And who is Stacy?
21 A. One of her roommates also.
22 Q. And who is Kelly?
23 A. Jennifer's sister.
24 Q. All right. So where does Jennifer live 398
1 now, do you know?
2 A. She lives in Atlanta.
3 Q. Are you related to Jennifer in any way?
4 A. No.
5 Q. Do you still maintain communication with
6 Jennifer?
7 A. Yes.
8 Q. How regularly?
9 A. Quite regularly. She's like --
10 MR. ROBON: Objection.
11 THE WITNESS: She's like a
12 sister to me.
13 BY MR. FITZSIMMONS:
14 Q. So the girl that's like a sister to you,
15 you have at least them, all these ladies, young gals,
16 answering the phone according to the advertisement
17 that was read over the FCC airwaves, is that right, in
18 2001?
19 A. They never answered the phone. They
20 just -- it was written up as a -- to read over. They
21 never were employed. They never did anything.
22 Q. Well, this says, "Maybe Jennifer, Sandy,
23 Stacey or Kelly may discretely get back to you to
24 handle your order." 399
1 A. Uh-huh.
2 Q. So were they handling sports betting
3 orders on tips?
4 A. Nope. All they were doing was just
5 reading the voice-over to be aired on the air without
6 any charge to somebody they knew in that business.
7 Q. And you got in trouble -- did you get in
8 trouble with Touchstone's because of all this?
9 A. Nope.
10 Q. Have you ever seen their report from
11 Touchstone's?
12 A. I've never seen it.
13 Q. You understand that a complaint was filed
14 with Touchstone's that you were running a
15 sports-betting business out of Touchstone's and
16 diverting federal assets in West Virginia?
17 A. I understand that.
18 Q. You do understand that?
19 A. Yeah.
20 MR. ROBON: Objection. Move to
21 strike.
22 BY MR. FITZSIMMONS:
23 Q. When did you learn that?
24 A. Pardon me? 400
1 Q. When did you learn that?
2 MR. ROBON: Objection. Move to
3 strike.
4 THE WITNESS: When I was
5 employed at Touchstone's, there was a
6 disgruntled employee that left that made
7 numerous accusations against Touchstone
8 Research, myself, and other people.
9 That person used to work for me,
10 and at the time that he left he made
11 allegations against myself, the owner of
12 the company, Brian Joseph, the -- and
13 also the other owner, Libby Kraftician,
14 and William Casto.
15 There were a slew of charges
16 that were made, I believe, when that
17 employee left back in -- I believe it was
18 in 2002 -- yeah, probably 2002.
19 BY MR. FITZSIMMONS:
20 Q. There was a company that you didn't tell
21 us about that you worked for by the name of Prestige
22 Sports; is that correct?
23 A. Yeah.
24 MR. ROBON: Objection. 401
1 BY MR. FITZSIMMONS:
2 Q. This Jennifer, almost-sister of yours was
3 the director -- listed as public relations director of
4 Prestige Sports, right?
5 A. That's correct.
6 Q. And Prestige Sports, Mr. Brown, tell me a
7 little bit about how long you owned that company?
8 A. I did not own that company.
9 Q. Tell me how long you worked for that
10 company.
11 A. Let me see. Going back in -- let me see
12 here. When I became an agent in 2000, I --
13 Terry Bolar, who was the owner of Prestige Sports, and
14 I worked together for a period of time. There was
15 never a formal written agreement in regards to that.
16 Terry handled recruiting and that of --
17 Q. Recruiting what?
18 A. Well, players were coming out of college
19 and that, to get their representation and that. I
20 basically handled the contract research, contract
21 preparation, things like that.
22 Q. So at the same time these -- "these," 56
23 and 57, and the sports-betting thing, calling these
24 folks, there was a company called Prestige Sports? 402
1 A. That's correct.
2 Q. And it would recruit players coming out
3 of colleges in order to represent them as a sports
4 agent?
5 MR. ROBON: Objection.
6 BY MR. FITZSIMMONS:
7 Q. Generally?
8 A. We represented veterans in the NFL,
9 people that were already in the league; and then we
10 were, always -- we were, you know, gaining new clients
11 either through recruiting kids out of college and/or
12 veterans coming over to us.
13 Q. And that was -- complaint was fully
14 completed as to their investigation of this matter at
15 Touchstone's February 3 of '02?
16 MR. ROBON: Objection.
17 BY MR. FITZSIMMONS:
18 Q. Is that correct?
19 A. Say it again.
20 Q. February 3 of '02?
21 MR. ROBON: Objection.
22 THE WITNESS: Do you want me to
23 answer that?
24 MR. ROBON: You can answer, but 403
1 let me object first.
2 THE WITNESS: All right.
3 BY MR. FITZSIMMONS:
4 Q. Is that true?
5 A. I'm not aware of when the investigation
6 was completed, but I do know that I had conversations
7 with the owners of the company after the investigation
8 was completed.
9 Q. My question just has to do with the date,
10 Mr. Brown. You can talk all you want with Mr.
11 Robon --
12 A. Sure.
13 Q. -- on the deposition later on.
14 A. Sure.
15 Q. So the sports betting, Exhibits 56 and
16 57, time-wise is November of '01?
17 MR. ROBON: Object to the
18 characterization of "sports betting."
19 THE WITNESS: Say it again
20 now.
21 BY MR. FITZSIMMONS:
22 Q. This says "sports betting" somebody put
23 on. That's what you told us it said, right?
24 A. Yeah. 404
1 Q. Okay. Exhibit 56.
2 Then Prestige, that operated also at the
3 same period of time in November of '01 also; is that
4 right?
5 MR. ROBON: Objection.
6 THE WITNESS: What, Prestige,
7 that represented --
8 BY MR. FITZSIMMONS:
9 Q. Prestige Sports, that it existed and you
10 were actually doing work for it, and Jennifer was the
11 public relations director for it in November of '01
12 also?
13 MR. ROBON: Objection.
14 You can answer.
15 BY MR. FITZSIMMONS:
16 Q. Go ahead. You can answer.
17 A. Yes.
18 Q. So you had -- these two sports-betting
19 documents that we've talked about, 56 and 57, at the
20 same time your other business that you were working
21 for, Prestige, was recruiting college kids and
22 representing veterans --
23 A. Okay. Say it again, now.
24 Q. -- in the NFL -- 405
1 A. What's your question again?
2 Q. My question is timing-wise, you had
3 Prestige Sports, which would represent veterans of the
4 NFL, and also, you said, recruiting college kids
5 coming out --
6 A. Uh-huh.
7 Q. -- for the purpose of sports
8 representation --
9 A. Uh-huh.
10 Q. -- at the same time, 56 and 57 documents,
11 the e-mail about sports betting and charging for
12 sports betting was going on; is that true?
13 MR. ROBON: Objection.
14 THE WITNESS: What these are --
15 BY MR. FITZSIMMONS:
16 Q. Is that true time-wise?
17 A. These are voice-overs that I was doing
18 for a radio station, yes.
19 Q. Right. Time-wise is that the same time,
20 November, both existed?
21 A. That's correct.
22 MR. ROBON: Object.
23 BY MR. FITZSIMMONS:
24 Q. How long did Prestige Sports exist, just 406
1 so we know?
2 MR. ROBON: Objection.
3 THE WITNESS: I do not know.
4 Well, I take that back. Terry separated
5 from his agency --
6 BY MR. FITZSIMMONS:
7 Q. Just -- you don't have to talk out loud.
8 Just think and give me a date.
9 A. Time-wise, I believe Prestige Sports
10 started around January of '01.
11 Q. January of '01. And when did you -- when
12 was it discontinued?
13 MR. ROBON: Objection.
14 THE WITNESS: To my knowledge,
15 it's not discontinued. I think Terry
16 Bolar is still a sports agent and
17 represents -- and operates under the
18 company Prestige Sports.
19 BY MR. FITZSIMMONS:
20 Q. How long did you work for Prestige
21 Sports?
22 MR. ROBON: Objection.
23 THE WITNESS: I worked with
24 Terry Bolar -- 407
1 BY MR. FITZSIMMONS:
2 Q. You helped set it up in '01, didn't you?
3 MR. ROBON: Objection.
4 THE WITNESS: The sports agency?
5 MR. FITZSIMMONS: Yes.
6 MR. ROBON: Objection.
7 THE WITNESS: Yeah.
8 BY MR. FITZSIMMONS:
9 Q. So you were on board as early as January
10 of '01 with Prestige Sports.
11 MR. ROBON: Objection.
12 THE WITNESS: That is correct.
13 BY MR. FITZSIMMONS:
14 Q. When did you leave Prestige Sports?
15 MR. ROBON: Objection.
16 THE WITNESS: Let me figure this
17 out. Let me see. '01, '02 -- it was in
18 the late 2002 and 2003 time frame.
19 BY MR. FITZSIMMONS:
20 Q. And how were you paid by Prestige Sports?
21 MR. ROBON: Objection.
22 THE WITNESS: How was I paid?
23 At that time -- I can't recall in regards
24 to that. 408
1 BY MR. FITZSIMMONS:
2 Q. You can't recall how you were paid by
3 that company; is that your testimony under oath here?
4 A. No, what I take -- what --
5 MR. ROBON: Objection.
6 THE WITNESS: What I am saying
7 is I don't believe I ever -- I'd have to
8 go back and look at my records, but there
9 may be -- I don't even know if I ever got
10 paid by Prestige Sports.
11 BY MR. FITZSIMMONS:
12 Q. You don't know if you got paid by it?
13 A. I would have to go back and look. But
14 because we were a start-up company, and you get paid
15 off of commissions by, you know, when your client gets
16 paid and that, and since it was a start-up company, I
17 can't remember whether we had actually had any
18 revenues coming in yet by the time I left there.
19 Q. Did you tell the NFL Players' Association
20 that licenses agents in 2001 that you were
21 participating in these e-mails and announcements on
22 the radio station about tips for college and pro sport
23 games?
24 MR. ROBON: Objection. 409
1 THE WITNESS: No, I did not
2 notify the NFLPA that I was doing
3 voice-overs on the radio station.
4 BY MR. FITZSIMMONS:
5 Q. Did you give up your pro license for
6 representing players in early 2002 -- 2002?
7 A. No, I did not.
8 Q. When did you give it up?
9 A. I gave it up around the October time
10 frame of 2006.
11 Q. And at any time prior to 2006, had you
12 ever advised the NFL Players' Association about these
13 e-mails, the e-mail to Jennifer, Exhibit 56, and the
14 typewritten message to be read on Exhibit 57?
15 A. No, I did not.
16 Q. Have you ever told Coach Rodriguez about
17 those items?
18 MR. ROBON: About what items?
19 BY MR. FITZSIMMONS:
20 Q. 56 and 57.
21 A. No, I did not.
22 Q. Have you ever told Mr. Metz about those
23 issues involving 56 and 57, did you ever discuss those
24 with Mr. Metz, so we can ask him? 410
1 MR. ROBON: Objection.
2 THE WITNESS: No, that was
3 before the time that I --
4 BY MR. FITZSIMMONS:
5 Q. Your answer was no?
6 A. No, I did not discuss that.
7 Q. Did you ever tell anybody at LMM, this
8 sports agency, about these two exhibits, 56 and 57,
9 being out there?
10 MR. ROBON: Objection.
11 THE WITNESS: No, I did not.
12 But they -- they did know even after I
13 started working for them that I was
14 regularly on WKRN, the radio station.
15 BY MR. FITZSIMMONS:
16 Q. I didn't ask that question. I'm
17 interested in those two exhibits --
18 A. No.
19 Q. -- Mr. Brown.
20 A. No.
21 Q. Have you ever told any of your clients
22 that you represent, so far as coaches --
23 A. Uh-huh.
24 Q. -- about Exhibits 56 and 57? 411
1 A. No.
2 MR. ROBON: Objection. Move to
3 strike.
4 BY MR. FITZSIMMONS:
5 Q. You are aware that a rather lengthy
6 investigation took place at Touchstone's concerning
7 this. Do you understand that?
8 MR. ROBON: Objection.
9 THE WITNESS: There was a
10 lengthy investigation into a lot of
11 allegations at Touchstone.
12 BY MR. FITZSIMMONS:
13 Q. You understood that, right?
14 A. Yes.
15 Q. Have you ever told Rodriguez or any of
16 your representatives about these -- about the
17 investigation, any of the people that you represent?
18 A. No.
19 MR. FITZSIMMONS: I have two
20 minutes. Is that what you said?
21 THE VIDEOGRAPHER: I've got
22 about three.
23 MR. FITZSIMMONS: You can go
24 ahead and change it if you want to. This 412
1 would be a good time.
2 THE VIDEOGRAPHER: Going off the
3 record at 5:09 p.m.
4 (A brief recess was had.)
5 THE VIDEOGRAPHER: Back on the
6 record at 5:17 p.m.
7 BY MR. FITZSIMMONS:
8 Q. Before asking you any questions about
9 Exhibit 40, Mr. Brown, were you using Touchstone's
10 e-mail service for those Exhibits 56 and 57 that we
11 had talked about --
12 MR. ROBON: Objection.
13 BY MR. FITZSIMMONS:
14 Q. -- on the e-mail relating to sports
15 betting and the written message?
16 MR. ROBON: Objection.
17 THE WITNESS: Repeat the
18 question.
19 BY MR. FITZSIMMONS:
20 Q. Were you using Touchstone's computer
21 systems or your e-mail address at Touchstone for
22 those?
23 A. Yes.
24 Q. Did they authorize you to do that? 413
1 A. The --
2 Q. Did they authorize you to do it, yes or
3 no?
4 A. No, they did not.
5 Q. And you were using also their e-mail
6 address for this business called Prestige Sports?
7 A. Yes. And they were aware I was a sports
8 agent at the time.
9 Q. I didn't ask you that question, did I?
10 A. Yeah.
11 Q. Did they authorize you to run your
12 sports, Prestige Sports business through their e-mail
13 service?
14 MR. ROBON: Objection.
15 THE WITNESS: They never did
16 authorize that.
17 BY MR. FITZSIMMONS:
18 Q. What's the full name of the guy that ran
19 Prestige Sports, that you said still runs it?
20 A. Terry Bolar.
21 Q. Terry Bolar?
22 A. Yeah, B-o-l-a-r.
23 Q. And were you and Mr. Bolar the only two
24 involved in Prestige Sports? 414
1 MR. ROBON: Objection.
2 THE WITNESS: During the whole
3 time that I was there?
4 BY MR. FITZSIMMONS:
5 Q. During the period that you were there.
6 A. There were other individuals that were
7 involved, but I can't remember their -- I remember one
8 guy that was involved was a guy named Mike Dortch.
9 Q. Mike Dortch?
10 A. Yes.
11 Q. D-o-r-s-c-h [sic]?
12 A. I have no idea how to spell his last
13 name.
14 Q. Was he an agent of football --
15 professional football players?
16 A. No, he was -- he was helping -- actually,
17 I think, helping us raise funding to capitalize the
18 business, for example.
19 Q. Okay. Anybody else?
20 A. Jennifer started working there after she
21 graduated from college.
22 Q. Where did she graduate from?
23 A. University of Ohio in Athens.
24 Q. Ohio University? 415
1 A. Yes.
2 Q. And then at some point in time, I believe
3 there was a person that was hired to be a marketing
4 person, an African-American lady. I can't remember
5 her name.
6 But there were other -- during the time
7 that Terry and I worked together at various points in
8 time, there were other people that worked at the
9 agency.
10 Q. Where is Mr. Bolar, B-o-l-a-r, today?
11 A. I still believe he's in Marietta,
12 Georgia.
13 Q. That's where the main office was for
14 Prestige Sports?
15 A. Yes.
16 Q. Do you communicate with him regularly?
17 A. We probably see each other, cross paths,
18 maybe once a year in Indianapolis in February at the
19 NFL compound.
20 Q. He's still representing players?
21 A. Yes, he is. To my knowledge.
22 Q. The radio station that you say that you
23 were doing live reads or some type of reads, what's
24 the name of that station, 1430 AM, did you say? 416
1 A. WKNR in --
2 Q. KNR?
3 A. In Cleveland, Ohio.
4 Q. And what's the number, the call letters?
5 A. I don't know what their number is today.
6 Q. What was it --
7 A. I can't even remember what it was back
8 then.
9 Q. Is it an AM station?
10 A. Back then it was an AM station.
11 Q. Who owned the station at that time?
12 A. I have no idea who owned it.
13 Q. The sports-betting company, who owned
14 that? You said Dick something --
15 MR. ROBON: Objection.
16 THE WITNESS: A guy -- a person
17 by the name of -- do you want me to
18 answer it?
19 MR. FITZSIMMONS: You have to
20 answer it.
21 MR. ROBON: You can answer it.
22 Let me make the objection first.
23 THE WITNESS: A guy by the name
24 of Dave Rice, R-i-c-e. 417
1 BY MR. FITZSIMMONS:
2 Q. What was the name of the sports-betting
3 company?
4 A. I have no idea.
5 Q. No idea?
6 A. I can't remember.
7 Q. Did you come up with the name of the
8 business Chicken Shack?
9 MR. ROBON: Objection.
10 THE WITNESS: As I said earlier,
11 I think Dave, when we were talking about
12 writing -- working on writing scripts and
13 that, I believe he came up with it.
14 BY MR. FITZSIMMONS:
15 Q. Was there an actual business entity
16 called Chicken Shack?
17 A. No.
18 Q. Dave Rice, the owner of the
19 sports-betting thing, participated with you in writing
20 this announcement; is that your -- is that what you're
21 saying?
22 MR. ROBON: Objection.
23 THE WITNESS: We -- he would
24 work -- he would -- he would and I would 418
1 talk, and he would say, Hey, I need you
2 to record this on this date at a certain
3 time, are you available.
4 BY MR. FITZSIMMONS:
5 Q. Where is Dave Rice today?
6 A. I still think he's in Cleveland, Ohio.
7 Q. And do you know what type of business
8 he's in?
9 A. I know he's been employed since that time
10 by The Cleveland -- The Cleveland Plain Dealer; I know
11 he's been employed by one of the TV stations up there,
12 help covering the Cleveland Browns. I think it was
13 actually the station that has the TV network with
14 them. So he's still in Cleveland, and he is -- I
15 think he still is a radio personality and also a TV
16 personality, still, up there.
17 Q. Sports betting, does he still do that?
18 A. I have no idea. I haven't talked to Dave
19 in years.
20 Q. Where was his sports-betting operation?
21 MR. ROBON: Objection.
22 THE WITNESS: Where was his
23 sports-betting operation? I have no idea
24 where his office was. 419
1 (Brown Exhibit 40 was marked
2 for identification.)
3 BY MR. FITZSIMMONS:
4 Q. Would you look at Exhibit 40, please.
5 A. Okay.
6 Q. Is this an e-mail from you to Mr. Walker
7 at West Virginia University?
8 A. That's correct.
9 Q. The fifth paragraph down --
10 A. Uh-huh.
11 Q. -- it says, a statement made by you, it
12 says -- I'll read it, tell me if I read it correctly.
13 You're talking about having a meeting to go through
14 some things in the contract with the Rodriguezes.
15 And you say, "Why is this important?
16 There is a projected opening at Texas A & M this year
17 and Florida State next year. Rich's name is being
18 mentioned heavily. Please see attachment."
19 A. Uh-huh.
20 Q. Wasn't the contract until 2014 at that
21 time?
22 A. That's correct.
23 Q. And there was at that point in time a
24 binding, fully binding contract? 420
1 MR. ROBON: Objection.
2 THE WITNESS: Correct.
3 BY MR. FITZSIMMONS:
4 Q. You didn't mention anything about the
5 liquidated damage clause in this e-mail to Mr. Walker;
6 is that correct?
7 A. That's correct.
8 Q. You didn't advise Mr. Walker there was
9 any breaches in any contract whatsoever at that time,
10 did you?
11 A. I did not.
12 Q. And you provided them -- why would you
13 tell Mr. Walker about openings at Texas A & M and
14 Florida State? Just conversation that you wanted to
15 have with him?
16 A. What's the question again?
17 Q. Why would you tell Mr. Walker about
18 openings for a coaching position at Texas A & M and
19 Florida State?
20 A. Well, because I go back up to the
21 previous paragraphs, going back to the meeting this
22 summer with Mike Garrison in Wheeling to evaluate
23 where things stood in December and January as
24 important to the program and the progress in that, 421
1 also of importance are different initiatives, we have
2 discussed increasing athletic department revenues and
3 that.
4 And so I had a statement in there, "Rich
5 and I are very concerned there is no confirmation the
6 RFP for network has not been released yet."
7 And I brought -- so that's my job as an
8 agent to say, Hey, this is a two-way street, just like
9 when they shook the hands back in August, A commitment
10 from one Mountaineer to another.
11 And, you know, this had gotten to a point
12 I believe at this time that, again, Rich and Rita were
13 very frustrated that Mike Garrison had committed fraud
14 on August 24th, if I say -- with the promises he made
15 and they were not being followed up.
16 Another reason I sent this e-mail is I
17 had a conversation with Bob Robinson prior to sending
18 this e-mail in November, and I know Bob is very
19 tight-knit with the West Virginia group. And so Bob
20 and I were having a conversation, and he knew about
21 the promises and stuff and the details of the
22 contract --
23 Q. Mr. Brown, my question was why you -- why
24 did you mention Florida State and Texas A & M. 422
1 A. I -- I am working to that.
2 Q. How long is it going to take? Can you
3 predict? Will you answer the question, please?
4 A. I can --
5 MR. ROBON: Let him answer the
6 question, please.
7 THE WITNESS: Okay. I can
8 answer it in 60 to 90 seconds.
9 BY MR. FITZSIMMONS:
10 Q. I just want the answer to my question.
11 A. Okay.
12 Q. You can make all the speeches you want
13 when you walk out the door to yourself and Mr. Robon
14 or anybody else.
15 A. Uh-huh.
16 Q. Just answer the question.
17 MR. ROBON: He's answering the
18 question.
19 BY MR. FITZSIMMONS:
20 Q. Why did you mention Florida State and
21 Texas A & M's openings coming up at that time? Were
22 you threatening West Virginia that this guy was
23 getting ready to bolt?
24 A. No -- 423
1 MR. ROBON: Objection. There's
2 multiple questions.
3 THE WITNESS: No. What I was
4 doing was reminding West Virginia of the
5 commitments that they had made to Coach
6 Rodriguez and verbal promises on August
7 the 24th in getting him to sign the
8 contract.
9 BY MR. FITZSIMMONS:
10 Q. Florida State had nothing to do with the
11 contract, sir. There was nobody in that room or
12 nobody on that contract that I've seen from Florida
13 State.
14 A. So what's your question?
15 Q. Why did you mention that there were
16 openings at Florida State and Texas A & M to the chief
17 of staff on November 14th, 2007?
18 A. Well, I think -- I believe one of the
19 reasons was I wanted to again remind him what a great
20 coach and how popular he was.
21 Q. You were suggesting that there were
22 openings and Rich Rodriguez might be jumping ship to
23 go to two other -- one of the two other colleges;
24 isn't that right? 424
1 A. No, I did not.
2 Q. And you actually evaluated -- I'd asked
3 you earlier whether you ever put a market value on
4 Rich Rodriguez.
5 A. Uh-huh.
6 Q. Would you look to the next page of the
7 attachment that you have? I asked you that, one of
8 the first questions of this deposition.
9 A. Uh-huh.
10 Q. What do you price the open market value
11 of Rich Rodriguez, in your opinion, at the time of
12 this November of 14, 2007, e-mail?
13 A. I didn't have any market value. I was
14 just passing on to him stuff, public information that
15 was out on the Internet.
16 Q. What did you -- what did you pass on to
17 Mr. Walker, then, as to open-market value for
18 Rich Rodriguez?
19 A. Pardon me?
20 Q. What did you put on the attachment that
21 you sent to our chief of staff that you wanted to pass
22 on as to the market value of Rich Rodriguez?
23 A. This was a direct cut-and-paste from a
24 website called coacheshotseat.com. I did not generate 425
1 this. This is a cut-and-paste from a website out
2 there, the exact information that was on there.
3 Q. So you cut and pasted and you put it on
4 as to the market value of Rodriguez?
5 A. I didn't add anything to it.
6 Q. I suspect you think Rodriguez is probably
7 would worth even more than 3.25 million, right,
8 open-market value of this coach?
9 A. I have -- I don't determine the market
10 value.
11 Q. But he's your customer, you do.
12 A. I don't determine the market value.
13 Q. I thought you did a survey of market
14 value on salaries, all kind of things.
15 A. Uh-huh.
16 Q. That's what you do, statistics, don't
17 you?
18 A. I don't determine market value. The
19 people that are making the offers and contracts are
20 the ones who determine what they think the market
21 value is.
22 Q. You just try to get the most you can for
23 your customers, right?
24 A. That's my job is when I -- 426
1 Q. It's your job?
2 A. When I enter negotiations with somebody,
3 yes, at that point in time it is my job to get the
4 most and best deal for him.
5 Q. Now are you going to tell Coach Rodriguez
6 when you leave here today that, when asked whether he
7 had an open-market value of 3.25 million, you were not
8 willing to answer the question as to his market value
9 being more than that?
10 MR. ROBON: Objection.
11 THE WITNESS: Repeat the
12 question.
13 BY MR. FITZSIMMONS:
14 Q. Yeah. Sometime, I assume,
15 Coach Rodriguez is going to say, Hey, Mr. Brown, or,
16 Hey, Mike, that lawyer asked you whether I had a
17 market value of 3.25 million, and you wouldn't even
18 tell him I did, had more, something greater than 3.25
19 million.
20 A. I'll tell him I'm not the one who
21 determines market value.
22 (Brown Exhibit 42 was marked
23 for identification.)
24 BY MR. FITZSIMMONS: 427
1 Q. This is Exhibit 42. Mr. Brown, I'm
2 interested in the second page. This is one of those
3 string e-mails.
4 A. Uh-huh.
5 Q. This is from Wilcox, Mr. Wilcox.
6 A. Uh-huh.
7 Q. He's writing to Mike Garrison, our
8 president.
9 A. Uh-huh.
10 Q. I guess it's the second paragraph there
11 towards the bottom, way down at the bottom; you see
12 that?
13 A. Uh-huh.
14 Q. It says, "I'll be in touch with Craig
15 tomorrow to discuss MB's e-mail."
16 A. Uh-huh.
17 Q. So MB -- on that team, MB is Mike Brown,
18 probably.
19 A. That's correct.
20 Q. And then it says, Rich, Rita and I,
21 parenthesis, without MB -- which I guess is you?
22 A. Uh-huh.
23 Q. -- may have to be an impromptu,
24 unparenthesis, to follow up on 8-24 discussions. 428
1 A. Uh-huh.
2 Q. Were you being cut out of the deal at
3 that time basically with Rodriguez?
4 A. No, I wasn't.
5 Q. You didn't feel that Wilcox was cutting
6 you out?
7 A. No, he wasn't.
8 Q. Didn't want you around?
9 A. No. Because on that November 14th
10 e-mail, actually, Rich and Rita both looked at the
11 e-mail prior to me sending it in. Every e-mail,
12 correspondence, and letter that I send in during my
13 whole time representing Coach Rodriguez, he would look
14 at it and review it before I sent it in.
15 Q. Your answer was you didn't feel you were
16 getting cut out; is that right?
17 A. That's correct.
18 Q. And then it goes on. It says, "We could
19 get ahead of things and do it with just the five of
20 us." If you count the number, that would leave you
21 out.
22 A. Uh-huh.
23 Q. Is that right?
24 A. That's correct. 429
1 Q. Had you seen that e-mail, 42, before?
2 A. Before when?
3 Q. Before today.
4 A. Yes, I had.
5 Q. You've been through all these e-mails
6 pretty much --
7 A. Oh, yeah.
8 Q. -- in preparation for your deposition and
9 helping with the case and things, right?
10 A. That, and also I believe they were part
11 of the discovery that was turned over one way or
12 another.
13 Q. So part of the case, in reviewing that --
14 A. Sure.
15 Q. -- assisting, helping with the case,
16 right?
17 A. Yeah.
18 (Brown Exhibit 43 was marked
19 for identification.)
20 BY MR. FITZSIMMONS:
21 Q. All right. You have Exhibit 43 there
22 before you.
23 A. Sure, uh-huh.
24 Q. This is Wilcox, the international expert, 430
1 11-24-07, 2007.
2 A. Uh-huh.
3 Q. At the end there it says they want to
4 "arrange a meeting with Rich and Rita without MB" --
5 that's you?
6 A. Yeah.
7 Q. -- "between 12-3 and Christmas. Let's
8 discuss further at your convenience."
9 A. Uh-huh.
10 Q. Were you aware that they didn't want you
11 there?
12 A. No. I've not seen this e-mail until the
13 discovery.
14 Q. Were you aware they didn't want you there
15 at that meeting?
16 A. Who is "they"?
17 Q. It says Mr. Wilcox, in his e-mail, in
18 this meeting.
19 A. I have no idea or I can't answer to what
20 Mike was implying to when he sent this e-mail.
21 Q. All your -- all your e-mails in reference
22 to Rodriguez, Mr. Rodriguez and Mrs. Rodriguez would
23 review those, always?
24 A. Maybe not Rita -- 431
1 Q. But certainly Rich?
2 A. Certainly Rich.
3 Q. And so the 11-14-07 e-mail that we talked
4 about, Exhibit 42 -- Exhibit 40 -- Exhibit 40 --
5 A. Uh-huh.
6 Q. -- that would have been reviewed at least
7 by Rich and probably also Rita?
8 A. That one I know was reviewed by both of
9 them.
10 Q. That was reviewed by both of them before
11 it was sent out?
12 A. That's correct.
13 Q. You would have had their -- had they not
14 wanted you to send that out --
15 A. I would not have sent it.
16 Q. All right. For Exhibit 43, do you have
17 that there?
18 A. Uh-huh.
19 Q. Did you ever talk to Wilcox around the
20 end of November as to why he was writing these e-mails
21 which look to be excluding you from the meetings
22 concerning Rich and Rita's -- or Rich's contract?
23 A. What's the question?
24 Q. Did you ever talk to Wilcox as to why he 432
1 was doing that?
2 A. No, I did not.
3 (Brown Exhibit 44 was marked
4 for identification.)
5 BY MR. FITZSIMMONS:
6 Q. 44. Let me show you Exhibit 44.
7 A. Uh-huh.
8 Q. This is Mr. Walker, again, on November
9 25th, 2007.
10 A. Uh-huh.
11 Q. The -- first one. The second one I'm
12 interested in is an e-mail from Wilcox to Mr. Walker.
13 It says, "Hi, Craig, Wow is right. Just
14 got back and saw Rich, Rita, and Mike in the locker
15 room on Sports Center. Another good statement.
16 Hopefully you-know-who was not there."
17 A. Uh-huh.
18 Q. Do you know -- did you ever ask
19 Mr. Wilcox if he was talking about you not being there
20 and interfering somehow in the contract relationship
21 with West Virginia at that point, Mr. Brown?
22 A. No, huh-uh.
23 Q. Do you have any idea who he was talking
24 about that he's -- "hopefully you-know-who was not 433
1 there"?
2 A. No, I have no idea.
3 (Brown Exhibit 46 was marked
4 for identification.)
5 BY MR. FITZSIMMONS:
6 Q. 46. Let me show you Exhibit 46,
7 Mr. Brown.
8 A. Uh-huh.
9 Q. This is Mr. Wilcox, was he cut from the
10 team or something in December, when you were calling
11 Arkansas and Michigan?
12 A. I -- I don't know what you mean by cut --
13 "cut from the team."
14 Q. Well, lack of communication. You had
15 already been negotiating with Michigan at that time on
16 behalf of Coach Rodriguez. This is December 12 of
17 '07.
18 A. Yeah. On 12-12-2007, at that point in
19 time I had placed a phone call to --
20 Q. My question was did you cut Mr. Wilcox
21 from the team or decide not to communicate with him
22 about what was going on with this Michigan thing?
23 A. No. On this day, on Wednesday 12-12-2007
24 at some time after 7:24 a.m., I called Mike Wilcox and 434
1 informed him that I had started having discussions
2 with Michigan.
3 Q. Before that, is there some reason
4 Mr. Wilcox was not advised that you had been talking
5 to Michigan, actually made a call sometime on, I
6 believe, the 9th of December of 2007?
7 A. No. I made the call on December 11th of
8 2007, and there was no reason that he had not been
9 contacted yet, because the first day was just an
10 introductory call and that, so it hadn't gotten to a
11 point to notify Mike that it had gotten serious on
12 December the 11th.
13 Q. Well, this is Mr. Wilcox. He's planning
14 on coming down to Morgantown and visiting and going
15 through with meeting our chief of staff and Mike and
16 Rita and Rich, just generally chatting with them;
17 everything seems to be very good and very happy, at
18 least according to Mr. Wilcox's e-mail there, doesn't
19 it?
20 A. That would be interpreted different ways.
21 That's what Mike stated on that day at 7:24 a.m.
22 Q. And he wants to actually meet with
23 Mr. Walker and the Rodriguezes and Mr. Garrison at
24 that time? 435
1 A. That's what he says.
2 Q. Is it your testimony -- is it your
3 testimony that as of December the 12th at 7 -- or 8:00
4 a.m., there had not been any discussions with Michigan
5 University as to potential terms of an agreement with
6 Rodriguez?
7 A. Say it again now.
8 Q. As of December 12th at 8:00 a.m., is it
9 your testimony that there had not been any material
10 discussions about the contract between Michigan and
11 Rodriguez?
12 A. When you say "material discussions,"
13 what's that mean?
14 Q. You as an agent, when you had written in
15 the letters to West Virginia University on at least
16 four or five occasions the word "material,"
17 important --
18 A. Uh-huh.
19 Q. -- general salary term, things like that,
20 had there been any discussions at all generally at
21 that time?
22 A. No, not at that time.
23 Q. As of 8:00 a.m., December the 12th; is
24 that true? 436
1 A. That's correct.
2 Q. You have now on your letterhead on some
3 of these things typed in "Coaching Division." Was
4 that printed stationery that LMM had provided to you
5 or is that something you type on your letterhead that
6 you use for them?
7 A. That is based on the discussions with
8 Eric and I that we are formally calling -- that we
9 have a separate division at LMM Sports called the
10 Coaching Division.
11 Q. My question is do you type it on or is
12 that something LMM gives you that now has preprinted
13 "Coaching Division"?
14 A. No, I type that on there.
15 Q. You just put it in on the stationery they
16 already have preprinted, is that what you do?
17 A. Yes, that's correct, yes. It saves the
18 cost of having to get new stationery printed.
19 Q. At the present time, is there any
20 agreement between Rodriguez and Michigan, other than
21 the letter of intent that was signed by both parties?
22 A. Say it again.
23 MR. ROBON: Objection.
24 BY MR. FITZSIMMONS: 437
1 Q. Is there any agreement, written
2 agreement, between Michigan and Rodriguez at this time
3 other than the letter of intent?
4 A. No.
5 (Brown Exhibit 48 was marked
6 for identification.)
7 BY MR. FITZSIMMONS:
8 Q. Let me show you Exhibit 48. It's a
9 three-letter exhibit. The first one is December 16,
10 2007; the second one is December 18, 2007 -- I take it
11 back. It's actually four -- the third letter is
12 December 18, 2007, with a change in Rich Rodriguez's
13 initial; the last one is a letter of January 10, 2008,
14 all of which are resignation letters by Rich Rodriguez
15 to West Virginia.
16 A. That's correct.
17 Q. Had you seen those when they were
18 initially drafted?
19 A. Yes, I had.
20 Q. Did you help actually draft those
21 resignation letters with Coach Rodriguez, or any one
22 of them?
23 A. I helped draft the first one; the second
24 one, I was not there when he did the -- did the 438
1 initial; the third --
2 Q. Let's see. The first one you helped
3 draft, or did you draft that?
4 A. I drafted it.
5 Q. Okay. That was your draft?
6 A. Yep. The second one was my draft.
7 Q. The first one was your draft; the second
8 one was your draft?
9 A. Yep.
10 Q. How about the third one that has some
11 scratch-out and appears to have Rodriguez's initials?
12 A. That was my draft, and then I believe
13 Rich, with Joyce Bucklew scratched out that.
14 Q. All right.
15 A. That would have been on Tuesday, December
16 the 18th.
17 Q. How about the last one?
18 A. The last one was completely done by
19 Rich Rodriguez himself.
20 Q. You didn't participate in it?
21 A. He discussed, and we talked together,
22 rehashing and remembering different instances and
23 things like that.
24 Q. He had counsel at that time also; 439
1 Mr. Robon was on board, right?
2 A. That's correct.
3 Q. Okay. Is the typing that's actually on
4 Exhibit 48, the December 16, 2007, resignation, is
5 that your typing?
6 A. That is my typing.
7 Q. Where did you type it at?
8 A. I can't recall.
9 Q. Were you in Morgantown, West Virginia, or
10 Toledo, Ohio, or --
11 A. I was in Morgantown, West Virginia, that
12 day.
13 Q. On the 16th?
14 A. That's correct.
15 Q. And you typed this and presented it to
16 Rich to sign?
17 A. That's correct.
18 Q. Did you then mail it to Mr. Pastilong or
19 have it delivered somehow?
20 A. What I did was I -- after placing a call
21 to Mr. Pastilong, I informed Eddie that there would be
22 a resignation letter delivered to him during business
23 hours tomorrow, the next day, on Monday --
24 Q. December 17th? 440
1 A. -- December 17th. I gave the resignation
2 letter to Mike Parrish, a graduate assistant, and
3 requested Mike that the next morning on Monday,
4 December the 17th, that he deliver it to Eddie.
5 I also informed by telephone to
6 Ed Pastilong and Craig Walker that Mike Parrish --
7 that the resignation letter would be delivered to
8 Eddie at Eddie's office on Monday, December the 17th.
9 Q. The 18th, where did you type that letter?
10 A. The 18th, I can't recall where I typed
11 that letter at.
12 Q. Were you in Morgantown, West Virginia?
13 A. I was in Morgantown, West Virginia.
14 Q. Why was it retyped?
15 A. Because Coach had decided that he was
16 not -- that it was not in the best interest of the
17 program for him to coach the bowl game, so he made a
18 decision to go ahead and -- and to resign and just go
19 ahead and cut off ties and move on to Michigan.
20 Q. The reason for the first document on
21 Exhibit 48, resignation as of January 3, effective
22 noon, would allow him to coach the bowl game?
23 A. That's correct.
24 Q. And two days later, then, he wrote and 441
1 resigned so he would not be coaching the bowl game?
2 A. That's correct.
3 Q. Do you know why Mr. Rodriguez scratched
4 out your language on the third page of Exhibit 48?
5 A. I believe he had a meeting later in the
6 day with -- on December the 18th, I believe Russ Sharp
7 and/or Joyce came over to the office to do some exit,
8 employee-exit stuff, and I believe that's at the time
9 when Rich initialed through and -- and I'm not for
10 certain, but I believe it was at that time.
11 I was not in the room at the time when
12 Russ Sharp was over there. So I believe it was during
13 that time that was done.
14 Q. The third letter, the January 10th, 2008,
15 letter.
16 A. Uh-huh.
17 Q. Mr. Rodriguez indicates in the first
18 paragraph that he didn't realize that he had to put in
19 writing reasons for alleged material and substantial
20 breaches of the contract, so that there would be that
21 provision.
22 Is that when you found out or you
23 realized also that the notice provision had not been
24 complied with for allegations of material and 442
1 substantial breaches?
2 A. Say that again.
3 Q. Is that when you realized also that the
4 notice provision had not been sent, January 10th?
5 A. No. I realized on December the 15th that
6 the notice provision had not been sent.
7 Q. You knew it clear back then?
8 A. Yeah, I knew it back then.
9 Q. Is it your testimony that you had no part
10 in the January 10th, 2008, letter?
11 A. No, it's not my testimony that I have --
12 I did not write this letter.
13 Q. I didn't ask you that question. My
14 question was did you have a part in any portion of
15 this, editing, reviewing, making suggestions?
16 A. Yes, I did.
17 Q. All right. This is a team effort also?
18 MR. ROBON: Objection if it
19 calls for -- who is the team?
20 THE WITNESS: Yeah.
21 MR. ROBERT P. FITZSIMMONS: We'll
22 get into that line.
23 THE WITNESS: Rich wrote this
24 letter. 443
1 BY MR. FITZSIMMONS:
2 Q. Did you help?
3 A. When you -- define "help."
4 Q. If you don't know the word "help," sir,
5 we can certainly close our books and go home today.
6 Do you know what that word mean?
7 A. I did -- I did not type the letter for
8 Rich.
9 Q. I didn't ask you that. Did you help at
10 all in looking at it, reading it, editing it, making
11 suggestions?
12 A. Yes, I did.
13 Q. All right. And who else helped as part
14 of the team?
15 A. I have -- I have -- I cannot answer who
16 else helped.
17 Q. Who do you know helped?
18 MR. ROBON: Objection.
19 BY MR. FITZSIMMONS:
20 Q. Who else? Who have you been told helped?
21 Did Rita help?
22 A. I haven't been told or known that Rita
23 looked over this. It wouldn't surprise me if she did.
24 Q. Did you hear that it was circulated to 444
1 counsel also?
2 A. I can't recall.
3 Q. You can't recall from January 10th
4 whether you were told that this letter was also sent
5 to counsel for Mr. Rodriguez for purposes of at least
6 reviewing or editing or making sure it was all right?
7 You can't recall that, is that your testimony under
8 oath?
9 A. Rich was in Michigan at the time --
10 Q. Would you answer my question.
11 A. What's your question?
12 Q. Is that your testimony, you don't recall
13 whether you were told that this also was circulated to
14 Mr. Rodriguez's counsel, at least for review or
15 editing or --
16 MR. ROBON: Well, part of it, if
17 he was -- depending on who he was told
18 by, if Rodriguez --
19 MR. FITZSIMMONS: It doesn't
20 make any difference.
21 MR. ROBON: Well, could be
22 attorney-client privilege possibly.
23 Show an objection.
24 BY MR. FITZSIMMONS: 445
1 Q. You can answer the question.
2 A. Say it again.
3 Q. Yeah. Did you hear that this was also
4 circulated to Rodriguez's -- any of his attorneys for
5 reviewing, editing, suggestions or approval in any
6 way, any of those items?
7 A. I -- I was under the impression that
8 after I gave Rich the -- and Rich came up with the
9 letter and suggestions, I was under the impression
10 that it was going to be probably reviewed by other
11 people, and probably including by Mr. Robon, as
12 counsel.
13 Q. Okay. Who else did you understand
14 besides Mr. Robon, as counsel?
15 A. You already mentioned I -- I have no
16 confirmation, but I would imagine that Rich had Rita
17 look at this.
18 Q. Who else do you understand was going to
19 review it, approval, editing, suggestions, corrections
20 or whatever?
21 A. As far as myself and anybody else on the
22 team, I can't recall if they were going to have a part
23 on it.
24 Q. The -- were you present for the press 446
1 conference in Ann Arbor when Rodriguez was announced
2 as Michigan -- what's the mascot there?
3 A. The wolverine?
4 Q. The badger --
5 A. The Wolverines.
6 Q. The Wolverines?
7 A. Yeah.
8 MR. ROBON: Badger is Wisconsin.
9 MR. ROBERT P. FITZSIMMONS: The
10 badger, that's not Michigan?
11 MR. ROBON: No.
12 MR. ROBERT P. FITZSIMMONS: All
13 right.
14 MR. ROBON: Badger is
15 Wisconsin.
16 THE WITNESS: Was I there on
17 Tuesday -- on Monday, December the 17th?
18 BY MR. FITZSIMMONS:
19 Q. I didn't ask you -- the press conference.
20 Do you remember the press conference?
21 A. I remember the press conference.
22 Q. Were you there?
23 A. I was.
24 Q. All right. Do you remember asked -- 447
1 Coach Rodriguez was actually asked at that time why he
2 made the decision to go from West Virginia to go up to
3 Michigan. Do you remember that?
4 A. Do I -- I don't remember every word or
5 verbatim of the press conference.
6 Q. Do you remember Rodriguez saying the
7 reason is, Because it's Michigan, that's why.
8 A. Like I said, I don't remember every word
9 that was said in that press conference.
10 Q. Do you recall Rodriguez addressing the
11 press and public at that time and never at any
12 instance ever mentioning that the reason he left West
13 Virginia was because of any fraud or any breaches of
14 any contract? Would you agree with that?
15 A. Yeah, I don't remember him saying that at
16 his press conference.
17 Q. Has he lied to the press and to the
18 public also?
19 MR. ROBON: I'm going to object
20 to the characterization. He was probably
21 trying to save West Virginia's hide.
22 MR. ROBERT P. FITZSIMMONS:
23 Pardon me?
24 MR. ROBON: I said, He was 448
1 trying to save West Virginia's hide, or
2 embarrassment.
3 MR. FITZSIMMONS: I don't think
4 so. I think maybe just the opposite.
5 THE WITNESS: I can say this:
6 That Rich Rodriguez does not like to air
7 dirty laundry out in public.
8 BY MR. FITZSIMMONS:
9 Q. So when he was asked as to the reasons
10 and he said, It's because of Michigan and only because
11 it's Michigan, were you present at that time?
12 A. I was present.
13 MR. ROBERT P. FITZSIMMONS:
14 Exhibit 40, letter of intent.
15 MR. WAKEFIELD: You mean 50,
16 then.
17 MR. ROBERT P. FITZSIMMONS: 50,
18 yes, I'm sorry. I know Mr. Robon doesn't
19 want this out or some other -- I think
20 it's public knowledge anyway but --
21 (Brown Exhibit 50 was marked
22 for identification.)
23 BY MR. FITZSIMMONS:
24 Q. That's the letter of intent with 449
1 Michigan?
2 A. That's correct.
3 Q. Yeah, just -- we were asking the specific
4 question, is that -- at the press conference, his
5 exact words, Rodriguez's words to the public and press
6 when asked as to why he went to Michigan, he said,
7 "First and foremost, it's Michigan."
8 Do you recall him saying that?
9 A. Like I said, I can't recall everything
10 that was said in the press conference that day.
11 Q. Do you have any reason to doubt the
12 truthfulness of that statement?
13 A. I can't speak for Coach Rodriguez and
14 what he was thinking at the time he made that
15 statement.
16 Q. Certainly in your mind, you believe as an
17 agent that's one of the premier programs, Michigan,
18 you've told me earlier.
19 A. That along with a lot of other coaches
20 and agents.
21 Q. Just answer my question, Mr. Brown.
22 A. Even Don Nehlen -- even Don Nehlen
23 thought it was.
24 Q. I didn't hear Don Nehlen ask you any 450
1 questions here.
2 Do you recall Coach Rodriguez making
3 statements to the press that the reason that he
4 actually went to Michigan was, "First and foremost,
5 because it is Michigan"? Do you recall statements
6 like that being made by him?
7 A. I can't recall any specific statement
8 that he made that day. I can't remember the exact
9 words that he said that day.
10 Q. Let me ask you as a sports agent,
11 having -- or coaching agent, whatever you are, I'm not
12 sure, is that a big land for you, having a head coach
13 at the University of Michigan?
14 MR. ROBON: Objection.
15 THE WITNESS: What do you mean
16 by "big land"?
17 BY MR. FITZSIMMONS:
18 Q. Premier programs, one of the premier
19 programs. You said -- you indicated that USC was a
20 premier program; Michigan is a premier program?
21 A. There's lots of premier programs.
22 Q. I understand.
23 A. So what's your question?
24 Q. Is that good for you, your business, to 451
1 have a coach and land him up at Michigan, at one of
2 your, what you categorize as a premier program? Is
3 that pretty important to your resume?
4 MR. ROBON: Objection.
5 You can answer.
6 THE WITNESS: The only thing
7 that's important to me is how I serve my
8 clients, work with them, whatever the
9 outcome is. That's what's important to
10 me, not -- I have no personal -- I don't
11 work for personal gain out of this.
12 BY MR. FITZSIMMONS:
13 Q. So it's not important to you that your
14 coach, one you represent, is at a premier program; is
15 that correct?
16 A. What's important to me is that
17 Coach Rodriguez --
18 Q. Is that correct?
19 A. Coach Rodriguez thinks I do a good job
20 for him, that's what's important to me.
21 Q. I'm sure -- I suspect, whatever, he does
22 feel that way.
23 A. Uh-huh.
24 Q. But my question is is that important to 452
1 you? Is that something that you think is a good
2 thing, to have -- put a coach in a premier -- what you
3 consider as a premier program?
4 A. No, I didn't put him there. He earned --
5 he earned the job, and it's not because of me that
6 Bill Martin was interested in talking with him.
7 Q. Well, it's because you called first,
8 didn't you?
9 A. I did call.
10 Q. So you were the one that put the two
11 parties together; you played a role in it, didn't you?
12 A. I did.
13 Q. You helped negotiate the contract, didn't
14 you?
15 A. I did.
16 Q. Or the term letter -- letter of intent is
17 what it is, right?
18 A. That's correct.
19 Q. All right. You sat down with Bill Martin
20 and helped do that, did you not?
21 A. Yes.
22 Q. And Sue Coleman, was she present also?
23 A. I can't recall, because the first time we
24 had any discussion on a term sheet, and anything was 453
1 drawn up that I think I looked at, was on Friday,
2 December the 14th.
3 Q. December the 14th, you had a term sheet
4 in hand from Michigan; is that what you're saying?
5 A. Hold on a second.
6 Q. What are you looking for?
7 A. The same discovery that you requested
8 that I turned over to you in regards to the timing of
9 everything.
10 Q. Is that a term sheet that was produced in
11 the case that you're looking at?
12 A. Uh-huh.
13 Q. The term sheet was actually signed on the
14 14th by Rodriguez and then faxed back to Michigan, was
15 it?
16 A. No, the term sheet was not signed
17 until --
18 Q. By Rodriguez, it was signed by him the
19 14th?
20 A. No, it was signed by Coach Rodriguez in
21 his office on Sunday, December the 16th.
22 Q. So you're representing that the numbers
23 on the term sheet with just Rodriguez's signature is
24 December 16th, as opposed to the 14th with somebody 454
1 hand-writing over the 16th.
2 A. That's correct -- say it again now.
3 The first time -- the first time he
4 signed the term sheet, and the only time he signed the
5 term sheet, was in his office on Saturday -- on
6 Sunday, December the 16th.
7 Q. Where was -- where were you on December
8 14th?
9 A. December 14th I was in Toledo, Ohio.
10 Q. Who were you with December 14th in
11 Toledo, Ohio?
12 A. During the day I was with Mike Wilcox,
13 Rich Rodriguez, Rita Rodriguez, and Mary Sue Coleman,
14 and --
15 Q. Billy Martin?
16 A. And Bill Martin, yeah.
17 Q. Anybody else present, Wilcox, Rodriguez,
18 Coleman, and Martin and you?
19 A. That was at the beginning of the -- of
20 the day.
21 Q. Mr. Robon came in then?
22 A. I believe Mr. Robon came in.
23 Q. And Mr. Davis from his office?
24 A. That's correct. 455
1 Q. Anybody else?
2 A. I can't remember if Dave Hammack, the
3 accountant, or Bennett Speyer was there. I can't
4 recall.
5 Q. At the time you were in Wilcox's
6 office --
7 A. In his office complex, yes.
8 Q. And prior to the 14th, then, how many
9 times had you contacted or had communications with
10 Michigan?
11 A. There were numerous times before the
12 14th.
13 Q. More than a half a dozen?
14 A. I would have to sit down and go through
15 this log and count them up, if you want to give me a
16 second.
17 Q. Who would you have been talking to from
18 Michigan, Martin?
19 A. Bill Martin.
20 Q. Anybody else from Michigan that you
21 talked to?
22 A. No, Bill Martin.
23 Q. Would you have used your cell phone for
24 all those calls? 456
1 A. That's correct.
2 Q. And that began on the 11th, you say?
3 A. That's correct.
4 Q. And had you received any e-mails at all
5 or faxes from the 11th up until the meeting in Toledo
6 on the 14th?
7 A. Not that I can recall. There was one
8 phone call that I did place to Bill Martin that was on
9 my home phone and not my cell phone, and that was that
10 Tuesday night on December the 11th at 9:42 p.m.
11 Q. Did -- when was the first time any terms
12 were actually discussed that you felt were at least a
13 proposal, or realistically a proposal?
14 A. On Friday, December the 14th.
15 Q. You didn't tell Mr. Martin on the 11th
16 what it would basically take in order to get
17 Coach Rodriguez to jump from one school to the other?
18 A. Not that I can recall.
19 Q. Was there a number that you calculated
20 that you felt was necessary in order for --
21 financially in order for Rodriguez to move and better
22 himself?
23 A. Repeat the question.
24 Q. Was there an amount generally that you 457
1 felt was kind of a benchmark that you had to reach in
2 order for Rodriguez to at least break even or do
3 better financially?
4 MR. ROBON: Objection.
5 You can answer.
6 THE WITNESS: Prior to what,
7 December 14th?
8 BY MR. FITZSIMMONS:
9 Q. Prior to signing the term sheet.
10 A. Prior to signing this term sheet.
11 Q. Yeah. Had you done some analysis, talked
12 about, We're going to need this amount of money?
13 A. Not until December 14th.
14 Q. On December 14th, did you do that to
15 determine what amount would be necessary in order
16 to -- in your opinion, for Rich to do at least the
17 same financially?
18 A. As best I recall, that's when Bill Martin
19 and I had discussions and numbers were put down.
20 Q. Did you come up with a number that you
21 felt was a benchmark that you had to reach in order
22 for Rich to at least break even?
23 A. No. I never came up with a number on
24 a -- on a benchmark. 458
1 Q. Well, some type of guiding star that, you
2 know, we got to make this so you don't get financially
3 hurt if you're going to do this?
4 A. No, I think as on any negotiation, I
5 think in the beginning, when I was having discussions
6 with Bill, I believe on that Friday, I recall throwing
7 out a number, somewhere around 2,7 or 2,8.
8 Q. Per year?
9 A. Per year.
10 Q. Guaranteed annual compensation?
11 A. That's correct.
12 Q. Coach Rodriguez, at the time at West
13 Virginia, was making about 1,8, approximately? I
14 think you had rounded it up in one of your e-mails to
15 2 million.
16 A. It was somewhere close. I believe, '07,
17 I think his total annual guaranteed compensation was
18 either 1.4 or 1.45, and he had 330,000 being deferred,
19 and then there were bonuses and stuff.
20 Q. So about 1,8 approximately?
21 A. Uh-huh.
22 Q. Is that correct?
23 A. In total guaranteed annual compensation,
24 including the deferred. 459
1 Q. All right. And who came up with the 2,7
2 to 2,8, was that something you came up with?
3 A. Yes. That was a number I came up with in
4 my discussions with Bill to start off with.
5 Q. And how did you come up with that figure?
6 A. I looked at market value; I keep -- I
7 keep an updated spreadsheet in regards to coaches'
8 salaries, buyouts, et cetera, like that, so I looked
9 at --
10 Q. So you do put a market value on coaches,
11 then?
12 A. I do.
13 Q. Okay. So even though you can't tell
14 us --
15 A. With -- with -- at the time -- at the
16 time when it becomes time to negotiate a contract and
17 I have to throw a number out there, I'm going to do my
18 research and come up with a number to start
19 negotiations.
20 Q. So was Rich Rodriguez's market value more
21 than 4 million bucks, then, as of December of '07?
22 A. Was his market value more than that?
23 Q. Certainly this seven-year contract, 2.7
24 million a year was above that? 460
1 A. His annual market value?
2 Q. Just his market value.
3 MR. ROBON: Show an objection
4 to the line of questioning. It's
5 irrelevant.
6 THE WITNESS: I considered his
7 annual -- at this point in time in the
8 market with his success and that, I
9 thought he should be compensated
10 fairly.
11 BY MR. FITZSIMMONS:
12 Q. Did you come up with a market value? You
13 said at that time, then, when you do the contracts for
14 Rich Rodriguez that his market value over seven years
15 is 15, 20 million dollars.
16 A. What I do is I come up with -- first of
17 all, beginning, what is his total annual guaranteed
18 compensation.
19 Q. I'm not interested. Did you come with a
20 market value, generally, that Rodriguez over a -- this
21 contact was to 2013, one year less than West
22 Virginia's amendment.
23 Did you come up with a value, that he has
24 a market value over a six-year span of at least 2 1/2, 461
1 3 million dollars a year during that period?
2 A. Yes, I did.
3 Q. That would put a market value on a
4 six-year employment contract somewhere around 18
5 million bucks then?
6 A. That's correct.
7 Q. Is that right?
8 A. That's correct.
9 Q. Which is a market kind of -- I understand
10 you're putting price tags on people, and it's
11 difficult to do that, isn't it?
12 A. It is.
13 Q. It's very difficult to measure what a
14 coach's value is and what it is to the school and all
15 that other stuff, isn't it?
16 A. A negotiation is two-sided. I have a
17 value and they have a value of what they think they
18 can afford.
19 Q. All right. I understand.
20 A. What they're willing to pay. It's a
21 free-market economy.
22 Q. I understand. I understand. At least
23 according to this, it looks like the market value for
24 Rodriguez around December, because of using the 462
1 contract for Michigan alone, over a six-year period --
2 you got to reduce that to what's called present
3 value --
4 A. Present value.
5 Q. -- it's certainly more than 10 million
6 bucks at a minimum, isn't it?
7 A. Over that period of time, yes.
8 Q. Okay. And that's as of December of '07?
9 A. That's correct.
10 Q. When he left West Virginia?
11 A. That's correct.
12 Q. Now, the -- some people that I want to
13 ask you about, that one is your other customer, Magee,
14 Calvin Magee?
15 A. Calvin Magee.
16 Q. As I understand, you made some reports to
17 the press about some statements that a gentleman by
18 the name of Aschebrook had made, and you relayed that,
19 that you had been told some things from this Magee guy
20 that was your --
21 A. Client.
22 Q. No, customer.
23 MR. ROBON: Customer.
24 MR. FITZSIMMONS: Mr. Robon, you 463
1 should object to him saying that.
2 BY MR. FITZSIMMONS:
3 Q. Your customer.
4 A. Uh-huh.
5 Q. Okay.
6 A. Okay.
7 Q. Do you recall that?
8 A. I recall that.
9 Q. All right. And you actually gave
10 statements to the press on that, a guy by the name of
11 Chuck Finder?
12 A. That's correct.
13 Q. Do you know Mr. Finder?
14 A. I do know Mr. Finder, along with a lot of
15 the other reporters.
16 Q. I'm sorry. Did somebody ask you that?
17 A. No.
18 Q. Okay. Let's try to just answer the
19 questions. We got a plane we want to try to get on;
20 Mr. Robon wants to go to the --
21 A. Orchestra.
22 Q. -- orchestra.
23 A. Uh-huh.
24 Q. Did you call Mr. Finder? 464
1 A. I did.
2 Q. And so you intentionally gave him
3 information knowing that it probably would be reported
4 in the press?
5 A. That's his decision, whether he was going
6 to report it in the press.
7 Q. You called a news reporter from the
8 Pittsburgh Post-Gazette, Mr. Finder?
9 A. I did on December 24th at 4:37 p.m. and
10 we talked for seven minutes.
11 Q. December 24th?
12 A. That's correct.
13 Q. And when was the press conference, do you
14 know?
15 A. The press conference, I believe, was the
16 week before, December --
17 Q. December 16th, wasn't it, the day the
18 agreement was signed, letter of intent?
19 A. The 14th, the 15th, the 16th -- the press
20 conference was on Monday, December the 17th.
21 Q. December the 17th?
22 A. That's correct.
23 Q. All right. And you had been told at that
24 press conference by Magee that there had been a 465
1 statement made concerning his ability to coach West
2 Virginia or be considered as a coach; is that correct?
3 A. No, that's incorrect.
4 Q. Did Magee talk to you on the 17th of
5 December?
6 A. He did not.
7 Q. Magee was present for the press
8 conference?
9 A. He was.
10 Q. You were present for the press
11 conference?
12 A. I was.
13 Q. Did you have any discussions with Magee
14 on the 17th of December, 2007, at a press conference?
15 A. No, I did not. Did I have any
16 discussions in regard -- sure, Calvin and I talked
17 about lots of things.
18 Q. So you were talking to Mr. Magee on the
19 17th of December?
20 A. I was. And his wife.
21 Q. Do you represent Mr. Magee in any claims
22 against West Virginia University --
23 MR. ROBON: Objection.
24 BY MR. FITZSIMMONS: 466
1 Q. -- as representative or anything?
2 A. Mr. Magee has made claims and is in
3 discussions with Jennifer McIntosh; Calvin talks to me
4 in regards to what's going on, and I lend him advice
5 and that.
6 MR. WAKEFIELD: You've got two
7 minutes, Bob.
8 MR. ROBERT P. FITZSIMMONS: How
9 much time do we have now?
10 Let's go ahead and change the
11 video.
12 THE VIDEOGRAPHER: Going off the
13 record at 6:15 p.m.
14 (A brief recess was had.)
15 THE VIDEOGRAPHER: Back on the
16 record at 6:24 p.m.
17 MR. ROBERT P. FITZSIMMONS: Mr.
18 Brown, let's see if I can wrap this up
19 here in the next couple hours.
20 MR. ROBON: You're making my
21 sinuses drain more.
22 BY MR. FITZSIMMONS:
23 Q. The December 14, 2007, meeting that was
24 held up in Toledo, you gave me the list of those 467
1 people, you indicated that Attorney Robon -- Robon and
2 Attorney Davis came in the room after the meeting had
3 started, part of it; is that correct?
4 A. What happened was, there were -- they
5 were in another room separate from Bill Martin and
6 Mary Sue Coleman. Mary Sue Coleman and Bill Martin
7 never -- I don't remember ever that day -- I cannot
8 recall, but I do not recall them meeting Marv Robon
9 and the other people that showed up later.
10 There were individual -- in other words,
11 Bill and Mary Sue stayed in one room, and I believe
12 Marv and the others were in another room.
13 Q. What was your understanding as to why
14 attorneys were waiting there in another room?
15 A. What was the reason?
16 Q. What was your understanding?
17 A. That -- I believe that Rich wanted to, as
18 he was going through this decision process, he wanted
19 to examine and look at all of the different details
20 involved in such a move. And that's how come the
21 accountant was there; and that's how come the -- I
22 believe either the accountant or Bennett Speyer was
23 there; Mike Wilcox was there; and also Marv and Ethan
24 were there. 468
1 Q. So at that time on December 14th, there
2 was this term sheet also, or letter of intent from
3 Michigan, what had been proposed as a letter of intent
4 on some of the material parts of the contract between
5 Rodriguez and Michigan; is that right?
6 A. Yeah. That was discussed by Bill Martin
7 and myself at the end of the meeting with just Bill
8 and Mike Wilcox and myself in a room. I believe Marv
9 and all the others had already left the Wilcox complex
10 at that times.
11 Q. Was that a final version of the letter of
12 intent on the 14th --
13 A. No.
14 Q. -- did you come to that?
15 A. No, it was -- it was not.
16 Q. It was changed from that point on; is
17 that correct?
18 A. That's correct.
19 Q. In fact, 2 million dollars in liquidated
20 damages had been originally proposed in the initial
21 letter of intent between Rodriguez and Michigan; is
22 that right?
23 A. That's correct.
24 Q. And it was Rodriguez's team that 469
1 requested that increase it from 2 million -- or
2 requested that it be increased from 2 million to 4
3 million at that time; is that right?
4 A. That's correct.
5 Q. And you were part of that team to also
6 encourage them to increase it to 4 million on both
7 sides?
8 A. It was -- Rich Rodriguez requested that
9 it be changed from 2 million to 4 million.
10 Q. And you approved of it?
11 A. He's my client, and he gave me a reason,
12 which I thought at that time was a good reason.
13 Q. You didn't -- you didn't object to it;
14 you didn't say, Don't sign, Don't do this, or anything
15 like that?
16 A. I did not.
17 Q. All right.
18 A. Rich said that -- he said, I want it
19 raised to 4 million dollars. I'm looking at worst
20 case being that I may have to pay West Virginia some
21 buyout money, and what if I get fired after one year.
22 He wanted maximum protection all the way
23 around.
24 Q. All right. And you, as an agent, looking 470
1 at these provisions and letters of intent, felt that
2 the 4 million dollars, both for Michigan to pay to
3 Rodriguez and Rodriguez to pay to Michigan in the
4 event as to who would walk away from the contract, you
5 felt that both of those provisions were valid and
6 enforceable when signed by Michigan and by Rodriguez
7 at that time, is that true, in your opinion?
8 MR. ROBON: Objection. Calls
9 for a legal conclusion.
10 You can give your opinion.
11 BY MR. FITZSIMMONS:
12 Q. I'm not asking for a legal -- in your
13 opinion, you felt they were both valid and enforceable
14 at that time, right?
15 MR. ROBON: Objection.
16 THE WITNESS: They were valid,
17 but I had a very good feeling that they
18 would never be addressed or it would
19 never become an issue, because Michigan
20 has stepped up right at the very
21 beginning and gave Rich Rodriguez --
22 BY MR. FITZSIMMONS:
23 Q. Mr. Brown, I'm not interested --
24 A. -- everything that he wanted that West 471
1 Virginia did not.
2 Q. -- in propaganda here; I'm just
3 interested in answers.
4 A. Okay.
5 Q. Do you believe in your -- as the
6 representative of the Rodriguezes when that letter of
7 intent was signed --
8 A. That's correct.
9 Q. -- the 4 million dollar liquidated damage
10 clause, both ways, Rodriguez to Michigan and Michigan
11 to Rodriguez, was valid and enforceable by both
12 parties?
13 MR. ROBON: Can we clear up one
14 thing?
15 BY MR. FITZSIMMONS:
16 Q. Just answer the question.
17 MR. ROBON: Well, let me
18 interpose an objection so there's no
19 misunderstanding. You were talking about
20 December 14th when it was issued.
21 MR. ROBERT P. FITZSIMMONS: I
22 know.
23 MR. ROBON: I want to clarify
24 that it wasn't signed then. 472
1 BY MR. FITZSIMMONS:
2 Q. The final letter of intent --
3 MR. ROBON: Okay.
4 BY MR. FITZSIMMONS:
5 Q. The 4 million dollars. It went from 2
6 million to 4 million.
7 A. That was signed by Rich on December the
8 16th.
9 Q. And Michigan.
10 A. Right.
11 Q. Is that valid, enforceable provision both
12 ways, in your opinion, the liquidated damages of 4
13 million dollars in the letter of intent between
14 Michigan and Rodriguez?
15 A. In the letter of intent?
16 MR. ROBON: Objection. You can
17 answer.
18 THE WITNESS: Yes.
19 BY MR. FITZSIMMONS:
20 Q. Mr. Finder indicates in the Pittsburgh
21 Post-Gazette article, it says, According to Brown --
22 do you know of any other Brown that represents
23 Rodriguez --
24 A. No. 473
1 Q. -- except for you? Yes?
2 A. That's me.
3 Q. Do you know of any other Calvin Magees or
4 Calvins that are associated with West Virginia and
5 Rodriguez and you?
6 A. No.
7 Q. It says, (reading:) According to Brown,
8 who declined to identify the person involved in this
9 incident, quote, Calvin was in discussions with this
10 West Virginia University administrator, and Calvin
11 kind of politely asked him, Do you think I have a
12 shot, brackets, at becoming the next Mountaineer head
13 coach, unbrackets, question mark.
14 A. Uh-huh.
15 Q. Did you tell Mr. Finder that?
16 A. Yes, I did.
17 Q. It then goes on and says, (Reading:) The
18 administrator said -- this is Magee telling you -- No,
19 you don't, and pointed to his skin, and that's why
20 Calvin got on the plane.
21 Do you recall telling Mr. Finder that?
22 A. I can't recall the exact thing that I
23 told him, but I did have a discussion with
24 Chuck Finder on Sunday, December the 25th and told him 474
1 about the two incidents with Aschebrook and Pastilong.
2 I had another discussion with Pastilong --
3 Q. Wait a second, Mr. Brown. My question
4 was did you tell him that statement, to the best of
5 your knowledge?
6 MR. ROBON: Objection.
7 THE WITNESS: I did make a -- I
8 did have -- I did make statements to
9 Chuck. I can't recall specifically the
10 exact thing I said.
11 BY MR. FITZSIMMONS:
12 Q. Do you have any reason to dispute the
13 accuracy of Mr. Finder's reporting in this report?
14 A. No, I do not.
15 Q. All right. Sounds -- sounds correct as
16 to what you would have told him --
17 A. Uh-huh.
18 Q. -- when you called Mr. Finder and gave
19 him this story about an administrator of West Virginia
20 and Mr. -- Coach Magee; is that correct?
21 A. Uh-huh, uh-huh.
22 Q. Yes?
23 MR. ROBON: Objection.
24 You can answer. 475
1 THE WITNESS: Repeat the
2 question.
3 BY MR. FITZSIMMONS:
4 Q. This appears to be accurate to the best
5 of your recollection as to what you specifically would
6 have told Chuck Finder when he interviewed you on this
7 story about Aschebook and Magee and issues concerning
8 the color of a person's skin?
9 A. That's correct.
10 Q. Did you meet with Mr. Robon at all,
11 Robon --
12 MR. FITZSIMMONS: I'm sorry,
13 Marv, is that --
14 MR. ROBON: "Robon."
15 BY MR. FITZSIMMONS:
16 Q. -- Mr. Robon or Mr. Davis at all on the
17 time when the meeting occurred on December 14th up
18 there, they were in another office up there, in Mike
19 Wilcox's office?
20 A. I -- that was the first time that I met
21 Marv and Ethan, and I did sit in at various periods of
22 the discussions that were going on. I went back and
23 forth between that room and the room where Mary Sue
24 and Bill Martin were. 476
1 Q. To your knowledge, was Mr. -- was counsel
2 representing Rodriguez in the negotiations at all with
3 Michigan, or was that something you were principally
4 handling?
5 A. Repeat that again.
6 Q. Yeah. Did Coach -- Mr. Rodriguez have an
7 attorney representing him in the negotiations, or were
8 you principally representing Rodriguez in the Michigan
9 negotiations?
10 A. Myself and Mike Wilcox were principally
11 representing Coach Rodriguez in the negotiations.
12 Q. But these persons with their various
13 expertises were there for purposes of consulting
14 before agreeing to anything on the 14th, even though
15 there was no agreement?
16 A. There were providing opinions and
17 giving -- Rich would ask questions, and they would --
18 they would provide questions to Rich at that time.
19 Q. All right. Did you understand Mr. Robon
20 and Mr. Davis were representing Rodriguez in the
21 Michigan transaction also, or at least providing some
22 advice at that time?
23 A. At that point --
24 MR. ROBON: Objection. 477
1 If you know.
2 THE WITNESS: At this point in
3 time, I just think they were having an
4 introductory conversation. Rich was
5 asking some questions; Marv was providing
6 some free legal advice. It wasn't until,
7 I believe, later on, that Rich actually
8 retained Marvin.
9 BY MR. FITZSIMMONS:
10 Q. But there was being -- you understood --
11 MR. ROBON: Object to the word
12 "free."
13 BY MR. FITZSIMMONS:
14 Q. Who had -- who had Mr. Robon and
15 Mr. Davis there?
16 A. Pardon me?
17 Q. Who had them there? Who made the
18 arrangements to have these attorneys there?
19 A. Mike Wilcox.
20 Q. Mr. Rodriguez indicated he never met
21 them, or didn't even know who they were at that time?
22 A. That's correct.
23 Q. Wilcox brought them in to consult with
24 Rodriguez, as you understood? 478
1 A. That's correct.
2 Q. And was that for the Michigan or was that
3 also for the West Virginia issues, or do you know?
4 MR. ROBON: Objection.
5 If you know.
6 THE WITNESS: I don't know.
7 BY MR. FITZSIMMONS:
8 Q. Did you suggest to Billy Martin at any
9 time that Michigan needs to pay enough money to pick
10 up the liquidated damage monies in the contract?
11 MR. ROBON: I'm going to --
12 BY MR. FITZSIMMONS:
13 Q. Did you suggest it?
14 MR. ROBON: I object, and I
15 instruct you not to answer.
16 MR. ROBERT P. FITZSIMMONS: You
17 have no right to instruct him not to
18 answer.
19 MR. ROBON: That's -- the court
20 already made a ruling. It's irrelevant
21 to this case.
22 MR. FITZSIMMONS: You have no
23 right to direct this witness not to
24 answer that question. 479
1 MR. ROBON: I suggest you not
2 answer it.
3 BY MR. FITZSIMMONS:
4 Q. Did you -- did you suggest to
5 Billy Martin or anybody from Michigan that they pay
6 some portion or give some money in order to pay
7 towards the liquidated damages of West Virginia?
8 MR. ROBON: Same advice.
9 THE WITNESS: I'm not answering
10 that question.
11 BY MR. FITZSIMMONS:
12 Q. You're refusing to answer under oath?
13 A. Yep.
14 Q. All right. I'm going to direct you at
15 this time to answer. We have you here present for the
16 purpose of a deposition, and you are obligated to
17 answer questions here.
18 MR. McGINLEY: Hey, Bob, what's
19 the relevance?
20 MR. FITZSIMMONS: The relevance?
21 MR. McGINLEY: Yeah. The judge
22 said it wasn't relevant, so what's the
23 relevance?
24 MR. ROBERT P. FITZSIMMONS: Well, 480
1 the judge did not say it wasn't relevant,
2 what the judge -- on that particular
3 issue.
4 The relevance is that there is a
5 vested stake in this contract, first of
6 all, with Michigan; second of all, it
7 sets some of the parameters of the
8 negotiable terms of the new contract, the
9 letter of intent that exists with
10 Michigan at this point also.
11 MR. WAKEFIELD: And let me
12 interject, as well, that I think this
13 witness specifically testified today and
14 Mr. Rodriguez has specifically testified
15 that they believe that the 4 million
16 dollar liquidated damage provision in the
17 West Virginia contract held Mr. Rodriguez
18 hostage.
19 It now placed into issue the
20 question of whether that really does hold
21 him hostage; and if, in fact, there was
22 some sort of agreement or request that
23 the provision be paid, that certainly is
24 contrary to the statement of the 481
1 witnesses.
2 MR. ROBERT P. FITZSIMMONS: Go
3 ahead, Mr. Brown.
4 THE WITNESS: I'm not answering
5 the question.
6 BY MR. FITZSIMMONS:
7 Q. You're refusing to answer the question?
8 A. That's correct.
9 Q. When you did your evaluation for the
10 market value of Rodriguez, what consideration did you
11 give to paying back the liquidated damages that were
12 going to be owed to West Virginia?
13 A. I didn't calculate any in there. I was
14 just looking at market value of total annual
15 guaranteed compensation.
16 Q. Well, you had to come up with some
17 amount, figure as to what would be necessary so your
18 customer would make at least what he was making at
19 West Virginia, which potentially includes paying
20 liquidated damages of 4 million dollars.
21 A. Never --
22 Q. Are you telling us you never considered
23 the payment of the 4 million dollars in your
24 evaluation of the salary request in your negotiations; 482
1 is that your testimony under oath?
2 A. That's correct.
3 Q. Is someone else paying the liquidated
4 damage or obligated to pay the liquidated damage,
5 other than Rodriguez?
6 MR. ROBON: Objection.
7 Instruct you not to answer.
8 MR. FITZSIMMONS: He has no
9 right to instruct you to do anything.
10 THE WITNESS: What's the
11 question again?
12 BY MR. FITZSIMMONS:
13 Q. Is someone else obligated to pay the
14 liquidated damages --
15 A. Not that I --
16 MR. ROBON: I instruct you not
17 to answer.
18 THE WITNESS: I'm not going to
19 answer anything in regards to that,
20 because I am aware of the judge's ruling
21 that any -- so, you know, you can go talk
22 to the judge. If the judge says, Come
23 back and compel to answer, then I'll sit
24 down and talk with you. 483
1 MR. ROBERT P. FITZSIMMONS: Mr.
2 Robon, just by -- you have directed him
3 twice not to answer. I think you're
4 interfering with our deposition
5 intentionally. I think you have no right
6 to do that.
7 I would ask you to withdraw that
8 on the record at this time, your
9 statement, and now suggest, since you
10 have encouraged a witness to not answer a
11 proper question that's being asked by
12 deposition --
13 MR. ROBON: I think the judge's
14 ruling said it was irrelevant. If I'm
15 wrong and the judge says, Answer it, I'm
16 sure he will answer it.
17 MR. FITZSIMMONS: One further
18 reason, just for the record, that we
19 believe that there is already developed
20 sufficient evidence that the
21 breach-of-contract claim, which finds its
22 way into the January 10th, '08, letter in
23 detail, was a pretext to utilize in order
24 to avoid payment of that particular 484
1 amount of liquidated damages, is another
2 reason, just so the record is clear.
3 MR. ROBON: That's simply
4 argument or surmising on your part.
5 MR. FITZSIMMONS: No, no. You
6 asked for the reason -- Mr. McGinley
7 specifically asked for the reason --
8 MR. ROBON: Uh-huh.
9 MR. FITZSIMMONS: And complying
10 with your co-counsel, West Virginia
11 counsel.
12 MR. ROBON: Okay.
13 MR. ROBERT P. FITZSIMMONS: You
14 are unwilling to direct this witness
15 to -- that you're going to withdraw your
16 direction to a non-client, non --
17 nobody -- somebody that you do not
18 represent?
19 MR. ROBON: I'm advising him
20 what the judge -- he's aware of what the
21 judge's ruling was.
22 MR. FITZSIMMONS: No, no. My
23 question is are you not going to withdraw
24 your direction to this witness. 485
1 MR. ROBON: I'm not going to
2 withdraw my objection.
3 MR. FITZSIMMONS: All right.
4 BY MR. FITZSIMMONS:
5 Q. Two football players from West Virginia,
6 Slaton and Renaud, are you familiar with those
7 football players?
8 A. I am.
9 Q. And do they have an agent for purposes of
10 the NFL and the Players' Association?
11 A. They do.
12 Q. And do you know who their agents are?
13 A. Eric Metz.
14 Q. Same guy you share fees with with
15 Rodriguez?
16 A. Yeah, as -- on the coaching side.
17 Q. Are you receiving any portion of fees of
18 Mr. Slaton -- in any way, directly or indirectly, that
19 Mr. Slaton would receive and Mr. Renaud would receive
20 for which commissions are being charged?
21 MR. ROBON: I'm going to
22 object.
23 You can answer.
24 THE WITNESS: The answer is 486
1 no.
2 BY MR. FITZSIMMONS:
3 Q. On 8-24-07, there's been testimony from
4 your customer Rodriguez that before signing the second
5 amended agreement, that he went around to everybody on
6 his team in the room and asked them, Are you okay with
7 me signing this.
8 According to Coach Rodriguez, everybody
9 present, including you, said, Go ahead and sign it.
10 Are you disputing that, that that
11 happened on August 24th, 2007, now?
12 A. I have no -- I cannot remember that in
13 regards to that meeting that day.
14 Q. So you very well may have also approved
15 of Coach Rodriguez when he specifically said, Should I
16 sign, and you gave your approval that day?
17 A. I can't recall.
18 Q. You don't recall one way or another?
19 A. I don't recall one way or another.
20 Q. I thought you told us in this deposition
21 earlier you told Rodriguez not to sign.
22 A. Prior to that meeting, I did tell him not
23 to sign.
24 Q. Were you aware of any conflicts that 487
1 you -- do you know when you were an agent of any
2 conflict in representing both coaches and players of
3 professional football, college coaches and players
4 within the same firm?
5 A. Say it again.
6 Q. Were you aware of conflicts that prohibit
7 agents who represent players going to pro teams from
8 also representing college coaches in their contractual
9 endeavors?
10 A. There's no -- there's no --
11 Q. You aren't aware of any?
12 A. No, I'm not aware of any.
13 Q. Why did you give up your NFL
14 certification?
15 A. Why did I give up my NFL certification?
16 Because, as I said previously, I was focusing on
17 representing just coaches, and I felt that it was a
18 conflict of interest to be a certified contract
19 advisor and represent players in regards to the number
20 of coaches and friends that I have, and that I did not
21 want to put my coaching friends in a -- all across the
22 country, assistant coaches, associate AD or ADs, in a
23 very uncomfortable situation.
24 Q. So you felt it was a conflict to 488
1 represent both college coaches and players coming out
2 at the same time; is that right?
3 A. Yeah. I feel that's a conflict.
4 Q. And that's what this firm has now. They
5 have you associated with them representing coaches and
6 players coming out specifically now being represented
7 from the same university here, West Virginia?
8 A. That's correct, uh-huh.
9 Q. Do you still feel it's a conflict?
10 A. Do I feel it's a conflict.
11 Q. Do you still feel it's a conflict?
12 A. I still feel it's a conflict. There's
13 some --
14 Q. Did you say to Mr. Metz that, you know, I
15 shouldn't associate with you folks anymore because
16 this doesn't look good?
17 A. I told -- yeah, I told Eric that I don't
18 feel it looks good that -- that -- way back, going
19 into October 2006, that it doesn't look good that I
20 remain as an agent representing players and
21 representing coaches.
22 Q. How about the firm? I mean, the firm
23 represents players and you represent coaches, and you
24 guys are sharing information, and you guys have 489
1 financial interests that you share.
2 A. There is many --
3 MR. ROBON: Objection.
4 THE WITNESS: Okay. There's
5 many of the top agencies where actually
6 the same agent represents coaches and
7 players. Tom --
8 BY MR. FITZSIMMONS:
9 Q. I'm not asking about other agents. I'm
10 asking as to you and this firm, LMM.
11 A. Yeah, yeah.
12 Q. You've talked to Mr. Metz about the
13 conflict to the --
14 A. Yeah, I did.
15 Q. Okay. Why don't you exit from this firm
16 so there isn't a conflict, then, if you believe that
17 this information exists?
18 MR. ROBON: Objection.
19 THE WITNESS: I didn't have to
20 exit, because we have thrown -- we have
21 thrown up a wall where I do not represent
22 players, I just deal directly with
23 coaches.
24 BY MR. FITZSIMMONS: 490
1 Q. Of course, Metz, who represents now
2 Slaton and Renaud, has been representing Rodriguez
3 since '05 when those two young men came to West
4 Virginia, right?
5 A. That's correct.
6 Q. You don't see that as a conflict?
7 MR. ROBON: Objection.
8 THE WITNESS: No, I don't.
9 BY MR. FITZSIMMONS:
10 Q. What documents did you bring here today
11 for the deposition? Did you just pull some documents
12 you thought were important or --
13 A. Yeah. About various different topics
14 that we may discuss today.
15 Q. Was anything provided to you, any
16 documents provided to you from any source?
17 A. No, it was all me going through the
18 discovery that's already been turned over, the topics
19 that I -- that I felt might be discussed and that,
20 so -- and I don't -- I haven't gone through yet, but I
21 think there may be some stuff that's -- most of it's
22 public knowledge and stuff that's been already
23 transferred between West Virginia and myself and
24 whoever. 491
1 Q. Did you help get Coach Rodriguez ready
2 for his deposition at all?
3 A. Did I get him ready?
4 Q. Did you prep him at all with anybody?
5 A. No, I did not.
6 Q. Did anybody prep you for the deposition?
7 A. Yes.
8 Q. Who was that?
9 A. Marv and Ethan and Sean.
10 Q. Okay. You met with them, and went
11 through all the facts and things like that, did you,
12 generally?
13 A. Marv gave me a video I looked at in
14 Atlanta and returned to him yesterday.
15 Q. How to testify in a deposition?
16 A. What a deposition is like. Then
17 yesterday I got on the phone -- I mean I got -- Sean
18 was on the phone with Marv and I and, you know, we
19 talked about what about a deposition process is going
20 to go like.
21 Q. Did you talk about facts and go through
22 records at all, discuss those in any way?
23 A. Not facts and that, but they mentioned
24 what some of the subject areas they might -- that you 492
1 might touch on.
2 Q. You didn't talk about generally what some
3 of your recollection was and things like that?
4 A. We did not go into that detail that I can
5 recall.
6 Q. Anyone else present at that time, any of
7 those meetings?
8 A. The only ones yesterday were Sean, Ethan
9 and I in a conference room at Marv's office, and Sean
10 was on the phone.
11 Q. How long was that?
12 A. I think I left there at 3:30 and got
13 there around -- I mean, we left at 6:30, and I got
14 there around 4:00, so I was there for about
15 two-and-a-half hours.
16 Q. Two-and-a-half hours. You met with the
17 attorneys and just watched -- you watched the video at
18 home?
19 A. Yeah, I already watched the video.
20 Q. Okay. So two-and-a-half hours just
21 talking about subject areas, is that what all these
22 attorneys and you, for two-and-a-half hours, all you
23 talked about was subject areas?
24 A. Well, we've been here how long today so 493
1 far?
2 Q. I'm just asking as to what you talked
3 about with these attorneys.
4 A. Yeah, we talked for quite a while.
5 Q. You didn't go through any of the facts,
6 is that your testimony?
7 A. We touched -- we touched on subject areas
8 that -- they brought up subject areas that you -- that
9 you would bring up and discuss, and we talked about
10 those subject areas.
11 Q. Did you have discussions about some of
12 those areas, the importance of some of those areas?
13 Not that there's anything wrong with that, I mean --
14 A. No, I mean --
15 Q. Did you guys talk about certain things,
16 and correcting each other's memories and things like
17 that?
18 A. No, because they weren't present when any
19 of this stuff took place. They told me to tell the
20 truth, and I've told the truth as best I can
21 recollect. And, again, they touched on the areas that
22 they were going to touch on and that.
23 Q. Have you ever been deposed before?
24 A. It has been in the early 1990s, I was 494
1 deposed.
2 Q. What kind of case was that?
3 A. It was a business case, where we had --
4 in regards to United Technology where I was working,
5 there -- it was a business case, I recall.
6 Q. And what was your involvement, just as a
7 witness?
8 A. As a witness.
9 Q. Have you ever been sued?
10 A. Have I ever been sued?
11 MR. ROBON: Objection. You can
12 answer.
13 THE WITNESS: Let me see here.
14 I think I'm being sued currently in the
15 state of South Carolina in regards to the
16 real estate LLC.
17 BY MR. FITZSIMMONS:
18 Q. You personally are being sued?
19 A. I believe so.
20 Q. Are there allegations of fraud in that
21 particular lawsuit?
22 A. No.
23 Q. No?
24 A. No. 495
1 Q. What are the allegations?
2 A. I have to go back. It's -- the suit was
3 brought on by a Mr. Lamar Green who --
4 Q. Just what are the allegations, sir?
5 A. I think defamation of character, some
6 other things.
7 Q. They're alleging that you defamed their
8 character?
9 A. He does, yeah.
10 Q. What is that person's name?
11 A. Lamar Green.
12 Q. Do you know what county that's in?
13 A. Pickens County.
14 Q. Any other lawsuits that have ever been
15 filed against you?
16 A. Not that I can recall.
17 Q. How about any -- have you ever been
18 arrested before?
19 MR. ROBON: Objection.
20 You can answer.
21 THE WITNESS: Have I ever been
22 arrested?
23 MR. ROBON: That's a -- do you
24 want to define "arrested"? I know like 496
1 for a traffic ticket you do get arrested.
2 BY MR. FITZSIMMONS:
3 Q. I'll give you a little primer course on
4 arrest and search and seizures and that afterwards.
5 A. I got arrested in the early 1980s in
6 Raleigh, North Carolina.
7 Q. I'm not talking about speeding tickets
8 and things. Any DUIs --
9 A. No.
10 Q. -- or crimes at all?
11 A. No.
12 Q. What did you get arrested for in Raleigh?
13 A. I had gone to graduate school at the
14 University of Florida, and evidently I had received a
15 speeding ticket that I never paid, and when I got --
16 Q. Is that the extent of it?
17 A. -- when I got pulled over --
18 Q. How long did you go to graduate school at
19 the University of Florida?
20 A. I was in graduate school there from
21 December of '79 until -- I believe I was there for two
22 football seasons, so that was December of '79 through
23 1980.
24 Q. And what were you studying for? 497
1 A. I was a graduate assistant in the
2 football department there.
3 Q. Graduate assistant doing what?
4 A. I was in charge of -- let me see. At
5 that time, myself and the guy that's now the defensive
6 coordinator for the Bronco -- Broncos, we were in -- I
7 ran the residence hall, Yon Hall.
8 Q. As a graduate assistant you ran the
9 residence hall?
10 A. The athletic dorm, yes. I was the
11 assistant academic counselor.
12 Q. Were you in school?
13 A. Yes, I was in school part time.
14 Q. What were you studying?
15 A. I was taking some education classes.
16 Q. You didn't complete any degrees or
17 anything, you just have some hours there?
18 A. Hours there, yes.
19 Q. Any other matters that you were ever
20 arrested?
21 A. Other than not paying that speeding
22 ticket, no, that I can recall.
23 Q. Have you ever been denied or prohibited
24 from filing for a professional license, whether it be 498
1 engineer, sports agent?
2 A. No.
3 Q. Would you give me Jennifer's address?
4 A. I can forward it to you. I don't have it
5 with me.
6 Q. Can you give me her phone number?
7 A. I don't have that with me either.
8 Q. I thought she was like a sister to you.
9 A. She is.
10 Q. Okay. You don't have her number on you?
11 A. No.
12 Q. You don't know it?
13 A. No, huh-uh. It's back at the house.
14 MR. FITZSIMMONS: Okay. I don't
15 have any other questions for you at this
16 time.
17 THE WITNESS: Okay.
18 BY MR. FITZSIMMONS:
19 Q. Let me ask you -- Mr. Robon may have some
20 questions for you. Have you given full and complete
21 answers to each and every question I've asked you here
22 today to the best of your knowledge and ability?
23 A. To the best of my knowledge, yes.
24 Q. Sometimes people give answers that are 499
1 shortened or abbreviated when they know or believe
2 that a full explanation might change the meaning. I
3 don't think that applies to any answer that you gave
4 here, but I'm going to tell you that and ask you, have
5 you intentionally shortened any of your answers when
6 you felt an explanation in your opinion would have
7 changed the meaning of your answer? Have you done
8 that intentionally at all?
9 A. No, I haven't.
10 Q. Did you have your deposition taken in the
11 Green case that's down in Pickens County?
12 A. There's been no schedule -- date
13 scheduled or anything like that. It may have been
14 already dismissed by now, for all I know.
15 Q. Or a verdict; of course, you probably
16 would have heard about that.
17 A. Yeah.
18 Q. The court reporter is going to type up
19 your testimony, your answers to the questions that
20 we've asked here today.
21 A. Okay.
22 Q. And she is also going to type up the
23 questions that I asked you and any discussions and/or
24 objections that were made by counsel. 500
1 Do you understand that?
2 A. I understand that.
3 Q. That's going to be a statement, then,
4 that you've given under oath today. Do you understand
5 that?
6 A. I understand that.
7 Q. She will then send you a copy of the
8 transcript, if you want it; you have a right to review
9 all your answers and review her transcription of your
10 answers.
11 A. Uh-huh.
12 Q. Do you understand that?
13 A. I understand that.
14 Q. In West Virginia, you have a right to
15 make certain changes in your answer later on, but it's
16 done under another oath that you have to take.
17 Do you understand what I just told you?
18 A. I understand that.
19 Q. You can make typographical changes,
20 grammatical changes, spelling changes, you can add a
21 word just to make something sound better, that's some
22 of the changes you can make.
23 Do you understand what I just told you?
24 A. I understand that. 501
1 Q. You can also change the substance of your
2 answer.
3 A. Uh-huh.
4 Q. Do you understand --
5 A. I understand.
6 Q. -- what I just told you?
7 A. Uh-huh.
8 Q. Yes?
9 A. Yes.
10 Q. Okay. So that "yes," if you want to
11 change it to the total opposite, to "no" later on, you
12 can do that also. Do you understand that?
13 A. I understand that.
14 Q. But if you do that later on, there then
15 will be two statements given at two different times
16 under oath that are totally different. You understand
17 that that can occur?
18 A. I can, yeah.
19 Q. And you've seen on TV and movies and
20 things like that where somebody's testifying and
21 somebody gives an answer, and they say, Well, you said
22 something else differently. Do you understand that?
23 A. I understand that.
24 Q. Is there anything that you have said 502
1 today that you believe was wrong or incorrect, that
2 stands out in your mind, so that you could correct it
3 today so there isn't a different statement out there
4 in the future that you make under oath?
5 A. No.
6 Q. You feel totally comfortable with each
7 and every answer that you gave or to each and every
8 question that I've asked you to the best of your
9 knowledge and belief. Is that a fair statement?
10 A. Yes.
11 Q. All right.
12 MR. FITZSIMMONS: Do you have
13 questions?
14 MR. ROBON: I have a few
15 questions, yes.
16 - - -
17 EXAMINATION
18 BY MR. ROBON:
19 Q. Mr. Brown, Mr. Fitzsimmons mentioned
20 Calvin Magee. Does your representation of him have
21 any involvement with Coach Rodriguez with regard to
22 this case, or is it just the fact that you're
23 representing another coach?
24 A. I'm representing another coach. 503
1 Q. Okay. And there was a great deal of time
2 spent by Mr. Fitzsimmons with regard to Exhibits 56
3 and 57 that said something about betting.
4 A. Uh-huh.
5 Q. Do you recall that?
6 A. Yes, I recall that.
7 Q. Were you charged with any crime or did
8 you commit any illegal acts relating to illegal
9 betting or those documents?
10 MR. FITZSIMMONS: I'm going to
11 object to him -- he's not qualified to
12 render a legal opinion as to whether he
13 committed legal or criminal actions.
14 MR. ROBON: I'll rephrase the
15 question.
16 BY MR. ROBON:
17 Q. Were you charged with any crimes?
18 A. No.
19 Q. You were then not prosecuted for
20 anything, correct?
21 A. No.
22 Q. Did you think anything that you did was
23 illegal or a violation of state or federal law?
24 A. No. 504
1 Q. Okay. There was an investigation that
2 Mr. Fitzsimmons made remarks regarding. What was the
3 result of that investigation, if you know?
4 A. All I know is that there was a
5 disgruntled employee that left Touchstone Research,
6 who I was his direct supervisor, that came back at
7 some time after he left the company and made
8 allegations against Touchstone that included myself
9 and other individuals.
10 I believe that the Department of Defense
11 investigators came down, took out boxes and boxes,
12 cost tens of thousands of dollars to reproduce some of
13 the documents, and this was in 2002. That
14 investigation continued.
15 The owners of the company knew of the
16 allegations in regard to the sports betting and other
17 stuff there. When I left Touchstone Research, which I
18 believe -- let me see. This is '8, I got married in
19 '04, so I believe I left Touchstone in '05. At that
20 point in time, they never came to me, raised any
21 issues.
22 While working there over -- from 2001 to
23 when I left in 2005 as director of marketing, their
24 annual sales grew by 400 percent, so they were very 505
1 satisfied with my job and performance. So there
2 was -- from the time those allegations were made until
3 the time I handed in my resignation at Touchstone, to
4 the best of my knowledge, they were completely happy
5 with my performance and didn't consider it to be
6 anything that would cause me to be terminated there.
7 Q. Did you -- while you were at Touchstone,
8 were you basically entertainment?
9 A. Pardon me?
10 Q. Were you entertainment on the new media
11 or on the radio, is that what you -- when you said
12 "voice-overs"?
13 A. When I was at Touchstone, what I would
14 do, of course, I was working 50- to 60-hour weeks just
15 in regard to building that business up there. And I
16 would take time out on Thursdays, if I remember
17 correctly, to do some of those voice-overs, and I was
18 usually on WKNR as an NFL insider on late Friday
19 afternoon.
20 And then I think Dave Rice took and did
21 some of my voice-overs and that on -- on that on
22 Saturday morning.
23 Q. Did you do predictions of who might win
24 or lose like they do on the NFL Today? 506
1 A. I would do predictions based on what --
2 the script and that. Well, I would just read or go
3 through the script and that that Dave Rice had
4 provided me and we had agreed to. That's the way I
5 would read it on the air. Never compensated for
6 anything.
7 Q. And you didn't instruct anybody to place
8 bets based upon your predictions?
9 A. No.
10 Q. And you weren't involved in any betting
11 pools or pool rings?
12 A. No.
13 Q. Okay. Let's go back to the second
14 addendum to the contract that Coach Rodriguez signed
15 on August 24th of 2007.
16 Can you tell the jury what you recall
17 President Garrison said with regard to the 4 million
18 dollar buyout provision? What did he tell
19 Coach Rodriguez or Rita Rodriguez?
20 A. I'm trying to remember the -- the exact
21 way he put it is --
22 Q. Well, as best you can recollect it.
23 A. I remember this exactly. He said, If you
24 leave after this year, the lawyers will probably get 507
1 together, and they'll just agree on 2 million dollars.
2 And I remember he was standing up when he said that.
3 Q. Okay. Why do you remember he was
4 standing up? Was that a special point that
5 Rich Rodriguez was concerned about?
6 A. No. It was near the end of the meeting,
7 and we were getting ready to leave, and we were
8 finishing up discussions in regards to getting back
9 together in December and January, and Rich was still
10 talking about the fairness of the contract, and that's
11 when Mike Garrison got up and made that statement.
12 And in that same meeting, Mike Garrison
13 and Craig Walker both reiterated that the 4 million
14 dollar number at that time could not be changed
15 because the Board of Governors would not go for it
16 because a stake had already been put into the sand, it
17 would look like a sign of weakness in regards to the
18 Board of Governors, and the publicity was already out
19 there.
20 And then I remember in that meeting I
21 brought up and pointed out to them the -- and I can't
22 remember exactly -- that it was Mike Parsons who had
23 released that term and condition after the term sheet
24 was signed, which was in violation of the 508
1 confidentiality and publicity clause that was in the
2 term sheet.
3 And they said they recognize that, but,
4 you know, based on what they thought the Board -- what
5 Mike Garrison and Craig thought the Board of Governors
6 could accept, they could not address that at that time
7 anyway.
8 And then it was after that, near the end
9 of the meeting where Mike Garrison stood up and said,
10 If you leave after this year, the lawyers will
11 probably just get together and agree on 2 million
12 dollars, split the difference. I remember he said,
13 "Split the difference."
14 Q. Do you believe when Rich signed that
15 addendum on August 24th, '07, that he felt that the
16 liquidated damages provision or the penalty would not
17 be enforced to the fullest extent if he left?
18 MR. FITZSIMMONS: I'm going to
19 object as to asking for an opinion as to
20 what somebody else felt.
21 BY MR. ROBON:
22 Q. Let me ask this question: What do you --
23 what did Rich indicate to you with regard to the
24 penalty or the liquidated damages at the time he 509
1 signed it?
2 MR. FITZSIMMONS: I'm going to
3 object. Nobody's called it a penalty.
4 It's not a penalty.
5 THE WITNESS: Rich left that
6 meeting that day with faith -- faith is
7 based on when somebody makes a promise --
8 that every promise that was made that
9 day, all the way from that conversation
10 of liquidated damages, GAs, textbooks and
11 that, website, putting the MSN Network
12 out on bid, he had a complete faith that
13 Mike Garrison was going to live up to
14 everything he said in that meeting.
15 BY MR. ROBON:
16 Q. And those were basically promises that
17 you felt induced Rich to execute the second addendum?
18 A. Yes.
19 MR. FITZSIMMONS: I'm going to
20 object to his feelings, once again, as to
21 what induces anybody to do anything.
22 BY MR. ROBON:
23 Q. Let's say feelings. Is it your -- did
24 you believe at the time Mike Garrison intended to keep 510
1 those promises?
2 A. Repeat the question.
3 Q. At the time Garrison made those promises
4 on August 24th -- you heard the promises, correct?
5 A. That's correct.
6 Q. Did you believe that Rich heard those
7 promises?
8 A. I believe Rich heard those promises.
9 Q. Do you believe Rita heard those promises?
10 A. I believe Rita heard those promises.
11 Q. And you believe Mike Wilcox heard those
12 promises?
13 A. I believe Mike Wilcox heard those
14 promises.
15 Q. Do you believe everybody at that meeting
16 believed what Garrison was stating at that time?
17 A. They believed it -- I believe they
18 believed it, especially after Rita cornered and asked
19 a follow-up question to Mike Garrison where she asked
20 Mike Garrison, Mike, what happens if the Board of
21 Governors and Eddie and that get in the way of
22 following through on this, et cetera, et cetera, et
23 cetera.
24 And Mike Garrison said, I'm the president 511
1 of the University now, and implied that he would -- he
2 was in charge and people were going to march to his
3 orders.
4 Q. Okay. Can you explain why there was no
5 written notice of breach of the promises given to West
6 Virginia University?
7 A. Can I explain the reason?
8 Q. Yes.
9 A. Basically, the reason is after
10 Coach Rodriguez met with Mike -- with Craig Walker and
11 Ed Pastilong on December the 15th during the day, and
12 then at Mike Garrison's house on Saturday night,
13 December the 15th, where they had said no to
14 everything, or the items that Rich was then going back
15 and revisiting from the August 24th meeting, that at
16 that point in time, the University was making their
17 statement and implying that there is no need to put in
18 a 30-day notice letter, we've already made up our mind
19 and we're telling you our answer today.
20 Q. Would you tell the jury the comments or
21 information that you had from the Board of Governors
22 or Joe Manchin that President Garrison was going to be
23 named months before he was even nominated as the
24 president of West Virginia University? 512
1 A. Repeat the question.
2 Q. Can you tell the jury how the Board of
3 Governors or how you were informed, either through the
4 Board of Governors or Joe Manchin or Rich Rodriguez,
5 how and why President Garrison was going to be named
6 as the next president of the University long before he
7 was ever nominated?
8 A. Rich Rodriguez, on December 8th of 2006,
9 on that Friday, Rich Rodriguez told me that in
10 discussions that day, Steve Farmer told Rich -- you
11 know, because Rich was still bringing up the website
12 and other issues -- that Steve Farmer said that, Don't
13 worry, there is going to be a new president, it's
14 going to be Mike Garrison, all of those things would
15 be taken care of in time.
16 In February, I remember that
17 Coach Rodriguez called again, or we were in
18 conversations, and he mentioned again to me -- because
19 after that, I would actually stay in touch with Rich,
20 I would call Bob Robinson, I would call Denver Allen,
21 who is a good friend of Bob Huggins, and ask around
22 the inner circle, What do you hear on the president's
23 search, what's going to happen in that; and they were
24 all repeating the same thing, that they thought 513
1 Garrison was going to get the job.
2 So in February, I remember Rich called me
3 and said that he had had another conversation with
4 Steve Farmer, and again brought it back up and
5 mentioned to Steve, and Steve said, There's going to
6 be a new president, it's going to be Mike Garrison,
7 don't worry about it.
8 And then during that time and afterwards,
9 Rich told me that Steve Farmer and Drew Payne had
10 contacted him to set up meetings and have discussions
11 with Mike Garrison back in the March, April time
12 frame.
13 And I remember Rich told me on more than
14 one occasion in one of those meetings Mike Garrison
15 said, Are you going to support me for president, and
16 Rich replied to him, I'll support you for president if
17 you're going to support the football program.
18 Q. Who do you believe was responsible for
19 instigating the lawsuit against Rich Rodriguez from
20 the West Virginia University side of the table?
21 MR. ROBERT P. FITZSIMMONS: I
22 object to the question. Totally
23 irrelevant. When you say instigated it,
24 there was no instigation. It was filed. 514
1 BY MR. ROBON:
2 Q. Filed. Who --
3 A. Who authorized it?
4 Q. Who authorized or directed the filing of
5 the lawsuit?
6 A. Governor Manchin and Steve Goodwin.
7 Q. And why do you believe that?
8 A. Why do I believe that?
9 Q. Yes.
10 A. I believe that there is continued --
11 continued animosity and hatred by Joe Manchin and
12 Steve Goodwin and Mike Garrison against Coach.
13 Q. Okay.
14 A. I mean, I remember Coach calling me up
15 and saying, Hey, Joe Manchin called me on Sunday
16 night -- and I believe it was either Christmas night
17 or Christmas Eve -- and wanted to apologize for the
18 comments he made previously the week before; and then
19 two or three days later there was a lawsuit filed
20 against him by the state where he's the governor.
21 Q. In your business as a sports agent, are
22 there lots of handshake deals? You mention that there
23 were no written agreements with fees with regard to
24 yourself and coaches. Is there a lot of trust? 515
1 A. Yeah, there is a lot of trust in
2 representing, whether it's coaches or even going back
3 to representing players. There is a lot of trust in
4 regards to the team that, you know, you're negotiating
5 with or the school that you're negotiating with.
6 Q. And with regard to the 4 million dollars
7 as a liquidated damages sum, what do you believe are
8 the damages West Virginia University suffered, if any,
9 by virtue of Coach Rodriguez leaving?
10 A. I've actually sat down and calculated,
11 and I think they are going to be 3 to 4 million
12 dollars to the better this year.
13 Now, I can't attribute it to
14 Coach Rodriguez leaving, but I do believe that
15 Coach Rodriguez set a very solid foundation there, and
16 this was one of his goals, is it's -- you know, leave
17 the program in better shape than when he left it, and
18 that the program was not dependent on one person.
19 But I've gone through and calculated, and
20 I've even looked at statements in regards to comments
21 by Eddie Pastilong and that, and in my conversations
22 with -- I had a good friendship with Larry Aschebrook,
23 he would ask me for advice quite frequently on ways to
24 raise revenues there, and also Craig Walker and I 516
1 would gradually, even starting in the summer, forward
2 ideas on how they could raise revenues and that.
3 And from what I understand, they're
4 implementing them in regards to premium game ticket
5 prices for next year, which is going to generate about
6 another million. I asked Larry Aschebrook what did he
7 project the MAC donations to be in regards to year
8 ending 2008 --
9 Q. MAC being Mountaineer Athletic Club?
10 A. Mountaineer Athletic Club. He said it's
11 probably going to be up about 1.6 million or a total
12 of 18 million over this year. They're implementing a
13 seat-equity program that I'll show you -- and I'll
14 even give it to the attorneys here. Hold on a second.
15 Going through the summer with Larry and
16 Craig, I gave -- you can submit this to the record.
17 Q. Let's mark these as exhibits.
18 A. You can mark these as exhibits.
19 Q. Do you have extra copies?
20 A. No, I can leave these copies here.
21 Q. Okay.
22 A. How to do seat equity --
23 MR. ROBON: Well, let's mark
24 this as an exhibit. 517
1 MR. FITZSIMMONS: Do you have
2 copies for us?
3 THE WITNESS: Yeah, you can take
4 these.
5 MR. ROBON: As long as you can
6 part with it.
7 THE WITNESS: Yes.
8 MR. ROBON: Let's mark this
9 as -- why don't you give me some
10 stickers.
11 MR. FITZSIMMONS: Let me place
12 an objection on the record that the
13 witness is totally unqualified to do any
14 type of assessment, I think the record's
15 clear on that.
16 Number two, it's irrelevant.
17 And then --
18 MR. ROBON: Let me ask the
19 questions here.
20 (Brown Exhibits 59 and 60
21 were marked for identification.)
22 BY MR. ROBON:
23 Q. I'm going to hand you Exhibit 59. What
24 is this document that you just mentioned? 518
1 A. This is a document that the associate
2 athletic director gave to me in regards to how they're
3 implementing seat equity at Clemson University, which
4 I passed on to both Craig Walker and Larry Aschebrook
5 at West Virginia so they could look at this in regards
6 to looking at raising revenues to benefit the whole
7 program at West Virginia.
8 Q. Okay. I'm going to hand you what you
9 handed me as Exhibit 60. What is this document?
10 A. This is an actual document that I
11 received from Clemson. It was also given to me, since
12 I'm a season ticket holder at Clemson up through 2007,
13 that they sent out to their season ticket holders on
14 how the seat equity plan was going to work. I
15 provided this to Larry Aschebrook and to Craig Walker,
16 I believe.
17 Q. And can you indicate the purpose of your
18 providing those documents to West Virginia University?
19 A. Craig Walker and I, starting in the
20 summer, and Larry Aschebrook would have constant
21 discussions in regards to the status of college
22 athletics. When we had the meeting on August the
23 24th, part of the discussion that day was a
24 conversation between myself and Craig Walker and 519
1 Mike Garrison on the amount of total revenues that
2 weren't being realized by the athletic department.
3 And that -- that falled under the line
4 which they talked about a change in culture and that.
5 And they -- and I told them there is about 7 -- I
6 calculated 7 1/2 million dollars that they weren't --
7 that they were leaving on the table. And Craig Walker
8 agreed with me, and then later on I believe I
9 forwarded to Craig -- I do know I gave to Larry
10 Aschebrook. This exhibit here --
11 MR. ROBON: I'm going to mark
12 that as No. 61.
13 (Brown Exhibit 61 was marked
14 for identification.)
15 BY MR. ROBON:
16 Q. Tell us what that is.
17 A. That is after, you know, doing research,
18 knowing the -- what's going on at other schools, and
19 talking to other schools about how much revenue
20 they're generating in each one of these areas.
21 I know I passed this on to Larry
22 Aschebrook in regards to potential total revenue that
23 can be raised, and at the bottom, I said, This can be
24 used to fund the items Rich needs for the football 520
1 programs, assistant coaches' salaries, GAs, recruiting
2 coordinator, his salary, textbooks, and et cetera.
3 Q. Okay. And this is a document that you
4 prepared?
5 A. That's a document I prepared.
6 Q. Okay. And the purpose of Exhibits 59, 60
7 and 61 was to help West Virginia University's athletic
8 department?
9 A. That's correct.
10 Q. Looking back --
11 A. I'm no -- there's some more.
12 Q. Go ahead. Finish your answer.
13 MR. WAKEFIELD: Well, wait a
14 minute. I'm going to object to him just
15 giving speeches. This guy has apparently
16 come and has some sort of speech he wants
17 to give.
18 THE WITNESS: I'm --
19 MR. WAKEFIELD: Now, wait a
20 minute. You know, your job is to respond
21 to questions.
22 THE WITNESS: I had not finished
23 responding to his question.
24 MR. WAKEFIELD: What was the 521
1 question you're responding to?
2 MR. ROBON: My question was --
3 let's see.
4 MR. WAKEFIELD: You can't tell
5 us.
6 MR. ROBON: Well, I got to get
7 back to it, because I interrupted him two
8 or three times with regard to exhibits.
9 My question was did you
10 indicate -- I asked you about the damages
11 that would be incurred, and you indicated
12 there would be little or nothing incurred
13 by West Virginia University.
14 BY MR. ROBON:
15 Q. My question to you is what is your
16 understanding about liquidated damages? Is it a sum
17 certain or an uncertain sum, or is it a penalty, your
18 understanding?
19 A. Repeat the question.
20 Q. What is your understanding of the 4
21 million dollar figure? Is it a liquidated damages
22 sum, is it a penalty, or is it an estimate of what
23 damages might be in relationship to the West Virginia
24 contract? 522
1 MR. FITZSIMMONS: I'm going to
2 object. He doesn't have the
3 qualifications. The judge decides what
4 liquidated damage is.
5 MR. ROBON: I just want to know
6 what his opinion is.
7 MR. FITZSIMMONS: This witness
8 is unqualified.
9 THE WITNESS: Repeat the
10 question, Marv.
11 BY MR. ROBON:
12 Q. What is your understanding of the 4
13 million dollar figure in the West Virginia University
14 contract with Rodriguez? Is it a liquidated damages
15 sum, a penalty, or is it an estimate of what damages
16 might be suffered by the University, your opinion?
17 A. My opinion today?
18 Q. Yes.
19 A. As of today?
20 Q. Yes.
21 A. It was a penalty to make sure that
22 Coach Rodriguez did not leave West Virginia.
23 Q. Now, with regard to the promises that
24 were made that you testified a little bit ago by 523
1 Michael Garrison, did Craig Walker also join in those
2 promises, or was he just there?
3 A. No, Craig Walker joined in those
4 promises. I remember he made a statement right
5 afterwards that when the meeting ended, he was going
6 straight over to the Coliseum and sit down with Mike,
7 with Ed Pastilong, and go over those.
8 And Craig and I had extensive
9 conversations in regards to the concept of the promise
10 that was made that they were going to put out on bid
11 the Mountaineer Sports Network, the media rights, and
12 investigate whether or not there were -- ways to
13 increase that revenue.
14 I even supplied Craig a copy of an RFP
15 that I received from Clemson --
16 Q. What's an RFP?
17 A. It's a request for proposal that's put
18 out by a school. And so Craig and I had
19 conversations; I offered Craig, in July and August,
20 help on that; he said he would appreciate it.
21 So I went by the associate athletic
22 director's office at Clemson. He gave me a copy of
23 the RFP, and I gave Craig a copy of the RFP, I believe
24 at the August 24th meeting. He was very thankful of 524
1 it. That was after the meeting.
2 During the meeting, we had discussions
3 about that. I remember Craig Walker and Mike Garrison
4 referring to the Mountaineer Sports Network as "Mike's
5 stupid network."
6 And I asked, What does that mean; and
7 they said it was always a joke around Morgantown that
8 MSN was Mike Parsons' baby and everyone joked and
9 called it "Mike's stupid network."
10 I remember I had follow-on conversation
11 later in the day around 5:00 or 6:00 when I was back
12 over there and Mike Garrison was there, and we had a
13 conversation in the parking lot.
14 Mike Garrison told me how interested he
15 was in this, thanked me for my help, and he even asked
16 me in the parking lot if they did award a contract to
17 somebody outside of the -- or they did put out an RFP
18 and somebody won and it was outsourced, was there a
19 way that company could hire Mike Parsons.
20 And I told Mike Garrison, Yes, I've known
21 of instances before when a University has put out --
22 has outsourced their media marketing rights where the
23 company winning it had gone in and hired people from
24 the University. 525
1 MR. ROBON: Let's go off camera
2 and we'll change the tape.
3 THE VIDEOGRAPHER: Going off the
4 record at 7:23 p.m.
5 (A brief recess was had.)
6 THE VIDEOGRAPHER: Back on the
7 record at 7:32 p.m.
8 BY MR. ROBON:
9 Q. Mr. Brown, in your representation of
10 Coach Rodriguez since, what, 2005, have you done
11 anything that you believe no other agent would have
12 done?
13 A. No.
14 Q. Okay. Tell us about President Garrison.
15 Is he a very convincing person? How does he come
16 across?
17 A. He's very convincing.
18 Q. Looking back 10 months ago, nine to 10
19 months ago when the promises were made that you heard
20 on the 24th of August 2007, did those promises turn
21 out to be falsehoods, in your opinion?
22 A. They did.
23 Q. And was it more than one falsehood?
24 A. There were multiple falsehoods. 526
1 Q. A comment was made by opposing counsel
2 that -- when you contacted Bill Martin on December 11
3 of 2007, was Rich Rodriguez aware of your phone call?
4 A. At the time I placed the call, he was
5 not.
6 Q. And we touched on Calvin Magee, you're
7 representing him. How has Calvin Magee been somehow
8 interwind -- intertwined in this litigation? Is that
9 because of the comments with Larry Aschebrook?
10 A. Yes. Larry Aschebrook made a -- Larry
11 Aschebrook filled out an affidavit saying or stating
12 that the only reason that Coach had -- that Coach
13 had -- that Coach Magee had filed this was to help
14 Rich in his lawsuit, and so I was aware of that.
15 And then I was aware of the -- of how
16 that was a false statement for two reasons: Number
17 one is Calvin Magee made the -- had told me about the
18 incident with Ed Pastilong, and then the incident with
19 Larry Aschebrook prior to Christmas.
20 I had already contacted and told Chuck
21 Finder about it, and had already made arrangements for
22 him to interview -- for him to interview -- to
23 interview Calvin Magee out in Phoenix, that -- while
24 they were out there for the Fiesta Bowl, so that was 527
1 prior to the lawsuit being filed.
2 So for Larry Aschebrook to say that there
3 was -- that this was made up to help Rich in his
4 lawsuit was incorrect.
5 And then also, too, Greg Frye gave me a
6 copy of a statement in an e-mail he sent back to
7 Jennifer McIntosh as to his recollection -- as to his
8 recollection in regards to -- his recollection in
9 regards to what he witnessed that day. And I believe
10 I did bring a copy of a -- a copy of the -- a copy of
11 the -- a copy of the statement by Greg Frye today.
12 Q. By Greg --
13 A. By Greg Frye.
14 Q. Okay. And explain again, Greg Frye is
15 how involved with Magee and Aschebrook?
16 A. He is involved with Magee and
17 Aschebrook -- say it again.
18 Greg Frye was a witness to the comment
19 made by Greg Frye and --
20 Q. Greg Frye is a witness to what comment?
21 A. He was a witness to the comment made by
22 Larry Aschebrook to Calvin Magee where Calvin and he
23 were talking about Calvin's potential of getting the
24 job. And Calvin pointed to the color his skin -- I 528
1 mean, Larry pointed to the color of his skin, his
2 wrist, and he said something in regards to, Calvin,
3 you won't be a candidate because the donor base won't
4 go for it.
5 Q. And in the request for production that
6 was provided by West Virginia University, did you go
7 through a number of the phone logs?
8 A. I did.
9 Q. And did you find that there were a number
10 of calls to the Governor's office by some personnel
11 from West Virginia University?
12 A. I found that Ed Pastilong placed calls to
13 the Governor's office.
14 Q. Do you believe that the Governor's office
15 is controlling the athletic department at West
16 Virginia University?
17 MR. FITZSIMMONS: Objection.
18 Totally irrelevant.
19 MR. WAKEFIELD: It's
20 speculation. This man's opinions are
21 irrelevant.
22 THE WITNESS: I do believe
23 that.
24 BY MR. ROBON: 529
1 Q. Can you tell the jury why you believe it?
2 A. There's many reasons. Number one --
3 MR. ROBERT P. FITZSIMMONS: Same
4 objection.
5 THE WITNESS: -- I go back to a
6 conversation I had with Bob Robinson I
7 had in November of '07 --
8 BY MR. ROBON:
9 Q. November of '07, okay?
10 A. In November of '07 where, you know, Bob
11 explained to me that as far as the dynamics at West
12 Virginia, that Eddie had been able to get the Governor
13 on his side, that Eddie was upset that --
14 Q. Eddie Pastilong?
15 A. Eddie Pastilong was upset that
16 Mike Garrison and Craig Walker were telling him how to
17 run his athletic department. And I was informed at
18 that time that the turf battle had been lost
19 temporarily, that Mike and Craig were going to have to
20 wait and work out a long-term way to get -- to remove
21 Eddie, and that for now, Eddie, with the Governor's
22 assistance, was able to win the turf battle with
23 Mike Garrison and Craig Walker at the time.
24 Q. And who do you believe the successor of 530
1 Eddie Pastilong is going to be?
2 MR. ROBERT P. FITZSIMMONS:
3 Objection. Irrelevant, speculative,
4 waste of time.
5 THE WITNESS: In previous
6 discussions, a lot of people in West
7 Virginia thought that Craig Walker was
8 going to succeed Ed Pastilong.
9 MR. ROBON: I don't believe I
10 have any further.
11 THE WITNESS: I want to go back
12 to the Governor's involvement.
13 MR. ROBON: Oh, the Governor,
14 yeah.
15 MR. WAKEFIELD: Again --
16 THE WITNESS: The --
17 MR. WAKEFIELD: Hey, hey. He's
18 not allowed to just sit here and give
19 speeches.
20 MR. ROBON: Did you -- well, he
21 didn't answer. I cut him off. I'm
22 sorry. I asked him about the phone
23 calls.
24 BY MR. ROBON: 531
1 Q. Tell me about the Governor's involvement.
2 A. There was an interesting situation on the
3 phone log, on the Friday night, December the 14th,
4 that Ed Pastilong placed a phone call to
5 Rich Rodriguez, at 11:45 p.m. I found it kind of
6 ironic, the two phone calls that he made prior to that
7 phone call were two separate calls to the Governor
8 that totalled, I believe, 32 minutes. And so that
9 raises my suspicion that, you know, the Governor plays
10 a big role in what goes on in the athletic department.
11 Q. Okay. And what day was that?
12 A. That was on -- those phone calls were
13 made on Friday, December the 14th.
14 Q. Okay.
15 A. And they have copies of the phone logs
16 there.
17 MR. ROBON: No further
18 questions.
19 MR. ROBERT P. FITZSIMMONS: Mr.
20 Brown, I do have a few more follow-ups
21 here.
22 - - -
23 RE-EXAMINATION
24 BY MR. FITZSIMMONS: 532
1 Q. I see you actually have your own kind of
2 legal file for this case, too, that you've broken down
3 into Leadership, Damages, Governor --
4 A. Uh-huh.
5 Q. -- Pressure.
6 A. Uh-huh.
7 Q. You had one, Pressure and Promises?
8 A. That's correct.
9 Q. Is that right?
10 A. Yeah.
11 Q. Are these documents you pulled, and
12 subfiles that you then started for your own kind of
13 legal file for this case also?
14 A. No. That's the way I did -- I did that
15 on -- when did I do that? Today is Friday.
16 I did that either on Wednesday and
17 Thursday prior to coming up here.
18 Q. So you put together your own little legal
19 file for this case, then, right?
20 A. I put together documents --
21 Q. Is that right?
22 A. -- and brought them with me in case, you
23 know, as I was giving answers, I needed to refer to
24 them. 533
1 MR. FITZSIMMONS: What was your
2 last exhibit, Mr. Robon? Was that 61?
3 MR. ROBON: 61, yes.
4 (Brown Exhibit 62 was marked
5 for identification.)
6 BY MR. FITZSIMMONS:
7 Q. This is a letter that was in one of your
8 files. It's dated April 24th, 2007, from Tom Dorer to
9 you. And I see that there are writings on the right
10 side and left side here --
11 A. Can I see the document?
12 Q. Yeah. I'll show it to you here in a
13 second.
14 A. What date was that, April 24th?
15 Q. April 24th.
16 A. That's your exhibit Brown 15?
17 Q. It is, without your handwriting on it?
18 A. That's correct.
19 Q. I see here that on the right side of the
20 third page at the top, that top entry, you have
21 something about, That's their argument -- after Term
22 sheet being a legal document, you have a comment on
23 that, and then you say something about -- something
24 about their argument in the first upper right-hand 534
1 side.
2 A. Uh-huh.
3 Q. Would you read that into the record what
4 you said, your handwriting, next to the typewritten
5 portion of that.
6 A. Term sheet not -- these were just notes
7 that I --
8 Q. Just read it into the record.
9 A. "Term sheet not a legal document for our
10 argument, they say it is, so if they do not meet
11 dates, 'show cause'."
12 Q. That's kind of legal language there
13 you're participating in?
14 A. I was just looking at and making notes to
15 myself in regards to this. In regards to this, one of
16 the things that when you do a contract -- and I've
17 talked to many athletic directors about this, you want
18 to be very selective as to -- you don't want to leave
19 it open-ended.
20 If a school is going to make a commitment
21 on facilities, you don't want to leave it open-ended,
22 you want to have it so that at point in time that is
23 completed.
24 Q. May I see the document again? 535
1 A. Yes.
2 Q. So these notes that you took are things,
3 statements that you made, and your beliefs at that
4 time; is that what you're saying in '07?
5 A. No. Those were notes that I wanted to
6 make to myself just to remind myself to go back and --
7 Q. When?
8 A. Right when I got the letter.
9 Q. Important things, notes to jog your mind
10 as to what you should do and what you shouldn't do,
11 right?
12 A. Yeah.
13 Q. Okay.
14 A. And, of course, like I told you earlier,
15 after I got that letter written --
16 Q. Just answer the question. We got just a
17 little bit of a time.
18 A. Uh-huh.
19 Q. The girl who is just like your sister,
20 Pamela, is it?
21 A. Jennifer.
22 Q. Will you get us her address? You said
23 you had that at your house.
24 A. Yeah, I'll get that to you. 536
1 Q. Will you provide that within seven days
2 to counsel so we can have her address and phone
3 number? Will you do that?
4 A. I'll be glad to do that.
5 Q. All right. Have you made any tape
6 recordings of any meetings, conversations, or anything
7 else that has been verbalized at all?
8 A. In this room, in this meeting today?
9 Q. Not today. Any time in reference to
10 Rodriguez or anything dealing with West Virginia
11 University?
12 A. Yeah. I did record two phone calls.
13 Q. Whose were those?
14 A. Those were Larry Aschebrook's.
15 Q. When did you return -- take those phone
16 calls?
17 A. In April of '08, this year.
18 Q. Did you call and give Mr. Aschebrook a
19 description that would have referred to a job that you
20 were trying to get him?
21 A. Pardon me? Say it again.
22 Q. Did you call Mr. Aschebrook at any time
23 and give him a message, either directly or through any
24 message system, that indicated you were going to give 537
1 him a description, I guess I've heard that term used,
2 a job description?
3 A. He had -- he had --
4 Q. Did you do that?
5 A. I told him I was trying to get time to
6 work a job description up for him, but it was going to
7 be dependent on me having to talk with other people.
8 Q. And that was from the University of
9 Michigan; is that right?
10 A. Yes.
11 Q. And you expressed that to Mr. Aschebrook?
12 A. That's correct.
13 Q. Do you have any hiring authority at
14 Michigan to be writing up job descriptions for people
15 and indicating there may be a job description, that
16 you can get them a job at Michigan -- the University
17 of Michigan? Do you have any authority?
18 A. No, I don't have that authority.
19 Mr. Aschebrook --
20 Q. Did Coach --
21 MR. ROBON: Let him finish his
22 answer.
23 MR. ROBERT P. FITZSIMMONS: I
24 just asked him if he had that authority. 538
1 That's a yes or a no.
2 THE WITNESS: No.
3 BY MR. FITZSIMMONS:
4 Q. All right. Did Rodriguez indicate to you
5 that he had enough authority that he could get a job
6 for Aschebrook, that you could convey a job
7 description for him?
8 A. I never had a discussion with Rich.
9 After a certain period of time, that was discussed on
10 December the 18th where Larry Aschebrook, in front of
11 a bunch of witnesses, asked Coach Rodriguez if he
12 could help him get a job at Michigan and get out of
13 West Virginia.
14 Q. What's on these recordings that you have
15 with Aschebrook?
16 A. It's conversations in regards to his
17 meetings with Jennifer McIntosh, and then also --
18 Q. Is that the investigation concerning
19 the --
20 A. Yeah.
21 Q. You asked him about what had gone on in
22 that?
23 A. Yeah, and then also --
24 Q. Why would you be asking Mr. Aschebrook 539
1 those questions?
2 A. Because I had had some follow-up -- I had
3 a follow-up conversation with Jennifer, and also, too,
4 it was at a time after he had already put out an
5 affidavit that had a lot of falsehoods in it.
6 Q. And so that -- did you advise him you
7 were recording that conversation?
8 A. No, I did not.
9 Q. Do you know if -- where he was located at
10 the time you made that call and tape-recorded him?
11 A. Say it again.
12 Q. Do you know where he was when you
13 tape-recorded him?
14 A. There was one call where he was in his
15 office, and there was one call when he was playing
16 golf, he told me.
17 Q. In his office --
18 A. At West Virginia.
19 Q. At West Virginia?
20 A. Uh-huh.
21 Q. And the other time he was playing golf in
22 West Virginia?
23 A. That's correct.
24 Q. Do you know if both parties have to 540
1 consent to a tape-recorded conversation in West
2 Virginia, or whether or not that's a violation of
3 State law?
4 A. It only takes one party knowledge in both
5 Georgia and West Virginia.
6 Q. So you checked that out for
7 tape-recording purposes?
8 A. I did.
9 Q. Is that something you do frequently is
10 tape-record people?
11 A. No, I don't.
12 Q. No. So this conversation, then, what did
13 you do, just kind of debrief him as to what he had
14 talked to the investigators about?
15 A. I just wanted to -- because I knew that
16 the statement that he made to Jennifer McIntosh in
17 that affidavit was false based on even previous stuff
18 he had told me, based on the witness, based on what
19 Calvin said, so I just wanted to have a discussion;
20 and then also have -- and then also talk to him in
21 regards to how his family was doing, et cetera.
22 Q. Do you believe that on the tape recording
23 that you got him to admit that he did -- said
24 something false? 541
1 A. No.
2 Q. He denied everything, didn't he, that you
3 alleged --
4 A. I didn't allege anything. He said he --
5 he said he went in, I remember, and he had a
6 conversation with Jennifer that he --
7 Q. I didn't ask you what all he said. All
8 right.
9 A. And he did continue to ask me at that
10 time to help him get out of there, can I help him --
11 Q. Did you offer him a job, or that you
12 would try to get him a job with the University of
13 Michigan?
14 A. I told him I would help him.
15 Q. Now, as I understand, you just became
16 newfound friends of Michigan as of December the 11th,
17 that was the first time you ever called anybody up
18 there?
19 A. That's correct.
20 Q. You didn't know anybody else from
21 administration for purposes of employing other
22 individuals, did you, other than Mr. Martin, and you
23 met Ms. Coleman, I guess, on one --
24 A. What, by the time I was having those 542
1 conversations?
2 Q. Yes, sir. Had you worked your way into
3 Michigan that you had some clout to get people jobs up
4 there?
5 A. No.
6 Q. You don't have any objection to providing
7 us with the actual copies? Can you make copies of the
8 recordings?
9 A. I have no problem of that.
10 Q. You can provide that to us within seven
11 days?
12 A. I'll be --
13 Q. We'll pay whatever the --
14 A. I'll be glad to.
15 Q. The two conversations.
16 A. Uh-huh.
17 Q. Any other tape recordings that you've
18 made of people?
19 A. No.
20 Q. I guess I should ask you, any
21 surveillance that you conducted?
22 A. No.
23 Q. Did you do any investigative work?
24 A. No, no. 543
1 Q. All right. Bob Robinson, is that the Bob
2 Robinson that has a car dealership in Wheeling?
3 A. That's correct.
4 Q. And Denver Huggins?
5 A. No, Denver Allen.
6 Q. I'm sorry.
7 A. He's a fundraiser at the University of
8 Charleston.
9 Q. Did I hear your testimony correct that
10 your opinion is that West Virginia made out by 3 or 4
11 million dollars by Rodriguez leaving, they profited by
12 3 or 4 million, based on your calculations; is that --
13 is that your position?
14 A. My position is that the athletic
15 department is going to be 3 to 4 million dollars --
16 Q. Ahead?
17 A. -- ahead next year, regardless of whether
18 Coach left or not. But based on things that have
19 transpired, I've even made the statement that --
20 Q. Better off -- West Virginia's better off
21 without Rodriguez there.
22 A. Well, the way --
23 Q. Right?
24 A. Yeah, the way the Governor and Mike -- 544
1 Q. Is that a yes?
2 A. Yes. The way that the Governor and
3 Mike Garrison flamed the fan base, I'm sure it didn't
4 help with donations coming in.
5 Q. These documents that you've put together,
6 59 and 60 and 61, the Clemson documents and stuff,
7 those are all things that you had been advocating to
8 West Virginia in running their athletic program or
9 football program in '07 and even before that; isn't
10 that true?
11 A. Pardon me?
12 Q. Those documents that were introduced into
13 evidence that Mr. Robon marked that you brought here,
14 the Clemson documents, those are things you talked to
15 Mr. Walker about and tried to get West Virginia to
16 change their athletic program to those extents; is
17 that right?
18 A. Craig and I had conversations --
19 Q. Is that a yes?
20 A. Yes, with Craig Walker.
21 Q. Okay. So you were helping to try to run
22 West Virginia's athletic program?
23 A. No. I was trying to give them ideas the
24 increase revenues so the whole program could be better 545
1 off, and Craig Walker and Mike Garrison agreed with
2 me.
3 Q. Do you hold yourself out as an expert in
4 running the entire financial operation of an athletic
5 program at a major university like West Virginia? Do
6 you hold yourself out as an expert in that field also?
7 A. I have pretty detailed knowledge of the
8 way college athletic programs operate.
9 Q. So is that yes?
10 A. Yes.
11 Q. Okay. So you -- you serve -- provide
12 those services, consulting service to all the major --
13 any of the major universities on how these
14 universities can --
15 A. No.
16 Q. -- go out and make money --
17 A. I've never been asked to.
18 Q. Nobody's ever asked you to do that?
19 A. No.
20 Q. Have you ever even worked at an athletic
21 program so far as running it in any way, fashion, even
22 as an associate director or assistant director, or
23 even the bottom person within an athletic department?
24 A. Yes, at the University of Florida. 546
1 Q. And what did you do there for two years,
2 was it?
3 A. I was a graduate assistant, ran the
4 athletic dorm, was a --
5 Q. You ran a dorm.
6 A. Ran the -- assistant -- ran the -- was
7 the assistant academic counselor, and also helped with
8 some on-the-field duties.
9 Q. So you feel you're very well qualified to
10 advise entire athletic programs on how to run their
11 program and make money, these universities, is that
12 true, based on two years running a dorm and --
13 A. No, no.
14 Q. -- I think, what else did you --
15 A. No, because -- because over the course
16 of -- since 1979, '80 or '81, I have many friends that
17 Went on to become athletic directors, associate
18 athletic directors --
19 Q. I'm not interested in your friends,
20 Mr. Brown, believe me.
21 A. I had lots of contact and interaction
22 over a 20-some-year period in regards to college
23 athletics, and still today I have assistant ADs and
24 athletic directors call me, we have discussions, and 547
1 they seek my advice on things.
2 Q. Do we now have at Michigan the consulting
3 advice of Mike Brown, that you're helping to run their
4 athletic programs and make suggestions on how they can
5 make money?
6 MR. ROBON: Objection. You can
7 answer.
8 THE WITNESS: Yes.
9 BY MR. FITZSIMMONS:
10 Q. Are you being paid for that consulting
11 service to help Mr. Martin and the athletic program up
12 at Michigan make money and do a much better job for
13 their school?
14 A. No.
15 Q. You do that free, gratis; is that right?
16 A. Yes. And they solicited my help in
17 certain areas, and asked me to help them out. In
18 fact, that's where I was yesterday.
19 Q. All right. Now I heard you answer as to
20 this clause, liquidated damage, you consider -- it
21 calls itself liquidated damage, and you saw in the
22 actual agreement it says this shall be in order to
23 replace damages in the actual second agreement.
24 A. Uh-huh. 548
1 Q. You saw that in the --
2 MR. ROBON: Objection.
3 BY MR. FITZSIMMONS:
4 Q. You saw it in the first agreement, too,
5 didn't you?
6 MR. ROBON: Let me make -- let
7 me make my objection.
8 MR. ROBERT P. FITZSIMMONS: What,
9 you got an objection to form or what?
10 MR. ROBON: Because you're
11 misleading the witness. At one place,
12 the second addendum it says penalty --
13 MR. FITZSIMMONS: Do you want to
14 testify, Mr. Robon?
15 MR. ROBON: No, I just want you
16 to clarify the record.
17 MR. ROBERT P. FITZSIMMONS: In
18 one what, did you say?
19 MR. ROBON: In one place it
20 talks about penalty.
21 MR. ROBERT P. FITZSIMMONS: In
22 what?
23 MR. ROBON: In the second
24 addendum. 549
1 MR. ROBERT P. FITZSIMMONS: In
2 the second amendment?
3 MR. ROBON: Yeah.
4 BY MR. FITZSIMMONS:
5 Q. Who pointed that out to you, was that
6 Mr. Robon the other day?
7 A. No. I had -- I had recognized that back
8 in December when I was going through and reviewing all
9 the documents.
10 Q. You know, Mr. Brown, for as many letters
11 and e-mails as you've written, probably a hundred in
12 this case, you never used the word "penalty" one time.
13 Did you know that? Has that been pointed out to you
14 by the attorneys?
15 A. No.
16 Q. Not once?
17 A. No.
18 Q. You realize that in going through
19 meticulously you've never used that word once, ever?
20 A. What, "penalty"?
21 Q. Yes, sir. You understand that, don't
22 you?
23 A. I understand that.
24 Q. And now all of a sudden today, you said 550
1 as of today, you consider that a penalty; is that
2 right? Is that what you testified to a minute ago?
3 A. No. I -- I actually considered it a
4 penalty when I advised Rich Rodriguez --
5 Q. I asked you what you testified to today?
6 A. Yes.
7 Q. Okay.
8 A. Uh-huh.
9 Q. Have you told Michigan that you believe
10 that's a penalty?
11 MR. ROBON: Objection.
12 BY MR. FITZSIMMONS:
13 Q. Their clause?
14 A. Michigan?
15 Q. Yeah.
16 A. No.
17 Q. Why not?
18 MR. ROBON: Objection.
19 THE WITNESS: Okay. Do you want
20 me to answer?
21 MR. ROBON: You can answer,
22 sure.
23 THE WITNESS: Why haven't I?
24 BY MR. FITZSIMMONS: 551
1 Q. Yes.
2 A. Because at Michigan I know and
3 Coach Rodriguez feels that they're going to live up to
4 all the promises that they made in writing, and it's
5 in writing, they put in writing that stuff that West
6 Virginia was not willing to put in, and based on that,
7 I don't see it as a -- that it's ever going to come
8 into play. And --
9 Q. Why haven't you told them?
10 A. What?
11 Q. Why haven't you told them it's your
12 opinion today that that clause is a penalty?
13 A. It's not a penalty in Rich's -- in Rich's
14 situation.
15 Q. It's not in Michigan, but you say it is
16 in West Virginia; is that right?
17 A. It was at West Virginia.
18 Q. All right. Now, as to the exhibit that
19 you have there before you --
20 A. Uh-huh.
21 Q. -- could you open that to -- let me see
22 here.
23 A. Uh-huh.
24 Q. One last thing I want you to read. To 552
1 the right-hand side of paragraph 2 in the letter that
2 you have handwritten, your own handwriting -- is that
3 your handwriting --
4 A. It is.
5 Q. -- the bottom right-hand side?
6 A. Uh-huh.
7 Q. Would you read into the record what you
8 have written there?
9 A. Yeah. This correspondence --
10 Q. The last entry.
11 A. The same holds true --
12 Q. The last entry that you have handwritten?
13 A. Right there?
14 Q. Where it says "why", "why I make
15 everything in writing."
16 A. "Why I make everything in writing"?
17 Q. Yeah, would you read that in? What have
18 you handwritten on this letter, April 24, 2007?
19 A. Oh, "Why I make everything in writing."
20 Q. And the "I" is you?
21 A. That's correct.
22 Q. The agent of Rich Rodriguez?
23 A. That's right.
24 Q. Talking about, at that time, April of 553
1 '07, is it?
2 A. Uh-huh.
3 Q. April 24th, '07?
4 A. Uh-huh.
5 MR. WAKEFIELD: You got to say
6 yes or no.
7 BY MR. FITZSIMMONS:
8 Q. Is that a yes?
9 A. Yes.
10 Q. Talking about the passing back and forth
11 of the second amendment, is that right, which you were
12 doing at that time?
13 A. Yes, at that time.
14 Q. Commenting and making notes for yourself
15 as to --
16 A. Uh-huh.
17 Q. -- certain things; is that correct?
18 A. That's correct.
19 Q. All right. So you certainly understand
20 the significance of putting things in writing,
21 especially when dealing with contracts, don't you; is
22 that true?
23 A. I recognize a need to put them in
24 writing, especially when I was dealing with the people 554
1 at West Virginia.
2 Q. You knew that clear back in April, which
3 is four months before August 24th, '07, when this was
4 signed; is that correct?
5 A. That's correct.
6 MR. FITZSIMMONS: All right.
7 MR. WAKEFIELD: Any other
8 questions?
9 MR. ROBERT P. FITZSIMMONS: Mr.
10 Brown, you have a nice evening.
11 THE WITNESS: You all have a
12 nice trip back.
13 MR. ROBERT P. FITZSIMMONS: Can
14 we make copies of your file also?
15 THE WITNESS: I will make copies
16 and forward it to you.
17 MR. ROBON: Make copies for me
18 also.
19 MR. ROBERT P. FITZSIMMONS: Could
20 you put a little sticker on, just as to
21 what your heading was for us so we have
22 it.
23 THE VIDEOGRAPHER: This
24 concludes the videotaped deposition. The 555
1 time now is 7:55 p.m.
2 (Deposition concluded and
3 witness excused at 7:55 p.m.)
4 (Signature reserved.)
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24 556
1 SIGNATURE PAGE 2 Date of Deposition: May 5, 2008 3 Correction page(s) enclosed? Yes___ No___ 4 How many correction pages?______5 6 ______MICHAEL L. BROWN Date 7 8 - - - 9 10 11 12 13 14 15 16 17 Please return this signed signature page along with correction page(s) to: 18 COLLINS REPORTING SERVICE, INC. 19 405 North Huron Street Toledo, Ohio 43604 20 (419) 255-1010 21 22 23 Worksheet No. CS08-2982 24 557
1 C E R T I F I C A T E
2
3 I, Casey G. Schreiner, a Notary Public in
4 and for the State of Ohio, duly commissioned and
5 qualified, do hereby certify that the within-named
6 witness was by me first duly sworn to tell the truth,
7 the whole truth, and nothing but the truth in the
8 cause aforesaid; that the testimony then given was by
9 me reduced to stenotype in the presence of said
10 witness and afterwards transcribed; that the foregoing
11 is a true and correct transcription of the testimony
12 so given as aforesaid.
13 I do further certify that this deposition was
14 taken at the time and place in the foregoing caption
15 specified.
16 I do further certify that I am not a
17 relative, employee of or attorney for any of the
18 parties in this action; that I am not a relative or
19 employee of an attorney of any of the parties in this
20 action; that I am not financially interested in this
21 action, nor am I or the court reporting firm with
22 which I am affiliated under a contract as defined in
23 the applicable civil rule.
24 558
1 IN WITNESS WHEREOF, I have hereunto set my
2 hand and affixed my seal of office at Toledo, Ohio on
3 this 23rd day of May, 2008.
4
5
______
6 CASEY G. SCHREINER
Notary Public
7 in and for the State of Ohio
8
My Commission expires December 8, 2011.
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