More than a year has passed since the XFL’s former parent company, Alpha Entertainment, filed for Chapter 11 bankruptcy and former XFL commissioner Oliver Luck sued Alpha and its chairman and CEO, Vince McMahon, in a Connecticut federal court for more than $23.8 million. The litigation continues before Judge Victor Bolden, and much of the current focus is on access to emails that blend business and legal advice.
Luck believes Alpha has wrongfully withheld copies of emails that would help him prove he was illegally “fired with cause.” The “with cause” designation enabled Alpha to withhold contractual guarantees to Luck, who also asserts that McMahon personally guaranteed he’d be paid.
In general, company emails and other writings where attorneys convey legal advice are shielded from disclosure. This underscores two important concepts in law. The first is the attorney-client privilege. Attorneys must be certain that advice bestowed to clients can be transmitted without worry it will later be used against the client. The other concept is the work product doctrine, which similarly instructs that materials prepared by an attorney or for an attorney, particularly in anticipation of litigation, are exempt from pretrial discovery. However, when attorneys share business or strategic advice in lieu of legal advice, these privileges can be restrained or altogether lost. In the sports industry, that dynamic can present a conundrum: Sports legal issues are often closely tied to sports business considerations.
Luck insists that Alpha has abused privileges to conceal “bad faith emails” related to his firing. In court filings, his attorneys charge that “Alpha made the business decision to terminate Luck . . . before requesting that [Alpha-retained attorney Jerry McDevitt] perform his fact investigation that ultimately resulted in Alpha’s determination that Luck should be terminated for cause.” Stated differently, Luck maintains that electronic communications about his firing ought not to be shielded since the attorney at issue became involved after Alpha and McMahon made the business decision to fire Luck.
As Luck sees it, the attorney’s investigation was “done in bad faith because the outcome was predetermined.” In a court declaration, the attorney offered a different characterization, emphasizing that he provided “legal advice” to Alpha regarding Luck’s termination. “In anticipation of potential litigation with Luck,” McDevitt stressed, “I conducted an investigation.”
Luck also objects to a lack of access to Alpha emails concerning Antonio Callaway. Luck signed the former Cleveland Browns receiver in January 2020, and Alpha insists Luck did so in violation of an XFL policy prohibiting the signing of players “with bad reputations due to questionable or problematic backgrounds.” The Callaway signing (and lack of prompt release), Alpha asserts, helps to establish that Luck breached his employment contract. Luck firmly disagrees. His attorneys want copies of emails involving XFL officials in regards to the Callaway signing—with the belief those emails will show that Luck acted with sufficient authorization. Luck’s attorneys note that only in one email is McDevitt listed as a recipient. They argue it does not appear McDevitt “provided any legal advice.” These emails, the attorneys maintain, “cannot be characterized as predominantly legal” and shielded by privilege.
Recent filings by Luck also elaborate on his contention that Alpha “never gave him an opportunity to cure” alleged violations of his employment contract. This is especially apparent in regard to Luck’s use of a company iPhone. As previously detailed on Sportico, Alpha maintains that Luck used his phone to disclose confidential XFL information to persons outside of the company. Luck flatly disputes this portrayal.
He separately maintains that regardless of his iPhone usage, it couldn’t justify a termination with cause. To that end, Luck’s attorneys highlight that the XFL Employee Handbook & Code of Business Conduct expresses the potential penalty for misuse of a company phone was “reimburse the XFL for charges resulting from” personal use. This penalty scheme, Luck contends, is inconsistent with Alpha claiming iPhone use could warrant a firing with cause. He also argues he never was given an adequate chance to remedy his alleged misuse, a right provided for in his contract.
Recent filings by Alpha paint a very different picture. Attorneys for the company stress that as part of his employment contract, Luck unambiguously pledged to follow “any applicable XFL policies or directives.” Failure to do, they assert, “is a specifically enumerated basis for termination for cause in his contract.” Alpha further maintains that Luck’s iPhone use “systematically violated the very XFL technology policies that he promulgated and was charged with enforcing.”
The lawsuit is currently scheduled for a jury trial on Oct. 8. Much of the trial would focus on contractual terms and accompanying contexts that the two sides interpret differently. At any point, the two sides could resolve their differences and settle out of court.
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