Sports Writer's Claims against All Defendants but One Have Been Dismissed
A long-running case involving Texas A&M and its famed "12th Man" is one step closer to being resolved. We first reported on this case on February 8th, 2017 and provided an update on July 15, 2019.
As detailed in the Complaint filed against the Texas A&M athletic department (the "A&M Athletic Department") and related defendants by sports writer and editor Michael Bynum ("Bynum"), the dispute arose after Brad Marquardt ("Marquardt"), an employee of the A&M Athletic Department, allegedly caused a draft of the biography Bynum was writing of A&M football legend E. King Gill ("Gill") to be posted online. Bynum shared the unpublished biography with Marquardt for fact-checking and for the possibility of obtaining additional photos for inclusion in the book.
According to the Complaint, Marquardt ignored the copyright information on the draft, substituted false copyright information, and caused the biography, with slight changes, to be uploaded to an A&M website, where it was extensively promoted to fans in connection with A&M's crusade to assert its right to the "12th Man" trademark against the Seattle Seahawks. Bynum claimed that this distribution of the biography, which was to have been published as the first chapter of his book, has ruined his chances of having a successful print run.
In response to the Complaint, the A&M Athletic Department filed a Motion to Dismiss in May of 2017. The Motion asserted that the A&M Athletic Department is not an independent arm of Texas A&M and therefore cannot be sued separately from the university. Furthermore, the A&M Athletic Department contended that the university, as a state entity, has sovereign immunity from suit that extends to its employees in the form of qualified immunity. It also claimed that allegations against two of the A&M Athletic Department employee defendants were insufficient and that the claims against Marquardt might be excused by fair use.
In its Order granting the motion in part and denying it in part, filed on March 29, 2019, the court determined that the A&M Athletic Department is indeed incapable of being sued as a department within a state entity. The court explained that normally, a "correct" defendant (like the university itself) could be substituted in place of an "incorrect" one (like the A&M Athletic Department), but the court also determined that the university was indeed entitled to sovereign immunity. The court further found that qualified immunity did allow dismissal of the claims against two of the A&M Athletic Department employees named as defendants. It did decide, however, that Marquardt is not entitled to qualified immunity.
Following these initial, more compelling filings, the case was carried quietly onward for more than a year by various other motions and procedural steps. But finally, on September 4, 2020, the court filed an Order to sever the A&M Athletic Department and all other defendants except Marquardt from the case. On the same day, it filed a Final Judgment dismissing with prejudice all of the claims against the severed defendants.