LUBBOCK, Texas -- Attorneys for fired football coach Mike Leach argued before a three-judge panel Thursday that Texas Tech's behavior surrounding his departure means it can't claim immunity from his wrongful termination lawsuit.
Leach attorney Paul Dobrowski argued that the university's conduct scuttled its ability to claim protection by sovereign immunity -- a term that means a state agency or entity cannot be sued without permission from the Texas Legislature or without a waiver based on a defendant's conduct.
"We submit it is a viable concept today," Dobrowski told the state's 7th Court of Appeals, which is handling the latest argument on whether Leach's lawsuit will go to trial.
The university fired Leach on Dec. 30, two days after suspending him amid allegations he mistreated Adam James, a receiver who got a concussion. Leach has denied he mistreated James, the son of ESPN analyst Craig James.
Texas Tech chancellor Kent Hance and athletic director Gerald Myers were present for Thursday's arguments. Leach was not there.
University attorney Sean Jordan told the panel that Texas Supreme Court "has never, never upheld a waiver by conduct challenge," alluding to a possible outcome were the case to eventually land in the state's highest court.
He told the justices that in sworn testimony Leach didn't deny he twice confined James in a dark place during practice and that under oath the former coach sought to talk about other people's actions.
"The last thing that Mr. Leach wants to talk about is his own conduct," Jordan said.
At one point, chief justice Brian Quinn interrupted Jordan as he talked about Leach's contract obligation to provide fair and responsible treatment to his players.
Any reasonable person would see that the former coach's actions weren't reasonable, Jordan said. That prompted Quinn to ask, "Reasonable person, isn't that what a jury decides?"
The appeals court is under no deadline to issue its ruling.
The panel is hearing an appeal from the school after a lower court judge ruled in June that, by its conduct, the university waived its right to sovereign immunity. And Leach's attorneys appealed the judge's dismissal of several other claims in his lawsuit.
In a statement, Texas Tech attorney Dicky Grigg reiterated that Leach was fired because of his "irresponsible" treatment of James and his "unwillingness" to work with the school to resolve the incident.
"As we've said before, there is no merit to Mike Leach's lawsuit either factually or legally, and we believe the Court of Appeals will follow the law and dismiss the remaining claim against the university," the statement reads.
Dobrowski told reporters that the trial judge's ruling to allow the case to go forward was correct.
"We hope the appeals court will decide the same," he said.