December 7, 2011 9:35:00 AM
STARKVILLE - The representation of Mississippi State University and head baseball coach John Cohen have requested a summary judgment to the civil lawsuit against them by former player Forrest Moore.
In a 22-page legal response filed in Oktibbeha County Circuit Court Monday, Mississippi State's legal counsel has provided evidence to support a counter argument to Moore's suit that alleges Cohen and Associate Athletic Director Mike Nemeth with the breach of contract, intentional/tortious interference with contract and civil conspiracy.
Complete coverage of the suit will be provided in Wednesday's edition of The Dispatch.
But .....The Dispatch MSU Sports Blog had to decide on a way to bring you, the loyal reader, a summary of what has happened in this case that the person unfamiliar with complicated legal language can fully understand.
Not to worry - what this post is going to do is go through the charges of Moore's legal team in the the civil suit and then give the counter argument of MSU and Cohen's legal counsel:
1. Breach of contract - This charge by Moore's legal team, led by James Douglas Foster of Harris Shelton Hanover Walsh PLLC, is simple. They are arguing in this part of the suit that Cohen informed several former players recruited by former MSU head coach Ron Polk that their scholarship allotment would be decreased or eliminated. Moore is saying that if this occurred, that his scholarship (a contract between a university and a student-athlete) he initially signed out of high school was not honored.
- On Monday, Cohen and Nemeth's legal team submitted a renewal letter signed by Moore on July 2, 2008 that attempts to counter the former player's claim the university tried to take away his baseball scholarship aid for the 2008-09 academic year.
The devil's advocate argument states that even if Cohen and MSU tried to take away Moore's scholarship, which they are actually saying didn't happen, the copy of the scholarship agreement "notably makes no reference to any right to play baseball at MSU".
2. Intentional/tortious interference with contract - Part of the suit by Moore includes his argument that in the fall after Cohen was hired, the MSU head coach initiated workout routines that violated the NCAA rules on practice hours in the offseason and in order to cover up the violation prohibited several former players including Moore from filing the required time limit forms.
In that same before the 2008 campaign, the claim says Moore began to be dehydrated during a practice and "required hospitalization and was near death according to information provided by Moore and his doctors". Moore was required to throw more pitches than he should have allowed to be engaged in during preparation for the 2009 season and in order to cover up that fact, Cohen had the former players sign and uncompleted practice time sheet form. It is this statement of fact that is the basis of the reason for Moore's assertion to Cohen being responsible for the deterioration of Moore's pitching arm.
After suffering a broken nose, Cohen required Moore who according to the claim "had two black eyes and blood streaming down his face" to catch up on his required running and made him do additional running with the injury when he failed to meet the required time on his run. The claim establishes this behavior as the first step in Cohen's attempt to drive the pitcher away from the program because he had a 80 percent scholarship.
March 23, 2009 - Moore informs MSU trainer Allen Thompson that he had pain in his forearm/elbow area and the right-hander was referred to MSU's team physician Dr. Rusty Linton and he was diagnosed with forearm tendonitis.
March 24, 2009 - One day following Dr. Linton's diagnosis, Cohen required Moore to throw a bullpen session under the supervision of MSU assistant coach Nick Mingone. Once Mingone notice instability in Moore's elbow, he informed Thompson who then again called over Linton. According to the paperwork, it was at point Dr. Linton said "nothing was wrong with Mr. Moore".
March 27, 2009 - Dana Moore, Forrest's father, requested his son have an MRI scan and Thompson told Dana Moore that "nothing was wrong with him" and "to quit worrying". Forrest Moore was then required to throw in the bullpen twice (over 100 pitches according to the court document) during a Southeastern Conference series at Arkansas (Moore never saw action in a game that weekend).
April 13, 2009 - After pitching with the tendonitis in a series against Tennessee the previous weekend, Moore demanded an MRI scan and the university provided one. The MRI radiologists Dr. Michael Buehler reported a strain to the ulnar collateral ligament (similar to what was first reported on last year's injury to current MSU starting pitcher Nick Routt) or a possible tear. Dr. Linton reviewed the scan and reported a muscle strain.
May 4, 2009 - Moore met with world-renowned specialist Dr. James Andrews (the same surgeon that performed the season-ending Tommy John surgery on current MSU pitcher Ben Bracewell this past summer) in Birmingham, Ala., and Dr. Andrews confirmed Moore had ligament damage to his elbow and "should not have been pitching for several weeks."
May 6, 2009 - Upon hearing that Moore needed surgery to repair the ligament tear in his elbow, Cohen informed Moore he would not be granted a medical redshirt and that his scholarship was being taken away.The documentation claims Moore was not given written notification of his scholarship being taken away and not given a hearing opportunity that is required according to NCAA rules. The suit claims Nemeth and Cohen "knowingly, maliciously, and without right or justifiable cause refused Mr. Moore a hearing" and therefore"denied his rights under the scholarship contract".
- Cohen's legal team submitted Monday a Southeastern Conference medical exemption petition signed by Moore on June 30, 2009. Under NCAA rules, an approved medical exemption petition allows a student-athlete with a debilitating injury to remain on financial aid without being able to physically participate but not count toward the program's scholarship total.
Except for the this past spring semester, Brett's written testimony states Moore has been receiving university financial aid through 2008 to the current fall 2011 semester.
"In certain cases, student-athletes who are injured may obtain a hardship waiver, sometimes referred to as a "medical redshirt" to allow them to extend their careers," Brett stated. "The decision of whether to grant a hardship waiver is ultimately governed by NCAA
regulations. MSU and its employees have no ability to grant so-called medical redshirts." Also, MSU and Cohen's legal term are arguing their clients are immune from legal action against them in regards to acts they are alleged to have committed as employees at MSU under the state's Tort Claims Act.
3. Civil conspiracy - The lawsuit is seeking an undisclosed damages from a jury claiming the
MSU baseball program is responsible for the deterioration of his pitching arm and causing an injury and the inability for 6-foot-1, 193-pound Moore to pursue a professional baseball career.
Moore, who was not a member of the 2010 MSU team was still drafted in 2010 by the Miami Marlins organization but didn't pitch a single inning last year in their rookie league due to having to rehabilitate his injury. Moore's father, Dana told The Dispatch in a May phone interview that the family his pursing this action in a way to compensate for potential earning from a professional baseball career. Adding to that claim is their assertion this caused Moore severe emotional distress for him and his family.
- The final piece of Cohen's legal team's Monday submitted evidence shows a photo copy of a August 2011 text message between Moore and a current member of the MSU coaching staff where the former pitcher was requesting to be on a list for free MSU football
home game tickets.
The purpose of submitting this text message is to show that months after the suit was filed that Moore had kept a positive relationship with the MSU baseball coaching staff after claims of emotional and physical abuse.
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