May 2, 2012

Trial: Bourne Transcript

Below is the transcript of JMU athletic director Jeff Bourne's testimony Wednesday in the Marist v. Brady trial.

BOURNE/FOR PLAINTIFF/DIRECT 1


1 Are you prepared to call your next

2 witness, counsel?

3 MR. HANNIGAN: I certainly am, Your

4 Honor.

5 THE COURT: Thank you. Please do so.

6 MR. HANNIGAN: Yes. The plaintiff,

7 Marist, calls Jeffrey Bourne.

8 JEFFREY BOURNE, called as a witness on

9 behalf of the plaintiff, having been duly sworn by

10 the Court, was examined and testified as follows:

11 THE COURT: Thank you. Please have a

12 seat.

13 THE WITNESS: Okay, thank you.

14 THE COURT: Could you please give us

15 your full name and spell your last name and

16 then your business address, sir.

17 THE WITNESS: Jeffrey Thomas Bourne,

18 B-O-U-R-N-E, Room 206, MSC 2301, Harrisonburg

19 Virginia, 22807.

20 THE COURT: Thank you. Mr. Hannigan.

21 MR. HANNIGAN: Thank you.

22 DIRECT EXAMINATION

23 BY MR. HANNIGAN:

24 Q. Good afternoon, Mr. Bourne.

25 A. Good afternoon.


BOURNE/FOR PLAINTIFF/DIRECT 2


1 Q. Can you tell us where you work today.

2 A. James Madison University.

3 Q. What is your position there?

4 A. Athletic director.

5 Q. Okay. How long have you been the

6 athletic director at James Madison University?

7 A. I'm going into my 13th year.

8 Q. And where is James Madison located,

9 maybe in relation to a big city in Virginia we all

10 might know?

11 A. We are in the Shenandoah Valley of

12 Virginia. The closest large city would be

13 Washington, D.C. That's about two hours north of

14 us. Richmond, Virginia, the capital of Virginia, is

15 two hours east.

16 Q. And how many students do you have at

17 James Madison University?

18 A. Just over 20,000.

19 Q. And how many students, if you know,

20 percentage-wise or numbers, participate in some

21 degree in your athletic programs?

22 A. 436.

23 Q. I guess you do know.

24 A. I do.

25 Q. Does the basketball program, the men's


BOURNE/FOR PLAINTIFF/DIRECT 3


1 basketball program, do the people who run that,

2 report to you?

3 A. They do.

4 Q. The head coach?

5 A. Yes.

6 Q. Okay. And are you ultimately

7 responsible for the decisionmaking that goes on

8 with respect to that department vis--vis the

9 university?

10 A. Yes.

11 Q. Okay. Did there come a point in time

12 in 2007 or 2008 that it was determined that James

13 Madison University wanted to hire a new men's

14 basketball coach?

15 A. Yes.

16 Q. And when was that?

17 A. We had been looking that direction since

18 about 2006, but we actually made the hire in '08.

19 Q. And what was the main motivating force

20 behind your looking for a new coach?

21 A. We needed to win more games.

22 Q. Pretty simple, huh? Okay. How did you

23 go about looking for a coach? What methods did you

24 use?

25 A. We decided to use a search firm in


BOURNE/FOR PLAINTIFF/DIRECT 4


1 Atlanta to help us identify and screen candidates,

2 it was Parker Executive Search.

3 Q. And was it Parker Executive Search that

4 set up interviews for you with potential

5 candidates?

6 A. Yes.

7 Q. How many potential candidates did you

8 actually interview through Parker?

9 A. Five actual interviews.

10 Q. Were those interviews in person?

11 A. They were.

12 Q. And where did they take place?

13 A. In Atlanta, Georgia, and in the

14 headquarter offices of Parker.

15 Q. Was Matt Brady one of those five

16 candidates that you interviewed?

17 A. He was.

18 Q. And who interviewed him besides --

19 well, strike that.

20 Who from James Madison University

21 interviewed Matt Brady in person at Parker

22 Associates?

23 A. Our president, Dr. Linwood Rose, our

24 vice-president and senior vice-president, Charlie

25 King, and myself.


BOURNE/FOR PLAINTIFF/DIRECT 5


1 Q. Was there a team of people that were

2 put together to look for a new head coach?

3 A. Yes.

4 Q. Who was on that team?

5 A. Dr. Rose, Mr. King, and myself.

6 Q. Okay. There came a point when you and

7 Mr. King -- and is it Dr. Rose?

8 A. Dr. Rose.

9 Q. Dr. Rose, he is the president of JMU?

10 A. He is.

11 Q. The three of you went to Atlanta to

12 interview Matt Brady?

13 A. Correct.

14 Q. Did you three interview other people on

15 that trip?

16 A. We did.

17 Q. How many others?

18 A. Four others.

19 Q. And how long did the interview with

20 Matt Brady last?

21 A. I don't remember specifically, but I

22 would say an hour or slightly over.

23 Q. Okay. And you asked questions and Matt

24 Brady answered them as part of that process?

25 A. Yes.


BOURNE/FOR PLAINTIFF/DIRECT 6


1 Q. Do you recall that interview?

2 A. I do.

3 Q. Did Matt hand out packets of documents

4 with respect to himself and his background at that

5 interview or before that interview?

6 A. Yes.

7 Q. Okay. You recall receiving those

8 documents at the time?

9 A. I do.

10 MR. HANNIGAN: I would like to show the

11 witness, Your Honor, if I could approach,

12 what has been premarked Plaintiff's Exhibit

13 #3.

14 THE COURT: Yes, sir.

15 Q. If you can just take a look at that for

16 a minute, please.

17 THE COURT: That has been marked for

18 identification, right?

19 MR. HANNIGAN: Yes, Your Honor.

20 THE COURT: It is not in evidence at

21 this time?

22 MR. HANNIGAN: Not yet, Your Honor.

23 Q. You've had a chance to look at that.

24 Does this generally look like the packet of

25 documents that you received from Matt Brady during


BOURNE/FOR PLAINTIFF/DIRECT 7


1 the interview that day?

2 A. Yes, it does.

3 Q. Okay. And you have had a chance to

4 look through those documents before today?

5 A. I have, yes.

6 Q. Okay.

7 MR. HANNIGAN: I would move that

8 document into evidence at this time.

9 MR. DU VALL: No objection.

10 THE COURT: Very well. Plaintiff's

11 Exhibit 3 will be marked in evidence without

12 objection.

13 (Whereupon, Plaintiff's Exhibit 3 was

14 received in Evidence.)

15 Q. Mr. Bourne, if you could turn to what

16 is marked in the lower right-hand corner, JMU00485.

17 It is a few pages in from the front. Do you see

18 that, where it says who is Matt Brady?

19 A. I do.

20 Q. And it lists various descriptive

21 phrases underneath there. One of them says

22 outstanding recruiter. Do you see that?

23 A. I do.

24 Q. Okay. If you could look at page 00489,

25 please.


BOURNE/FOR PLAINTIFF/DIRECT 8


1 A. I'm there.

2 Q. Do you see a paragraph on the bottom

3 with the number four with the phrase, infusion of

4 top level talent?

5 A. I do.

6 MR. HANNIGAN: Your Honor, I have

7 another copy of this if the Court would like

8 a copy?

9 THE COURT: Yes, please.

10 (Handed up.)

11 Q. It is a short paragraph. Can you read

12 into the record the paragraph entitled infusion of

13 top level talent, please.

14 A. I will. The biggest attribute to

15 success in a program is recruiting. At Marist we

16 just brought in the MAAC Co-Rookie of the Year, and

17 I would be bringing in at JMU a freshman class that

18 would be at the top level recruiting class in the

19 Atlantic 10. The three players I would be bringing

20 in would be able to contribute to JMU's success

21 immediately and also keep the program at a high

22 level all four years they are here. We would

23 continue to bring in high level talent that will

24 compete for First Team All-ACC -- or, I am sorry,

25 All-CAA and Player of the Year honors.


BOURNE/FOR PLAINTIFF/DIRECT 9


1 Q. When this presentation was made to you

2 that day at the Brady interview, did you know then

3 the three players being referred to here were the

4 Marist recruits?

5 A. No, I did not.

6 Q. During that interview process that day,

7 did Matt Brady tell you that his contract with

8 Marist had a prohibition in it with respect to him

9 contacting the Marist recruits if he left Marist

10 and took another job, for example the job at JMU?

11 A. No.

12 Q. No, he did not?

13 A. He did not.

14 Q. Would you turn to 00494, please.

15 A. Is this it?

16 Q. What does that page appear to be,

17 March?

18 A. Calendar for the month of March.

19 Q. With boxes for each date?

20 A. Yeah, each day.

21 Q. And the page after it, 00 --

22 A. I have staples in the way, but it looks

23 like 495 follows.

24 Q. Yes, thank you. And what is that page,

25 sir?


BOURNE/FOR PLAINTIFF/DIRECT 10


1 A. That's -- the second page is the month

2 of April and there's a box for each day of the

3 month.

4 Q. And would it be correct that, is it

5 your recollection that your interview with Matt

6 Brady was on or about March 12th of that month?

7 A. On or about, yes.

8 Q. Okay. Now the boxes for March 29th and

9 March 30th, can you just read what is written in

10 for the box March 29th.

11 A. Official visit for Trevon Flores, Devon

12 Moore, Andrey Semenov; and then the 30th, official

13 visit for Devon Moore, Trevon Flores, and Andrey

14 Semenov.

15 Q. That is a weekend, a Saturday and

16 Sunday; is that right?

17 A. That's correct.

18 Q. And that was in 2008?

19 A. Correct.

20 Q. Okay. What is an official visit?

21 A. It is an acknowledgement through the

22 NCAA that a student athlete is taking an official

23 visit to your campus to be exposed to the

24 environment and the process of being recruited to

25 your institution.


BOURNE/FOR PLAINTIFF/DIRECT 11


1 Q. When you read this document, as you

2 said you have, did you understand this to be

3 official visits for JMU, right, not Marist?

4 A. Subsequently, yes. I never paid any

5 attention to this in the interview process, though.

6 Q. And now April 2008, the next page,

7 there's an entry there under Wednesday, the 2nd of

8 April. What does that say?

9 A. It says contact Devon Moore, Stage 1

10 individuals.

11 Q. Back then did you know Devon Moore was

12 one of the recruits Marist was pursuing?

13 A. No, I did not.

14 Q. Okay. Now, these calendars were given

15 to you before you ever made a job offer to Matt

16 Brady to be your head basketball coach, correct?

17 A. Correct.

18 MR. HANNIGAN: If I could show the

19 witness what has been premarked for

20 identification, Your Honor, Plaintiff's

21 Exhibit 4? Can I approach?

22 THE COURT: Yes.

23 Q. If you could take a second to look at

24 that and just tell me if you recognize this type of

25 document.


BOURNE/FOR PLAINTIFF/DIRECT 12


1 A. I do.

2 Q. And what is it, sir?

3 A. It's an official visit request form for

4 James Madison University. It should be, of course,

5 completed prior to a student athlete's official

6 visit.

7 Q. Is the signature at the bottom of that,

8 are you familiar with that signature?

9 A. Yes, I am.

10 Q. Who is that?

11 A. Matt Brady.

12 MR. HANNIGAN: I move this into

13 evidence, Your Honor, please.

14 MR. DU VALL: No objection.

15 THE COURT: Plaintiff's Exhibit 4 in

16 evidence without objection.

17 (Whereupon, Plaintiff's Exhibit 4 was

18 received in Evidence.)

19 Q. Can you tell us for what player this

20 official visit request form was filled out for.

21 A. Devon Moore.

22 Q. And can you tell us when his official

23 visit was requested to be scheduled for from

24 looking at this document?

25 A. April the 25th, 2008, through April the


BOURNE/FOR PLAINTIFF/DIRECT 13


1 27th, 2008.

2 Q. Do you know if this official visit ever

3 took place?

4 A. I'm sure that it did.

5 Q. Okay, thank you. You can put that one

6 down.

7 MR. HANNIGAN: If I can show the

8 witness, Your Honor, what has been premarked

9 as Plaintiff's Exhibit for identification #5?

10 THE COURT: Very well.

11 MR. HANNIGAN: If I can approach the

12 witness with it?

13 THE COURT: Yes.

14 MR. HANNIGAN: Thank you.

15 Q. What type of document is this, Mr.

16 Moore?

17 A. It's an official visit request form

18 identical to the one that we saw previously.

19 Q. When you say identical, do you mean

20 identical with respect to the format?

21 A. The format of the form.

22 Q. Okay. And this is a JMU document

23 prepared by JMU personnel?

24 A. That is correct.

25 MR. HANNIGAN: I move it into evidence,


BOURNE/FOR PLAINTIFF/DIRECT 14


1 Your Honor.

2 MR. DU VALL: No objection.

3 THE COURT: Plaintiff's Exhibit 5 in

4 evidence without objection.

5 (Whereupon, Plaintiff's Exhibit 5 was

6 received in Evidence.)

7 Q. From looking at the document, can you

8 tell us what player was this official visit request

9 form made?

10 A. Andrey Semenov.

11 Q. And when was that official visit

12 supposed to take place?

13 A. April the 25th, 2008, through April the

14 27th, 2008.

15 Q. Did you know at the time that Andrey

16 Semenov was one of the Marist recruits?

17 A. I did not.

18 Q. You didn't know?

19 A. At this point in time?

20 Q. Yes, sir.

21 A. I did not.

22 Q. Okay. Whose signature appears in the

23 middle of the page here; do you recognize it?

24 A. Matt Brady.

25 Q. Okay, thank you.


BOURNE/FOR PLAINTIFF/DIRECT 15


1 MR. HANNIGAN: Again, Your Honor, if I

2 could show the witness what's previously been

3 marked for identification as Plaintiff's

4 Exhibit 6, and if I could approach the

5 witness, please?

6 THE COURT: Very well.

7 MR. HANNIGAN: Thank you.

8 Q. Mr. Bourne, again what is this

9 document?

10 A. It's a JMU official visit request form.

11 Q. Do you see a signature there in the

12 middle of the page?

13 A. I do.

14 Q. Who is that?

15 A. Matt Brady.

16 Q. This is prepared in the normal course

17 of business at JMU?

18 A. Yes.

19 MR. HANNIGAN: I move it into evidence,

20 Your Honor.

21 MR. DU VALL: No objection.

22 THE COURT: Plaintiff's Exhibit 6 in

23 evidence without objection.

24 (Whereupon, Plaintiff's Exhibit 6 was

25 received in Evidence.)


BOURNE/FOR PLAINTIFF/DIRECT 16


1 Q. Mr. Bourne, looking at this, for which

2 player was this an official visit request for?

3 A. Trevon Flores.

4 Q. When was his visit scheduled for?

5 A. April the 25th, 2008, through April

6 27th, 2008.

7 Q. Did you know Trevon Flores was one of

8 the Marist recruits at that time?

9 A. No, I did not.

10 Q. Okay.

11 MR. HANNIGAN: Your Honor, if I could

12 show the witness Plaintiff's Exhibit 7 for

13 identification and approach him with it,

14 please?

15 THE COURT: Very well.

16 MR. HANNIGAN: Thank you.

17 Q. Last time, Mr. Bourne, could you look

18 at this. Is this one of these official visit

19 request forms that you have been testifying about?

20 A. Yes, it is.

21 Q. It is a JMU document?

22 A. Yes, it is.

23 Q. Is there a signature down at the

24 bottom? Do you recognize that signature?

25 A. There's a signature in the middle of the


BOURNE/FOR PLAINTIFF/DIRECT 17


1 page for Rob O'Driscoll who is an assistant coach

2 and at the bottom of the page is Marcus Barkley who

3 is the head of our compliance program or assistant

4 head of our compliance program.

5 MR. HANNIGAN: I move this document into

6 evidence, Your Honor.

7 MR. DU VALL: No objection.

8 THE COURT: Plaintiff's Exhibit 7 in

9 evidence without objection.

10 (Whereupon, Plaintiff's Exhibit 7 was

11 received in Evidence.)

12 Q. For what player, looking at the

13 document, for what player was this an official

14 visit request form?

15 A. Julius Wells.

16 Q. When was his visit to JMU campus to

17 take place?

18 A. June the 7th, 2008, to June the 9th,

19 2008.

20 Q. Did you know he was one of the Marist

21 recruits?

22 A. At that point in time, I'm not sure. I

23 don't think so.

24 Q. Thank you. You may put that down.

25 Thank you. Did there come a point that you offered


BOURNE/FOR PLAINTIFF/DIRECT 18


1 Mr. Brady the job as the head basketball coach at

2 JMU?

3 A. Yes.

4 Q. Did he accept?

5 A. He did.

6 Q. And about when in time was that, if you

7 recall?

8 A. Sometime in and around the end of March,

9 I want to say the 25th, 26th.

10 Q. 2008?

11 A. 2008.

12 Q. Now, prior to -- who made that offer to

13 him?

14 A. I did.

15 Q. Okay. Prior to you offering him the

16 position as head basketball coach, did Matt Brady

17 show you a copy of his contract that he was under

18 with Marist College?

19 A. No.

20 Q. Prior to you offering the job at JMU,

21 did you ask him to give you a copy of the contract

22 so you could look at it?

23 A. No.

24 Q. Prior to the day you offered him the

25 job, did he tell you, or to your knowledge any


BOURNE/FOR PLAINTIFF/DIRECT 19


1 other administrator at JMU, at any time about the

2 clauses in his contract prohibiting him from

3 recruiting the Marist recruits and offering them

4 scholarships?

5 A. No.

6 Q. He never told you that?

7 A. No.

8 Q. So when you offered him the job, you

9 didn't know about the clauses in his Marist

10 contract?

11 A. I had been told by his boss, Tim Murray,

12 that there were clauses in his contract to that

13 effect, but I had not seen an actual copy of the

14 contract.

15 Q. Did Matt ever tell you about them --

16 A. Not to my knowledge.

17 Q. -- up to that point in time?

18 A. No.

19 Q. No. And do you recall whether he gave

20 you a copy of the contract before?

21 A. No, we did not receive a copy prior to

22 the offer.

23 MR. HANNIGAN: If I could show the

24 witness what has been previously marked for

25 identification Plaintiff's Exhibit, Your


BOURNE/FOR PLAINTIFF/DIRECT 20


1 Honor, and approach the witness?

2 THE COURT: Yes.

3 MR. HANNIGAN: Thank you.

4 Q. Mr. Bourne, can you tell us what type

5 of document this is.

6 A. It's a James Madison University athletic

7 department financial aid agreement.

8 Q. Okay. And what does a document like

9 this do?

10 A. It officially places a student athlete

11 on athletic aid, grants aid.

12 Q. Is that a scholarship?

13 A. Yes.

14 Q. Okay. And is this an official James

15 Madison prepared document?

16 A. It is.

17 MR. HANNIGAN: I offer it into evidence,

18 Your Honor.

19 MR. DU VALL: No objection.

20 THE COURT: Plaintiff's Exhibit 8 in

21 evidence without objection.

22 (Whereupon, Plaintiff's Exhibit 8 was

23 received in Evidence.)

24 Q. Between what player -- what was the

25 name of the player that was offered financial aid


BOURNE/FOR PLAINTIFF/DIRECT 21


1 or a scholarship by virtue of this document?

2 A. Devon Moore.

3 Q. And whose signatures appear on this

4 document that you recognize?

5 A. Matt Brady, our head basketball coach,

6 Jim Phillips, our director of compliance, our

7 director of financial aid on campus, and then of

8 course there is both Devon Moore and it looks like

9 his father also signed it.

10 Q. And when this scholarship was offered

11 by JMU, did you know about the terms of Matt

12 Brady's contract with Marist that he was not

13 allowed to offer scholarships to these students.

14 A. Looking at the actual date it was

15 signed, it was signed sometime in the early part of

16 May, and we were familiar that there were clauses in

17 his contract, but we had not yet made a decision to

18 not grant aid.

19 Q. Had you seen his contract?

20 A. Matt's contract?

21 Q. At that point in time?

22 A. I had just seen it, yes.

23 THE COURT: At what point in time was

24 that?

25 THE WITNESS: I saw the contract the end


BOURNE/FOR PLAINTIFF/DIRECT 22


1 of April, right at the very end of April.

2 And these -- this actual form was signed, the

3 earliest date on it was signed the 24th of

4 April, and the last signature on it was

5 signed the 15th of May.

6 THE COURT: Thank you.

7 Q. Thank you. You can put that down.

8 MR. HANNIGAN: If I could show the

9 witness what is Plaintiff's Exhibit 9 for

10 identification, premarked, and approach him

11 with it?

12 THE COURT: Yes.

13 MR. HANNIGAN: Thank you.

14 Q. Mr. Bourne, what is this document?

15 A. It is a James Madison University

16 athletic financial aid agreement.

17 Q. It's prepared by James Madison

18 University personnel?

19 A. It was.

20 Q. Signed by them?

21 A. Yes.

22 MR. HANNIGAN: I move it into evidence,

23 Your Honor.

24 MR. DU VALL: No objection.

25 THE COURT: Plaintiff's Exhibit 9 in


BOURNE/FOR PLAINTIFF/DIRECT 23


1 evidence without objection.

2 (Whereupon, Plaintiff's Exhibit 9 was

3 received in Evidence.)

4 Q. What was the identity of the player

5 that was entering into an agreement regarding a

6 scholarship with JMU pursuant to this document?

7 A. Andrey Semenov.

8 Q. Okay, thank you.

9 MR. HANNIGAN: Plaintiff's for

10 identification premarked 10, if I can

11 approach?

12 THE COURT: Yes.

13 Q. Mr. Bourne, what is this document?

14 A. James Madison University athletic

15 financial aid agreement.

16 Q. Signed by James Madison University

17 personnel?

18 A. Correct.

19 Q. An official document of your

20 university?

21 A. Yes.

22 MR. HANNIGAN: I move it into evidence,

23 Your Honor.

24 MR. DU VALL: No objection.

25 THE COURT: Plaintiff's Exhibit 10 in


BOURNE/FOR PLAINTIFF/DIRECT 24


1 evidence without objection.

2 (Whereupon, Plaintiff's Exhibit 10 was

3 received in Evidence.)

4 Q. Mr. Bourne, what player is that an

5 agreement with, between what player and JMU is that

6 an agreement?

7 A. Trevon Flores.

8 Q. Did you know he was one of the Marist

9 recruits at the time?

10 A. No, not at the time that it was signed.

11 Q. Okay, thank you.

12 MR. HANNIGAN: Last one, Plaintiff's

13 Exhibit for identification #11, Your Honor,

14 premarked, if I could approach the witness,

15 please?

16 THE COURT: Yes.

17 MR. HANNIGAN: Thank you.

18 Q. Mr. Bourne, what is this document

19 again, one last time?

20 A. It's a James Madison University

21 financial aid agreement.

22 Q. Thank you. Okay. An official document

23 of your university?

24 A. Yes.

25 Q. Signed by your personnel that are


BOURNE/FOR PLAINTIFF/DIRECT 25


1 employed by your university?

2 A. Yes.

3 MR. HANNIGAN: I move it into evidence,

4 Your Honor.

5 MR. DU VALL: No objection.

6 THE COURT: Plaintiff's Exhibit 11 in

7 evidence without objection.

8 (Whereupon, Plaintiff's Exhibit 11 was

9 received in Evidence.)

10 Q. Between what student athlete and JMU

11 was that an agreement?

12 A. Julius Wells.

13 Q. Okay, thank you. You can discard that

14 or put that right in the pile there.

15 Prior to your hiring Matt Brady, did he

16 tell you that he was required by the terms of his

17 contract with Marist to have a mutually agreeable

18 arrangement between the two of them before he could

19 take a job at, for example, JMU, and that such

20 agreement would have had to have been in writing?

21 A. No.

22 Q. So Matt Brady never submitted to you

23 any type of agreement between him and Marist that

24 he could be released from the terms of his contract

25 and come to work for you, did he?


BOURNE/FOR PLAINTIFF/CROSS 26


1 A. No.

2 Q. Okay. In your opinion, as the athletic

3 director for 14 years --

4 A. 13.

5 Q. Sorry, 13 years, if your administration

6 and your department and you had seen the contract

7 and knew about the restrictions regarding the

8 scholarships and recruit contacts, would you have

9 offered the job to Matt Brady?

10 MR. DU VALL: Objection. It calls for

11 speculation.

12 THE COURT: I will let him answer.

13 Overruled.

14 Q. Do you want it read back?

15 A. Would you please?

16 Q. Sure?

17 (Question read back by the court reporter.)

18 A. We would have had there been a release

19 signed.

20 Q. A release between who and who?

21 A. Between Matt Brady and Marist.

22 Q. Allowing Matt out of his contrast?

23 A. Correct.

24 Q. Okay. One last thing, in your programs

25 at JMU, are the assistant coaches that work in the


BOURNE/FOR PLAINTIFF/CROSS 27


1 department, like basketball, is the head coach

2 responsible for their actions?

3 MR. DU VALL: Objection, legal

4 conclusion.

5 THE COURT: Sustained.

6 Q. Okay. Do you expect that James Madison

7 University -- do you, as the athletic director,

8 expect the head coach to supervise and be

9 accountable for the actions of his assistant

10 coaches?

11 MR. DU VALL: Objection, relevance.

12 THE COURT: Overruled.

13 Q. She can read it back.

14 A. The answer is yes.

15 Q. Okay. Thank you. I appreciate your

16 time. Thank you.

17 MR. HANNIGAN: No further questions,

18 Your Honor.

19 THE COURT: Cross-examination?

20 MR. DU VALL: Yes, Your Honor.

21 CROSS-EXAMINATION

22 BY MR. DU VALL:

23 Q. Good afternoon, sir.

24 A. Good afternoon.

25 Q. Just for the record, my name is Rick


BOURNE/FOR PLAINTIFF/CROSS 28


1 DuVall. I represent Coach Brady as a defendant in

2 this action.

3 You were asked a series of questions by

4 Mr. Hannigan about whether Matt Brady told you

5 about clauses in his contract.

6 My question to you, sir, is during the

7 interview process, did you ask Matt Brady to

8 describe his contract to you?

9 A. I did not.

10 Q. Before you extended your offer of

11 employment to Matt Brady, did you have occasion to

12 call anyone at Marist College?

13 A. I did.

14 Q. And who did you call?

15 A. Their athletic director.

16 Q. Is that Tim Murray?

17 A. Yes.

18 Q. Okay. And what did Mr. Murray tell you

19 about -- withdrawn. What did you ask Mr. Murray?

20 A. I was concerned was there a financial

21 buy-out clause in his contract for which we might be

22 responsible if we offered him the position.

23 Q. And do you recall the sum and substance

24 of Mr. Murray's response?

25 A. I do. He said that there was not, but


BOURNE/FOR PLAINTIFF/CROSS 29


1 that there was -- there was a clause in his contract

2 regarding recruiting, the opportunity to recruit

3 young men who have already been recruited to Marist.

4 Q. Have you ever heard of such a clause

5 before in your experience in collegiate athletics?

6 A. I have not.

7 Q. Okay. And after Mr. Murray mentioned

8 that clause to you, did you have any discussion

9 with Matt Brady about what Mr. Murray had said

10 about that clause and before you made him an offer

11 of employment?

12 A. I did not, not prior to making the

13 offer.

14 MR. DU VALL: Are all the plaintiff's

15 exhibits up there?

16 MR. HANNIGAN: The originals, I believe,

17 are up there, yes.

18 MR. DU VALL: Okay.

19 Q. Sir, I'm going to read you a sentence

20 from the complaint that Marist has filed in this

21 action and it is from paragraph 22 of the

22 complaint, and I'm going to ask if you agree with

23 this allegation: "At all times it has been and

24 will continue to be the position of Marist that

25 student athletes have the unfettered right to


BOURNE/FOR PLAINTIFF/CROSS 30


1 attend the educational institution of their

2 choice."

3 Do you agree with that?

4 A. I do.

5 Q. Okay. And did you have occasion during

6 this process to consider that concept of the

7 student athlete's unfettered right to attend the

8 school of their choice?

9 MR. HANNIGAN: Objection as to form.

10 THE COURT: Sustained.

11 Q. I will show you what has been marked

12 into evidence as Plaintiff's Exhibit 8 which is the

13 Devon Moore financial aid agreement. And I think

14 your answer to a question by Mr. Hannigan was in

15 substance that you had not made a decision to not

16 grant aid, if I got, if I understood your answer

17 right. What did you mean in that answer?

18 A. We got to a point, after our president

19 received a letter from the president at Marist

20 expressing concern over the contract and the ability

21 to award aid, where we collectively made a decision

22 to wait to award any further aid on scholarships.

23 And one of the issues that came up was by doing

24 that, were we in essence hurting the student

25 athletes who had been recruited to the university.


BOURNE/FOR PLAINTIFF/CROSS 31


1 Q. And after going through that

2 decision-making process, you ultimately awarded Mr.

3 Moore the financial aid?

4 A. We did.

5 Q. And by doing so, did you in essence

6 honor the student's unfettered right to attend the

7 educational institution of their choice as alleged

8 by Marist?

9 MR. HANNIGAN: Objection.

10 THE COURT: Sustained.

11 Q. Is it fair to state that the student

12 athlete's choice played a part in your decision to

13 extend financial aid to Mr. Moore?

14 A. Yes.

15 MR. DU VALL: I have nothing further.

16 MR. HANNIGAN: I'm fine, Your Honor,

17 thank you. No questions, Your Honor.

18 THE COURT: Thank you, sir. You may

19 step down.

20 THE WITNESS: Okay. Thank you.

21 THE COURT: You're very welcome.

22 (Witness excused.)

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