- Paragraph 21 alleges, The Bylaws specifically contemplate withdrawal from the Big East. Pursuant to the Bylaws, a member may withdraw from the Big East by providing written notice to the conference. The withdrawing member is further required to (a) specify an effective date of withdrawal which must be at least twenty-seven months after the date that the withdrawal notice is received by the commissioner; and (b) pay a withdrawal fee to the Big East in the amount of five million dollars (5,000.000.00)."
- Paragraph 22 alleges, "In 2010 Texas Christian University ("TCU") accepted an invitation to join the Big East as an all sports member beginning in the 2012-2013 academic year. TCU would be a football school. the Big East invited TCU in an attempt to raise its profile as a major football conference an help insure it remained an AQ conference."
- Paragraph 23 alleges, "On September 17, 2011, Syracuse and Pittsburgh announced they were withdrawing from the Big East and that they accepted invitations to join the ACC."
- Paragraph 24 alleges, "On September 18, 2011, UConn President Susan Herbst issued a statement saying that although UConn is a "proud member of the Big East" the school was staying "actively involved in discussions with our counterparts from around the country to ensure the successful long-term future of our university's athletic program."
- Paragraph 25 alleges, "On September 26, 2011, the Governor of Connecticut confirmed that UConn was aggressively seeking an invitation to join the ACC due to the uncertainty that the Big East would remain an viable football conference in the near future."
- Paragraph 26 alleges, On October 10, 2011, TCU announced that it was withdrawing from the Big East to become a member of the Big XII Conference. The Big East did not require TCU to honor the twenty-seven month withdrawal period set forth in the bi-laws.
- Paragraph 27 alleges, "Upon information and belief, representatives of Louisville, Rutgers, and Cincinnati have been engaged in discussions with other sports conferences, including the ACC, the Big XII, and the Big 10 for the purpose of trying to obtain invitations to join these conferences and withdraw from the Big East.
- Paragraph 28 alleges, " On October 27, 2011, WVU received an invitation to join the Big XII for all sports, including football. WVU accepted the Big XII's offer the same day. As the Big East, in less than two months, had denigrated into a non-major football conference whose continued existence is in serious jeopardy, WVU had no choice but to accept the Big XII's offer.
- [In the portion of the complaint that contemplates Commissioner Marinatto's complicity in this matter in his capacity as CEO of Big East the complaint further alleges...] Paragraph 32 alleges, "The departure of members Pittsburgh, UConn, and TCU created an imbalance and disparity between the football and non-football playing schools that was neither contemplated nor addressed in the Bylaws. The departure of these schools left six football schools left six football schools and eight non-football schools. The sudden withdrawal of thirty-three percent of the football schools resulted in the football schools being subjected to increased governance by the non-football schools. This disparity was not considered in the Bilaws, and the departure of the above-mentioned schools has rendered WVU's performance in the Big East commercially impracticable."
- Paragraph 33 alleges, "During the weeks that followed the departure of Pittsburgh, Syracuse, and TCU, and the public acknowledgment by UConn that it was exploring other conference affiliations, the Big East and its Commissioner further breached their fiduciary duties to the Big East football schools. The Big East football schools advocated measures to be taken by the Big East and its Commissioner to maintain the level of competition of the Big East football conference. The non-football schools repeatedly exerted their new-found level of increased governance at the expense and to the detriment of the football schools. The Commissioner did nothing to protect the football playing schools and in fact took measures to further protect and advance the interests of the non-football playing schools."
- Paragraph 34 Alleges, "This lack of leadership, breach of fiduciary duties by the Big East and its Commissioner, and voting disparity between the football and non-football schools resulted in the Big East football conference no longer being a viable and competitive football conference. Additionally, upon information and belief, is expected by WVU and others that the Big East will lose its position as an AQ conference. Accordingly, the Big East Conference and its Commissioner, through their actions, breached their contract to WVU and nullified and voided the Bylaws."
- Paragraph 40 alleges, "In addition, WVU recently submitted an offer to the Commissioner proposing that WVU be permitted to immediately withdraw from the Big East in exchange for payment of certain monies with this offer."
- Paragraph 41 alleges, "Following the receipt of the aforementioned offer or proposal, the Commissioner accepted WVU's tendered enclosed payment, thus accepting WVU's offer to immediately withdraw from the Big East on the terms WVU submitted."
- Paragraph 47 alleges, "The Commissioner's acceptance of WVU's submitted monetary payment constitutes acceptance of WVU's proposal or offer to immediately withdraw from the Big East."
- Paragraph 48 alleges, "Moreover, the Commissioner's excusal of TCU's noncompliance with the 27-month notice provision of the Agreement constitutes a waiver of this same provision with respect to WVU.
- Paragraph 57 alleges, "Due to circumstances and events beyond WVU's control, which are substantially different and materially different from what WVU reasonably anticipated, WVU's performance under the Agreement has become impossible or unreasonably burdensome."
- Paragraph 69 alleges, "The provision of the Agreement requiring WVU to provide twenty-seven month's notice before withdrawing from the Agreement constitutes an unreasonable restrain on trade."
- Paragraph 70 alleges, "This restrain is larger and more extensive than was required for the necessary protection of the Big East's business interest."
- Paragraph 71 alleges, "Further, holding WV to the twenty-seven month notice provision of the Agreement will contravene public policy."
- Paragraph 77 alleges, "Absent a Court order permanently enjoining the Big East from enforcing the 27-month notice provision against WVU, WVU has no adequate remedy at law to protect its interests and will suffer continuing and irreparable damages and injury."
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Monday, October 31, 2011
The war between WVU and the Big East begins in earnest... WVU fires first shot out of it's musket..
WVU files lawsuit against the Big East. (Adobe copy of the complaint.) Some important portions of the complaint are as follows:
The Big East responds with this statement: “We are disappointed that West Virginia has adopted this strategy and cannot imagine why it believes it does not have to respect and honor the bylaws it agreed to as a member of the Big East. Based on an initial review of the lawsuit, it is clear that the allegations and claims in it are false and inaccurate. Certainly there is nothing in it that would justify WVU’s not fulfilling its obligations. To put it simply, a contract is a contract," said Marinatto.
“Once we have reviewed the filing, we will explore all our legal options and will act vigorously to ensure that WVU lives up to all its obligations to our conference. In the meantime, this lawsuit will not interfere in any way with our ongoing efforts to strengthen and expand the Big East.”
Once again in true Big East fashion, their posture is one of reaction. They haven't made a proactive move throughout this process and as a result of their continued mismanagement are once again having to say good bye to another member.
WVU, as it alleges in the aforementioned complaint, was forced to accept the offer to join the Big 12. As for why West Virginia "adopted this strategy" it had no choice. The Big East wishes to force WVU into a specific performance (This is a legal term of art, used in contract law: An extraordinary equitable remedy that compels a party to execute a contract according to the precise terms agreed upon or to execute it substantially so that, under the circumstances, justice will be done between the parties. Specific performance grants the plaintiff what he actually bargained for in the contract rather than damages (pecuniary compensation for loss or injury incurred through the unlawful conduct of another) for not receiving it; thus specific performance is an equitable rather than legal remedy. By compelling the parties to perform exactly what they had agreed to perform, more complete and perfect justice is achieved than by awarding damages for a breach of contract.)of the contract terms. WVU is seeking to first enjoin (legal term of art which means to stop action,) the Big East from enforcement of the 27 month rule and then seeks a "liquidated damages remedy"(Legal term of art which basically means to pay for value of that term of contract.) or damages (legal term of art, which seeks money for loss) for the Big East's breach of contract.) This complaint has artfully alleged several issues for the Court to contemplate in its determination of this matter. It should be noted that this suit was filed in the Mon County Circuit Court, of West Virginia. My guess is that the first procedural response to this suit will be a motion to remove the case to Federal Court. At that point the legal finagling will begin. Rarely does this sports blog delve into the legal matters that come up in sports but in this particular case I feel compelled to report to you my readers all that I can on the matter. WVU has taken the initiative in this matter. I would give decent odds that WVU shall be playing in the Big XII conference in 2012. I would also predict that WVU will pay to do so.
Just as we get to breath a collective sigh of relief at getting accepted into a viable AQ conference we now have to endure the legal circus that results from being successful in finding a new home. Stay tuned as this drama develops.
Posted by wvlawgeek at 10/31/2011 09:01:00 PM