Excellent read today re: Big IIX Commissioner's comments...

[TRest]

I do apologize for the harshness of the first sentence. But sheesh -- I still have trouble taking your statement seriusly. Over the last few months, we have read hundreds of threads on this board alone, as well as elsewhere, about how the litigation is about whether WVU can play in the Big XII next year. WVU can not decide that they will play in the Big XII no matter what. The courts will decide that.

So if a RI state court issues an injunction preventing WV from leaving for 2012, the school will honor that? Other internet attorneys (I guess) on other message boards seem to believe WV can defy any such ruling and ultimately pay whatever penalties that will follow. This seems to be the prevailing line of thought on pro-WV boards, I just wonder if it is wishful thinking? I imagine the RI court could then find WV in contempt, I just don't see how it can physically prevent WV from leaving.

 

[HartbeatHusky]

So if a RI state court issues an injunction preventing WV from leaving for 2012, the school will honor that? Other internet attorneys (I guess) on other message boards seem to believe WV can defy any such ruling and ultimately pay whatever penalties that will follow. This seems to be the prevailing line of thought on pro-WV boards, I just wonder if it is wishful thinking? I imagine the RI court could then find WV in contempt, I just don't see how it can physically prevent WV from leaving.

I guess we have to hope our internet attorneys are right and theirs are wrong.

 

[gars44]

Can I ask you a serious question? Are you an idiot or do you just get off on lying on message boards?

There is something the Big East can do to stop them from leaving over the next two seasons -- they can ask a judge to force WVU to perform its contract. Which the Big East has asked for. Will a judge grant specific performance? We'll see, but it certainly can, and based on these facts it certainly might. No matter how many times you state that WVU can leave and no one can stop it, you are, at the moment, demonstratively wrong. On something that is not opinion but fact.

So the answer to my question is ... ?

Biz, with all due respect, I really think this is not necessary. Whatever. I do enjoy your stuff, but I agree with the OP. There is something in all your wonderful legal analysis that you fail to consider: WV is crazy. Murder and rape are highly illegal. They happen. A lot. WV doesn't care what a court in RI or their own court says. Here is a comment from someone from WV under the cited article, that I think says it all:

"We’re just doing this because we want to and we know it’s against the rules but you can’t stop us. We can literally book a flight and abide by the Big XII schedule and not the Big East schedule. Will we be financially responsible for doing so? Absolutely. How much? Who knows.
WVU fans are so pleased with our movement to the Big XII that the financial aspect is secondary (especially since the Big XII board will likely pitch in). None of our fans EVER got excited for Rutgers, USF, Cincy, etc. Our biggest rival has even drawn yawns from some of our fans because they’ve been down for so long. Many don’t even care that we aren’t going to play them in the immediate years (because they’ll be in the ACC).
It has to be this way. WVU truly stuck out like a sore thumb in the Big East, a conference of metro colleges/universities.
by WVUColumbus on Jan 27, 2012 9:13 AM EST reply "

So. I think they're just going to do it. They are nuts. What is a RI court going to do? Fine them? Issue an injunction, and when they get off the plane in Norman or whereever it is, what is the judge going to do? If anyone in a position of power in WV had any sense at all, they would order the university to withdraw this lawsuit with an agreement to leave in 2013 and pay $20,000,000 in damages. The governor, or the chairman of the university, or someone. But they're not. That tells me they are crazy, and they are going to pay. How much is the only question. And there is going to be a quantifiable measure of damages: loss of BCS status due to insufficient number of teams, TV, etc. It's going to be over $20,000,000 in measurable damages, probably more like $40MM. So, they are crazy. All your legal reasoning is spot on. You reside in such a rational place - that you are unable even to imagine a world as crazy as the one WV lives in. But there is such a thing as "irrational" whether you get that or not. jmho.

 

[gars44]

And I want to add to my previous post. This will certainly lead to the end of the BCS that everyone now wants so badly. If the B12 does not put a stop to this, it will be dragged in. So will the BCS itself, if it expels the BE due to insufficient number of teams. The entire collusive structure will be torn apart over this. There may even be punitive damages, which would totally up the ante. WV is crazy enough to do this, and when they do, the damage to the BE, B12, any co-conspirator: ESPN perhaps, the BCS, is going to be enormous. So they will just eliminate the BCS to solve that particular problem.

 

[Fishy]

West Virginia is not crazy.

The athletic director can be crazy if he'd like and the Big 12 commissioner has clearly become unhinged, but neither of them will decide whether West Virginia is in the Big 12 next year or not.

They'll get an assessment of their upside and downside risk from their counsel and then the board of trustees and administration will decide what they'll do. One way or another, it will be a perfectly rational decision.

 

[TRest]

West Virginia is not crazy.

The athletic director can be crazy if he'd like and the Big 12 commissioner has clearly become unhinged, but neither of them will decide whether West Virginia is in the Big 12 next year or not.

They'll get an assessment of their upside and downside risk from their counsel and then the board of trustees and administration will decide what they'll do. One way or another, it will be a perfectly rational decision.

And it includes the possibility of playing in the B12 regardless of any injunction. I just asssume this is better handled in Federal than state courts, so that any ruling may have more immediate implications throughout the various states that the BE and B12 conduct commerce.

 

[gars44]

West Virginia is not crazy.

One way or another, it will be a perfectly rational decision.

One would hope. Maybe this is all a colossal posturing. Legally, their position is so lacking in merit that I cannot imagine the purpose of this lawsuit. They cannot win. If they don't know that, then they must be crazy. If they are crazy, then they are leaving . . . .

 

[Fishy]

The purpose of a lawsuit isn't always to win a lawsuit.

You can buy time, gain leverage, etc., etc. I'm not a lawyer, but some of West Virginia's assertions certainly seem novel to me -- I'm guessing that it is part of their negotiating posturing.

We'll see.

 

[HartbeatHusky]

WVU is not crazy. Their counsel will advise them what the most likely maximum amount of damages will be and they will decide whether or not it is in their best interests to leave or stay based on that risk vs reward evaluation. That is assuming that a judge doesn't grant the BE's requested injunction and require WVU to perform specific performance of staying in the BE. I don't think anyone knows how any of that is going to turn out so the bottom line is we still don't know exactly what is going to be the final outcome.

 

[kibblesnbits]

Even if one buys West Virginia's claim of sovereign immunity from a Rhode Island court - and I'll leave it to the lawyers to comment on the merit of that - the Big 12 has no such immunity. One would expect that the minute they publish a schedule with WVU on it they will be added to the case for interfering with the contract between WVU and the Big East. It would actually give me some vicarious pleasure if they could film the look on Neinas' face when handed a ruling against the league for major $$$. Maybe we could get a lien on a healthy portion of those TV dollars that are driving most of their actions.

 

[businesslawyer]

A Rhode Island judge could not enforce a specific enforcement decree against actors in West Virginia. A federal judge could. If a RI judge issues the order and it's being ignored by WVU, it should not be hard to get a federal judge to enforce it.

Message boards notwithstanding, it is hard for me to comprehend that WVU would ignore an injunction of a court. No amount of stridency by anonymous posters is going to get me to believe that the WVU President is willing to go to jail so WVU can leave early for the Big XII. But I guess we'll see.

 

[businesslawyer]

Whatever. We'll see how it all plays out. I just type my opinions. I don't get off on attacking people like some of you internet geniuses do. If you don't agree that's all you have to say and offer your own opinion. Some of you are incredibly full of yourselves.

FWIW, saying you think WVU will win its battle to avoid an injunction is an opinion. Saying that there is nothing the Big East can do about it is misstating a fact. Having read your subsequent posts, I clearly overreacted to what you meant. Hence the apology.

 

[Fishy]

I am full of myself. But I'm also really, really smart. And witty.

Before any of you waste any time forming an opinion, drop me a line and I'll tell you what it should be.

 

[TRest]

I am full of myself. But I'm also really, really smart. And witty.

Before any of you waste any time forming an opinion, drop me a line and I'll tell you what it should be.

Isn't being 6'6" and 250 pounds of raw power more persausive than brains and wit? Either way, you truly lead a charmed life.

 

[SAMCRO]

We'll get our answer as to whether or not WVU and the B12 truly believe in what they're saying over the next 72 hours.

My question is this - if they really believed everything they're saying why haven't they just released the schedule already? Why are they waiting, posturing, etc... Tick....Tock....

 

[gars44]

A Rhode Island judge could not enforce a specific enforcement decree against actors in West Virginia. A federal judge could. If a RI judge issues the order and it's being ignored by WVU, it should not be hard to get a federal judge to enforce it.

Message boards notwithstanding, it is hard for me to comprehend that WVU would ignore an injunction of a court. No amount of stridency by anonymous posters is going to get me to believe that the WVU President is willing to go to jail so WVU can leave early for the Big XII. But I guess we'll see.

Don't see the difference betw. a fed and state court judge on this one. Jurisdiction in this case would have to be based on diversity. Substantive law of the forum state would apply. They apply injunctions against states only where there is a direct violation of federal statute or US Constitution. Eg., racial discrimination laws, not too common otherwise. I really don't see a RI judge doing this either due to the embarrasment and appearance of powerlessnes that would come from WV's disobeying the court order. What is the court going to do? Assess sanctions? Now, if a WV superior court judge orders them to stay, that would be a totally different thing. Issues of comity would prevent a RI judge from doing anything other that assessing damages. The Big East should have put a waiver of personal jurisdiction in the bylaws. I'm pretty sure the bylaws say that the substantive law of Washington D.C. apply. They should have agreed what court issues would be resolved in, too. But who could have anticipated this mess?

 

[CL82]

The purpose of a lawsuit isn't always to win a lawsuit.

You can buy time, gain leverage, etc., etc. I'm not a lawyer, but some of West Virginia's assertions certainly seem novel to me -- I'm guessing that it is part of their negotiating posturing.

We'll see.

As I said in other threads, I wonder if WVU's impression of Marinatto influenced their decision. If you really think of him as weak and spineless, why not take a shot at leaving early? Just, throw the best arguments that you can come up it in a conplaint and wait for him to cave. Under this scenario, WVU is shocked that this isn't over already. The problem is there is no easy exit for themselves. They have to stick with the suit until the BE blinks or until a judge renders a decision.

 

[The Funster]

Neinas may be unhinged but he's covering his ass publicly. If the Big 8 doesn't have enough teams top fulfill their commitment for 2012 he can blame it on Mizz for leaving and WVU for saying they'll come and not being able to.

From where I sit, WVU isn't crazy. I think it was a calculated gamble that before it ever came to court the BE was going to collapse evn if WVU's attempt was the proverbial straw that broke the camel's back.

Oddly enough, if the Big 8 had wanted to, they could have said that they were considering making offers to all the BE teams that approached them. That might have brought the whole BE house of cards down and sped the way for WVU to join in 2012.

 

[HuskyHawk]

Ok legal brain trust, does this quote open the door to bring the big 12 into the lawsuit

"We had a teleconference call with those in the SEC, Big East, ACC, Mountain West and Conference USA. We all agreed we could save money and avoid litigation if all held serve for 2012-13. All agreed. But Missouri made a very selfish decision. It's been very disruptive. Missouri gave us notice in November [of 2011] and it's pretty difficult to move forward then."

There was an agreement by the conferences not to expand. All agreed. The Big East took no action in reliance upon that representation. The Big 12 did not keep it's end of the bargin.

No. Oral agreements are unenforceable except (generally speaking) for things of lesser value. However the collusion among competing conferences might be interesting to someone in the government.

 

[HuskyHawk]

Don't see the difference betw. a fed and state court judge on this one. Jurisdiction in this case would have to be based on diversity. Substantive law of the forum state would apply. They apply injunctions against states only where there is a direct violation of federal statute or US Constitution. Eg., racial discrimination laws, not too common otherwise. I really don't see a RI judge doing this either due to the embarrasment and appearance of powerlessnes that would come from WV's disobeying the court order. What is the court going to do? Assess sanctions? Now, if a WV superior court judge orders them to stay, that would be a totally different thing. Issues of comity would prevent a RI judge from doing anything other that assessing damages. The Big East should have put a waiver of personal jurisdiction in the bylaws. I'm pretty sure the bylaws say that the substantive law of Washington D.C. apply. They should have agreed what court issues would be resolved in, too. But who could have anticipated this mess?

Not directly on point, but to my knowledge this is regarded as the most current pronouncement on enforcement of contracts with government actors. U.S. v Winstar. http://www.law.cornell.edu/supct/html/95-865.ZO.html

I agree that a RI state court can't bind WVU with its order. But if a federal court does issue an injunction, I think WVU would need to tread very carefully. Not sure it is likely, but the presence of other state actors within the Big East ups the ante in my opinion.

 

[businesslawyer]

Not directly on point, but to my knowledge this is regarded as the most current pronouncement on enforcement of contracts with government actors. U.S. v Winstar. http://www.law.cornell.edu/supct/html/95-865.ZO.html

I agree that a RI state court can't bind WVU with its order. But if a federal court does issue an injunction, I think WVU would need to tread very carefully. Not sure it is likely, but the presence of other state actors within the Big East ups the ante in my opinion.

I don't believe the courts will treat WVU as if it is the sovereign state of West Virginia. But if it does, than this is a legal battle among sovereign states, as if WVU is the state so is Rutgers and UConn and USF and others, and ultimately the federal government has a role in making sure states comply with law.

 

[Husky68]

Not directly on point, but to my knowledge this is regarded as the most current pronouncement on enforcement of contracts with government actors. U.S. v Winstar. http://www.law.cornell.edu/supct/html/95-865.ZO.html

I agree that a RI state court can't bind WVU with its order. But if a federal court does issue an injunction, I think WVU would need to tread very carefully. Not sure it is likely, but the presence of other state actors within the Big East ups the ante in my opinion.

Not on point at all being government and participant in a regulated industry. Why can't a state court bind WVU? Thought 14th amendment took care of that. If state court has jurisdiction over the participants and neither can/does get it removed to a federal or another state court then a proceedings which reaches a judicial decision is enforceable. Next question is how do you enforce. Case of Barry Bonds trainer the courts put him in jail until case was over, so essentially court couldn't "make" him talk, just make him sit in a jail for a while.. Courts can impose monetary damages and you can take this to another state and request/require enforcement. Al Sharpton has been running from the Tawana Brawley judgement for 20 years, so not saying can't evade/avoid consequences of judgements; but does WVU want to pull a Sharpton or does the Big 12 or is it 10 or is it 9 want to. Why couldn't judgement be taken to ESPN and require payments to BE instead of WVU for TV rights. Seems like could do a lot of things that WVU would not like if state court judgement went against WVU.

 

[HartbeatHusky]

I don't believe the courts will treat WVU as if it is the sovereign state of West Virginia. But if it does, than this is a legal battle among sovereign states, as if WVU is the state so is Rutgers and UConn and USF and others, and ultimately the federal government has a role in making sure states comply with law.

That makes sense and would seem to pave the way for this to have to be decided on the federal level if the court does in fact treat WVU as the state of WV. Essentially the state of WV is trying to breach a contract that it has signed with the states of CT, NJ, OH, FL, and KY in addition to the private institutions and the conference itself.

 

[IthacaMatt]

Don't see the difference betw. a fed and state court judge on this one. Jurisdiction in this case would have to be based on diversity. Substantive law of the forum state would apply. They apply injunctions against states only where there is a direct violation of federal statute or US Constitution. Eg., racial discrimination laws, not too common otherwise. I really don't see a RI judge doing this either due to the embarrasment and appearance of powerlessnes that would come from WV's disobeying the court order. What is the court going to do? Assess sanctions? Now, if a WV superior court judge orders them to stay, that would be a totally different thing. Issues of comity would prevent a RI judge from doing anything other that assessing damages. The Big East should have put a waiver of personal jurisdiction in the bylaws. I'm pretty sure the bylaws say that the substantive law of Washington D.C. apply. They should have agreed what court issues would be resolved in, too. But who could have anticipated this mess?

Personally, I don't see why the Big East filed the suit in R.I. when their "state" of incorporation is DC. That undermines their ability to enforce R.I. jurisdiction, when it is not their home state. I think that ultimately, even tho the original complaint was poorly drafted, that what happens in the WV courts will decide this. State sovereignty is not that easily swept aside by business interests.

I haven't been following the suit closely, but we are several months into it now, and I don't recall seeing any motions to remove this to federal court and consolidate the 2 actions. You would think that would have happened by now if it was going to come about.