Judge orders arbitration in WVU case

[BarkingDog]

BC-US--Big East-West Virginia,130
RI judge orders mediation of Big East, WVU cases

@Bodytype:
MORGANTOWN, W.Va. (AP) [--] A Rhode Island judge has ordered West Virginia University and the Big East to enter non-binding mediation in their competing lawsuits over WVU's plans to quit the conference and join the Big 12.
@Bodytype:
Providence County Superior Court Judge Michael Silverstein signed an order Tuesday and scheduled a status conference for Feb. 9. He also ordered the Big East to file an answer to WVU filings by Jan. 18.
WVU sued the Big East in Monongalia County Circuit Court in Morgantown in November, challenging the conference bylaws in a bid to join the Big 12 before the 2012 football season.
The Big East countersued in Rhode Island four days later, arguing WVU should remain in the conference for 27 months.
Judges in both states have denied motions to dismiss the lawsuits.

 

[Jarhead_1775]

Non binding. Sounds like a waste of time. Legalese speakers want to sound off on the matter?

 

[businesslawyer]

It's a non-story. Many courts routinely send matters to non binding mediation hoping it will save the court's time. It would not shock me if the mediator talked about settling for 13-14. I still think an injunction is going to issue for 12-13 (next year).

 

[gars44]

the more I think about this, the more I see an employment law analogy. The courts never order you to work for somebody. Never. They are never going to order you to play for somebody, or play in some conference. Will they issue an injunction in a case like this? No. They will only issue an injunction to prevent irreparable harm. There is no "irreparable" harm from WVA leaving. There is monetary harm, certainly. That is money damages. If they are not going to order WVU to play in the BE, and the BE cannot prove irreparable harm if WVU plays in the Big 12, then this becomes nothing but a damages case. WVU has decided to incur the damages. Admit liability, hold a hearing in damages. Look at the RPI of the teams coming in. Net plus to the BE. That helps WVU in the damages case. The "relationship" argument that the BE [allegedly] has with our good friends in WV? Highly speculative, hard to value. WV doesn't treasure this relationship very much. This is going to be all about damages.

The only other analogy is the non-compete situation. Will a court order WV to "not compete" with the BE by playing in another conference? I doubt that. That invokes the contempt powers of a court, which courts hate to exercise. I am leaning toward WVA being out of here, and willing to litigate the damages, which could be in the $40MM range, i.e., a forfeit of 2 years of B12 revenue to the BE. Maybe with a set off for what the BE is saving by not sharing BE revenues with WV. I'll bet that's where this is going.

 

[businesslawyer]

With all due respect, I don't think the employment law analogy is a good one. Courts do not like granting injunctions against people. Granting injunctions against business entities for their signed deals is something else entirely.

The injunction may be hard for 13-14 because the replacements are ready to come in. I still think ordering WVU to perform next season is relatively easy.

 

[TRest]

With all due respect, I don't think the employment law analogy is a good one. Courts do not like granting injunctions against people. Granting injunctions against business entities for their signed deals is something else entirely.

The injunction may be hard for 13-14 because the replacements are ready to come in. I still think ordering WVU to perform next season is relatively easy.

I agree. The BE cannot find a school to play in WV's place for 2012, and with only 8 football teams, it would be impossible for the BE to provide agreed upon content to ESPN and any other broadcast partners, as well as jeopardizing season ticket sales, etc. The mediation will go nowhere as each party needs to prevail rather than compromise at this stage.

 

[gars44]

I agree. The BE cannot find a school to play in WV's place for 2012, and with only 8 football teams, it would be impossible for the BE to provide agreed upon content to ESPN and any other broadcast partners, as well as jeopardizing season ticket sales, etc. The mediation will go nowhere as each party needs to prevail rather than compromise at this stage.

Hope you're right. I just think these Mountaineers are half crazy, and I also think they are willing to violate an injunction, file an appeal, and pay the damages.

 

[nelsonmuntz]

Hope you're right. I just think these Mountaineers are half crazy, and I also think they are willing to violate an injunction, file an appeal, and pay the damages.

WVU would violate an injunction if left to their own devices, and send the judge a bag of dogs*** to remind him what West Virginians think of the law.

The Big 12, on the other hand, has a lot to lose too. They would want nothing to do with that kind of situation. Unless WVU is free and clear legally to leave, the Big 12 becomes liable for a pretty clear cut Tortious Interference claim if it induces WVU to leave the Big East by scheduling them next year.

 

[freescooter]

I'm not sure this is a "non-story" but it is pretty standard practice in my experience. Judges generallly prefer that people work out settlements either on their own or with a court appointed mediator. BL, while I agree that the 12-13 issue is pretty straight forward, doesn't not granting an injuction for the 2013-14 season essentially say contracts are only binding if both parties are happy. If one party decides it doesn't want to perform it can simply ignore the contract? If you apply it to everyday transactions, say real estate, I sign a contract to buy your house, but you decide you want to stay so you simply refuse to leave or sell it to someone else who comes after the fact and offers additional money. That is essentially what West Virginia is arguing...We made a deal. Now we wish we could get out of it, so we are going.

 

[businesslawyer]

I'm not sure this is a "non-story" but it is pretty standard practice in my experience. Judges generallly prefer that people work out settlements either on their own or with a court appointed mediator. BL, while I agree that the 12-13 issue is pretty straight forward, doesn't not granting an injuction for the 2013-14 season essentially say contracts are only binding if both parties are happy. If one party decides it doesn't want to perform it can simply ignore the contract? If you apply it to everyday transactions, say real estate, I sign a contract to buy your house, but you decide you want to stay so you simply refuse to leave or sell it to someone else who comes after the fact and offers additional money. That is essentially what West Virginia is arguing...We made a deal. Now we wish we could get out of it, so we are going.

No. The two standards for an injunction -- likelihood of success on the merits and irreperable harm. The Big East will easily establish likelihood of success on the merits. I think establishing irreperable harm for 13-14, with replacement schools coming in that year anyway, may be problematic. I think irreperable harm for 12-13 is, frankly, self-evident.

We are all free to ignore every contract we sign. It's not a law, subject to criminal prosecution, that you fulfill your contracts. When you break one, you are subject to damages and, in the limited situations where grounds for an injunction lie, specific performance.

 

[freescooter]

But since the contract doesn't specify damages, at least as far as we know, and if the BE renegotiates a contract with somebody, ESPN, NBC, or whoever, for as much or more than it currently gets from tv, is it possilbe that WVU just walks from its obligation with no penalty? Seems to me like specific performance was really the only remedy contemplated by all the parties when they made this deal. I didn't re-read it, but I seem to recall language that at least implied that and comments from the parties that did too. And you can't just allow people to walk from a contract even in 2013-14 , even if the Big East is better off with new members and a new media deal, without some consequences unless you simply want to say agreements have no meaning. No court can do that, right?

 

[businesslawyer]

But since the contract doesn't specify damages, at least as far as we know, and if the BE renegotiates a contract with somebody, ESPN, NBC, or whoever, for as much or more than it currently gets from tv, is it possilbe that WVU just walks from its obligation with no penalty? Seems to me like specific performance was really the only remedy contemplated by all the parties when they made this deal. I didn't re-read it, but I seem to recall language that at least implied that and comments from the parties that did too. And you can't just allow people to walk from a contract even in 2013-14 , even if the Big East is better off with new members and a new media deal, without some consequences unless you simply want to say agreements have no meaning. No court can do that, right?

Is anyone really arguing that the Big East w/out WVU is worth more than the Big East WVU? Is even a WVU lawyer going to be that silly?

There will be damages for 13-14. There just may not be irreperable harm.

 

[arnie3]

I just don't see WVU getting out of the BE in 2012. There is no meeting of the minds here that can be settled through arbitration for 2012. 2013 is perhaps a different story because of the new schools. I believe that the BE will hold onto WVU as long as possible because the conference is not only dealing with that school, but the two others going to the ACC. For this year, it's more than a money issue. It's keeping everyone here, until the new schools arrive.

 

[freescooter]

Is anyone really arguing that the Big East w/out WVU is worth more than the Big East WVU? Is even a WVU lawyer going to be that silly?

There will be damages for 13-14. There just may not be irreperable harm.

Nope, but it might not be all that quantifiable if we end up with a media rights deal with say NBC that exceeds the deal that we now have with ESPN (it should) as well as the deal we turned down from ESPN. Let's say in round numbers we get $5 million now and the proposed ESPN deal would have given each football school $11. We sign a deal with NBCSports for $12 million. Given the remade conference, I'm not sure that West Virginia in or West Virginia out really makes a measurable difference. Would somebody bid $15 million for the new Big East with West Virginia? I doubt it. I'm guessing that any "damage" is marginal. In the case of 2012-13 that isn't true, but West Virginia in the context of the newly expanded Big East in 2013? They are a good team, but not that good. They are a name program, but more a second tier name, they have a limited market...they were the flagship of the current Big East football League, but I think it is pretty unlikely that they'd be the flagship of the new one. Now I'm also sure that both sides will have consultants that make differnt cases. the Big East will say we'd have gotten 25 million with WVU still in the league while WVU's consultant will say we'd have lost money. But I supect that in reality it wouldn't make much difference.

 

[businesslawyer]

Quantifying damages is difficult in most complex commercial cases. Each party presents their experts and the judge does the best he can. Nothing unusual about that.

 

[Husky68]

All signers to the contract agreed that damages were not sufficient and that injuctions could/would be placed on any institution that did not adhere to the 27 month notice period for withdrawal. Other than getting the contract voided, or WV proving some prior breach of the contract where the remedy would be allowing them to withdraw without notice; don't see how a court can rewrite the contract to say "I know you big sophisticated organizations signed this contract, but we know you really didn't mean it so here, let's give you a few million and all is well even though you all agreed it would be irreparable harm not subject to money damages".

 

[NEforceUConn]

If WVU, a state owned institution, can break contracts without damages why not allow the State to break every labor union contract on its books, why not reneg on all State corporate incentives that WV contracted over the past few years?

 

[zls44]

Aren't a few of them trying?

 

[Fishy]

I am not an attorney, but I do post on the internet and I do have a high opinion of my own high opinion which makes me almost an attorney.

Given my review of the case, I think West Virginia smells funny and rather than trying to leave the Big East for the Big 12, the school should leave West Virginia for regular Virginia. It's nicer there and I think the fresh supply of unburned couches and literate high school graduates would be a refreshing change for Hayseed U.

 

[06029]

Isn't part of their argument that the BE did not fulfill their fiduciary duty? I also wonder if there is some meeting minutes someplace where the FB or all schools had a vote on something that WVU can use to make that argument. The bad thing about contracts, agreements, lawyers and lawsuits, they are never crystal clear even when you are 100% certain that you are right.

 

[businesslawyer]

I am not an attorney, but I do post on the internet and I do have a high opinion of my own high opinion which makes me almost an attorney.

Given my review of the case, I think West Virginia smells funny and rather than trying to leave the Big East for the Big 12, the school should leave West Virginia for regular Virginia. It's nicer there and I think the fresh supply of unburned couches and literate high school graduates would be a refreshing change for Hayseed U.

Having a high opinion or your own opinion is basically the first two years of law school.

 

[businesslawyer]

Isn't part of their argument that the BE did not fulfill their fiduciary duty? I also wonder if there is some meeting minutes someplace where the FB or all schools had a vote on something that WVU can use to make that argument. The bad thing about contracts, agreements, lawyers and lawsuits, they are never crystal clear even when you are 100% certain that you are right.

Anyone can argue anything. That particular argument has no legal basis, and it is a waste of our bandwidth to repeat that they made it.

 

[Carl Spackler]

There's about 4-6 weeks or so left, before end of february, when the big east has pretty much annually put out the official published football schedule for the calendar year.

I do not know timelines of publishing official schedules for all of the other big east sports, but I'm going to assume that it's not much different for all the sports to have their calendars set for academic year 2012 (fall 2012 and spring 2013 sports)by the end of february, and I also do not know the timeline for publishing schedules in the big 11, but will assume that it's similar.

I do know that as recently as Jan. 10, Ollie Luck was spouting off publicly that he's been informing ALL of the WVU sports to be planning for competing in the big 12 for academic year, meaning all fall sports are going big 12.

So that leaves about a month right now, for this thing to get sorted out before the really hits the fan.

After thinking about this for a long time now, I've now come to the conclusion that the desired goal that WVU has with all this mess, is to end up with an agreement where WVU will try to keep all their other sports except football in the big east, and move football to the big 12 for the next two years.

I think that's giving these people a lot of credit though. I'm looking forward to Marinatto taking a major stand on this. Until a judge says otherwise, WVU is playing all sports in the big east until July 2014.

I cannot believe that the big 12 is going to publish conference schedules for all sports with WVU included. But that doesn't mean it won't happen.

I do believe that the big east has every right, and responsibility really, to go ahead and publish the conference schedules of all of our sports, at the regular times, which will by end of February.

I do know by reading, that the arbitration hearing ordered by the judge is for February 9. It's possible that they come to a deal for WVU to leave, but highly improbable.

This thing is going to end very badly for WVU.

The big 12 is not some bastion of stability of a conference, either. That's what's lost in all of this. Texas, unlike, Notre Dame with the Big East, has no real interest in the survival of that conference. If the BCS system changes, the big 12 is in much more danger of falling apart than the big east, or any other conference.

 

[nelsonmuntz]

The Big 12 schools realize that Texas is not reliable, which is why they are trying to expand the conference to reduce their dependance on Bevo. Texas would prefer a smaller conference of vassal schools, which is the direction they were going a year ago when Colorado, Nebraska and A&M all told Texas to F itself. When the Pac 12 decided that Texas was not worth the drama, the negotiations between Bevo and the Big 12 North got a lot more sane. The Oklahomas went on a road show pitching their wares to the Big 10, Pac 12 and SEC, and were politely told "thanks but no thanks", basically putting them in the same place as the Big 12 North, as Texas' vassal. The difference here is a) the big 12 still has a huge TV deal despite losing its two biggest non-Texas markets (CO, MO) and 2 of its Top 4 football programs in terms of fan interest (A&M and Nebraska), and b) these schools are stuck together, so they need to make it work.

The non-Bevo schools need to protect themselves for the eventual departure of Texas, which means expansion. TCU and WVU are probably not enough. I bet the non-Bevo schools would go to 16 if left to their own devices. On the other hand, Bevo has no interest in getting further diluted since they are carrying the league with TV as is. The worst outcome for the Big East would be a compromise where 1 or 2 more were added, and the Chinese water torture of the Big East continued.

 

[06029]

Anyone can argue anything. That particular argument has no legal basis, and it is a waste of our bandwidth to repeat that they made it.

So sorry to offend the high and mighty legal expert. But, neither you or me or anyone that posts here can claim that it is not valid since we do not have access to nor were we witness to any of the internal workings of the BE as it relates to WVU. Whether it has legal basis or not, isn't that up to someone else to decide?

WVU has to have something it is hanging its hat on. They are moving ahead far too confidently to be basing it on nothing but hope. And I am not willing to say that the possibility of them walking in 2012 (with Pitt and Cuse right on their tail) is not going to happen just because you think it has no legal basis. I used to be 100% convinced that a company was not a person but multiple courts have shown that conviction to be wrong.