WVU v. the Big East: As Explained by a Semi-Literate Lawyer

By now, you've probably heard that West Virginia made good on last week's promise to try to leave the Big East for the Big XII in time for the 2012 football season: this afternoon, in a Monongalia (WV) Circuit Court, WVU filed a lawsuit which seeks to prevent the Big East from enforcing the 27-month notice clause in the Big East by-laws that would keep the 'Eers out of the Big XII until 2014.

The gist of the suit, once you get past the history of how the Big East was formed, how it's changed in the last 25 years, and how it died this fall? WVU alleges that the Big East and its commissioner, John Marinatto, have breached their fiduciary duties to WVU by "fail[ing] to take proactive measures to maintain, let alone enhance, the level of competition for the Big East football schools" and by allowing the basketball-only members of the Big East (which the Complaint, in a bit of cheek, refers to as the "non-football schools") to wrest control of the Conference to the detriment of the football-playing members.

Got that? Good. Let's press on.

With that factual background, West Virginia is advancing several interrelated arguments to try to get out of the Big East before 2014.

Put your lawyer hat on, after the jump.

(1) First, WVU wants a declaratory judgment* that its agreement with the Big East -- and the Big East by-laws, as they pertain to WVU -- is null and void, for a few reasons:

(a) Because the Big East and John Marinatto breached the fiduciary duties owed to WVU (again, by letting the football side go to pot and ceding control to the basketball-only schools).

(b) Because WVU sent an offer to John Marinatto last week which proposed "immediate[] withdraw[al] from the Big East in exchange for a payment of certain sums." Enclosed with this offer, WVU says, was some money -- $2.5 million, if the reports from last week are accurate. WVU says that Marinatto accepted that $2.5 million payment and, by extension, accepted WVU's offer to leave early.  (In kid's terms, this is a species of the "HA! NO TAKE-BACKS! ANTI-QUITSIES!" argument you'll sometimes see in games of tag.)

(c) Because the Big East allowed TCU to leave the conference without enforcing the 27-month notice provision of the by-laws. Based on this precedent, WVU argues, the Big East has to let WVU leave early, too.

The last two are more-or-less self-explanatory, while Brian Ewart makes a very good point with regard to the first argument: the problem with a fiduciary duty argument is that Marinatto owes that duty to the conference and all its constituent members, not just WVU and not just the schools that play football.

* What's the difference between a declaratory judgment and a regular judgment, you ask? At its core, this case is a contract dispute. Typically, when you have a contract dispute, one party breaches the contract, then the other party sues him for doing so. Obviously, WVU hasn't breached the contract yet -- instead, they want the court to declare ahead of time that, were they to leave the conference before 2014, they'd be justified in doing so. Make sense?

(2) Breach of contract is pretty easy to understand, right? The Big East and WVU had a contract to do certain things. WVU says that the Big East hasn't lived up to its end of the bargain -- by failing to make sure there was equal voting power between the basketball and football schools, for one, and by letting the football half of the conference go to hell. This breach, WVU says, has caused WVU to suffer monetary damages -- but they're not so much interested in damages (I'd wager) as they are in injunctive relief (Count VI of the Complaint): an order from the court prohibiting the Big East from enforcing the 27-month notice clause.

(3) Impossibility -- which you can think of like this: you and I agree that I'm going to change the oil on your car tomorrow, and you're going to pay me $50 to do it. (An aside: learn to change your own oil, moron. It's not that expensive.) Unfortunately, and unbeknownst to us: your car is sitting in the direct path of Meteor X2VU777, which plummets to earth tonight and turns your Taurus into a flaming pile of scrap. It's now impossible for me to change your oil, which means you don't have to pay me anymore.

So what's the impossibility in WVU's suit? According to them: a Big East conference where football is "no longer viable or competitive."** Since that impossible situation was never contemplated when the agreement was made, the argument continues, WVU should be excused from further performance of its obligations under the bylaws.

** Check your: "Wait, when did anybody EVER think the Big East was a viable football conference?" jokes at the door, please. We're talkin' law here.

(4) Failure of consideration. Here's Contract Law 101: to have a binding contract, you need an offer, acceptance, and consideration. Consideration, boiled down to its simplest terms, means that each party to the contract is giving up something and each party is getting something -- you give me this shiny rock, for example, I give you $2. I get the rock, you get the money: we've each gotten something (and given up something) under the contract, so we've got valid consideration for the deal.

Failure of consideration can mean a few things, but in WVU's complaint, WVU seems to be arguing: what we gave up as part of this agreement (in WVU terms, paraphrased: our totes awesome football team joining your conference) is way, way more valuable than what we got in return (in WVU terms, paraphrased: playing football with you miserable pukes seven times a year in a conference that's going to lose its AQ status). The consideration it received to join the Big East, WVU argues, has been rendered all but worthless by John Marinatto's inaction and ineptitude in the last few months. And because of this disparity between what it gave up and what it got in return, WVU argues, we should be let out now.

(5) This one is probably the biggest stretch of them all: Count V claims that the 27-month notice provision is an unreasonable restraint of trade, which, in twelve words, boils down to: making us wait over two years to leave is anti-capitalist and un-American. The problem with this argument is the same with most public policy arguments of this ilk: WVU agreed to the notice provision, and now they want it undone because, in hindsight, it looks like a bad deal. Good luck with that.

And then comes the kicker at the end: in the standard-issue breach of contract case, you get monetary damages. Somebody doesn't live up to their end of the deal, you sue 'em, and they have to pay you something to make good. But WVU says: that won't work here, because there's no way to fairly compensate us for the damage we'll suffer if we're held to the 27-month notice provision. Instead, WVU wants an injunction, an equitable remedy that would enjoin the Big East from enforcing the notice provision against WVU.

Now that you've read this whole thing (or, if you're smart and skipped to the bottom first): keep in mind, I'm not a contract lawyer by trade, and most of this is based on my Introduction to Contracts class from six years ago. Corrections and comments, as always, are more than welcome.

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