Big East Goes On the Offensive, Goes Costanza on WVU

Well. That didn't take long.

Apparently firm believers in the old "the best defense is a good offense" adage, the Big East lobbed some heavy artillery of its own in its escalating war with West Virginia University this afternoon: instead of responding to the lawsuit WVU filed earlier this week in Monongalia (WV) County Circuit Court, the Big East filed its own complaint in Providence (RI) County Superior Court (h/t to Big East Coast Bias), alleging that WVU has breached its contract with the conference -- most specifically, the 27-month notice provision that would prevent WVU from taking its couches to the Big XII until July 2014.

It's all garden-variety breach-of-contract stuff until you see what the Big East is asking for as a remedy for the breach: the Big East wants specific performance of the contract, that is, a court order requiring WVU to comply with the by-laws and remain a member of the Big East until June 30, 2014.

That's something of a rare bird in a breach of contract case, as courts are typically reluctant to order someone (or, in this case, something) to live up to the specific terms of a contract. In the case of an individual, of course, there's a host of problems with such an order, ranging from the practical (imagine, for example, a court ordering you to continue showing up to work for your employer after you tried to quit) to the constitutional (i.e., the 13th Amendment, which prohibits involuntary servitude). And, in general, an order for specific performance is somewhat antithetic to a system of free enterprise: if a contract is no longer beneficial to you, you're (usually) free to breach it, provided you're willing to pay for the damages flow from that breach. That's just good business.

But AH! says the Big East. We want specific performance here because an award of monetary damages wouldn't and couldn't fairly compensate us for the harm we would suffer if WVU leaves early. In lawyer talk, we call that irreparable harm, and it's one of the things you need to show for a court to order equitable relief (like an injunction). If WVU leaves next year, says the Big East, we'll have to scramble to reschedule athletic contests, and we might have to cancel some of them if we can't reschedule "in a fair and equitable manner," and there's no amount of money that could make up for that.

What's more, says the Big East, WVU agreed in the by-laws that the conference could seek an injunction if one of the member schools attempted to leave early. And, perhaps just to tweak WVU's nose, the Big East points out that it was WVU's former president and former general counsel who helped to draw up these by-laws in the first place.

In summary, then: WVU got the drop on the Big East by filing suit first. In response, the Big East seems to be employing a legal tactic that's about a half-step below the nuclear option: the Costanza Offensive.

You wanna get nuts? asks John Marinatto. C'mon, let's get nuts!

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