West Virginia Sues The Big East: Conference Realignment, Extreme Lawyering Edition

The conference realignment saga has been so based in rumors, lawyer-speak and assumptions that we rarely know a schools entire set of intentions. Therefore, even though I do not know if West Virginia's lawsuit against the Big East is a good idea, it represents an intriguing opportunity. The document WVU filed is a fun mix of history, gossip, bitterness, logic and some awful Bylaws, and it deserves an extended look.

You can find the entire document here. It is, as legal documents tend to be, quite repetitive, but the good bits are below.

7. The Big East was formed in 1979 when Providence College ("Providence"), St. John's University ("St. John's), Georgetown University ("Georgetown"), Syracuse University ("Syracuse"), Seton Hall University ("Seton Hall"), University of Connecticut ("UConn"), and Boston College agreed to form a sports conference focusing primarily on basketball. Villanova University ("Villanova") joined in 1980, and University of Pittsburgh ("Pittsburgh") joined in 1982.

God, this was a good basketball conference.

8. About a decade after its inception, the Big East decided to become a major football conference. The Big East invited five schools, including Rutgers University ("Rutgers"), University of Miami ("Miami"), Temple University ("Temple"), Virginia Polytechnic Institute and State University ("Virginia Tech"), and West Virginia University ("WVU") to compete in football only. The inaugural Big East football season launched in 1991.

9. WVU and Rutgers joined the Big East as full members in all sports in 1995, and Virginia Tech joined as a full member in all sports in 2000.

Two interesting things to consider here:

1) If not for the original inclusion of Syracuse, Pitt and Boston College (i.e. programs with football teams), this conference's identity may have taken shape in a completely different way. But in presumably not wanting to lose these programs to other conferences as football independence became less than viable, they doomed themselves to going down a road toward disharmony and, really, being two different conferences at the same time. (And then, in a sad twist, they eventually lost Boston College 20 years later and Pitt 30 years later.)

2) Because I so enjoy what-if scenarios, it is worth pointing out just how close the Metro Conference came to existence at this point. The Metro was the other basketball-centric conference that was fumbling around to become a football power around this time. Raycom Sports proposed a 16-team conference that would swallow up most of the independent football programs in the Central and Eastern time zones. The Metro North: Boston College, Cincinnati, Pittsburgh, Rutgers, Syracuse, Temple, Virginia Tech and West Virginia. The Metro South: East Carolina, Florida State, Louisville, Memphis, Miami, South Carolina, Southern Miss and Tulane. The population base and "footprint" would have been epic. Alas, the Big East came through with its own proposals, the SEC picked off South Carolina, the ACC nabbed Florida State, etc. It was an idea that would have been much more viable under the current circumstances, but it was evidently ahead of its time.

10. In 1995, University of Notre Dame ("Notre Dame") became a member of the Big East in all sports except football.

Depending on who you believe, this may be the saving grace of the conference. If Notre Dame remains associated with the Big East in a non-football role, then the conference can probably survive an extreme case of turnover.

11. Accordingly, by 2000, Big East members Providence, St. John's, Georgetown, Seton Hall, UConn and Villanova did not compete in NCAA Division I football. Notre Dame competed in NCAA Division I football, but not as a member of the Big East. WVU, Rutgers, Miami, Virginia Tech, Syracuse, and Boston College competed in all sports, including NCAA Division I football, as members of the Big East. Temple was a member of the Big East only for NCAA Division I football.

The other major conferences -- the ACC, the SEC, the Big 8/SWC/Big 12, the Big Ten and the Pac-8/10/12 -- all existed during the time of major football independence. The Big East did not. The programs' loyalties were not as engrained in history and rivalry, and the fact that the conference had first existed as a non-football entity led to the existence of two conferences in one. This was, to say the least, an unusual arrangement.

12. This unusual arrangement, one in which some member schools competed in NCAA Division I football ("football schools") and some did not ("non-football schools"), led to instability in the conference. In 2003, Miami, Virginia Tech, and Boston College withdrew from the Big East in order to join as members of the Atlantic Coast Conference ("ACC").

We typically acknowledge the Big Ten's pronouncement of their intention to expand in December 2009 as the Fort Sumter of this round of conference realignment, but in a way, the covert ninjas at the ACC got the ball rolling quite a few years ago. That the Big East survived what truly was a crippling blow at the time, suggests they could probably do so again this time around. Could, not will, mind you. The odd football-basketball arrangement might not promote loyalty, but it certainly assures that the Big East is not bound to certain protocol when it comes to finding replacements for WVU, Pitt, Syracuse and whoever else might leave. Boise State for football only? Sure! Butler for basketball? Why not?

13. In the wake of Miami, Virginia Tech, and Boston College leaving the Big East to join the ACC, the Big East invited University of Louisville ("Louisville"), University of Cincinnati ("Cincinnati"), University of South Florida ("South Florida"), DePaul University ("DePaul"), and Marquette University ("Marquette") as members. Louisville, Cincinnati, and South Florida were football schools as they competed in NCAA Division I football. DePaul and Marquette joined as non-football schools as they did not compete in NCAA Division I football. Additionally, UConn became a football school as it began competing in NCAA Division I football. Finally, the Big East voted out Temple. Thus, following this restructuring in the wake of the 2003 defections, the Big East consisted of 16 member institutions: 8 football schools and 8 non-football schools.

Here's where the "two conferences in one" structure truly took hold. The Big East had an original hold in the non-football universe, so the additions of schools like Marquette, while not in any way "East," made sense. (The sentiment behind DePaul's addition also made sense, though that move has not fared quite as well, to say the least.) But in trying to remain viable in football, it had to make a completely separate set of moves. Everything worked brilliantly in 2006, with Louisville, Rutgers and others all peaking at once, but it has been a steady decline on the football side since then. (Basketball, meanwhile, has been rather epic. But if we've learned nothing else from EXPANSIONAPALOOZA™, it's that basketball doesn't matter.)

17. The Bylaws acknowledge the distinction between its member institutions that compete in NCAA Division I-A football and those that do not. The Bylaws define "Football Action" as "any matter which relates specifically to any participation in NCAA Division I-A football by Division I-A Schools...."

18. Despite the fact that half of the member institutions are non-football schools, the Bylaws allow those non-football schools to vote on football matters, stating: "Notwithstanding any provision in these Bylaws to the contrary, any vote on a matter constituting a Football Action shall be passed by a majority vote of all Division I-A School Directors only, or where applicable, by majority vote of all Division I-A School Athlete Directors only, and no amendment to this definition of 'Football Action' shall be passed without the vote of a majority of all the Division I-A School Directors...."

This really is an odd arrangement, and I'm not entirely sure why the football schools agreed to it. That Providence has an equal say in adding Boise State to the football roster, even though such an addition does not greatly affect them -- it certainly does affect them, but not as much as it affects, say, South Florida -- hinders the Big East's development in this case. Long ago, they began down the "two conferences in one" road, but in giving non-football members equal say in football matters, they are trying not to acknowledge this.

21. 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).

We have all become quite familiar with this portion of the Bylaws by now.

Denigration Of the Big East Football Conference

22. 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 and help ensure it remained an AQ conference.

"Basketball, not so much."

23. On September 17, 2011, Syracuse and Pittsburgh announced they were withdrawing from the Big East and that they had accepted invitations to join the ACC.

It absolutely blew my mind that this only happened six weeks ago. I actually looked it up to make sure it was correct. Feels more like four months.

24. On September 18, 2011, UConn President Susan Herbst issued a statement saying that although UConn was a "proud charter 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."

25. 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 a viable football conference in the near future.

Here's where the cattiness begins. It feels odd saying, in a legal document, "See? They did it too!!!" But here we are.

26. 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 its bylaws.

It made sense that TCU was not held to the same bylaws since their membership in the conference had not technically begun yet. But if it wasn't clearly laid out in their bylaws that soon-to-be members were not held to the same standards, that is going to bite the Big East, as it is a hefty portion of West Virginia's case here.

27. 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, the SEC, and the Big 10 for the purpose of trying to obtain invitations to join these conferences and withdraw from the Big East.

See? They did it too!!!!

28. 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.

This is the other major portion of their case. Recent moves (and possible other moves) have relegated the Big East's status. This is, of course, not exactly true. Pitt and Syracuse have combined for one BCS bowl bid in the last 12 (going on 13) seasons. Their departures do little to affect the Big East's "major football conference" status, even though they have two of the conference's most storied histories. Meanwhile, TCU's departure obviously doesn't hurt because they were "major" before TCU was supposed to arrive.

Commissioner's Breach of Fiduciary Duties to Football Schools

29. The denigration of the Big East football conference is a direct and proximate result of ineffective leadership and breach of fiduciary duties to the football schools by the Big East Conference and its Commissioner.

30. The Big East and its Commissioner failed to take proactive measures to maintain, let alone enhance, the level of competition for the Big East football schools.

Between this document and recent Missouri press conferences, I have become much more familiar with the word "fiduciary" than I ever thought I would.

("Of, based on, or in the nature of trust and confidence, as in public affairs.")

The use of "fiduciary" is key here, however, because of the implied trust/confidence. There has obviously been no legal breach in any of the commissioner's recent actions (or lack thereof), but there is no question that confidence in the Big East as a viable conference moving forward is at an all-time low.

31. Upon information and belief, this breach of fiduciary duty presumably forced member institutions Pittsburgh and Syracuse to withdraw from the Big East and accept an invitation to join the ACC. Upon information and belief, this breach presumably forced member TCU to withdraw from the Big East and join the Big XII.

Something else that forced Pittsburgh and Syracuse toward the exits: the ACC is, and has really always been, a sturdier, safer, stronger conference.

Something else that forced TCU to withdraw from the Big East: the Big 12 makes 1,000,000% more sense for a team based in Texas.

32. 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 and eight non-football playing 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 Bylaws, and the departure of the above-mentioned schools has rendered WVU's performance in the Big East commercially impracticable.

This is something I had not really considered before reading this document. Again, it somewhat blows my mind that the Bylaws were written in this way, and that nobody objected to it at the time. (At least, no one publicly objected in any vehement fashion that I can remember.) That this was Providence's or Seton Hall's home before it was anybody else's is likely the reason things came about in this way, but that tells me that the Big East has never been as committed to football as it should have been. It was interested in adding football for survival, not prosperity. And among other things, that is why it will never be on the same solid ground as the ACC. Or, for that matter, a Big 12 unstable enough to lose one-third of its original members in 16 months.

33. During the weeks that followed the departure of Pittsburgh, Syracuse, and TCU, and the public acknowledgement 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 newfound 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.

WVU agreed to a set of bylaws that did not prepare for this set of circumstances, so this probably does not have much legal bearing, but ... that doesn't mean the arrangement isn't a poor one.

34. This lack of leadership, breach of fiduciary duties by the Big East and its Commissioner, and voting disparity between 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.

I would be willing to bet a large portion of money that the Big East would not lose its major conference standing unless the non-football schools stand in the way of the Big East's rumored additions (Boise State, Houston, SMU, UCF). Once you obtain AQ status, it is very difficult to lose it. Again, the Big East didn't lose it in 2003, did it?

Of course, if the non-football schools do stand in the way of certain future moves, then this is an entirely different ballgame.

36. The agreement between West Virginia and the Big East, as well as the bylaws, impose on the Commissioner certain fiduciary obligations toward WVU and the other member universities.

37. These fiduciary obligations include, but are not limited to, acting to maintain a ratio of football-to-non-football universities of eight-to-eight and maintaining and enhancing the level of competition in the Big East football conference.

38. Over the past several months, the Commissioner has failed to fulfill his fiduciary obligations toward WVU by failing to act to maintain the eight-to-eight ratio between football and non-football universities within the membership of the Big East, failing to properly protect the interests of WVU as a member of the Big East, and by allowing the level of competition in the Big East football conference to substantially decrease.

If (37) is correct -- that maintaining an even ratio is a "fiduciary obligation," then WVU could be in the Big 12 by next year. Otherwise, there is probably too much assumption and reliance on "The Big East is not going to be a BCS conference anymore, we swear!" for WVU to succeed here.

40. 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 a payment of certain monies with this offer.

41. Following receipt of the aforementioned offer or proposal, the Commissioner accepted WVU's tendered enclosed payment, thus accepting WVU's offer or proposal to immediately withdraw from the Big East on the terms WVU submitted.

So if (41) were true, why is there a lawsuit at all? I am pretty sure that the Commissioner is wiling to disagree with the assertions in (41), but we will see.

48. 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.

Surely the Bylaws could disprove this, right? Or are these truly the worst Bylaws ever written?

57. Due to circumstances and events beyond WVU's control, which are substantially and materially different from what WVU reasonably anticipated, WVU's performance under the Agreement has become impossible or unreasonably burdensome. [...]

59. The Agreement does not contemplate a scenario in which the Big East football conference is no longer a viable and competitive football conference.

60. Due to these unanticipated circumstances, whereby the Big East is no longer a viable and competitive football conference, the benefits to be achieved by WVU through the Agreement are not justified by the unanticipated burden on WVU.

61. In light of this unreasonable burden, WVU's performance of the Agreement is excused and the Court should accordingly enter an order declaring the Agreement and bylaws, including the twenty-seven month notice period, to be void and of no effect as between the parties. [...]

76. Enforcing the 27-month notice provision against WVU will unreasonably force WVU to remain in the Big East for at least 27 more months.

77. 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.

This a much more well-laid case than I expected to read. It is catty, presumptuous and a bit on the gossipy side, but if it cannot be disproved in a few specific ways, then it has a chance of succeeding.

WVU hereby demands a trial by jury.

Sounds like fun.