Conference Realignment: How To Poach Schools Without Getting Sued

As we go through another offseason of conference f'ing realignment, you've probably seen the phrase "tortious interference lawsuit" thrown around and wondered what that means. So I, @BobbyBigWheel, wrote this Q&A with a fake non-lawyer fan to explain conference realignment lawsuits because lawyers like to explain things by badgering people with questions. It's one of the many reasons why we don't get invited to parties.

Q: So what does tortious interference mean?
A: Tortious interference occurs when someone maliciously interferes with a business relationship between two other parties. While tortious interference can involve a non-contractual relationship, realignment-related claims involve contracts, so I'll focus on that in this primer. There are five main requirements for a claim of tortious interference with a contract to succeed:

1. A contract has to exist between two parties. For example, West Virginia University and the Big East Athletic Conference.
2. Knowledge of that contract by a third party. For example, the Big 12 Athletic Conference.
3. Intent by the third party to induce a party to the contract to breach that contract. Like if the Big 12 asked West Virginia to breach its contract with the Big East.
4. Actual breach of the contract. West Virginia leaves the Big East while its contract was still in effect.
5. Resulting monetary damage. "Hey, TV networks, would you like to pay us the same amount of money to show Temple games? No? Well it was worth a shot. If you'll excuse me, I need to call my lawyer."

Q: Wow, you knew that off the top of your head?
A: If you'd asked me when I was studying for the bar then I would. But that was three years and a lot of beers ago. Now you know that whenever you ask a lawyer a question the first thing he checks for an answer is Google.

Q: So any time someone breaches a contract to get a better deal, the person offering the better deal can get sued?
A: No, because of the intent requirement; the third party has to want to induce the breach of a contract. For example, if you broke your lease because you got a better deal somewhere else, your old landlord couldn't sue your new landlord because your new landlord didn't ask you to break your old lease to move in. Unless you live in a city with a bizarre rental market.

Q: Why is this even a crime?
A: Well, it's not a crime, it's a civil penalty. And most states think that people should be encouraged to honor their contractual relationships and not interfere with those of others. I say "most" because I'm not really sure what the law is in Louisiana as a) Louisiana civil law is rooted in French and Roman traditions, not the English ones that underpin civil law in other states and b) nobody's ever tried to enforce the law in Louisiana.

Q: Can you get a lot of money if your claim succeeds?
A: Oh, indeed. In 1984 Pennzoil had entered a binding agreement to buy Getty Oil, but Texaco came in with a better price and scuttled negotiations. Pennzoil sued Texaco and got $10.53 billion from a Texas court. Texaco had to file for bankruptcy protection even though it was making money hand over fist through its business operations.

Q: Does that have anything to do with college football?
A: It does! Pennzoil paid its head attorney, Joe Jamail, a $335 million fee. Jamail then gave so much money to UT that they named the football field after him. In other words, Mack Brown gets paid in tortious interference contingency fee money.

Q: So any time a team leaves a conference, the spurned conference can sue?
A: Not in all cases. For example, if a team leaves a conference after its contract with the conference is up, then there's no claim to be made. That's why Pitt and Syracuse are waiting to leave the Big East; the ACC probably only asked them to join once their contracts were up.

Q: Is this why conferences get so tight-lipped when they talk about realignment?
A: It's certainly one of the reasons. And it's why the Big 12 general counsel probably banged his head on his desk when Derrick Brooks said the Big 12 approached FSU, not the other way around.

Q: So let's talk extended hypothetical. If FSU leaves the ACC, the ACC can sue the Big 12 for all the TV money they'd lose?
A: They definitely could, but the conferences would settle before trial.

Q: Why would that be?
A: Once a lawsuit is filed, the parties will start asking each other for evidence regarding the claims of the lawsuit. This is called discovery. Courts will force the parties to turn over pretty much anything regarding the subject matter of a lawsuit unless it is covered by a type of privilege (i.e. a memorandum from a lawyer to a client, which is privileged because we want lawyers to be able to advise their clients without fear of prejudicing them). The ACC and Big 12 would not want to release that information.

Q: What would the ACC and Big 12 be so afraid to turn over in this scenario?
A: E-mails from their employees regarding realignment and television contracts. There's an old lawyer saying that goes, "Don't write what you can call, don't call what you can say, don't say what you can wink" when referring to the ease of acquiring incriminating evidence. In 2012, you can add "don't e-mail what you can write" to the start of that phrase. E-mail is hard to destroy and it's very easy to write something dumb before hitting "send." I can guarantee you that you have e-mailed something that would reflect poorly on your employer, and if your employer ever got sued it would be very easy for that e-mail to become public.

Now imagine if your employer were an athletic conference that derives obscene amounts of revenue from unpaid labor. Attorneys for the ACC or Big 12 would not have to do much digging to find e-mails blithely indifferent to the plight of unpaid labor from Florida being forced to play games in Iowa. They could also find e-mails revealing a too-cozy relationship with the bowls. Remember how the Fiesta Bowl took consultants to strip clubs? Imagine what lengths the Independence Bowl goes through to keep ACC teams coming to Shreveport.

Q: Why would those e-mails become public anyway?
A: Because those e-mails would involve the decision-making process for asking one of the parties to breach a contract, which is part of the intent element of a tortious interference claim. And discussions about TV revenue and bowl tie-ins would help determine the damages the wronged party is entitled to.

Q: Couldn't the conferences ask the judge to keep those e-mails secret, if they'd gone this far?
A: They could, but they'd need a reason beyond "we'd be embarrassed." Most judges have "ain'tgiveashit" coursing through their veins. They don't care how bad the Big 12 or ACC would look; the conferences would have to show there was some public policy reason for keeping their conversations secret, such as the aforementioned lawyer client privilege.

Q: So would the ACC totally hose the Big 12 in a settlement because the Big 12 stands to lose so much?
A: Not necessarily. If the case went forward, then the ACC would have to air its own dirty laundry because the Big 12 would force them to turn over documents regarding how much revenue they currently receive in order to calculate damages. And they could make creative counterclaims about the ACC violating its contract with FSU itself as a defense. After all, if the ACC was in breach of the contract with FSU, then the Big 12 can't be guilty of forcing FSU to breach it.

Also, the ACC and Big 12 both benefit from the exploitative student athlete system and a protracted lawsuit would give fuel to detractors of that system. That's why a lawsuit would eventually get settled out of court. The ACC would rather play its conference championship on the Sundance Channel than lose its pool of free labor.

Q: So why would these suits even get filed?
A: The conferences get something in these settlements, at least enough to cover their legal fees. We don't know what exactly because the only people dumb enough to talk about confidential settlements are the Winklevoss twins.

So that's what's going on in all this talk of conference realignment lawsuits. Oh, and don't let than $335 million fee that Jamail got fool you; you still shouldn't go to law school.

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