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Non-binding mediation on the agenda for Big East, WVU

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As West Virginia and the Big East conference continue to battle over WVU’s desire to leave for the Big 12, a Rhode Island judge has ordered a non-binding mediation between the two sides, according to the Associated Press.

Providence County Superior Court Judge Michael Silverstein signed the order on Tuesday and the two sides are scheduled to meet with a third-party mediator and report for a status conference on Feb. 9. The Big East must also respond to West Virginia’s filings by Jan. 18.

The meeting is non-binding, which means topics discussed are informal in nature and confidential, and thus not allowed to be used during trial. The two sides reportedly have yet to meet, although each side has filed a motion to dismiss the other’s lawsuit against them. Both of those motions have been denied.

Additionally, the Big East has filed an injunction against WVU to keep them in the conference. If both sides are unable to reach an agreement with the mediation, the Big East’s motion for the injunction will be heard on April 11th.

West Virginia has maintained that they will be a member of the Big 12 starting July 1, 2012, despite Big East bylaws that state the institution must wait 27 months before exiting the conference.

A trial for WVU’s lawsuit had been tentatively set for June 25. The initial feeling was that the two sides would eventually settle out of court for an undisclosed amount of money. However, the Big East has stood by its belief that it will keep WVU to the bylaws that the school reaffirmed with the rest of the conference on Oct. 17, two weeks before WVU filed its lawsuit against the conference.

The mediation could resolve that, but the emphasis is on “could.”

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24 Responses to “Non-binding mediation on the agenda for Big East, WVU”
  1. LogicalConsideration says: Jan 12, 2012 9:56 AM

    Ben,
    As I understand it, WVU’s main point of contention is that because the Big East chose not to go after Tulane AT ALL when it reneged on its planned entry into the Big East next season, it is legally barred from electing to go after WVU for essentially doing the same thing.
    Now obviously, there is a factual difference in that Tulane never actually played a game (in any sport)as part of the Big East. However, since the reason for the rule was to provide stability to the conference and let the conference, its member schools and its TV partners make plans into the future, Tulane’s withdrawal is just as egregious (or non-egregious, depending on your point of view) as WVU’s.
    It seems to me either the Big East had to go to war with both or neither. And, obviously, how you resolve this also pretty much determines when Pitt and Syracuse officially join the ACC.
    It would be a great blog post if you talked to some legal experts not involved in the case directly (maybe lawyers who have been involved in previous conference realignments that invovled similar rules) and see what light they might shed on the issues.
    I may be wrong, but if I’m wrong I want to know why.

  2. woebegong says: Jan 12, 2012 9:58 AM

    I am not a lawyer, thank heavens, but I don’t see a lot good coming out of any meeting, if it is non-binding and therefore, doesn’t obligate either side in any way. I am not sure why WVU doesn’t feel it has to abide with the 27 month condition if it was there when they joined or instituted after they were in place, and they didn’t object then or go to another conference at that time. Is it over the exit money more than anything maybe?

  3. daiatlas says: Jan 12, 2012 10:06 AM

    The settlement wouldn’t be “undisclosed” for very long. Settlements of public entities are public information in WV; so, if WVU actually pays anything we will all eventually know the amount.

  4. woebegong says: Jan 12, 2012 10:14 AM

    I hope they just settle it one way or another, and let WVU get into a better conference. I think they might just surprise a few of the folks they would be paired against. They sure did the ACC.

  5. whoisedgy says: Jan 12, 2012 10:16 AM

    @logical

    TCU not Tulane

  6. tomtravis76 says: Jan 12, 2012 10:24 AM

    Whats the point of holding these schools in a conference they don’t want to be in? Just work out a financial deal, since this has all been about money anyways, and move forward. Let WVU, Cuse and Pitt go, take the money and use it wisely to improve the conference/schools.

  7. LogicalConsideration says: Jan 12, 2012 10:27 AM

    Oops, thanks whoisedgy. Conference realignment has been like whack-a-mole. So many pop-ups and shift arounds it’s easy to get mixed-up.

  8. woebegong says: Jan 12, 2012 10:31 AM

    I agree. The only legit school left pretty soon in the big East will be Boise. I think even they will regret that, because I believe, unless the NCAA does something about a play off type system, the Big East will lose it’s AQ, and they might even do that if they do adopt some type of play off system.

  9. Ben Kercheval says: Jan 12, 2012 10:32 AM

    Logical,

    I tried reaching out to a sports business lawyer a while back and didn’t have any luck in a response. I will, though, try her again. Thanks for the suggestion.

    Also, it’s TCU, not Tulane, but I understood what you meant. To address your point about TCU/WVU similarities: while compelling, to me, it’s not quite the same. Although BE teams began scheduling with the intention of having an 8th conference game (TCU) and are now having to work around that, the bottom line is the Frogs never played a game in the conference. In other words, they weren’t a lost inventory that could affect TV contracts. There is no “irreparable damage” from the loss of TCU because the Big East is still basically in the status quo.

    Now, from WVU’s perspective, the loss of TCU goes with the idea that the conference has degenerated past an appropriate point where the school must do what is best for it. The problem is TCU left before the conference members unanimously voted to reaffirm the exit bylaws. To my recollection, then, TCU was not part of that vote. WVU was, and did so with the knowledge that TCU, Syracuse and Pitt were all leaving.

  10. rubbernilly says: Jan 12, 2012 10:45 AM

    Hey, Ben, how about some discussion of the implications of this on the Big12?

    How can they go about scheduling for next year? When is the schedule supposed to come out? Or is the schedule already set? If it’s set, then how would WVU “being a part of the Big12″ have a quantitative difference from being a part of the Big East, if they’re going to play the same schedule?

    And what about the evil eye the BigEast must be giving the Big12 over this? Could there be some threat of a lawsuit (BigEast suing Big12) if the Big12 goes ahead and includes WVU on their schedule before the legal system plays itself out?

    The Big12 must be like the new boyfriend, waiting to take his girfriend out on a date, but having to wait in the living room while she’s fighting with her ex in the kitchen.

    I wonder what the perspective must be from that POV. Anything you can share re: the B12’s take on all of this?

  11. Ben Kercheval says: Jan 12, 2012 11:01 AM

    rubber,

    A couple quick points:

    The Big 12 has not set a schedule yet because of the hold up on the WVU lawsuit. That’s why WVU needs to get this figured out ASAP, not just for their or the Big East’s sake. As for a Big East/Big 12 lawsuit, that hasn’t been brought up yet, although it very well could. If WVU leaves the Big East and plays in the Big 12 without resolving this litigation, it could see a financial penalty far beyond the $5-$10 million in exit fees it would likely pay.

    Conversely, the Big 12, as I understand it, faces a financial penalty from FOX (again, I believe) if it doesn’t have enough inventory for the ’12 season (i.e., 10 teams).

    I will definitely try again to get the sports lawyer for a few minutes for a Q&A. Lots of angles here, for sure.

  12. LogicalConsideration says: Jan 12, 2012 11:04 AM

    Thanks, Ben.

    And to whoever gave Ben a thumbs down on his response to my inquiry, what is your problem? He’s providing information (heck, he didn’t even have to respond to my inquiry for followup information). Yes, he provided an opinion, too. But it was a reasoned and well thought out opinion. The reasons he gives for TCU’s and WVU’s positions not being the same are quite good. Reasonable people can differ on how to way the arguments for both sides. Personally, I hope WVU wins simply because I think it will help Pitt and Syracuse get out faster. Ben’s opinion, if correct, means that I am less likely to get what I want. But that doesn’t mean his opinion is bad. He has no control on the process whatsoever.

  13. thefiesty1 says: Jan 12, 2012 12:13 PM

    The Big 12 should just replace Missouri with West Virginia on scheduling. Ignore the Big East and the courts. What’s the Big East going to do after WVA doesn’t show up for any of the Big East schedule? Sue? So What, they’ve already sued. Take the buyout and go go from there. You can’t hold a school hostage. WVA just won the Big East a BcS game. Thank them for adding money to their coffers and laugh all the way to the bank.

  14. drummerhoff says: Jan 12, 2012 12:40 PM

    @Ben

    Should you get in-touch with a lawyer, please ask if the concept of ‘material breach’ applies.

    For example, if you subscribe to a cableTV line-up, lets say a Sports package, and the Cable company drops ESPN from its line-up, the subscriber has the right to cancel the service w/o penalty by citing material breach.

    The question for the lawyer is ‘Can WVU argue that Pitt & Syracuse’s departure created a material breach?

  15. frug says: Jan 12, 2012 2:01 PM

    @drummerhoff

    I can’t see how the departures of Pitt and ‘Cuse would be a material breach since they are abiding by the 27 month requirement.

  16. LogicalConsideration says: Jan 12, 2012 2:44 PM

    @thefiesty1
    You miss the point of the dueling lawsuits entirely. The two sides can’t agree on what the exit fee should be and they also can’t agree as to whether it functions simply as liquidated damages (thus there being no additional potential damages) or is simply a deterrent to leaving and leaving open the possibility for claims by the Big East (and possibly individual members) of damages far in excess of what the exit fee might be. Barring settlement, the lawsuits won’t simply evaoprate because WVU kicks off the season at a Big12 school.
    Remember the lawsuit when Boston College left the Big East for the ACC? The resulting settlement was $5,000,000, including a $1,000,000 exit fee paid by BC. And that was a case where BC waited nearly two years (and one full football season) where the Big East bylaws at the time only required 12 months of notice. And, BC wasn’t nearly as critical to the Big East as WVU is.
    I predict WVU will play next season in the Big12, but I bet they end up paying at least $5,000,000 to do it. Also, this will settle before the NCAA basketball tournament tips off.

  17. LogicalConsideration says: Jan 12, 2012 2:57 PM

    @frug, I don’t think drummerhoff is asking whether Pitt and ‘Cuse will be in material breach. Rather, he’s asking whether they entirely legitimate, follow the rules to the letter, departure leaves the Big East itself in breach towards WVU in that the Big East is required to maintain itself as a viable stable conference.

    Personally, I tend to think their departure does leave the Big East in a position that is in breach of its duty to the remaining conference members. HOWEVER, I don’t think the Big East is in breach UNTIL Pitt and ‘Cuse actually leave, sometime in 2013. (In theory, the 27 months of notice won’t expire until the end of 2013, but apparently conventional wisdom is that ultimately the Big East will relent rather than have to deal with the issue of not one but two “lame duck” seasons—who wants THAT officiating headache?)

  18. LogicalConsideration says: Jan 12, 2012 3:03 PM

    Oh and further info, the Big East views the exit fee as mandatory even if you wait 27 months. Apparently, Pitt and Syracuse were both offered the opportunity to leave as early as they wanted to for the price of $21 million (each). They both declined. One would presume that the $21 million dollars is based on some calculation by the Big East as to what it will actually cost them in lost revenue for the remaining schools. Whether the numbers actually justify it, I don’t know.

    I also predict that if the Big East settles with WVU for around $5 million and agrees to WVU starting Big 12 play this fall, Pitt and the ‘Cuse both will look the Big East in the eye and say, “Here is our $5 million. We are starting play in the ACC at the beginning of the 2013-2014 season (only about 22 months after announcing the move). Sue us if you dare.” Afterall, they would be in less of a breach than WVU.

    And, if the Big East gives them any crap, they may say fine, “We’ll move to the ACC to start the 2012-2013 basketball season. How ya like them apples?”

  19. frug says: Jan 12, 2012 8:17 PM

    @logicalconsideration

    My point was if they let ‘Cuse and Pitt leave early the conference would have committed a material breach. As for the $21 million, that was an unsubstantiated report, and even if true, it would have little effect on WVU’s case.

  20. rubbernilly says: Jan 12, 2012 8:39 PM

    Thanks, Ben. Good info, and I look forward to reading more.

  21. fflnick says: Jan 12, 2012 11:31 PM

    Just from an outsiders point of view, I don’t see how WV has a case. They agreed to the rules and help craft them. If the Big 12 wasn’t in need of team next year, would they even sue? Probably not.
    What’s the point in having an agreement clause that everybody signs and one institution decides to to bypass it because it doesn’t work with their timing.

    I think WV looks really bad. I know WV fans will take exception to this but if your institution is not acting with integrity, it should be stated. They come across as an institution with no morality, that money and their own needs is what matters. If you are potential student, that would trouble me in considering attending their university.

    The ethical and frankly “manly” thing to do is to honor their obligation that they agreed to or offer the Big East considerable more $ to leave early with the caveat all of the other schools agree and it is crafted into the agreement. If the Big East says no, then honor their word/ their agreement.

  22. wvman says: Jan 15, 2012 7:15 PM

    TCU signed the same contract as other BE schools and should have been held to a 27 month rule if it exists. WVU didn’t “reaffirm” as stated-WVU voted for a monetary increase if certain teams were added. To date those teams have been added. Nothing about the 27 month rule was discussed at that time.

    The Big East still owes monies to WVU for past performance such as the Final Four run. Pitt and SU left and discussed getting out early with the Big East as has been publicly reported. They may also have offered the two a buyout. UConn, Rutgers, Louisville and Cincy began open public attempts to move on from the conference when Pitt and SU announced. The league was and has deteriorated from what WVU signed on for. No guarantees other teams won’t be offered and move on–if a couple more were offered now the league could lose AQ status or even its standing as a league. Even after WVU left the BE didn’t try to add anyone for months and has apparently decided not to do so until 2013.

    WVU received an offer to move and as their former conference was in rapid decline with little to no leadership they had no choice but to move on.

  23. wvman says: Jan 15, 2012 7:16 PM

    TCU signed the same contract as other BE schools and should have been held to a 27 month rule if it exists. WVU didn’t “reaffirm” as stated-WVU voted for a monetary increase if certain teams were added. To date those teams have not been added. Nothing about the 27 month rule was discussed at that time.

    The Big East still owes monies to WVU for past performance such as the Final Four run. Pitt and SU left and discussed getting out early with the Big East as has been publicly reported. They may also have offered the two a buyout. UConn, Rutgers, Louisville and Cincy began open public attempts to move on from the conference when Pitt and SU announced. The league was and has deteriorated from what WVU signed on for. No guarantees other teams won’t be offered and move on–if a couple more were offered now the league could lose AQ status or even its standing as a league. Even after WVU left the BE didn’t try to add anyone for months and has apparently decided not to do so until 2013.

    WVU received an offer to move and as their former conference was in rapid decline with little to no leadership they had no choice but to move on.

  24. thegamecocker says: Jan 16, 2012 9:49 AM

    Oh to be a lawyer in this case…the minutes just continue to pile up and the money pouring in…..

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