Monday, February 20, 2012

Sportz Court: WV Deal Puts The Big East On The Brink

By Conor Flahive

While the average American spent over $100 to hold onto their loved ones this Valentine’s day, West Virginia University agreed to pay the Big East conference a figure that could surpass $20 million in return for its expulsion from the conference.

The settlement ended months of litigation that began last October when West Virginia announced its intention to leave the Big East to join the Big 12 at the start of the 2012 college football season.

After receiving West Virginia’s notice of intent to leave the conference, the Big East, which had just lost Syracuse and Pittsburgh to the Athletic Coast Conference, (ACC) and had received confirmation from Connecticut that they were aggressively seeking an invitation to the ACC, responded by saying it would hold West Virginia to their contract’s exit clause.

The settlement between WV and the Big E could set precedent for possible future cases filed by Syracuse, Pittsburgh, or Connecticut, ipso facto jeopardizing the Big East’s future BCS status - so a closer look into the claims of the two said parties could provide answers to both of these questions.

The Claims

Upon announcing its intent to exit the conference, West Virginia attempted to avoid the 27-month mandatory waiting period required by the Big East’s bylaws with claims like “breach of fiduciary duty” and "breach of contract." The Big East responded by filing a law suit to force WVA to follow the 27-month notification period before leaving the conference, as drawn up in the league’s bylaws.

West Virginia argued that the Big East and its commissioner, John Marinotto, breached their fiduciary duties to the university by failing to keep the Big East a successfully working football conference. Relying on its assertion that the Big East is “no longer a viable and competitive football conference,” West Virginia  also argued that it’s performance under the contract has become “impossible or unreasonably burdensome.” Specifically, the complaint alleges that these fiduciary obligations include, “maintaining 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.”

The use of the word fiduciary is key. West Virginia did not argue that the recent actions of the conference constituted any legal breach, but it argued that the conference broke the University’s implied confidence that the Big East would remain viable.

In its lawsuit, the Big East was sure to highlight that the BCS has confirmed its status as a BCS football conference through the 2013, and that the conference will operate the same in 2012 as it did in 2011. Further, the Big East suit points out that if West Virginia’s withdrawal forces the conference to play with fewer than eight football teams and 16 basketball teams ESPN and the Big East “shall negotiate in good faith with respect to a reduction of the rights fees.” Perhaps most interestingly, however, the Big East points out that former West Virginia President David Hardesty was “among the principal drafters of the withdrawal provisions of the Bylaws, including the 27-month notice requirement.”

Nevertheless, as elaborated on below, there is no question that confidence in the Big East as a conference moving forward is fading faster than ever. That is probably why the Big East let West Virginia off the hook. Come college football season in 2012, West Virginia will be playing in the Big 12.

The Big East’s Future in the BCS has yet to be determined

First, it is important to understand why the Big East was willing to play hardball with WVU. For the 2011-12 academic year, BCS conferences will receive $22.3 million for their qualifying team, with the potential to earn another $6.1 million if another conference member receives an at-large berth. If the Big East were to lose Pittsburgh, Syracuse, and West Virginia beginning with the 2012 college football season, the Big East has a serious chance of losing its BCS status by 2014. Here’s why:

All eleven football conferences compete for an opportunity to earn automatic qualifier status. Current BCS conferences were determined based on data from the 2004-07 seasons, specifically through three criteria:
  1. Rank of the highest-ranked conference team
  2. Rank of all conference teams
  3. Number of conference teams in the top 25
The six conferences which stoop atop that standard, including the Big East, are the current BCS conferences.

The same criteria will be used this year, using data from the 2008-11 seasons, to determine whether another conference achieves automatic qualification for the BCS games that will conclude the 2012 and 2013 seasons. Assuming that the BCS format remains the same following the 2013 season, BCS guidelines provide for the same formula to be used in determining automatic qualifier status for the 2014-2017 seasons. And that's what the Big East is worried about - holding West Virginia, Pittsburgh, and Syracuse to the conference bylaws’ 27-month exit waiting period would have ensured the teams’ Big East membership through 2013, and would have greatly bolstered the Big East’s chances of holding onto their automatic BCS bid under the 2014 BCS review.

It remains to be seen whether Syracuse, Connecticut, and Pittsburgh will use West Virginia’s litigation strategy to attempt to get out of the Big East early. Nevertheless, the imminent loss of these regional football powers is probably not going to be balanced by the addition of San Diego State, Boise State, Memphis, Navy, Houston, and SMU.

Perhaps the only way to define the Big East’s future in college football is to let go of all preconceived notions of what an intercollegiate athletic conference should be, and accept the premise that they are really the ultimate expression of college sports as a fully commercial entertainment enterprise.

West Virginia's Law Suit
Big East's Law Suit

Conor Flahive is president of the California Western School of Law's Sports and Entertainment Club. He can be reached on twitter @realC_Flahive.

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