The Big East and West Virginia have yet to work out a resolution to their competing lawsuits, but there is a status hearing set for Thursday in the case filed in Rhode Island.
As a refresher, West Virginia filed suit against the Big East in its home state in order to be able to leave for the Big 12 in time for the 2012 season. The Big East filed its own lawsuit in Rhode Island in order to compel West Virginia to stay the full 27 months before leaving, as dictated by conference bylaws. The judge in that particular case has ordered non-binding mediation in the hopes of expediting a settlement.
There are many legal questions about the cases, so I turned to two experts -- Lester Munson, ESPN senior writer and legal analyst; and Christian Dennie, a former NCAA compliance officer who now practices sports law in Fort Worth, Texas, and contributes to his firm's blog.
The biggest question is this one -- say there is no settlement and both cases proceed. What happens in the event of two different rulings? There seem to be no clear-cut answers.
Dennie: The first ruling will create critical problems for the second case because the same issues will be litigated in both cases. This would create issues of res judicata (preclusion of the case) and collateral estoppel (issue preclusion). Both are affirmative defenses that may cause the second case to be dismissed.
Munson: For res judicata to work, the legal issues in the two cases must be identical. The declaratory judgment in Morgantown is clearly a legal procedure different from the request for an injunction in Providence. A decision on a declaratory action would not bind a decision on an injunction. For collateral estoppel to work, the factual issues must be identical. Most lawyers would be able to find factual differences between these two cases. But, even if the facts are viewed as identical, that would not prevent the decisions from conflicting. Using the same facts, the Morgantown judge could say that WVU can depart, and the Providence judge could say that WVU must stay.
West Virginia has already made plans to play in the Big 12 for 2012, regardless of these ongoing court cases. Is there any way for the Big East to compel West Virginia to stay the full 27 months?
Dennie: Yes. The Big East is seeking to enjoin WVU, which would require it to honor the terms of their agreement for 27 months. This is what they are arguing in the Rhode Island case when they seek injunctive relief.
Munson: Is any judge willing to issue an injunction requiring a school to play in a conference? It’s one of those eternal questions in American law -- how much power does a judge have to force somebody in a free society to do something they do not wish to do, particularly a university? Injunction as an answer has problems all by itself. It's going to be harder for the Big East to get the injunction than it's going to be for West Virginia to get permission from the judge in Morgantown.
What if West Virginia leaves anyway?
Dennie: If the court issues an injunction and WVU does not follow the order of court, then WVU would likely be found in contempt. I doubt that will happen. They would buy out the order before letting that happen.
Munson: Christian may be correct when he says WVU would buy its way out from under an injunction and a contempt ruling. It would be difficult for a public university to defy a court order.
How solid is West Virginia's case against the Big East?
Dennie: At this point, it appears that the Big East will survive and has obtained new members to remain viable. WVU, however, argues that the conference breached fiduciary duties by not staying active during the carousel of conference realignment. In theory it is an interesting argument, but one that is difficult to make in light of the fast and loose times of the last 24 months.
Munson: The WVU argument that the Big East has failed in some "fiduciary" duty is a weak argument. I am not sure the duty even exists. It's a business organization. Its duty is to perform the collective will of its members. It's duty is to all members, not to one member. Even if it is a duty, it is not a fiduciary duty. To qualify as a fiduciary duty, it must be clearly established in law like a duty of a trustee to the beneficiaries of the trust. The WVU use of the term fiduciary duty is a desperate attempt to invent an argument where no argument exists.
What type of precedent does it set for Pitt and Syracuse should West Virginia be allowed to leave early?
Dennie: Whether by settlement or court order, this matter will set a precedent. If by settlement, other schools will know what they are negotiating against. If by court order, the schools or conference will point to the ruling as support.