So much of the lawsuits between the Big East Conference and West Virginia University will rely on the evidence presented or uncovered during the discovery process. One major piece of evidence will be the Big East bylaws, a document that outlines the contractual relationship between the conference and its constituent members. Both parties have made arguments related to that document.
Thanks to the Providence Journal, however, we have obtained both the Big East bylaws and a copy of the WVU letter providing its notice of withdrawal from the conference. After taking a look at them the following things stood out:
- Football Actions are actions of the conference that uniquely affect the football schools. Non-football schools, Notre Dame and Football-only affiliate members do not get to vote on these issues.
- Every member (affiliate members excluded) must participate in the conference in a varsity sport if the conference sponsors it, unless waived by a 1999 agreement (the 1999 agreement presumably exempts Notre Dame, Villanova and Georgetown football).
- The commissioner is required to "promote the prestige and success" of the conference.
- Revenue is allocated by a majority vote of the conference directors (school presidents), but football revenue must only be allocated to football schools.
- New members are voted on by the directors (all school presidents) and a three-fourths vote of those directors is required to admit a new member.
- In extraordinary circumstances, the football members can add a member as a football action — meaning it can be done without the non-football schools.
- If the football schools and basketball schools vote as blocs, the number of schools on each side of the vote is irrelevant and the vote is deemed a tie (meaning that having 5 football schools voting for School X and 8 non-football against results in a tie - or vice-versa).
- The members must work in good faith to resolve all disputes.
- Football-only schools are not "members" of the conference unless required by the NCAA or BCS (if this is required, the membership agrees to grant them limited membership). They do not get a vote on conference issues or football issues, but get a share of football revenue.
- Members may unilaterally withdraw from the conference if they: (1) provide written notice of withdrawal with an effective date 27 months after receipt by conference; (2) pay a fee of $5million, due in four equal payments between notice date and withdrawal date; and (3) they must continue to play all scheduled competitions until their effective withdrawal date.
- Bylaws claim that members believe that failure to withdraw with the withdrawal rules would result in irreparable harm (Editors Note: We believe this provision is largely irrelevant).
- The conference is "entitled to seek and obtain equitable relief," or in other words, the conference is given permission to ask the court for an injunction to force compliance with the bylaws. (Editors Note: We believe this provision is also largely irrelevant).
- If the conference has to "initiate any injunction or other such proceedings," the withdrawing member must pay the Conference's legal fees and costs.
- All rights of the withdrawing member cease as of their effective date, including their right to any payments that would be scheduled to be made after that date.
- The fees and notice requirements are not required if the departing member is reclassifying to NCAA Division II, III or NAIA status.
- The conference can be dissolved on the vote of two-thirds of the conference directors.
Does anything change?
Not really. There weren't any huge surprises in the bylaws, but there are a few items above that will help or hurt the arguments of the two sides.
First, the West Virginia argument that the conference has a duty to maintain an 8-to-8 balance of football to non-football members seems less likely to succeed. There is no mention of such a balance being necessary in the bylaws. Those bylaws do contemplate the possibility of imbalances between two interest groups, however, and have a provision that prevents the possibility of a a voting bloc to take the reins of the conference (third bullet under "new membership.").
Second, the allegations by WVU that the conference waived the withdrawal provisions by not requiring TCU to give notice remain in question. The bylaw provisions regard "members" of the conference. When a school officially becomes a member is not clearly established in the bylaws, but since TCU did not have a member on the Big East Board of Directors, they were clearly not considered a member of the conference by leadership. That fact would tend to defeat the waiver argument.
Third, the WVU withdrawal letter to the Big East does not offer to pay any sum in exchange for an early withdrawal. It describes the fee paid, of $2.5 million as an "initial portion of the withdrawal fee." That amount is due, according to the bylaws, on the 9-month anniversary of the withdrawal notice, which is an irrelevant fact where the 27-month notice provision is not complied with.
For the Big East, the biggest change from our initial assessment of their complaint is that the legal fees provision doesn't clearly grant fees to the conference if they win without securing an injunction. The language of that provision would hold WVU to paying the conference's legal fees, if the conference has to, "initiate any injunction or other such proceedings."
Are money damages under the definition of "other such proceedings?" A court will have to make that determination. It is likely still a good possibility, however.
The one thing that is entirely unhelpful here is that the bylaws have no mention of the proper venue for any such legal disputes. We expect both parties to respond to the others' complaint with a motion asking the court to dismiss the each case in favor of the other. The decision of those courts would be based on local procedural law (with which, I am sadly unfamiliar). It is possible that both cases could continue forward, which could create a judicial mess.