Washington State Pac-12 Lawsuit Seeks Control of Conference
The Washington State Cougars and Oregon State Beavers are turning to court to keep the Pac-12 alive in the face of what they warn is a “strong financial incentive” on the part of 10 departing member schools “to dissolve the Pac-12 … and distribute the Conference’s assets.”
Washington State and Oregon State, along with their presidents, Kirk Schulz and Jayathi Murthy, respectively, filed a complaint and motion for a temporary restraining order in Whitman County (Wash.) Superior Court on Friday. The schools are requesting a Monday hearing on the restraining order and that a planned Pac-12 board meeting of all 12 members on Wednesday be canceled.
More from Sportico.com
Mack Brown's Anti-NCAA Tirade Over Transfer May Yield UNC Legal Fight
College Athletes May Feel Impact of Feds' Overtime Pay Reforms
Washington State and Oregon State accuse the Pac-12 and its commissioner, George Kliavkoff, of breach of bylaws and demand a TRO to “preserve the status quo.”
The schools warn that Kliavkoff has scheduled an “unauthorized” board meeting for Sept. 13 where “any purported vote taken … may doom the Pac-12’s ability to survive past 2024.”
The meeting is expected to include board members from all 12 schools, with an agenda that involves discussion of an employee-retention plan and mapping a game plan for conference governance.
According to the conference constitution and bylaws, once a member school gives notice of withdrawal, it loses its spot on the conference’s board of directors. Only Washington State and Oregon State have not announced they’re leaving the conference. Kliavkoff—Washington State and Oregon State argue—has nonetheless scheduled a board meeting where all 12 schools will have a chance to vote on important business matters.
The two remaining schools point out that “basic principles of conflict of interest” apply to this situation. A school set to join a competing conference should not have a voice on negotiations of media rights deals and other ventures, Washington State and Oregon State assert, when its allegiance is shifting to a rival that competes for “media rights deals, viewers and student athletes.”
The Pac-12’s current media rights deal will expire in 2024. Given that 10 of the 12 schools have announced they are joining another Power Five conference over the next year, the conference’s future is already in doubt.
A TRO is usually difficult to obtain, with courts reluctant to grant them. Judges consider a TRO an “extraordinary remedy” and demand a showing of irreparable harm—harm that money can’t remedy. Washington State and Oregon State maintain irreparable harm would occur since ineligible Board voters are “hopelessly conflicted” and lack “incentive to expend the resources that will be needed to retain employees and partners, recruit new members, and take other steps that would be necessary to sustain the Pac-12 after 2024.” They also contend the fact that the conference commissioner is even calling the meeting sparks “an impenetrable cloud of uncertainty” that will stymie efforts to recruit new members.
Washington State, which will host the Wisconsin Badgers Saturday night, are represented by Weil, Gotshal & Manges, while Oregon State, which will host the UC Davis Aggies Saturday tonight, are represented by several law firms.
Attorneys for the Pac-12 will offer several rebuttals.
One likely position is that Washington State and Oregon State’s concerns are speculative, premature and not yet ripe for judicial review. The conference could insist that while the two schools hypothesize potential votes that cause harm, no such votes have occurred, and none might occur.
The conference could also maintain that if the Washington State and Oregon State believe they will be harmed by votes, that harm could be remedied by money damages—and thus not constitute irreparable harm. For example, the impact of a lost TV contract opportunity or the failure to retain a key employee could be monetarily quantified.
The Pac-12 might also stress the unique circumstances of the situation and the power of the commissioner, as bestowed by the constitution and bylaws, call for unique action.
Even if the departing members may be conflicted given their new allegiances, they still possess a legal and economic stake in the Pac-12’s future. If the Pac-12 ceases to exist—a distinct possibility—dissolution of the conference, and the diving up of assets and liabilities, could trigger its own round of litigation. Denial of a voice for the departing schools at this time could strengthen their own legal claims against the conference in the future.
It’s also possible the Pac-12 argues that Washington State and Oregon State advocate for an untenable arrangement: a 12-member conference where only two members have a vote. It appears based on conference rules a majority of members are needed for a quorum.
The Pac-12 might also attempt to remove (transfer) the case to federal court. Superior court judges are elected in Washington, and the Pac-12 might figure it would have better odds before a federal judge.
