Since word leaked out late Tuesday night that Baylor was threatening to sue the SEC and/or league commissioner Mike Slive, we at MrSEC.com have received a number of emails from attorneys and legal experts wishing to help explain the situation. Each was presented with a list of questions to answer, but only one was a) qualified enough and b) bored enough to fill out our questionnaire in full… for publication.
Below is a 10-shot Q&A with University of Tennessee associate professor of law, Alex Long. Mr. Long is in his fifth year of teaching at UT. One specific area of law that he teaches and has written about? Torts.
And since we’re talking about a possible tortious interference case (rather than a pass interference case), we figured Mr. Long would be able to provide some solid answers to our numerous questions. Here goes:
Q1: No billion-dollar entity (like the SEC) should blow off any type of threatened lawsuit without first studying the possible worst-case outcomes. If Baylor was to file a tortious interference claim, what would the school’s odds be of winning such a case?
AL: There are about a thousand variables involved, and I don’t know at least 100 of the relevant facts. But with that lawyerly disclaimer in mind, in a nutshell, I think that if it turns out that A&M initiated the contact with the SEC, it’s going to be tough for Baylor to prevail. Assuming that A&M is actually breaching its contract with the Big 12 by leaving, then Baylor would have to show (1) that the SEC intended to cause A&M to leave the Big 12; (2) that the SEC’s actions actually did cause A&M to leave; and (3) that damage to Baylor resulted. If A&M made the initial overture to the SEC instead of the other way around, it’s going to be tough for Baylor to establish that the SEC’s actions caused A&M to do something it wasn’t already inclined to do. So, the SEC’s actions wouldn’t be the proximate cause of A&M’s departure, in which case the lawsuit fails. The other problem for Baylor that I see is establishing damages. If Baylor can establish causation, I would guess Baylor could plausibly claim that it will suffer damages based on the loss of revenue resulting from a weakened Big 12, but the extent of those damages would seem to me to be really, really speculative. I’m not sure they can be calculated with any degree of certainty. How much money is Baylor going to lose if A&M leaves? I’m not sure how you can calculate that. That’s partly why the Big 12 probably included a penalty clause in its contract with A&M in the event that if a team leaves the Big 12 that clause forces the departing team to pay the Big 12 when they leave — because it’s tough to predict how much damages will be in these situations… and it’s a way to insure the Big 12 gets paid something.
Q2: Nebraska and Colorado left the Big 12 last summer. Numerous Big 12 presidents and coaches have said that their departures destabilized the league. Would such comments help the SEC’s case?
AL: Yes for the same reason I mentioned above. If the league was already destabilized and A&M was already inclined to leave for that reason, that makes it tougher for Baylor to establish that the SEC’s actions actually caused any damage to Baylor that wasn’t going to occur eventually anyway. That’s especially true if, again, A&M was the party who flirted with the SEC first.
Q3: Does it matter that A&M would be breaking a contract with the Big 12 and not Baylor specifically?
AL: This question makes my head hurt with all of the possible issues it raises, but the short answer is that I think this could potentially be a problem for Baylor. The SEC’s alleged interference didn’t cause the Big 12 to terminate its contract with Baylor. That makes Baylor’s claim different than most interference claims, where Party A and Party B have a contract, and Party C intentionally causes Party A to breach that contract. Here, I think you can argue that Baylor is Party D (and that Party D) has a completely separate contract with Party B (the Big 12) and the SEC didn’t set out to interfere with that contract. (But I don’t know for sure how all of these contracts are structured, so I’m scared to delve too far into this.)
Q4: Who would preside over such a hearing? Would there be any fear of the SEC having to deal with a pro-Baylor or pro-Big 12, Texas-based judge?
AL: I’d bet that somewhere in all of the Big 12 bylaws and agreements that there is a provision that lays out which state’s law will apply in the event of a lawsuit. I’m sure Baylor would file a claim in Texas if it can. Surely you aren’t suggesting that a Texas judge would engage in some home cookin’, are you?
Q5: How might the situation change if Baylor was joined in a suit by other Big 12 members?
AL: If the case is styled “The Big 12 v. the SEC,” that alleviates the concerns I mentioned in #3 above.
Q6: How long might something like this take to actually reach a courtroom?
AL: To actually get to the merits of the case, you could easily be looking at a year.
Q: It certainly looks like this is simply a stall tactic by Baylor and a few of its Big 12 comrades. Just your take… but if things continue to drag out, do you believe the SEC could safely go ahead and invite A&M into the fold despite the threat of a lawsuit?
AL: That’s why the SEC’s lawyers get paid the big bucks to provide that kind of advice. I just don’t know enough details to say.
Q: There haven’t been many cases like this in past expansion moves. With TV contracts now the #1 cash cow for major conferences, have Baylor’s actions opened the door for these types of suits to be filed (or threatened) any time a school attempts to leave a conference?
AL: College football realignment kind of feels Wild West-esque and lawless right now anyway, so I wouldn’t be at all surprised to see lawsuits start flying from all directions if the Big 12 falls apart.
Q: If a tortious interference case were filed, would A&M and the SEC be forced to reveal all types of electronic communications and financial records? That could be embarrassing. Also, would the Big 12 or Baylor have to reveal info too?
AL: Absolutely. The parties would conduct what’s called “discovery,” which is basically the process by which the parties uncover relevant evidence. And I’m sure all of the parties would request every letter and email and a description of every phone call and face-to-face meeting that has taken place, some of which is undoubtedly going to prove embarrassing for somebody in all of this. There isn’t a whole lot that is undiscoverable.
Q: We joked on MrSEC.com yesterday that since the Big 12 contacted Arkansas — A&M and the SEC claim that A&M contacted the SEC, not the other way around — the SEC should file suit against the Big 12. We were kidding because technically the Big 12 might have tried to lure Arkansas out of its contract with the SEC, but it didn’t succeed. However, could the Big 12′s attempt to grab Arkansas be used to strengthen the SEC’s case if it is sued? In other words: “See, they’re suing us for something they themselves are doing.”
AL: It’s not a crazy theory, but I don’t think it would work. With interference cases, you are allowed to take lawful actions to defend your own interests that are being threatened (like the Big 12 allegedly threatening the SEC’s interests by allegedly trying to steal away Arkansas), but trying to unlawfully steal away A&M (allegedly) wouldn’t be justified. The remedy for unlawful interference isn’t more unlawful interference.