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Breaking Down The Legal Threats To The SEC

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.

 


12 comments
Scott Reid
Scott Reid

To further expand the basic situation.

If the SEC accepts A&M and the Big 12 explodes then Baylor (and schools like it) lose about $117 million in revenue (TV) over 10 years and the Ags and Slive are to blame (at least that's their case). This is why the Aggies were assuring everyone that the Big 12 would survive after they left. You can't use the ACC case as an example. The Big East survived intact as a conference and thus damages were minimal (plus TV contracts were not the insanely amounts they are now). If a conference literally implodes and scatters . . . there is a LOT of damages to be sued for.

Martes Stewart
Martes Stewart

As to all the TI involving conference realignment, the truth is that this has never gotten to a court and taken up to the final level. Probably never will either. But in the end, its not a sure thing that a conference can successfully apply the TI interference charge onto another conference, for raiding, as it where. The exit penalties present in most conference bylaws are the revenue regain from that individual entity. Domino effects have already been hard to litigate in TI cases and so unless its a mass raid saying that cause this school left, then this other school left, and that caused the damage. Also revenue sharing complicates the matter, cause while you can say Baylor was due such and such money, it was not money that they could make on their own nor were they a major contributor in the first. Then you would start to argue their actual worth as compared to the amount that they were receiving and so on.

Lots of aspects of this whole thing that any court could get hung up on not the least of which is that these are universities and that them taking on big business aspects could get them slapped with a "Its at your own risk" ruling.

r2d2jsh'00
r2d2jsh'00

It wasn't actually the Aggies who have been assuring everyone that the Big 12 would survive our departure...it was Beebe and all the REST of the member schools that were saying we could be replaced and they were going to "aggressively" pursue expansion...until OU started making noise about leaving, of course.

Thanks so much, John, for all that you do for us fans--you are really too good to us. Hope you got a good nap in yesterday afternoon while all was quiet :).

Scott Reid
Scott Reid

OU started this when their president was authorized by their board to look into options for the University. Whether it took 3 days or 3 weeks (as Boren stated) they would decide what they want to do. So now the SEC can wait (3 days, 3 weeks, whatever). If OU decides to stay, conference saved - no damages to Baylor and the Aggies are free to leave. If OU decides to leave then OU and the Pac-12 are to blame for destroying the Big 12 (and Okla St too). And in the collapse the SEC takes the Aggies and Baylor has no claim against the SEC because they left after OU and the Pac-12 destroyed the conference.

When you look at the overall strategy by the SEC . . . its really pretty straightforward and simple.

eeAg91
eeAg91

IMHO, Nebraska & Colorado started this last year; however, that's not the root cause. The B12 is an unstable conference because it in a inequitable conference, and we have the Longhorns to thank for that.

Keltic
Keltic

John,

I don't believe Baylor cares about Texas A&M leaving the conference. What they do care about is the collapse of the Big 12. That wouldn't be caused by the SEC but by the Pac-12. I do believe that Baylor intends on suing the Pac-12 if that should happen (and cost Baylor millions of dollars they have already allocated for construction improvements). However, their case against the Pac 12 would be weakened (something I read elsewhere) if they don't defend their rights against TA&M and the SEC.

If so this is a case where they have to assert their claims in all situations before they can go after the Pac-12 (who would truly be the cause of the conference's destruction). And in this case it's a stall tactic. If they can scare OU and the Pac-12 enough to kill any expansion out west then the Big 12 remains and there is no basis for a lawsuit (no damages) against the SEC or A&M. Of course they really can't sue the Aggies due to sovereign immunity - see Mike Leach - but they can force A&M to defend themselves in court (legal fees and complications).

Your thoughts?

Martes Stewart
Martes Stewart

Biggest issues is the SEC probably does not want anyone going through its mail and phone calls. I would say though that there would be a seal placed on any non relevant information, but still, small comfort. One thing I wonder about though is a counter suit. In his answer to the Arkansas scenario that would only seem to hold true if you assumed that interference was caused in the first place. If the interference claim is still unproven then the SEC would seem to have a cause, at the very least a simultaneous countersuit in which they too could initiate a discovery phase. Which I highly doubt the Big12 would want either.

Martes Stewart
Martes Stewart

My other wondering was what would be the cause of the SEC suing for tortious interference against Baylor itself. As a private university it does not have sovereign immunity and can be sued more easily than most. It also had legislators use the threat of political action, plus this lawsuit, to prevent a potential business relationship between the SEC and Texas A&M. As I was reading up on TI cases, one described where Party A would dissuade potential customers/suppliers from working or doing business with Party B. Suggesting that the interference in potential business relations was also valid for TI cases. So, long as the SEC had not yet been proven to have interfered themselves, they could use this as another counter suit.

Would they when either such suit? Probably not, but Baylor and the Big12, probably would not want the SEC lawyers delving through their things either, especially when it lets folks go after communications that Baylor might have had with their political supporters.

Badgercat
Badgercat

John, thank you for the foresight to seek opinions from attorneys and law professors regarding this "stuff." That's one reason why your site is "must see TV" for me as I've been behind the iron curtain for 17 years in Big 'Tin' land. Nice work. Again...

Kev
Kev

1 year, wow, to me that would make the Big 12 look bad as stability wise in trying to attract BYU to its school. If I were BYU, i stay independant, and adding Oklahoma's name in this list saying if Oklahoma commits to Big 12, they will waive. Baylor has nothing to lose so why not?

Micheal Cummings
Micheal Cummings

John,

Please thank Mr. Alex Long for his opinion about this situation. I think this and with what Houston Chronicle put out today(you have to read that). i believe this mess is almost done besides i don't see anybody want to be in court that long.

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  2. [...] Here’s an item at MrSEC.com that also takes a look at what sort of legal claims an aggrieved Big 12 school might file. [...]

  3. [...] sue the SEC (and perhaps even commissioner Mike Slive) for tortious interference.3.  Legal experts don’t think the Baylor has much hope of winning such a suit.4.  We at MrSEC.com have said from the beginning that BU’s move is [...]

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