The Confidential

West Virginia Sues Big East

Apparently, West Virginia is serious about leaving the Big East in time for 2012.  West Virginia has now filed a lawsuit against the Big East seeking to confirm that it may do so.  The import of this lawsuit is that it may lead to negotiations with West Virginia that ultimately pave the way for Pitt and Syracuse to join the ACC sooner.

The Confidential is not impressed with the merits of the West Virginia lawsuit.  It reads as little more than an air of “gripes” against the Big East, which–while perhaps legitimate–do not have anything to do with the negotiated 27-month period before exiting.  The 27-month period recognizes that schools can become dissatisfied and leave.  Unlike an at-will employee, West Virginia just has to provide 27-months notice.  As a practical matter, the waiting period gives the Big East ample time to find a suitable replacement and readjust schedules.  The waiting period is certainly logical.

However, the Confidential is also not persuaded that this is a lawsuit that West Virginia expects to win.  Instead, West Virginia expects the Big East to countersue for the damages caused by West Virginia not abiding to the 27-month waiting period.  This is where things get much more beneficial for West Virginia.

As a primer, it is a misconception that one cannot breach a contract.  A person is free to breach any contract he or she wants.  Among the purposes of a contract are to give the other party the right to sue for damages if there is a breach of contract.  In the absence of a contract, West Virginia could do what it wants.  With a contract, West Virginia may be sued for damages.

The mere fact that West Virginia intends to breach a contract is not proof of the Big East’s damages.  Think about it logically.  You hire a landscaper to mow your own once a week for $25 for the summer.  The landscaper calls you up and says I cannot do it anymore.  You hire another landscaper, who charges $45 a week because his slate is full.  Your damages are $20/week because of the breach of contract.  You could sue for that (but wouldn’t due to the low amount, obviously).  However, what if you hired a neighborhood teen to mow the lawn for $25 a week and this teen does just as good a job as the landscaper?  In that instance, you would not incur damages from the breach.  So the landscaper is off the hook, even though he breached the contract.

With respect to West Virginia’s situation, the Big East would have to prove damages caused by West Virginia not fulfilling its 27-month waiting period.  If West Virginia agrees to stay for 10 months, rather than 27 months, the Big East would have to prove the damages caused by West Virginia’s refusal to stay that extra 17 months.

But with good lawyering and a competent judge, West Virginia should be able to show that these damages do not include the damages caused by West Virginia leaving the conference generally.  The contract allows West Virginia to leave.  The only issue is leaving early.  If so, West Virginia should not be responsible for a reduction in television contract revenue or change in bowl structure.

If West Virginia cannot be replaced by 2012, this would leave a vacancy for the Big East.  In that circumstance, the schools might have to hire replacement opponents for football.  The costs there might be an element of damages, but no more than a few million dollars.  Basketball is unlikely to present this problem.  West Virginia would gladly agree to pay an extra few million to leave the conference.

Perhaps the schools could seek differences in attendance.  But that would be awfully hard to prove.  If 35,000 people show up to watch Rutgers host replacement Florida International, how does Rutgers prove that West Virginia would have drawn more?  Attendance is driven by the rankings on the schools.  If Rutgers was having a poor season, the quality of the opponent would not matter as much.  If West Virginia is having a down season, they are less of a draw for the home team.  And one can only guess as to the records when the schedules are revised.  Plus, who is to say what week each game would be.  It all gets very speculative and difficult to prove with much certainty.  It does not make it impossible, but it would give the Big East reason to negotiate.  In the end, it can be expected that this lawsuit will lead to a quicker resolution of the departure period and additional cost of doing so than would have been otherwise reached.

Returning to the ACC, the quicker that West Virginia and the Big East sort this out, the quicker that a “precedent” can be set for Syracuse and Pitt to depart.  If, for example, West Virginia settles with the Big East for $4 million extra, Pitt and Syracuse can approach the Big East with the same offer.  In essence, the ACC, Pitt, and Syracuse get to allow West Virginia and the Big XII do their dirty work for them.  The West Virginia lawsuit may lead to earlier realignment for the ACC.