The Arrogance of WVU’s Lawsuit Against the Big East

Dave O'Brien

The foundation of the NCAA is crumbling. Conference shake-ups are occurring daily, West Virginia is suing the Big East and now scholarships come with an additional $2,000. With all of this instability in college athletics, we here at The Legal Blitz sought a pillar of sports law knowledge to provide a steady foundation into our analysis of “What in the world is going on with the NCAA?” Who better than Drexel University Sports Management Program Director Dave O’Brien? O’Brien, a graduate of Seton Hall Law School, is the former Athletic Director of Northeastern,Temple, and Long Beach State. In other words, he knows a few things about college sports.

West Virginia’s lawsuit against the Big East alleges a laundry list of accusations against the Big East, specifically claiming the commissioner breached his fiduciary duty to the member schools. Do you think this lawsuit has the merits necessary to succeed? (for a PDF of the lawsuit, click here)

Although I haven’t seen the lawsuit yet and that puts me at a distinct disadvantage to comment in an informed way, I have read some of the reports about the West Virginia story and I’m familiar generally with the by-law provisions that a lot of conferences utilize. So as an opening what I’d say is that I saw a comment from a West Virginia spokesperson that said that the lawsuit speaks for itself.

From my view that is a very informative and on the money comment because it would seem to me that the lawsuit is both arrogant and brazen in terms of its attempt to get out of a commitment that West Virginia had made with full knowledge of its potential ramifications.

WVU thinks the Big East allowing TCU to leave without waiting the 27 months is enough to void its own contract with the conference. But TCU was never actually a full member. Does this claim have merit?

I think on a couple of fronts it may not be that relevant. Number one is that TCU was not a full member so they don’t have a history and practice of competing in the Big East. Then it is unclear from the various reports I have read what the first day of their membership was actually going to be from a competition standpoint. One article I read suggested that it was going to be July 1, 2012. So for both of those reasons — no history of TCU competing and because ostensibly their start date had not arrived — I don’t see how treating TCU one way binds the Big East in terms of how it has to treat its long standing members like West Virginia.

What does the Big East gain from keeping WVU against its will for another 27 months?

I think generally speaking when teams want to leave a conference, it does make sense to separate as soon as it is practical to do so. But in this case the Big East enjoys a BCS position and that position may be threatened by its failure to produce significant teams and accomplished teams. So for the schools that remain in the Big East, they will be reliant on West Virginia, Pittsburgh and Syracuse fulfilling their commitments.

If the Big East would lose its BCS automatic qualifying bid, is that enough for its members to claim their purpose of competing in the conference is frustrated and it is now impossible to compete for a national title, so they could all just flee if they wanted?

I wouldn’t envision that any of the by laws of the Big East make any representations about being a member of the BCS or anything other than the fact that the schools in the Big East want to group together for the purposes of playing football. I think West Virginia’s attempt to disseminate that as a reason for why they are leaving demonstrates how ludicrous their position is.

NCAA President Mark Emmert insists that the newly approved $2000 in spending money for athletes is not pay-for-play.

The NCAA recently approved conferences to provide an additional $2,000 to scholarship athletes to meet the cost of attendance. How do you think this will impact college sports?

I think overall it is a good thing for the schools that can afford to play at the highest level. The media contracts that are in existence now are so significant that it really is unconscionable not to share some of those proceeds with the student athletes who are generating these contracts with their labor.

Having said that, though, there are going to be many schools out there that don’t have access to BCS-level media contracts and these additionally expenditures are going to be problematic. I think what it suggests is that we really have gotten to the point where the BCS-level schools need to either form a new division within the NCAA or break away from the NCAA. The concept that these schools can play and compete fairly with lower level Division I schools is absurd. Schools that are on the lower end of Division I like schools in the MAC or Atlantic 10 or West Coast Conference, they are simply not going to have access to the resources necessary to have a reasonably chance to compete against BCS level schools. Ultimately I think it would be wise for schools that don’t have those resources to decide that they no longer want to compete at the highest level.

How do you think this will impact recruiting for schools that can afford the $2,000 vs. schools that can’t?

This is absolutely going to create a huge recruiting advantage for the schools that can afford the money. In addition to that, the schools that have access to these media driven contracts are going to have the dollars to retain coaches, to build state of the art facilities, to afford unlimited recruiting budgets, to solve gender equity in Title IX problems and the schools that don’t have access to these contracts will struggle to do so. In the long term I don’t see how they can compete against the schools that have those resources

NCAA scholarships will now have the possibility of being multi-year. Do you think that is a good change?

I do think it is a good idea. From a common sense standpoint, I think most coaches, schools and student athletes go into the athletic scholarship process thinking that it is a four or five-year commitment and I think that is the way it should be. Having said that I think there should be reasonable outs that exist when student athletes don’t live up to their commitment to the school in terms of their school work or off the field activities.

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4 Responses to The Arrogance of WVU’s Lawsuit Against the Big East

  1. Jericho says:

    “Although I haven’t seen the lawsuit yet…” Interesting he views WVU is arrogant, but has not read the filing. I think his comment speaks for itself. He shows his ignorance and lack of credibilty. Why not get someone who has read the filing and knows the particulars to comment?

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  3. Big East Bob says:

    Of course it’s arrogant. They agreed to the bylaws. Stay tuned. I see a fat settlement payment being made to BEC so WVU can exit earlier than 27 months.

    • WVUlaweer says:

      Of course WVUs lawsuit is arrogant, I think even they would agree to that, but it was also brilliant. WVU is in a no lose position here, they know they will have to pay to leave. They just wanted to get the ball rolling and not let the BE drag this out. WVU is a part of the state of WV and therefore can only be sued in their own courts, filing suit forces the BE to the table or risk letting a jury in WV set damages, so it is fair to say it was arrogant, just dont let that distract from the brilliance. This guy is a Seton Hall alum, so to say he is a little biased would be fair too right?

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