WVU: Big East's motion to dismiss 'poorly veiled' move

By Jessica M. Karmasek | Dec 12, 2011



MORGANTOWN - Lawyers for West Virginia University called the Big East Conference's legal argument in a motion to dismiss filed last week "self-defeating" and said the conference's move was a "poorly veiled attempt" at changing venues.

"The Big East reasons that while WVU is contractually bound to honor all provisions in the (conference's) bylaws, the Big East's and its commissioner's purported obligations under the bylaws are simply 'aspirational goals,'" wrote Stephen M. LaCagnin of Morgantown law firm Jackson Kelly and Guy R. Bucci of Charleston firm Bucci Bailey and Javins.

"While the Big East's actions evidence its belief that it owes WVU no contractual or fiduciary duties under the bylaws, the Big East's legal argument is self-defeating. If the bylaws impose contractual duties and fiduciary obligations only on the member institutions, and not the Big East itself, then the bylaws are unenforceable and WVU's obligations under the bylaws are also 'aspirational goals.'"

WVU filed its 18-page response with the Monongalia County Circuit Court late Friday. The Big East's motion to dismiss was filed with the circuit court Dec. 5.

Lawyers for the conference argue that WVU's complaint does not state any claims upon which relief can be granted.

"Instead, (WVU) improperly tries to plead as 'claims' what in reality are attempted defenses to WVU's acknowledged breach of its obligations under the Big East bylaws," Clarksburg attorney Frank E. Simmerman Jr. and Washington-based attorney Benjamin C. Block wrote for the Big East.

WVU's move to the Big 12 was announced Oct. 28. Shortly after, Big East Commissioner John Marinatto announced that the conference intended to hold WVU to a conference bylaw that requires an exiting school to give at least 27 months notice of its departure.

WVU filed its lawsuit Oct. 31, asking Monongalia Circuit Judge Russell Clawges to void the Big East conference rules and allow the university to go ahead and join the Big 12 to begin play next year. WVU has said it intends to leave the Big East June 30, 2012 and join its new conference July 1, 2012.

Among its claims, WVU says the Big East has already accepted the $2.5 million wired to the conference as part of the $5 million exit fee and that the Big East did not uphold its end of the agreement because it allowed the conference to become unstable with several schools' departures.

Before WVU announced it was heading to the Big 12, both Pittsburgh and Syracuse said they were headed to the ACC. Texas Christian University, which briefly agreed to join the Big East, decided to switch to the Big 12.

WVU's Board of Governors also argues that TCU was not required to give 27-months notice when it announced plans to leave the conference.

In response, the Big East says WVU's argument that it tendered part of the required withdrawal fee is deficient. "Partial performance does not exercise full compliance," it wrote last week.

The conference argues that WVU cannot allege that its bylaws applied to TCU, given the recognition in WVU's complaint that TCU was not yet a member of the Big East.

While it does not agree with the conference's arguments, WVU says "most puzzling" is that the Big East is asking the circuit court in West Virginia to dismiss the lawsuit but asking a Rhode Island court to proceed against WVU on identical claims.

Four days after WVU filed its suit in West Virginia, the conference countersued in Rhode Island. The Big East is based in Providence.

"The Big East's message is clear: it is not that WVU failed to state a viable cause of action, it is that justice is just a little bit better served in the Superior Court of the State of Rhode Island," LaCagnin wrote for WVU.

"The Big East's motion should be denied for what it is -- a poorly veiled attempt to escape this court's proper jurisdiction."

A hearing on the motions is scheduled for later this month, with a trial tentatively set for June 25, 2012.

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Bucci, Bailey and Javins State of Rhode Island

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