HUNTINGTON – A circuit judge has given Marshall University a restraining order after the school’s Board of Governors filed a lawsuit against Conference USA's request to take the school's exit from the athletic conference into arbitration.
Circuit Judge Chris Chiles granted a 10-day temporary restraining order February 24 to allow more time to review the facts of the case. However, the next available court date right now is for March 16. So, that is when it's scheduled for now.
“While Conference USA respects the court’s decision to temporarily grant the recent motion filed by Marshall University, the Conference USA Board of Governors stand firm in their belief that all Conference USA institutions, including Marshall, are expected to honor their contractual obligations and adhere to the agreed upon bylaws and covenants,” the league said in an issued statement. “Conference USA is fully prepared to move forward with the remainder of the legal process.”
The MU BOG filed its complaint February 22 in Cabell Circuit Court against C-USA seeking a declaratory judgement and injunctions against the league to proceed with arbitration.
Marshall, Old Dominion and Southern Mississippi have announced plans to join the Sun Belt Conference after being invited in October. The schools plan to begin Sun Belt play this fall. But C-USA has said it plans to keep the three schools in the conference until July 1, 2023.
Marshall sent its withdrawal notice to C-USA on November 1. It is the first of the three schools to file legal action against the league.
“For more than two months, Marshall University has attempted to reach a resolution with Conference USA regarding our decision not to participate in the league after this academic year,” Marshall University Athletics said in a statement. “However, no progress has been made.
“The action we brought (Tuesday) is the beginning of litigation intended to protect our right, help us reach an agreement in a timely manner and clear the way for our shift in conference affiliation. We look forward to a successful resolution of this matter and a bright future with the Sun Belt Conference.”
In the complaint, Marshall says it is entitled to sovereign immunity because it is an arm of the State of West Virginia, thus it should be immune from C-USA’s request for arbitration.
In addition, Marshall says the league bylaws requiring arbitration were not in effect when the university joined the conference in 2003. So, the school says there is nothing in writing that holds Marshall to those bylaws.
Last week, C-USA announced its 2022 league football schedule which included Marshall, ODU and Southern Miss. Later that day, the conference issued a statement saying it intends to “exhaust all necessary legal actions” to keep the three schools in the league until July 1, 2023.
In addition to the November 1 notice of withdrawal, Marshall also has notified C-USA it planned to leave the conference this summer on January 12, January 20 and January 25. All of those came before the February 11 release of the 2022 football schedule.
On February 15, C-USA filed a demand for arbitration.
“C-USA has a history of selectively enforcing provisions of its bylaws,” the complaint states. “Specifically, on December 2, 2014, C-USA member school University of Alabama Birmingham announced it would no longer field a football program despite C-USA bylaw requirement that member schools sponsor a football program,” the complaint states. “C-USA permitted and condoned UAB’s knowing violation of the bylaws.”
Marshall seeks the declaratory judgment asserting its sovereign immunity as an arm of the State of West Virginia. It also seeks a declaratory judgment showing a lack of mutual assent to the arbitration clause and another declaring the arbitration clause isn’t applicable. It also seeks injunctive relief because “there is a strong likelihood that Marshall would suffer actual, imminent, immediate and irreparable harm in the absence of preliminary relief, and the balance of hardships weighs in the plaintiff’s favor.”
It says Marshall’s request for injunctive relief is designed only to forestall the actions of C-USA with the American Arbitration Association, which sent a letter to Marshall on February 17, so the court “can more fully address, consider and rule upon the declaratory judgment action.”
It also says the injunctive relief would benefit the public and other schools involved regarding the scheduling of athletic events for the 2022-23 school year.
The complaint is signed by Jeff O’Malley, Marshall’s interim athletic director, on behalf of the university’s Board of Governors.
Marshall is being represented by Perry Oxley, Brian Morrison, Eric Salyers and Christopher Weed of Oxley Rich Sammons in Huntington. Conference USA is being represented by Niall Paul of Spilman Thomas & Battle in Charleston.
Cabell Circuit Court case number 22-C-66