Latest Wilner

[palouse*rr]

Pac-12 urges court not to dismiss “poaching penalty” lawsuit against Mountain West
The Pac-12 wants the penalty, which was part of a scheduling partnership, declared invalid
By Jon Wilner
Three months ago, the Pac-12 began legal proceedings against the Mountain West over the poaching penalties included in their scheduling agreement for the 2024 season. The lawsuit called the $55 million penalty anticompetitive and asked the court to declare it “invalid and unenforceable.”
Predictably, the Mountain West responded with a motion to dismiss the case, claiming the Pac-12 failed “to allege any harm to competition or to itself.”
The latest move came Monday in the Northern District of California, where the Pac-12 filed its opposition to the motion to dismiss the case — a response to the response, essentially.
It reads, in part:
“After the Pac-12 accepted applications from five current MWC members to join the Pac-12 beginning in 2026, the MWC sought to enforce this illegal Poaching Penalty by demanding $55 million from the Pac-12—an amount the MWC knows will cripple the Pac-12 moving forward and thwart further competition for member schools.
“Now, the MWC asks the Court to close its eyes while the MWC runs roughshod over basic legal principles promoting fair competition. The Court should reject the MWC’s effort and deny the motion to dismiss.”
The document, obtained by the Hotline from court filings, takes issue with the Mountain West’s categorization of the poaching penalty as “ancillary” to the scheduling agreement — that the former was a necessary component of the latter.
It argues that the poaching penalty was, in fact, “entirely unrelated to scheduling football games and designed to limit the Pac-12’s ability to compete with the MWC for years into the future, even after the Scheduling Agreement has expired.”
The scheduling agreement created six games against the Mountain West for both Washington State and Oregon State in the 2024 season, when the schools were forced to compete as a two-team conference.
(Their purgatorial state will end in the summer of 2026, when Boise State, Colorado State, Fresno State, San Diego State, Utah State and Gonzaga, as a non-football member, join the rebuilt Pac-12.
The conference must add at least one more full-time member to meet NCAA requirements and is expected to make a move this spring.)
The poaching penalty included in the scheduling agreement called for the Pac-12 to pay the Mountain West a baseline figure of $10 million for every team that joined the Pac-12, with a $500,000 increase for each subsequent school.
With five schools making the jump, the penalty is $55 million.
Mountain West commissioner Gloria Nevarez defended her conference after the lawsuit was initially filed in September.
“The (poaching) provision was put in place to protect the Mountain West Conference from this exact scenario,” Nevarez said in a statement. “At no point in the contracting process did the Pac-12 contend that the agreement that it freely entered into violated any laws.”
But a letter to Nevarez from Pac-12 commissioner Teresa Gould in September, obtained by the Hotline through a court record request, seemingly indicates the Pac-12 opposed the poaching penalty in real time.
Gould wrote that the Mountain West imposed the fees “over the Pac-12’s objection” during the fall of 2023, when the Cougars and Beavers were “desperate to schedule football games” and “had little leverage to reject this clear restraint on competition.”
The lawsuit argues that the poaching penalty was designed “to stifle” competition and create an “artificial barrier to entry” for schools to join the Pac-12 — a barrier that also harms the Mountain West’s own members by limiting their market value in college football realignment.
The Pac-12 is not seeking damages.
Any reduction in, or elimination of the poaching penalties could clear cash for the Pac-12 to use to lure additional members by the NCAA deadline (July 1, 2026).
Meanwhile, the Mountain West is counting on the $55 million to compensate its remaining schools for the damages caused by the defections of the five members.
A hearing is scheduled for March 25, according to a case timeline approved by U.S. Magistrate Judge Susan van Keulen.
In a separate development, Colorado State and Utah State initiated legal action last month against the Mountain West over the exit fees imposed on the schools departing to the Pac-12.
Yahoo was the first to report the complaint, which included a letter sent by all five schools to Nevarez.
“The Conference’s attempt to impose the Exit Fee on the Five Institutions is improper and unenforceable,” the letter says. “The exit fee, which is completely untethered to any harm to the Conference from a member’s departure, is clearly designed to punish departing members and is therefore invalid as a matter of law.”
To stabilize itself, the Mountain West has added UTEP as a full member, UC Davis and Grand Canyon in all sports except football and Northern Illinois as a football-only member.

 

[Flatlandcoug]

Pac-12 urges court not to dismiss “poaching penalty” lawsuit against Mountain West
The Pac-12 wants the penalty, which was part of a scheduling partnership, declared invalid
By Jon Wilner
Three months ago, the Pac-12 began legal proceedings against the Mountain West over the poaching penalties included in their scheduling agreement for the 2024 season. The lawsuit called the $55 million penalty anticompetitive and asked the court to declare it “invalid and unenforceable.”
Predictably, the Mountain West responded with a motion to dismiss the case, claiming the Pac-12 failed “to allege any harm to competition or to itself.”
The latest move came Monday in the Northern District of California, where the Pac-12 filed its opposition to the motion to dismiss the case — a response to the response, essentially.
It reads, in part:
“After the Pac-12 accepted applications from five current MWC members to join the Pac-12 beginning in 2026, the MWC sought to enforce this illegal Poaching Penalty by demanding $55 million from the Pac-12—an amount the MWC knows will cripple the Pac-12 moving forward and thwart further competition for member schools.
“Now, the MWC asks the Court to close its eyes while the MWC runs roughshod over basic legal principles promoting fair competition. The Court should reject the MWC’s effort and deny the motion to dismiss.”
The document, obtained by the Hotline from court filings, takes issue with the Mountain West’s categorization of the poaching penalty as “ancillary” to the scheduling agreement — that the former was a necessary component of the latter.
It argues that the poaching penalty was, in fact, “entirely unrelated to scheduling football games and designed to limit the Pac-12’s ability to compete with the MWC for years into the future, even after the Scheduling Agreement has expired.”
The scheduling agreement created six games against the Mountain West for both Washington State and Oregon State in the 2024 season, when the schools were forced to compete as a two-team conference.
(Their purgatorial state will end in the summer of 2026, when Boise State, Colorado State, Fresno State, San Diego State, Utah State and Gonzaga, as a non-football member, join the rebuilt Pac-12.
The conference must add at least one more full-time member to meet NCAA requirements and is expected to make a move this spring.)
The poaching penalty included in the scheduling agreement called for the Pac-12 to pay the Mountain West a baseline figure of $10 million for every team that joined the Pac-12, with a $500,000 increase for each subsequent school.
With five schools making the jump, the penalty is $55 million.
Mountain West commissioner Gloria Nevarez defended her conference after the lawsuit was initially filed in September.
“The (poaching) provision was put in place to protect the Mountain West Conference from this exact scenario,” Nevarez said in a statement. “At no point in the contracting process did the Pac-12 contend that the agreement that it freely entered into violated any laws.”
But a letter to Nevarez from Pac-12 commissioner Teresa Gould in September, obtained by the Hotline through a court record request, seemingly indicates the Pac-12 opposed the poaching penalty in real time.
Gould wrote that the Mountain West imposed the fees “over the Pac-12’s objection” during the fall of 2023, when the Cougars and Beavers were “desperate to schedule football games” and “had little leverage to reject this clear restraint on competition.”
The lawsuit argues that the poaching penalty was designed “to stifle” competition and create an “artificial barrier to entry” for schools to join the Pac-12 — a barrier that also harms the Mountain West’s own members by limiting their market value in college football realignment.
The Pac-12 is not seeking damages.
Any reduction in, or elimination of the poaching penalties could clear cash for the Pac-12 to use to lure additional members by the NCAA deadline (July 1, 2026).
Meanwhile, the Mountain West is counting on the $55 million to compensate its remaining schools for the damages caused by the defections of the five members.
A hearing is scheduled for March 25, according to a case timeline approved by U.S. Magistrate Judge Susan van Keulen.
In a separate development, Colorado State and Utah State initiated legal action last month against the Mountain West over the exit fees imposed on the schools departing to the Pac-12.
Yahoo was the first to report the complaint, which included a letter sent by all five schools to Nevarez.
“The Conference’s attempt to impose the Exit Fee on the Five Institutions is improper and unenforceable,” the letter says. “The exit fee, which is completely untethered to any harm to the Conference from a member’s departure, is clearly designed to punish departing members and is therefore invalid as a matter of law.”
To stabilize itself, the Mountain West has added UTEP as a full member, UC Davis and Grand Canyon in all sports except football and Northern Illinois as a football-only member.

I'll be curious to see how this plays out. In my business, we usually included "liquidated damages" that are charged by the day if the project is not completed on time. I was told that we have to provide a real world justification for the damages where it shows financial harm to the client that the project was not completed. We can't charge $5,000/day if the real world cost for additional inspection is $1,000 per day.

In the case of the Mountain West, they are clearly going to lose future revenue because the teams with actual value are leaving the conference and their ability to negotiate future TV contracts will be harmed. Does that count for anything in court? In the short term, the $55 million is clearly not based on any real world damages so does a future financial impact based on your own lack of value mean that you can punish someone for leaving you behind and creating that lack of future financial benefit?

 

[dgibbons]

I'll be curious to see how this plays out. In my business, we usually included "liquidated damages" that are charged by the day if the project is not completed on time. I was told that we have to provide a real world justification for the damages where it shows financial harm to the client that the project was not completed. We can't charge $5,000/day if the real world cost for additional inspection is $1,000 per day.

In the case of the Mountain West, they are clearly going to lose future revenue because the teams with actual value are leaving the conference and their ability to negotiate future TV contracts will be harmed. Does that count for anything in court? In the short term, the $55 million is clearly not based on any real world damages so does a future financial impact based on your own lack of value mean that you can punish someone for leaving you behind and creating that lack of future financial benefit?

What's at stake in this lawsuit is the "poaching penalty" in the scheduling agreement. The MWC teams that left are also subject to an exit fee (I believe that is in the MWC bylaws). So, the MWC is basically trying to get paid twice for a school leaving, once in the form of a poaching fee from the Pac-12 and once in the form of the exit fee from the departing MWC schools.

 

[Loyal Coug1]

palouse - thanks for the article. As a Coug, of course I want to see the lawsuit be successful. That said, I don't see it. The Pac signed the agreement willingly. Were we over a barrel? Sure. Did the MW redo their entire conference schedule to accommodate the agreement? Yes. Were they smart to throw in the poaching provision? Yes. Did the Pac understand what it meant? Yes. Did we poach anyway? Yes. OK, so pay up. There was undeniable damage to the MW as a result of the poaching.

On the exit fees - how is that different than exit fees, etc. for the AAC or ACC or any other league? It's not. Those schools signed off on the MW bylaws.

Go look at the draconian GOR, etc. that the MW traitors signed with the Pac. Is that enforceable?

 

[dgibbons]

palouse - thanks for the article. As a Coug, of course I want to see the lawsuit be successful. That said, I don't see it. The Pac signed the agreement willingly. Were we over a barrel? Sure. Did the MW redo their entire conference schedule to accommodate the agreement? Yes. Were they smart to throw in the poaching provision? Yes. Did the Pac understand what it meant? Yes. Did we poach anyway? Yes. OK, so pay up. There was undeniable damage to the MW as a result of the poaching.

On the exit fees - how is that different than exit fees, etc. for the AAC or ACC or any other league? It's not. Those schools signed off on the MW bylaws.

Go look at the draconian GOR, etc. that the MW traitors signed with the Pac. Is that enforceable?

Whatever damages the MWC would suffer from the departures is covered by the exit fees the departing schools pay. The MWC is trying to get paid by the exit fees from the departing schools, and a poaching fee from the Pac-12 for those same schools leaving. One satisfaction for one injury is what you get.

 

[Loyal Coug1]

Whatever damages the MWC would suffer from the departures is covered by the exit fees the departing schools pay. The MWC is trying to get paid by the exit fees from the departing schools, and a poaching fee from the Pac-12 for those same schools leaving. One satisfaction for one injury is what you get.

Ok, so which "satisfaction" prevails? I'm sure that a couple of ACC teams are watching this play out. Still don't see it.

Judge to Pac: Did you sign this contract? Did you benefit from it? Did you know what would happen if you turned around and poached?
Pac: Well, yes, yes and yes. But but but it was unenforceable. They had us over a barrel.

Judge #2 to MW traitors: Did you sign the exit fee provisions in the MW bylaws? Did you know what that meant?
Traitors: Well yes and yes. But we didn't think it would be enforceable. Besides, the poaching fee already punishes the Pac. So why punish us too?

The Pac, with its $250M windfall on the way, freely signed an agreement. We broke it, here is the bill for doing so.
The traitors freely signed their own exit fee agreement. Then, stars in their eyes, they chose to exit. Here's the bill for doing so.

Injury by the Pac. Injury by individual teams separate from the Pac and its coffers. Seems pretty simple.

 

[KRUSTYtheCOUG]

I'll be curious to see how this plays out. In my business, we usually included "liquidated damages" that are charged by the day if the project is not completed on time. I was told that we have to provide a real world justification for the damages where it shows financial harm to the client that the project was not completed. We can't charge $5,000/day if the real world cost for additional inspection is $1,000 per day.

In the case of the Mountain West, they are clearly going to lose future revenue because the teams with actual value are leaving the conference and their ability to negotiate future TV contracts will be harmed. Does that count for anything in court? In the short term, the $55 million is clearly not based on any real world damages so does a future financial impact based on your own lack of value mean that you can punish someone for leaving you behind and creating that lack of future financial benefit?

I would say no, it doesn't. A conference has no right to exist beyond what it can do in the marketplace. If a competitor recruits away your top members then that is a YOU problem.

It's kinda analogous to a Walmart coming into a small town and taking a small town stores customers away. A bummer for them but there is no financial recourse in court. Taihtsat

 

[dgibbons]

Ok, so which "satisfaction" prevails? I'm sure that a couple of ACC teams are watching this play out. Still don't see it.

Judge to Pac: Did you sign this contract? Did you benefit from it? Did you know what would happen if you turned around and poached?
Pac: Well, yes, yes and yes. But but but it was unenforceable. They had us over a barrel.

Judge #2 to MW traitors: Did you sign the exit fee provisions in the MW bylaws? Did you know what that meant?
Traitors: Well yes and yes. But we didn't think it would be enforceable. Besides, the poaching fee already punishes the Pac. So why punish us too?

The Pac, with its $250M windfall on the way, freely signed an agreement. We broke it, here is the bill for doing so.
The traitors freely signed their own exit fee agreement. Then, stars in their eyes, they chose to exit. Here's the bill for doing so.

Injury by the Pac. Injury by individual teams separate from the Pac and its coffers. Seems pretty simple.

My recollection is no one is disputing the departing schools owe exit fees under the MWC bylaws.

 

[dgibbons]

I would say no, it doesn't. A conference has no right to exist beyond what it can do in the marketplace. If a competitor recruits away your top members then that is a YOU problem.

It's kinda analogous to a Walmart coming into a small town and taking a small town stores customers away. A bummer for them but there is no financial recourse in court. Taihtsat

Depends. In your analogy, if Walmart is offering products at less than cost to gain market share it could be a problem under anticompetition laws. That drives out competitors and results in monopoly.

 

[Loyal Coug1]

I would say no, it doesn't. A conference has no right to exist beyond what it can do in the marketplace. If a competitor recruits away your top members then that is a YOU problem.

It's kinda analogous to a Walmart coming into a small town and taking a small town stores customers away. A bummer for them but there is no financial recourse in court. Taihtsat

Can't say that I find your analogy very comparable. At all.

That said, the March 25 hearing date is problematic. If the Pac is going to wait until then to decide who to offer as the 8th member, things will get real dicey. Article doesn't say when the exit fee lawsuit is scheduled. So there is another dicey timing issue. Compounded by the media deal. Seems like these hungry media guys would want to know who exactly they are signing a media deal for.

And I for one would like to know just where is all of our windfall going? Or has gone? We know that the Pac-2 has and is dipping deeply into the pot for current year operations.

 

[Loyal Coug1]

My recollection is no one is disputing the departing schools owe exit fees under the MWC bylaws.

Are you sure about that? Per the article, which of course is old news:

"In a separate development, Colorado State and Utah State initiated legal action last month against the Mountain West over the exit fees imposed on the schools departing to the Pac-12.
Yahoo was the first to report the complaint, which included a letter sent by all five schools to Nevarez.
“The Conference’s attempt to impose the Exit Fee on the Five Institutions is improper and unenforceable,” the letter says. “The exit fee, which is completely untethered to any harm to the Conference from a member’s departure, is clearly designed to punish departing members and is therefore invalid as a matter of law.”

Sounds a lot like the traitors are disputing the exit fees. Am I missing something here?

 

[dgibbons]

Are you sure about that? Per the article, which of course is old news:

"In a separate development, Colorado State and Utah State initiated legal action last month against the Mountain West over the exit fees imposed on the schools departing to the Pac-12.
Yahoo was the first to report the complaint, which included a letter sent by all five schools to Nevarez.
“The Conference’s attempt to impose the Exit Fee on the Five Institutions is improper and unenforceable,” the letter says. “The exit fee, which is completely untethered to any harm to the Conference from a member’s departure, is clearly designed to punish departing members and is therefore invalid as a matter of law.”

Sounds a lot like the traitors are disputing the exit fees. Am I missing something here?

The MWC still only gets one satisfaction.

I offer this analogy. You decide to make your free time more productive and start preparing tax returns. You have customers sign a one page agreement setting forth your fee and the terms of your engagement. You screw one up bigly, and the client gets tagged with interest and penalties. Your client can obtain only one judgment for the harm that you caused. Your client cannot obtain one judgment for breach of contract, and another judgment for negligence.

 

[Meister_Rebel]

Are you sure about that? Per the article, which of course is old news:

"In a separate development, Colorado State and Utah State initiated legal action last month against the Mountain West over the exit fees imposed on the schools departing to the Pac-12.
Yahoo was the first to report the complaint, which included a letter sent by all five schools to Nevarez.
“The Conference’s attempt to impose the Exit Fee on the Five Institutions is improper and unenforceable,” the letter says. “The exit fee, which is completely untethered to any harm to the Conference from a member’s departure, is clearly designed to punish departing members and is therefore invalid as a matter of law.”

Sounds a lot like the traitors are disputing the exit fees. Am I missing something here?

You have it right. The exit fee issue has nothing to do with the Pac12 and a lawsuit was filed in the State of Colorado courts by CSU and USU.

The "poaching fee" court case was filed by the Pac12 against the MWC in the State of California.

Two separate court cases unrelated to the other.

 

[dgibbons]

You have it right. The exit fee issue has nothing to do with the Pac12 and a lawsuit was filed in the State of Colorado courts by CSU and USU.

The "poaching fee" court case was filed by the Pac12 against the MWC in the State of California.

Two separate court cases unrelated to the other.

They may be separate cases, but you're completely wrong to say they are unrelated. The MWC gets only one satisfaction for any harm that it has sustained.

 

[Loyal Coug1]

My recollection is no one is disputing the departing schools owe exit fees under the MWC bylaws.

They may be separate cases, but you're completely wrong to say they are unrelated. The MWC gets only one satisfaction for any harm that it has sustained.

Wait a minute. You post (above) that no one is disputing.....exit fees.

Now you say they are separate cases. Agreed - yes they are. So the traitors ARE disputing the exit fees? Which is it Gibby?

So to offer another analogy:
Let's say that you get beaten up outside the bar by Guy #1. Let's call him "Pacman". Then Guy #2 comes along and kicks you a couple of times. Let's call him "Traitor". So even though Pacman and Traitor are two completely different entities, you can only get satisfaction from one of them?

 

[KRUSTYtheCOUG]

I said it was "kinda" analogous. All analogies break down at some point.

Customers are sorta like members. Many stores actually do have members. If a store loses its members to another store (like a conference losing it's members to another conference...)...well there you have a comparison.

And as for anti-competitve pricing, Walmart doesn't need to offer below cost. Just more options with BETTER pricing (better benefits/returns) for its members. Taihtsat

 

[Flatlandcoug]

The quote above about punishment is where I think our only hope lies. We signed a contract that we didn't like but can we prove that the terms were intended to punish the Pac-12 for taking members rather than reimbursing the MWC for lost revenue?

 

[dgibbons]

Wait a minute. You post (above) that no one is disputing.....exit fees.

Now you say they are separate cases. Agreed - yes they are. So the traitors ARE disputing the exit fees? Which is it Gibby?

So to offer another analogy:
Let's say that you get beaten up outside the bar by Guy #1. Let's call him "Pacman". Then Guy #2 comes along and kicks you a couple of times. Let's call him "Traitor". So even though Pacman and Traitor are two completely different entities, you can only get satisfaction from one of them?

The sentence starts with my recollection. I don't know if I forgot or if I never knew that some of schools were suing the MWC.

The MWC is not getting kicked twice. The MWC is getting kicked once when each school leaves. The MWC exit fees are supposed to provide the damages for that. The MWC should not get an exit fee from the schools, AND a poaching fee from the Pac-12. This is not a difficult concept to understand.

 

[dgibbons]

The quote above about punishment is where I think our only hope lies. We signed a contract that we didn't like but can we prove that the terms were intended to punish the Pac-12 for taking members rather than reimbursing the MWC for lost revenue?

I'm not sure what the anticompetition laws are in California. There could be something there.

 

[Loyal Coug1]

The sentence starts with my recollection. I don't know if I forgot or if I never knew that some of schools were suing the MWC.

The MWC is not getting kicked twice. The MWC is getting kicked once when each school leaves. The MWC exit fees are supposed to provide the damages for that. The MWC should not get an exit fee from the schools, AND a poaching fee from the Pac-12. This is not a difficult concept to understand.

Good on you Gibby. It is a rare event when you admit you were in error. I'm impressed.

That said, I am more than a little worried about you. The Wilner article was posted at 7:31, and when you posted at 11:33 you had already forgotten the separate lawsuit that was clearly identified in the article you referred to 4 hours later? Or that you "never knew" the schools were suing, even though it has been all over the news for almost a month? (link below as an example).

You know, as we age we retain less and get more forgetful. It happens. But it is particularly sad for us mature Cougs when we see our Cougmates succumbing to early onset dementia. I suggest prompt medical attention, they can at least slow the progression down. They may also counsel you not to insult your elders and betters who still fully have their wits about them.

Now, another analogy, I think this is best the best one so far: Say our friend Limpy bursts in and catches his wife with another man, let's call him Hardy. Limpy smacks his cheating wife, then turns to Hardy to beat him up. "Wait" Hardy says, "you only get satisfaction from one of us". "Come to think of it, she only gets satisfaction from one of us as well".

Colorado State and Utah State suing Mountain West over penalties for exiting league

Colorado State and Utah State have filed a lawsuit saying the Mountain West is engaging in “extraordinary and unauthorized actions” to penalize the five schools leaving the conference for the Pac-12.

apnews.com

 

[dgibbons]

Good on you Gibby. It is a rare event when you admit you were in error. I'm impressed.

That said, I am more than a little worried about you. The Wilner article was posted at 7:31, and when you posted at 11:33 you had already forgotten the separate lawsuit that was clearly identified in the article you referred to 4 hours later? Or that you "never knew" the schools were suing, even though it has been all over the news for almost a month? (link below as an example).

You know, as we age we retain less and get more forgetful. It happens. But it is particularly sad for us mature Cougs when we see our Cougmates succumbing to early onset dementia. I suggest prompt medical attention, they can at least slow the progression down. They may also counsel you not to insult your elders and betters who still fully have their wits about them.

Now, another analogy, I think this is best the best one so far: Say our friend Limpy bursts in and catches his wife with another man, let's call him Hardy. Limpy smacks his cheating wife, then turns to Hardy to beat him up. "Wait" Hardy says, "you only get satisfaction from one of us". "Come to think of it, she only gets satisfaction from one of us as well".

Colorado State and Utah State suing Mountain West over penalties for exiting league

Colorado State and Utah State have filed a lawsuit saying the Mountain West is engaging in “extraordinary and unauthorized actions” to penalize the five schools leaving the conference for the Pac-12.

apnews.com

Just because the most important thing you'll do today is drip dry in the gym locker room until the manager tells you to leave doesn't mean everyone else is spending the day creeping people out too.

 

[Loyal Coug1]

Just because the most important thing you'll do today is drip dry in the gym locker room until the manager tells you to leave doesn't mean everyone else is spending the day creeping people out too. But Gibby just did!

Nice comeback and weird insult. You post a really creepy insult, then further your insult by identifying yourself as someone who is creeping people out? How does that work?

I might venture that the most important thing you will do today, my forgetful friend, is try to remember where you parked your car, and if successful, where you live. Better leave it to the wife to look up a doctor that specializes in Dementia, Alzheimer's, etc.

 

[95coug]

I see a technicality deciding this. At the time of the agreement, the PAC-12 had not been damaged so had no cause of action. Once the MWC gave us a bill for $55M, we’ve been damaged, and the suit proceeds.
In the same way, the MWC has no claim because they have not been damaged. Once they attempt to get a new media deal and can’t reach their previous level, they have been. Maybe. That claim is much weaker because the member schools also have the right to do what’s best for themselves.

I would not be surprised if the judge dismisses the case, but I also wouldn’t be surprised if he invalidates the poaching fees. If the latter happens, I expect the PAC-12 to make a run at UNLV or Air Force. The MWC won’t be able to pay their promised retention fees, so both schools will be able to easily invalidate their agreements to stay. In turn, that further reduces theMWC value.

 

[Loyal Coug1]

I see a technicality deciding this. At the time of the agreement, the PAC-12 had not been damaged so had no cause of action. Once the MWC gave us a bill for $55M, we’ve been damaged, and the suit proceeds.
In the same way, the MWC has no claim because they have not been damaged. Once they attempt to get a new media deal and can’t reach their previous level, they have been. Maybe. That claim is much weaker because the member schools also have the right to do what’s best for themselves.

I would not be surprised if the judge dismisses the case, but I also wouldn’t be surprised if he invalidates the poaching fees. If the latter happens, I expect the PAC-12 to make a run at UNLV or Air Force. The MWC won’t be able to pay their promised retention fees, so both schools will be able to easily invalidate their agreements to stay. In turn, that further reduces theMWC value.

Meh. I don't have the full agreement anymore, is "damage" to the MW even mentioned in the agreement? And to say the MW has not been damaged (yet) is more than a stretch. There's a lot more than just the media contract involved.

And what about benefits? Did the Pac benefit by the scheduling agreement, pricey or not? Yes. Will we benefit from the addition of the 5 traitors? Yes. How much? $55M maybe?

But I don't think any of that should or will matter. We signed an agreement which we benefitted from. As part of that, we signed an agreement that we would not poach MW members during the contract term, and if we did we would pay a stiff fee. Period.

But enough of this. For me anyway.

 

[chugspig]

The exit fee is based off the liquidated damages and has real world backing due to revenue loss. The poaching fee has no backing, as liquidated damages are settled by exit fees. The poaching fee also extended unilaterally to pac12, but not any other conference which further damages their claim of the fee being relevantly backed. It’s the whole reason they have exit fees, to repay liquidated damages.

We’ll see if the poaching fees are seen as non competitive, but they certainly fit a lot of the criteria.

 

[dgibbons]

I see a technicality deciding this. At the time of the agreement, the PAC-12 had not been damaged so had no cause of action. Once the MWC gave us a bill for $55M, we’ve been damaged, and the suit proceeds.
In the same way, the MWC has no claim because they have not been damaged. Once they attempt to get a new media deal and can’t reach their previous level, they have been. Maybe. That claim is much weaker because the member schools also have the right to do what’s best for themselves.

I would not be surprised if the judge dismisses the case, but I also wouldn’t be surprised if he invalidates the poaching fees. If the latter happens, I expect the PAC-12 to make a run at UNLV or Air Force. The MWC won’t be able to pay their promised retention fees, so both schools will be able to easily invalidate their agreements to stay. In turn, that further reduces theMWC value.

Anticipated breach. The non-breaching party (allegedly non-breaching) can initiate legal action.

 

[cr8zyncalif]

I see this thread has found a rabbit hole to dive down, as per usual.

Gib is right that you only get one trip to the damages bar. I'm no attorney, but from my view, it was the MWC poaching suit that sort of opened the door to having their former members sue to get out of the exit fee. After all, if the poaching suit prevailed, that should make it easier to dodge the exit fee. You can have it one way, but you can't have it both ways. I suspect that if the poaching thing goes away, the MWC will prevail on the exit fees, unless there is more to it than is visible on the surface. Until one or the other is settled, the "one remedy for one damage" logic may be somewhat impaired. Too many balls in the air on this issue.

I don't know the basis upon which USU and CSU are alleging "extraordinary and unauthorized actions". Did they sign a different agreement than the others? Is there a clause in the agreement making it subject to state law, and Utah & Colorado have some basis in state law? Was the contract with MWC ever actually ratified? And were those at USU and CSU who may have ratified the agreement lawfully of standing to do so? Lots of questions. Since I don't know the answers, I can't really predict how their suits may go.

The speculation that the MWC may lose on both counts is unlikely. Although they can't get two remedies for one damage, they are also unlikely to get no remedies for what is clearly a legitimate and obvious damage.

 

[95coug]

The exit fee is based off the liquidated damages and has real world backing due to revenue loss. The poaching fee has no backing, as liquidated damages are settled by exit fees. The poaching fee also extended unilaterally to pac12, but not any other conference which further damages their claim of the fee being relevantly backed. It’s the whole reason they have exit fees, to repay liquidated damages.

We’ll see if the poaching fees are seen as non competitive, but they certainly fit a lot of the criteria.

I'm trying to think of a corollary, but I'm coming up empty. Coaching buyouts are based on the time remaining in the contract, and are well within the total value of that contract - they're not a penalty over and above the contract. Same for any employee departure - and with those, even the ability to restrict them from working for competitors is limited and varies by jurisdiction.
I can't think of a lot of examples where an entity/corporation is part of a consortium and gets penalized for leaving. I just don't know that the precedent for that is there. And while I agree with Loyal that we signed the contract, I also think that we can show a degree of duress...and even if that's not compelling, the lack of precedent and the anti-competitive angle might just mean that that contract term is invalid.

 

[95coug]

I see this thread has found a rabbit hole to dive down, as per usual.

Gib is right that you only get one trip to the damages bar. I'm no attorney, but from my view, it was the MWC poaching suit that sort of opened the door to having their former members sue to get out of the exit fee. After all, if the poaching suit prevailed, that should make it easier to dodge the exit fee. You can have it one way, but you can't have it both ways. I suspect that if the poaching thing goes away, the MWC will prevail on the exit fees, unless there is more to it than is visible on the surface. Until one or the other is settled, the "one remedy for one damage" logic may be somewhat impaired. Too many balls in the air on this issue.

I don't know the basis upon which USU and CSU are alleging "extraordinary and unauthorized actions". Did they sign a different agreement than the others? Is there a clause in the agreement making it subject to state law, and Utah & Colorado have some basis in state law? Was the contract with MWC ever actually ratified? And were those at USU and CSU who may have ratified the agreement lawfully of standing to do so? Lots of questions. Since I don't know the answers, I can't really predict how their suits may go.

The speculation that the MWC may lose on both counts is unlikely. Although they can't get two remedies for one damage, they are also unlikely to get no remedies for what is clearly a legitimate and obvious damage.

But...each party gets one trip to the damages bar, and since these are being pursued by different parties in different jurisdictions, the MWC could lose both.

I haven't looked at the exit fee suit much, but it seems to have less basis than the poaching fee one. There's definitely an argument that the poaching fees are anticompetitive, and of course the Pac-12 filed in a jurisdiction that seems more likely to be friendly to them.

 

[Loyal Coug1]

I see this thread has found a rabbit hole to dive down, as per usual.

Gib is right e.

I agree with Loyal h.

cr8 - you lost me when I got to "Gib is right".
95 - You had it right.

Messy copy and paste of the relevant part of the agreement below.

TERMINATION FEES Section 7.01

Termination Fees
. The Parties acknowledge and agree that, as a result of the transactions contemplated by this Agreement (including the negotiation of a Definitive Transaction pursuant to Article VIII), (a) the Pac-12 Parties will be Recipients of valuable Confidential Information of MWC and will be afforded unique access to MWC Member Institutions that, in each case, the Pac-12 Parties would not otherwise be entitled, (b) were (x) thePac-12 Parties to make an offer to less than all MWC Member Institutions to join Pac-12 as a Pac-12 member institution or (y) any Pac-12 Member Institution to join a conference other than the MWC or a Power Five Conference, in each case, in lieu of consummating the Definitive Transaction pursuant to Article VIII, MWC would suffer unique economic damages and losses which would be impracticable or extremely difficult to quantify. Accordingly, as a material inducement to MWC’s willingness to enter into and perform its obligations under this Agreement,

- 12 -
the Pac-12 covenants and agrees that, if (A) at any time prior to the two year anniversary of the expiration or termination of this Agreement pursuant to Article IV (the “Withdrawal Fee Period”),the Pac-12 makes an offer to any MWC Member Institution (other than an offer to all MWC Member Institutions to join Pac-12 as Pac-12 member institutions in accordance with the terms of Section 8.01) to join the Pac-12 as a Pac-12 member institution or affiliate member, which any such MWC Member Institution accepts, or announces that it will accept, during the Withdrawal Fee Period (each such MWC Member Institution, an “Accepting MWC Member Institution”), thePac-12 shall pay liquidated damages to MWC in the form of the a termination fee as set forth on Schedule 7 (the “Withdrawal Fee”) or (B) at any time prior to the

expiration or termination of this Agreement pursuant to Article IV, a Pac-12 Member Institution joins, or announces that it will join (in each case, as a member institution or affiliate member for a sport scheduled pursuant to this Agreement), a conference (including any newly formed conference) other than MWC or a Power Five Conference, such departing Pac-12 Party will pay MWC liquidated damages in the form of a termination fee equal to $5,500,000 (the “Departure Fee” and, together with the Withdrawal Fee, the “Termination Fees”). No Termination Fee shall be payable, however, if the MWC has dissolved, or a sufficient number of members have voted to cause it to dissolve, prior to the date of the offer (under subsection (A) of this paragraph) or the date of the acceptance or announced acceptance (under subsection (B) of this paragraph).

Section 7.02

Liquidated Damages; Not a Penalty
. The Parties acknowledge and agree that the Termination Fees are not penalties and are instead fair, reasonable and appropriate approximations of the losses that MWC may incur as a result of MWC’s loss of any MWC Member Institution to Pac-12 and the failure to consummate the Definitive Transaction pursuant to Article VIII. The Termination Fees shall be MWC’s sole and exclusive remedy in respect of the matters described in Section 7.01. Any Withdrawal Fee which becomes payable by the Pac-12 pursuant to clause (A) of Section 7.01 shall be due and payable to MWC in full in accordance withthe terms of Section 2.03 no later than 30 days following the date each such Accepting MWCMember Institution accepts, or announces that it will accept, such offer. Any Departure Fee which becomes payable by the departing Pac-12 Party pursuant to clause (B) of Section 7.01 shall be dueand payable to MWC in full in accordance with the terms of Section 2.03 no later than 30 days ofthe earlier of the date such departing Pac-12 Party accepts, or announces that it will accept, suchoffer to join a conference other than the MWC or a Power Five Conference.

 

[dgibbons]

I see this thread has found a rabbit hole to dive down, as per usual.

Gib is right that you only get one trip to the damages bar. I'm no attorney, but from my view, it was the MWC poaching suit that sort of opened the door to having their former members sue to get out of the exit fee. After all, if the poaching suit prevailed, that should make it easier to dodge the exit fee. You can have it one way, but you can't have it both ways. I suspect that if the poaching thing goes away, the MWC will prevail on the exit fees, unless there is more to it than is visible on the surface. Until one or the other is settled, the "one remedy for one damage" logic may be somewhat impaired. Too many balls in the air on this issue.

I don't know the basis upon which USU and CSU are alleging "extraordinary and unauthorized actions". Did they sign a different agreement than the others? Is there a clause in the agreement making it subject to state law, and Utah & Colorado have some basis in state law? Was the contract with MWC ever actually ratified? And were those at USU and CSU who may have ratified the agreement lawfully of standing to do so? Lots of questions. Since I don't know the answers, I can't really predict how their suits may go.

The speculation that the MWC may lose on both counts is unlikely. Although they can't get two remedies for one damage, they are also unlikely to get no remedies for what is clearly a legitimate and obvious damage.

Presumably, the MWC bylaws have some self-executing remedies, like the conference can withhold future revenue distributions (something similar was in the Pac-12 bylaws). For example, if SDSU, BSU, CSU, USU or FSU are due NCAA Tournament units which are paid out in the future, MWC can keep the money. May not cover the entirety of the liquidated damages in the bylaws, but it will be something.