Tortious interference - any legal cougs way in - does Fox have a problem?

[ttowncoug]

I'm not an attorney, but my understanding is that tortious interference relates to contracts or business relationships. I suspect the chief issue will be that this media contract wasn't sign, so Fox didn't do anything to harm that contract.

However, I'm curious if it can be established that all schools verbally accepted the agreement with Apple, Fox caught wind and sweetened the deal.

My other understanding is WSU hasn't incurred damages yet has we don't know what our media contract will be. Once that gets settled, then maybe we assess our situation and try and pursue something.

 

[SaveFerris]

The networks were moving around the pieces and Fox/ESPN did not want Apple to get a foot in the door. These deals don't come together overnight. Can it be proved? I don't know that it would matter after the collateral damage done, but hope it comes out.

 

[chugspig]

I don’t think they want to get to discovery, so a settlement or assistance in finding a deal/home will be on the table.

 

[M-I-Coug]

I'm not an attorney, but my understanding is that tortious interference relates to contracts or business relationships. I suspect the chief issue will be that this media contract wasn't sign, so Fox didn't do anything to harm that contract.

However, I'm curious if it can be established that all schools verbally accepted the agreement with Apple, Fox caught wind and sweetened the deal.

My other understanding is WSU hasn't incurred damages yet has we don't know what our media contract will be. Once that gets settled, then maybe we assess our situation and try and pursue something.

As you know, verbals or verbal agreements means nothing in the court of law. Nothing is a done deal, until you have a mutual executable contract in writing, or even written on a napkin, will do.

 

[95coug]

Some verbal contracts are binding, even in Washington. That certainly would not apply in this case, though.

My question is, where is the line between market competition and tortious interference? If I want to keep a new competitor from entering the market…is that really wrong? Even if I collude with another competitor to keep them out, I’m not really convinced that’s out of bounds, as long as I’m not actually breaking laws.

 

[M-I-Coug]

Some verbal contracts are binding, even in Washington. That certainly would not apply in this case, though.

My question is, where is the line between market competition and tortious interference? If I want to keep a new competitor from entering the market…is that really wrong? Even if I collude with another competitor to keep them out, I’m not really convinced that’s out of bounds, as long as I’m not actually breaking laws.

I think it's totally legit and legal. You're not a DOD government contractor sourcing out and soliciting bids. I think for a media rights deal, you can negotiate and work with, or not work with anyone you wish.

The linear networks can work with, or not work with anyone they want to. They're not regulated, except to the FCC, which isn't applicable towards the revenue side.

 

[COUGinNCW]

Totally illegal to collude with someone to keep a competitor out. If there is hard evidence of ESPN and Fox or BIG and B12 doing that they are screwed, but I doubt there is. Certainly worth a try to go through the exercise with public record requests etc. They are smart enough to use burner phones are talk through intermediaries or it’s a simple as 1 gas station raising their price when the guy across the street does.

Predatory pricing is the other angle, but the fact Oregon and uw are going in at half shares blows that theory up. And proving cost and future revenue plus sustainability of this sports model would be something a good anti trust lawyer could argue 87 different ways.

 

[ttowncoug]

Totally illegal to collude with someone to keep a competitor out. If there is hard evidence of ESPN and Fox or BIG and B12 doing that they are screwed, but I doubt there is. Certainly worth a try to go through the exercise with public record requests etc. They are smart enough to use burner phones are talk through intermediaries or it’s a simple as 1 gas station raising their price when the guy across the street does.

Predatory pricing is the other angle, but the fact Oregon and uw are going in at half shares blows that theory up. And proving cost and future revenue plus sustainability of this sports model would be something a good anti trust lawyer could argue 87 different ways.

I think the anti-trust angle is completely separate. I was just curious if a LOSE case could be made that the pac-12 had "binding deal in principle" - essentially a contract (I know, they didn't sign on the line) - and Fox came in with knowledge of that deal and intentionally blew up the conference to which WSU was harmed.

Long-shot? Yep. Worth the PR headache to Fox? Not sure. Worth the PR to WSU that we are going down swinging. Yep. Does WSU have the balls to do it? Nope.

 

[M-I-Coug]

Totally illegal to collude with someone to keep a competitor out. If there is hard evidence of ESPN and Fox or BIG and B12 doing that they are screwed, but I doubt there is. Certainly worth a try to go through the exercise with public record requests etc. They are smart enough to use burner phones are talk through intermediaries or it’s a simple as 1 gas station raising their price when the guy across the street does.

Predatory pricing is the other angle, but the fact Oregon and uw are going in at half shares blows that theory up. And proving cost and future revenue plus sustainability of this sports model would be something a good anti trust lawyer could argue 87 different ways.

It's not illegal.

Take your home, car, or personal property. Your Agent lists your home via MLS, you list your car on CarGurus, AutoTrader and Craigslist, and you list your guitar on Craigslist, OfferUp and FB Marketplace, right?

You receive multiple offers for your home. You receive 2 offers for your car, and you received 3 offers for your guitar, all in writing.

Do you have to sell to the highest bidder? Are you obligated to sell at all? No. You don't have to sell to anyone, even though you have a signed listing agreement, and a qualified Buyer, able and willing to buy.

You can sell if to YakiCoug if you want! It's your property, it's your home, it's your personal property and you can sell it to whoever you want. Nobody can put a gun to your head and force you to do anything you own.

These media companies can do whatever they want, it's their business, and if they don't want to work with you, they don't have to. In summary, it's not illegal to cherry pick.

 

[ttowncoug]

It's not illegal. Take your home, car, or personal property. Your Agent lists your home via MLS, you list your car on CarGurus, AutoTrader and Craigslist, and you list your guitar on Craigslist, OfferUp and FB Marketplace, right?

You receive multiple offers for your home. You receive 2 offers for your car, and you received 3 offers for your guitar, all in writing.

Do you have to sell to the highest bidder? Are you obligated to sell at all? No. You don't have to sell to anyone, even though you have a signed listing agreement. You can sell if to YakiCoug if you want. It's your property, it's your home, it's your personal property and you can sell it to whoever you want.

These media companies can do whatever they want. It's not illegal to cherry pick.

what's surprising to be is why the conference didn't require some sort of binding legal document that made everyone "stand down" (no shop provision) while they were working on a deal with either Apple of the linear package. If the goal was to put the best deal on the table, sign it or not, it seems VERY foolish to not get commitments from all parties involved so the bidders know what's going to be in or out.

 

[roses04]

Oregon and Washington wouldn't have signed it, their goal was to get to the big 10.

 

[roses04]

I think the anti-trust angle is completely separate. I was just curious if a LOSE case could be made that the pac-12 had "binding deal in principle" - essentially a contract (I know, they didn't sign on the line) - and Fox came in with knowledge of that deal and intentionally blew up the conference to which WSU was harmed.

Long-shot? Yep. Worth the PR headache to Fox? Not sure. Worth the PR to WSU that we are going down swinging. Yep. Does WSU have the balls to do it? Nope.

Suing someone that you hope to do business with, or might do business with, doesn't create business relationships. Unless you have a solid case and can make a lot of money doing it.

 

[M-I-Coug]

what's surprising to be is why the conference didn't require some sort of binding legal document that made everyone "stand down" (no shop provision) while they were working on a deal with either Apple of the linear package. If the goal was to put the best deal on the table, sign it or not, it seems VERY foolish to not get commitments from all parties involved so the bidders know what's going to be in or out.

Yeah. Lessons learned. Like I said before, someday, they'll make a documentary movie, based on true events.

 

[ttowncoug]

Oregon and Washington wouldn't have signed it, their goal was to get to the big 10.

It would have an expiration. EG....I won't accept a deal or proposal through this date to this date, and I agree to consider the final offer by the pac-12. They still could have left.

 

[COUGinNCW]

It's not illegal.

Take your home, car, or personal property. Your Agent lists your home via MLS, you list your car on CarGurus, AutoTrader and Craigslist, and you list your guitar on Craigslist, OfferUp and FB Marketplace, right?

You receive multiple offers for your home. You receive 2 offers for your car, and you received 3 offers for your guitar, all in writing.

Do you have to sell to the highest bidder? Are you obligated to sell at all? No. You don't have to sell to anyone, even though you have a signed listing agreement, and a qualified Buyer, able and willing to buy.

You can sell if to YakiCoug if you want! It's your property, it's your home, it's your personal property and you can sell it to whoever you want. Nobody can put a gun to your head and force you to do anything you own.

These media companies can do whatever they want, it's their business, and if they don't want to work with you, they don't have to. In summary, it's not illegal to cherry pick.

You’re wrong or didn’t understand what 95 asked.

If car manufactures all got together and decided to sell cars at half price until a new upstart ran out of cash that would be the definition of anti trust.

Competitors (fox and espn) can’t agree to do anything that limits competition in the market. If they independently decide to compete very aggressively (as long as it’s not predatory) that’s fine.

 

[dgibbons]

I'm not an attorney, but my understanding is that tortious interference relates to contracts or business relationships. I suspect the chief issue will be that this media contract wasn't sign, so Fox didn't do anything to harm that contract.

However, I'm curious if it can be established that all schools verbally accepted the agreement with Apple, Fox caught wind and sweetened the deal.

My other understanding is WSU hasn't incurred damages yet has we don't know what our media contract will be. Once that gets settled, then maybe we assess our situation and try and pursue something.

Washington recognizes claims for tortious interference with contract (meaning someone interfered with an existing contract, like the current media rights deal) and tortious interference with a business expectancy (meaning interference with a business opportunity, like the potential deal with Apple).

There could be something there. The proof would be in the emails, texts, calendars, etc. of the key personnel at Fox. This would not be an easy case to prove, and Fox (and/or ESPN for that matter) will have good lawyers.

 

[dgibbons]

As you know, verbals or verbal agreements means nothing in the court of law. Nothing is a done deal, until you have a mutual executable contract in writing, or even written on a napkin, will do.

Incorrect, oral contracts are recognized in Washington. Certain types of contracts, such as sale for real estate must be in writing. But that's not the point anyway. There would not be a claim for a breach of contract because no new media rights contract was signed with Fox or ESPN. The claim would be for tortious interference with business expectancy. A tort claim.

 

[dgibbons]

what's surprising to be is why the conference didn't require some sort of binding legal document that made everyone "stand down" (no shop provision) while they were working on a deal with either Apple of the linear package. If the goal was to put the best deal on the table, sign it or not, it seems VERY foolish to not get commitments from all parties involved so the bidders know what's going to be in or out.

There is in the bylaws- forfeiting distributions. Even if there was something more stringent, the remedy for breaching that contract would be money. So, it comes done to cost-benefit analysis. And entry into a contract is voluntary. The conference would not be able to impose it.

 

[dgibbons]

Some verbal contracts are binding, even in Washington. That certainly would not apply in this case, though.

My question is, where is the line between market competition and tortious interference? If I want to keep a new competitor from entering the market…is that really wrong? Even if I collude with another competitor to keep them out, I’m not really convinced that’s out of bounds, as long as I’m not actually breaking laws.

The link below is to the Washington Pattern Jury Instruction for tortious interference with business expectancy. It lays out the elements of the claim. The key ones are pasted in below. This is a difficult claim to prove.

(3) That(name of defendant)intentionally induced or caused the termination of the business [relationship] [or] [expectancy];
(4) That(name of defendant)'s interference was for an improper purpose or by improper means, as defined later in these instructions;

View Document - Washington Civil Jury Instructions

govt.westlaw.com

 

[dgibbons]

Totally illegal to collude with someone to keep a competitor out. If there is hard evidence of ESPN and Fox or BIG and B12 doing that they are screwed, but I doubt there is. Certainly worth a try to go through the exercise with public record requests etc. They are smart enough to use burner phones are talk through intermediaries or it’s a simple as 1 gas station raising their price when the guy across the street does.

Predatory pricing is the other angle, but the fact Oregon and uw are going in at half shares blows that theory up. And proving cost and future revenue plus sustainability of this sports model would be something a good anti trust lawyer could argue 87 different ways.

What is the likelihood that USC, UCLA, uw, Oregon, etc. were the parties that reached out to Fox, ESPN, B1G, or the Big XII?

 

[M-I-Coug]

Incorrect, oral contracts are recognized in Washington. Certain types of contracts, such as sale for real estate must be in writing. But that's not the point anyway. There would not be a claim for a breach of contract because no new media rights contract was signed with Fox or ESPN. The claim would be for tortious interference with business expectancy. A tort claim.

Fair enough. Agree.

 

[ttowncoug]

dgibb- thanks for chiming in. I know you are a lawyer and I figured someone would have some insight here.

Circumstantial, but what has me someone curious is the fact that Fox/Big-10 came in EXACTLY where they need to be financially. UW/Fox/Big-10 were the guilty parties.

And yes, these are huge companies, with lawyers, and i know they know how these things need to go down to protect themselves. The concern I would have is things happened so quick, that there was the possibility of cutting corners and getting sloppy.

 

[Flatlandcoug]

It's not illegal.

Take your home, car, or personal property. Your Agent lists your home via MLS, you list your car on CarGurus, AutoTrader and Craigslist, and you list your guitar on Craigslist, OfferUp and FB Marketplace, right?

You receive multiple offers for your home. You receive 2 offers for your car, and you received 3 offers for your guitar, all in writing.

Do you have to sell to the highest bidder? Are you obligated to sell at all? No. You don't have to sell to anyone, even though you have a signed listing agreement, and a qualified Buyer, able and willing to buy.

You can sell if to YakiCoug if you want! It's your property, it's your home, it's your personal property and you can sell it to whoever you want. Nobody can put a gun to your head and force you to do anything you own.

These media companies can do whatever they want, it's their business, and if they don't want to work with you, they don't have to. In summary, it's not illegal to cherry pick.

I think it can get complicated when the public interest is at stake. Playstation and Microsoft have had a very public war regarding exclusive software rights. Microsoft ended up being forced to allow Call of Duty to be released on Playstation...at least in the near term. At the same time, they did release some titles as exclusives. I'm not a lawyer though so I have no idea if there is any relevance.

 

[dgibbons]

dgibb- thanks for chiming in. I know you are a lawyer and I figured someone would have some insight here.

Circumstantial, but what has me someone curious is the fact that Fox/Big-10 came in EXACTLY where they need to be financially. UW/Fox/Big-10 were the guilty parties.

And yes, these are huge companies, with lawyers, and i know they know how these things need to go down to protect themselves. The concern I would have is things happened so quick, that there was the possibility of cutting corners and getting sloppy.

The proof, if it exists, will be in the texts, emails and calendars of the key people involved.

 

[ttowncoug]

The proof, if it exists, will be in the texts, emails and calendars of the key people involved.

or witnesses with knowledge.

Jen Cohen's departure was timely to leave any of that baggage behind.

 

[95coug]

You’re wrong or didn’t understand what 95 asked.

If car manufactures all got together and decided to sell cars at half price until a new upstart ran out of cash that would be the definition of anti trust.

Competitors (fox and espn) can’t agree to do anything that limits competition in the market. If they independently decide to compete very aggressively (as long as it’s not predatory) that’s fine.

dgibb- thanks for chiming in. I know you are a lawyer and I figured someone would have some insight here.

Circumstantial, but what has me someone curious is the fact that Fox/Big-10 came in EXACTLY where they need to be financially. UW/Fox/Big-10 were the guilty parties.

And yes, these are huge companies, with lawyers, and i know they know how these things need to go down to protect themselves. The concern I would have is things happened so quick, that there was the possibility of cutting corners and getting sloppy.

That’s where the line could have been crossed. If UW or UO told Fox/ESPN what the Apple offer was, and what they needed to offer to “buy” a defection, then that’s an issue. Not sure it sticks to Fox/ESPN though…at least not as much as to UW/UO.

If it was just Fox coming in with what they thought was a winning offer….that’s just business.

 

[ttowncoug]

That’s where the line could have been crossed. If UW or UO told Fox/ESPN what the Apple offer was, and what they needed to offer to “buy” a defection, then that’s an issue. Not sure it sticks to Fox/ESPN though…at least not as much as to UW/UO.

If it was just Fox coming in with what they thought was a winning offer….that’s just business.

Doesn't it feel like Fox knew where they had to be....Fox and the Big-10? And vice versa, Apple thought they had a deal at like $25M.

Also, UW gave no whisper we have a better offer at $31M, even though they were considering it. There was really no mention to Apple they had to sweeten the pot...which they could have done...which is why I am suspicious of all of this. Huskies wanted to the Big-10 and they were willing do whatever it took to get there. Which has been suspicious that there are skeletons in the closet....and Jen left town as soon as she could.

 

[Loyal Coug1]

The proof, if it exists, will be in the texts, emails and calendars of the key people involved.

Good stuff Gibby. I'm starting to like you.