The Pac-10 Conference - Time to Fight Back?

[Jon Joseph]

 

During my career as a corporate attorney, I served as a member of The American Bar Association's RICO Cases Committee. The Committee was chaired by the author of the Racketeer Influenced and Corrupt Organizations Act (RICO,) George Robert 'Bob' Blakey. 

 

RICO, Title IX of the Organized Crime Control Act was signed into law in 1970 by president Richard Nixon. Since its adoption at the federal level state RICO Acts has been passed by the majority of states including California and Oregon. 'Predicate Acts' to bring a case under RICO require the use of wire and mail fraud being used to commit a series of ongoing crimes.

 

I very much doubt that when FOX, B1G Commissioner Kevin Warren, the B1G board of directors (B1G college presidents,) USC, and UCLA the potential defendants (PD)  'discussed' USC and UCLA leaving the Pac-12 to become a full revenue-sharing member of the B1G that telephone calls and email contacts were not part of the discussions between and among the aforementioned parties. 

 

At the time of the discussions, the Pac-12, B1G, and the ACC had formed an alliance that in part included an agreement not to poach one another's member schools. This agreement was not in writing but The Statute of Frauds does not require such agreements to be in writing to be enforceable. All of the PDs including broadcast partner FOX were well aware of this agreement. Additionally, at a time when the Pac-12 had to opportunity to add B12 teams after Oklahoma and Texas announced both were leaving the conference to join the SEC Conference, USC president Carol Folt was the person who most vehemently objected to the Pac-12 moving into the central time zone. The vote against expanding was 9-3. The votes of the Pac-12 members have not been disclosed but certainly, the three-member institutions would have standing to file suit as would the ten-member schools 'defrauded' by Folt failing to disclose her discussions with the PDs.

 

Many believe that her objection to expansion came when USC and also UCLA voted against expansion and were in contact with one or more of the PDs regarding the Trojans and Bruins' move to the B1G. If not a RICO violation if Folt, USC, and UCLA were in contact with one or more of the PDs, it is most certainly a breach of the fiduciary duty owed by the Trojans and Bruins to the other members of the Pac-12 conference not to disclose contacts with the PDs while voting against the expansion of the conference. One could also argue that FOX as a Pac-12 broadcast partner also owed a fiduciary duty to the conference. And the B1G's alliance agreement was well known to B1G commissioner Warren acting on behalf of the B1G. 

 

There is no doubt that Kevin Warren lied to both ACC commissioner Jim Phillips and Pac-12 commissioner George Kliavkoff (GK) about not going after ACC and Pac-12 conference members. Indeed, this could have been a tactic among the PDs to lull GK into a false sense of security. This is violative of any number of California statutes requiring full disclosure and fair dealing. Likely also a violation of similar state statutes across the Pac-12 footprint. We no longer live in a world of caveat emptor ('buyer beware.')

 

If the Pac-12 had added the 'orphaned' B12 schools in whole or in part the B12 would not exist as a Power 5 conference today. FOX along would ESPN would be bidding for the expanded Pac-12 media rights making adding a streaming entity a luxury and not a necessity.

 

If the predicate RICO acts are met, RICO provides for full recovery of the plaintiff's legal fees and expenses and treble damages. This being the case if the predicate acts did occur I believe any number of legal firms would be willing to take such litigation on contingency; the plaintiffs would be responsible for the firm's expenses but would not be charged for billable hours. I think proving damages with a new media deal including the LA schools versus one not including the LA schools would be easily accomplished and would run in the millions of dollars. As noted above if the plaintiff(s) won the case damages would be tripled.

 

It is the world of academia in which Pac-12 sports compete and academicians are not prone to litigation. But to allow the PDs to destroy the conference or simply alter its long-term financial health should in my opinion not go unpunished.

 

 

 

Edited March 9, 2023 by Jon Joseph

[Rufus]

I don’t think it is wise to sue the B1G. They are the only conference that can save Oregon now.  No way they extend the olive branch if a lawsuit is filed.  They take Washington and Stanford and move on to the ACC schools in that scenario. 
 

The SEC could also save Oregon, but that seems unlikely.  

The PAC is ultimately to blame for this mess. A decade or more of poor decisions created the environment for USC and UCLA to look for a way out. Oregon should have been looking as well.  

Edited March 9, 2023 by Rufus

[GeotechDuck]

That was an interesting read.  Thank you for sharing!

[Steven A]

Thanks Jon, how many continuing ed credits is your post worth?  I say 1 hour minimum, as I have spent more time getting less information from other seminars.

 

In CA I think there was also tortuous interference with contract "intentionally damages someone else's contractual or business relationships with a third party, causing economic harm."*

 

*Legal disclaimer: the above is not meant to give legal advice nor imply an attorney-client relationship with Fishduck or the poster.

 

[Jon Joseph]

On 3/9/2023 at 2:39 PM, Rufus said:

I don’t think it is wise to sue the B1G. They are the only conference that can save Oregon now.  No way they extend the olive branch if a lawsuit is filed.  They take Washington and Stanford and move on to the ACC schools in that scenario. 
 

The SEC could also save Oregon, but that seems unlikely.  

The PAC is ultimately to blame for this mess. A decade or more of poor decisions created the environment for USC and UCLA to look for a way out. Oregon should have been looking as well.  

Therein lies the rub. Do you blow off the B1G by bringing suit; or, by sharing the proposed litigation to be filed prior to filing do you put more pressure on the B1G/FOX and force an invitation possibly at a full revenue share? By doing so the plaintiffs arguably would have some form of leverage on the B1G, FOX, and SC/UCLA as regards their objecting to Oregon and other Pac-10 members joining the B1G. Leverage that without litigation does not exist.

 

Being angry I realize does not often lead to measured decisions. But I think it is incredibly slimy of Kevin Warren to outright lie to the B1G's long-term Rose Bowl partner and for Folt in particular to lie by omission if indeed SC was in discussion with FOX and the B1G when she led the charge not to expand into the central time zone. This would have cratered the B12 and left one fewer player on the field to negotiate with the 'Pac-20.'

 

I do recognize that many of today's Pac-10 problems were self inflicted but SC and UCLA were part of those who did nothing to rein in Larry Scott. SC and UCLA received the invite based far more on location than on on-field and on-court results.

[Jon Joseph]

On 3/9/2023 at 3:13 PM, Steven A said:

Thanks Jon, how many continuing ed credits is your post worth?  I say 1 hour minimum, as I have spent more time getting less information from other seminars.

 

In CA I think there was also tortuous interference with contract "intentionally damages someone else's contractual or business relationships with a third party, causing economic harm."*

 

*Legal disclaimer: the above is not meant to give legal advice nor imply an attorney-client relationship with Fishduck or the poster.

 

LOL! Spot on regarding CA law. 

 

I am admitted to practice in California, Massachusetts, and Nevada, but inactive in all 3. 

 

I very much doubt that any of the above would give me CLE credit for my diatribe. But I am sick of ESPN and FOX 'destroying conferences' and the leftovers bending over and taking it in the tailpipe. At least Bob Bowlsby called out ESPN; GK in regards to FOX may as well be a sphinx. 

[Flyin Vee]

Scorched earth. Cancel all games for all sports with the 2 conspirators. Prepare either the counter suit or file. The depositions alone will flush out the rats.

[Charles Fischer]

Incredible post Jon, and I think you bring up some superb points that nobody has anywhere.  Thanks!

 

Let's Fight Back!

[Haywarduck]

In my view we were hit by a sucker punch. Not sure how most would react to this, but if somebody hit me like that I would react. I would say Jon's direction is probably the most productive. 

 

I would agree just sitting on our tails complaining and taking a backseat doesn't sit well with me. I actually think Jon's idea is brilliant. 

 

In the past I have been in legal situations where it had to make financial sense to pursue. Jon makes a great case where the Pac-10 really doesn't have a lot to lose. There is a great deal to gain actually. I would also say it creates a lot of leverage.

 

I'm with Jon, pissed!

[Jon Joseph]

On 3/9/2023 at 3:45 PM, Flyin Vee said:

Scorched earth. Cancel all games for all sports with the 2 conspirators. Prepare either the counter suit or file. The depositions alone will flush out the rats.

The Pac-10 has already invited the SC/UCLA beach volleyball teams to compete in the Pac-10. 

 

Why enable the departees. This is as silly as the ACC allowing Notre Dame to play all of its sports in-conference except for football where ND is served up 4 to 6 conference games every season and ND hockey that plays in the B1G.

 

COVID season? ND was invited into the ACC as a 'conference member' and in effect stole a final 4 spot from another team. 

[Jon Joseph]

On 3/9/2023 at 5:06 PM, Charles Fischer said:

Incredible post Jon, and I think you bring up some superb points that nobody has anywhere.  Thanks!

 

Let's Fight Back!

Instead of 'dogging it' let's fight back! At least take one or more lives out of 'the cat.' The wussies (insert 'p' if so desired) that lied and hid away in their closets while plotting the demise of a 100+ old conference.

 

Stabbing 'friends' in the back was once accepted. Accepted before laws granting recourse against the stabbers were introduced and passed. Even back when, the assassins of Caesar were paid back by his adoptive son Octavian.

 

Query? Does a season ticket holder at Stanford have standing to sue the above-referenced PDs and the California Board of Trustees? CAL? Probably eliminated as a plaintiff due to its overseer board of trustees falling in line.

 

But Stanford and possibly a backstabbed Stanford, donor, season ticket holder, etc., could possibly be allowed standing under California law and authorized to proceed against these back stabbers?

 

I for one would like to know what influenced the CA Regents to OK this chicanery.

 

Why go down without a fight?

[Log Haulin]

Great post! I am not going to attempt to articulate my thoughts after reading this.  I know my lane and am going to stay in it. 

 

That said... I love a good fight. I have always been a sword rather than pen type. Time and place for everything I guess. 

 

Jon, you are our guy on this. However, if someone needs to be slapped,  give me a call... JK.

 

Kidding aside, I would be all in on the legal boys giving a proverbial beat down to these rats. This would make for one of the best off seasons known to man.

[2002duck]

My attorney experience is quite limited. My first "case" was in AP Literature in high school, when I represented Christopher Columbus in a mock trial.

 

Mr. Columbus had been charged with a series of crimes against humanity. To my teacher's dismay, I persuaded the jury of my fellow classmates to find my client "Not Guilty".

 

The key to my victory was successfully having Mr. Columbus's journal removed from evidence. The prosecution themselves had noted how there were too many missing pages, and many inconsistencies. The jury agreed to my request to toss it, and the prosecution began scrambling.

 

The icing on the cake was when I asked one of their witnesses, a native tribesman, what his name was. I expected him not to have an answer, and sure enough his response was, "uh, we didn't go over that." "The defense rests," I said. Clapping ensued, and the teacher regretted giving me the extra credit assignment.

 

After that, I founded a student court. Seriously. I had found old records in the student government room that showed there used to be a student court in the 1950's.

 

I was the school prosecutor, and there were two defense attorneys along with 10 judges. Students could choose to go to us instead of the vice principal for low level infractions, such as smoking on campus or for having too many absences. The only thing I could mete out was community service or compromises. 

 

As you can imagine, the court did not last more than a few terms. Something about the prosecutor making deals with the defense attorneys to vacate unexcused absences for their friends (so they could graduate and play varsity sports).

 

Considering all of this experience, along with my strong knowledge of Bird Law (and Ducks are birds after all), I must recommend that we not pursue litigation against the B1G.

 

If anything, in meetings our counsel can mention how we've never considered resorting to lawsuits, unlike some other fanbases, and how we always strive to work together and help each other in these ever-changing times.

 

"If academic programs can not help each other, who will? Where do we sign?" 

 

 

Edited March 10, 2023 by 2002duck

[Jon Joseph]

On 3/9/2023 at 10:45 PM, 2002duck said:

My attorney experience is quite limited. My first "case" was in AP Literature in high school, when I represented Christopher Columbus in a mock trial.

 

Mr. Columbus had been charged with a series of crimes against humanity. To my teacher's dismay, I persuaded the jury of my fellow classmates to find my client "Not Guilty".

 

The key to my victory was successfully having Mr. Columbus's journal removed from evidence. The prosecution themselves had noted how there were too many missing pages, and many inconsistencies. The jury agreed to my request to toss it, and the prosecution began scrambling.

 

The icing on the cake was when I asked one of their witnesses, a native tribesman, what his name was. I expected him not to have an answer, and sure enough his response was, "uh, we didn't go over that." "The defense rests," I said. Clapping ensued, and the teacher regretted giving me the extra credit assignment.

 

After that, I founded a student court. Seriously. I had found old records in the student government room that showed there used to be a student court in the 1950's.

 

I was the school prosecutor, and there were two defense attorneys along with 10 judges. Students could choose to go to us instead of the vice principal for low level infractions, such as smoking on campus or for having too many absences. The only thing I could mete out was community service or compromises. 

 

As you can imagine, the court did not last more than a few terms. Something about the prosecutor making deals with the defense attorneys to vacate unexcused absences for their friends (so they could graduate and play varsity sports).

 

Considering all of this experience, along with my strong knowledge of Bird Law (and Ducks are birds after all), I must recommend that we not pursue litigation against the B1G.

 

If anything, in meetings our counsel can mention how we've never considered resorting to lawsuits, unlike some other fanbases, and how we always strive to work together and help each other in these ever-changing times.

 

"If academic programs can not help each other, who will? Where do we sign?" 

 

 

Love the take. Love the logic. But IMHO it doesn't fly. Why play nice with people who out-outright lied to you, went behind your back, and then trumpeted how smart they are compared to dummy you?

 

Congrats on your HS victories that BTW sound like a lot of fun but we are talking multi-millions of dollars here. We are talking about a 100+ old conference torn apart by a television conference looking to make more money for itself.

 

There is no intrinsic value; only monetary value in the manner in which the PDs as described above treated their Pac-12 partners. This is far different from Oklahoma and Texas leaving the B12 which had been assembled and reassembled many. many times over the history of the Conference of Champions.

 

Still, I do not necessarily disagree with your recommendation; lots of upsides and downsides to be considered.

[lownslowav8r]

Absolutely great post. I’m again impressed by the knowledge and skill of many of this forum’s members. I’d love to see a legal case against USC and their lying backstabbing president. Her mendacity goes back in time far beyond the events listed. I hope at some point a legal case is made against these sleazy folks. The only advantage of what has occurred is USC can no longer advocate against the conference from inside. In that sense we are much better off. 

[2002duck]

On 3/9/2023 at 8:50 PM, Jon Joseph said:

Still, I do not necessarily disagree with your recommendation

That's fair. You have taken the more noble position, and I respect you for that. I, on the other hand, am prone to wanting "what's best for Oregon" at all costs. I would expect our PAC brothers to understand our departure:

 

"Chaos isn't a pit. Chaos is a ladder. Many who try to climb it fail and never get to try again. The fall breaks them. And some are given a chance to climb. They refuse. They cling to the realm or the gods or love. Illusions. Only the ladder is real. The climb is all there is." 

 

While Oregon could climb the ladder and be the leader of the PAC, they would not be able to able reach the higher rungs to the top. Those are in the B1G and the SEC. 

 

Conference realignment provides potential rewards to those willing to take risks and seize opportunities.

 

Oregon needs to be bold and strategic in whatever they do. Now, and in the future. They should not burn any steps on the football ladder.   

[Duck 1972]

On the one hand I want to get all this put behind us and get the focus back on the field. Yet this is another example of not fighting for what you love. 

 

In this world you have to fight or you get ran over and lose. You might still lose even if you fight back as there aren't any guaranties in life but not trying is to me the worst one can do. 

 

Why this suit hasn't been filed is making me shake my head in disbelief. If I had the money I would do it myself.

[HappyToBeADuck]

JJ, that was a powerful post. Thanks for a well qualified and detailed explanation.

 

One of the questions I have:

     In figuring potential damages to the remaining 9 schools (Cal may be out of equation because the Board of Trustees okayed UCLA to leave) do they need to wait until the final media rights offers are in? Then assess danages.

 

Another question:

     If WSU and OSU get left behind and the PAC disbands, would they have potential standing ro sue all the other schools? Or just USC and UCLA.

 

The lack of progress by GK leads me to believe we are looking at an unfavorable outcome. 

[Jon Joseph]

On 3/10/2023 at 11:59 AM, HappyToBeADuck said:

JJ, that was a powerful post. Thanks for a well qualified and detailed explanation.

 

One of the questions I have:

     In figuring potential damages to the remaining 9 schools (Cal may be out of equation because the Board of Trustees okayed UCLA to leave) do they need to wait until the final media rights offers are in? Then assess danages.

 

Another question:

     If WSU and OSU get left behind and the PAC disbands, would they have potential standing ro sue all the other schools? Or just USC and UCLA.

 

The lack of progress by GK leads me to believe we are looking at an unfavorable outcome. 

Standing is an issue for CAL, no doubt, arguably taken care of by the undetermined 'tax' UCLA will have to pay.

 

If CAL, Stanford, Oregon, and Utah go to the B1G and the four corners schools to the B12 the best remedy for OSU and WSU might lie in bringing an anti-trust claim? 

 

I think there is an anti-trust concern in the B1G about offering Oregon and UW a spot in the B1G before the conference breaks up with the four corners schools departing?

 

But all of unsourced talk about the Pac-10 going away is just that, talk. Talk we will will continue to hear until such time as a Pac-10 new media deal is solidified.