Big 12 Q and A: What about a Baylor lawsuit?

Friday, September 9, 2011 | 3:06 p.m. CDT; updated 5:40 p.m. CDT, Sunday, September 11, 2011

Wondering why Texas A&M's move to the SEC is being held up by, of all schools, Baylor? Curious about where Missouri stands on this issue? If Baylor sues the SEC, can it win?

Once again, you’ve got the questions and we’ve got the answers when it comes to conference realignment.

What’s happening right now? Why is the SEC not technically inviting Texas A&M yet?

Currently, the SEC is waiting for each of the nine remaining Big 12 schools to waive their individual rights to pursue legal action against it. The SEC doesn't want to get in a protracted legal battle over its invitation to the Aggies.

Thus far, the loudest voice in the crowd and the leader of the movement to not waive legal rights has been Baylor.

Shouldn’t this be between the Big 12 and the SEC?

The Big 12 conference stated Sept. 2 that it wouldn't pursue legal action against the SEC regarding the departure of Texas A&M, so Baylor decided to take its own stand.

What about other schools joining Baylor? Is Missouri one of them?

Rumors have flown that as many as seven of the other eight Big 12 schools are supporting Baylor, including Missouri. MU Chancellor Brady Deaton, who's also chairman of the Big 12 board of directors, declined to comment on the school’s position Wednesday.

Iowa State spokesman John McCarroll told the Des Moines Register that his school hadn't waived its rights, and thus stood behind Baylor.

Texas, Texas Tech, Oklahoma and Oklahoma State have waived their rights, according to an report.

Who would Baylor sue? Texas A&M or the SEC?

Baylor would sue the SEC.

What legal grounds does Baylor have?

The part of the law being dealt with here is called “tortious interference.”

Translation, please?

"Tortious interference" arises when a party knowingly interferes with a contract or business relationship between two other parties. In this case, the question is: Did the SEC's actions reflect an intent to interfere with the contract between Texas A&M and the Big 12 and, by proxy, Baylor?

There are two types of tortious interference.

Tortious interference with contractual relations could become an issue if Texas A&M breached a previous contract it had with the Big 12 and its teams as a direct and sole result of the SEC's invitation, while tortious interference with business relations could arise if Baylor's athletics department was directly harmed by that same action.

What’s Baylor’s plan?

Baylor could potentially sue the SEC seeking financial damages and an injunction to block the Aggies from joining the SEC.

Could it work?

Maybe, but it’s highly unlikely.

Darren Heitner, a Florida-based sports lawyer who runs the and has experience in these types of cases, said tortious interference cases are very hard for a plaintiff to win. To win, Baylor would have to prove not only financial harm but also malicious intent on the part of whichever entity it chose to sue.

Neither of those is a slam dunk for Baylor. In fact, neither may be true at all.

Throughout this process Texas A&M and the SEC have been extremely careful to cover each other’s legal bases. Take the proceedings of Aug. 14, when the SEC declined to invite Texas A&M. For a moment, we thought all of this might be over. The prevailing wisdom was that the SEC wanted to wait to lock in a 14th team to join along with Texas A&M. In retrospect, that was not the case. It was a legality issue.

If the SEC had invited Texas A&M while it was still a member of the Big 12, that could certainly be construed as malicious intent. After all, the SEC would be poaching a school that from 2003 to 2009 generated more revenue in the Big 12 than everyone except for Texas and Oklahoma. You don’t need to be an economist to know that the loss of the Aggies hurts the Big 12’s value.

So the SEC declined to give Texas A&M the invitation, instead waiting for it to declare that it was leaving the Big 12 completely on its own volition, and not because it was being lured by the SEC.

On Aug. 25, Texas A&M sent a letter stating its intentions to look elsewhere. This was, in essence, its “two weeks notice” to the Big 12.

In reality, it was more like six days notice, as on Aug. 31, Texas A&M sent a letter to commissioner Dan Beebe and the Big 12 officially stating it was leaving. Not once in either letter was the SEC mentioned. This gives the SEC plausible deniability against legal action stemming from the move.

Heitner said the SEC did an “exemplary job of making sure that Texas A&M made the first move,” and that the league did “everything it could have done to defend this lawsuit.”

But what about harm? Doesn’t this move harm Baylor’s football team?

On the surface it would certainly seem that way. But look deeper and you find that may not be the case.

Baylor obviously feels that, when this realignment business finally ends, it might find itself on the outside looking in when it comes to being in a BCS conference. If the Bears are relegated to also-ran status in a league like Conference USA, certainly their standing in the football community will be diminished, and with that comes the chance their revenue would diminish as well.

Having said that, Baylor’s football team hasn’t exactly been raking in cash in the Big 12. Based on data from the Office of Postsecondary Education from the 2003 to 2009 seasons (the latest available data), Baylor ranked dead last in the league in revenue each season and last in profit in all but 2009.

It's the only school in the conference that failed to turn a profit overall during that period.The Bears finished just barely in the red, losing $787,788 over the seven years.

Baylor has also spent the least amount of money on football in the league, at an average of $9,697,015 per year over that time period.

With all that in play, it could be tough for Baylor to prove that it would suffer significant financial harm from moving to a different conference. In fact, in a weaker league where the school could cut back on spending, it could be argued that Baylor would be better off financially.

The school could also try to make the case that a move to a non-BCS conference weakens its bowl prospects, but that also is debatable. Since the Big 12’s creation in 1996, Baylor has been to one bowl, the 2010 Texas Bowl. Those aren’t exactly chances that have a lot of room to weaken.

So Baylor has no chance if it were to file suit?

There’s a lot we still don’t know.

If Baylor were to come up with evidence that there was a back-room agreement between Texas A&M and the SEC and prove that in open court, that would be a good start. As of right now, despite the fact that everyone has known where Texas A&M had its eyes from the beginning, there’s nothing to suggest any foul play on the part of the SEC.

As far as financial harm goes, the one argument Baylor President Kenneth Starr — who proved during the Bill Clinton era that he’s not a guy you want to mess with — is that the program was on the major upswing coming out of 2009. That year, football generated revenues exceeding $14 million, more than twice as much as it did in 2003.

So if it most likely can’t win, why is Baylor doing this?

Baylor is doing its best to keep the Big 12 together. The prevailing wisdom is that Baylor will hold on to its right to legal action until Oklahoma makes a decision on whether it’s staying in the Big 12. If the Big 12 has Texas and Oklahoma, it could survive.

Meanwhile, Baylor and other schools can use this time to make contingency plans with other conferences if the Big 12 is to dissolve.

Oklahoma is expected to make its decision within the next two weeks. Until then, the soap opera will continue.

And what about Missouri?

MU finds itself in an interesting situation. If the Big 12 were to dissolve, the chances Missouri doesn’t find a suitable home are next to none. It probably isn’t worth it to MU to get in a long legal battle when, in the end, it will end up OK no matter what happens.

However, by supporting Baylor, MU might think it’s increasing the chances of the Big 12 staying together, the stated goal of both Deaton and Missouri Athletics Director Mike Alden.

On the other hand, if the Big 12 ship is indeed about to sink, Deaton and Alden may want to keep SEC Commissioner Mike Slive on their good side.

But since Baylor's is the loudest voice, it has made itself the focus of the conversation and it will stay there until the situation changes.

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Jimmy Bearfield September 9, 2011 | 4:16 p.m.

Once again, some of the best journalism -- in the Missourian and other newspapers -- is in the sports section. Other beats, particularly business and government, would do well to consider this Q&A format for complex topics.

There are also a lot of newspapers -- I'm looking at you, The Kansas City Star -- where every day the sports columnists put on a clinic that the metro and other columnists ought to attend.

Nice work.

(Report Comment)
Ellis Smith September 10, 2011 | 7:12 a.m.

"Tort," from Latin "tortus," can be rendered into English as "to twist" or "twisted." A fair summation of the present situation in the so-called "Big 12" athletic conference?

Will it be possible to schedule an occasional football or basketball game between lawsuits?

(Report Comment)

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