A judge ruled in favor of Oregon State and Washington State in their quest to gain control of the Pac-12 Conference’s governance and remaining assets on Tuesday.
At the conclusion of a hearing that lasted nearly three hours, Judge Gary Libey of the Whitman County (Washington) Superior Court granted the two remaining Pac-12 members’ request for a preliminary injunction, which means that presidents of the two schools will be the only voting members of the Pac-12 Board in the future. Judge Libey also denied a motion to dismiss that had been filed on behalf of the 10 outgoing Pac-12 schools, which are set to join the Big Ten, Big 12 and ACC in 2024.
The order is stayed until Monday for procedural reasons, as a lawyer representing the departing schools indicated he plans to appeal Tuesday’s decision. The current temporary restraining order, which was initially granted on Sept. 11, will remain in effect during the anticipated appeal process.
Judge Libey said that he ruled in favor of Oregon State and Washington State because he believed that they were likely to prevail in court on their interpretation of the Pac-12 bylaws (regarding what constitutes notice of departure for a member school) and because he believes that they would suffer “irreparable harm without the preliminary injunction” because they cannot make decisions regarding their futures. The two schools have argued that they cannot try to rebuild the Pac-12 without control of its governance and without access to its assets and liabilities.
“Voting will be by the remaining two board members, but this is not a shutout,” Judge Libey said. “The preliminary injunction will be modified or whatever you want to call it to make sure that the other 10 schools are still treated in a fair, open manner. Nobody is going to take advantage of somebody else. If that starts to happen, I’ll either hear about it here or somebody down the street will. I do not believe that the two plaintiffs here, the two members of the board that are left, will do anything directly to harm the other 10 members.”
Judge Libey said that the Pac-12 Board can determine how the conference’s revenue is distributed, as stated in the bylaws. The lawyers representing outgoing Pac-12 members expressed a great deal of concern about whether that means Oregon State and Washington State can withhold this year’s distributions from outgoing members, but Libey’s comments about getting involved if the “Pac-2” harm the 10 departing members suggest an answer to that question.
The 10 outgoing Pac-12 schools were granted the ability to sit in on board meetings, where they can communicate and make suggestions; they will also be required to receive advance notice of board meetings. But Oregon State and Washington State’s presidents will be the only voting members.
What’s next for Oregon State and Washington State?
Although the judge ruled in Oregon State and Washington State’s favor, they’re still in a bit of a holding pattern. If the Washington Court of Appeals takes up the case, the governance situation could remain in limbo for some time. In the meantime, a temporary restraining order granted to Oregon State and Washington State in September will remain in effect, preventing the 10 departing schools from making governance decisions by majority rule that affect the leftover schools’ futures.
But the clock is ticking, and the two schools need to figure out who they’re going to compete against in 2024-25. If they plan to invite other schools (presumably current members of the Mountain West) to join them in creating a “new” Pac-12, they need to get a lineup in order and negotiate a media rights deal. If, as some have speculated, they plan to remain on their own island for the time being and create quasi-independent schedules, they need to start putting those together — in every sport.
If nothing else, Libey’s conclusion that “the court finds the plaintiffs likely to prevail” may motivate the parties to reach a settlement that would then allow Oregon State and Washington State to assume control. Frankly, the defendants’ primary arguments in Tuesday’s hearing were not convincing. — Stewart Mandel
Lawyers representing Oregon State and Washington State filed the motion for the injunction in October, citing information obtained through discovery that they say confirms that schools “delivering a notice of withdrawal prior to Aug. 1, 2024” automatically lose their Board seats. The filing cited sworn declarations from Pac-12 commissioner George Kliavkoff that USC and UCLA automatically “were removed as Board representatives under the Constitution and Bylaws” when they provided formal notice that they would be leaving the Pac-12.
The University of Washington filed a motion to join the case as a defendant alongside the Pac-12 and Kliavkoff earlier this month to defend the interests of itself and the other nine outgoing schools. Those 10 schools argue that they have not given formal notice of departure and do not need to until Aug. 2, 2024. They worry that they will not receive their fair share of the conference’s revenue distributions for the 2023-24 academic year if Oregon State and Washington State govern alone.
Last week, the College Football Playoff management committee agreed to recommend a policy of requiring a conference to have at least eight teams to be eligible for one of the five automatic qualifying spots in the 12-team format being introduced next year.
In recent weeks, the other four Power 5 conferences have rolled out the scheduling models they will put into effect upon welcoming their new schools next summer.
What they’re saying
“We are pleased with the Court’s decision today that Oregon State and Washington State constitute the only remaining members of the Pac-12 Conference Board,” Oregon State president Jayathi Murthy and athletic director Scott Barnes said in a joint statement. “We look forward to charting a path forward for the Pac-12 that is in the best interest of the Conference and student-athletes. Our intentions are to make reasonable business decisions going forward while continuing to seek collaboration and consultation with the departing universities.”
The 10 outgoing Pac-12 schools released the following joint statement on Tuesday night: “We are disappointed with the decision and are immediately seeking review in the Washington Supreme Court and requesting to put on hold implementation of this decision. As members of the Pac-12, participating in ongoing and scheduled competitions, we are members of the board under the Pac-12 bylaws. We have the right to the revenue earned by our schools during the 2023-2024 academic year, which is necessary in order to operate our athletics programs and to provide mental and physical health services, academic support, and other support programs for our student-athletes. We remain committed to the best interests of our student-athletes, athletic departments, and university communities and will persist in our efforts to secure a fair resolution.”
(Photo: James Snook / USA Today)