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Judge refuses to dismiss Big East Conference suit against WVU

A Rhode Island judge on Tuesday denied a West Virginia University motion to dismiss the Big East Conference's civil lawsuit against the school in that state, allowing a two-state legal morass to continue.

Providence County Superior Court Judge Michael Silverstein rejected the university's motion on all grounds. The decision clears the way for Big East attorneys to argue for a court injunction requiring WVU to participate in conference athletic events next year.

WVU and the Big East have been at legal loggerheads over the past two months after filing dueling lawsuits in Rhode Island and West Virginia courts.

The legal tit-for-tat will determine if the school can join the Big 12 Conference on July 1, 2012.

WVU officials announced on Oct. 28 they had accepted an invitation to join the Big 12. The school's resignation from the Big East is effective June 30, 2012.

However, Big East bylaws require schools to give 27 months notice before leaving. But WVU officials say the Big East failed to preserve a viable football conference, so they had no choice but to accept the Big 12 invitation.

Now lawyers have been hashing out their arguments in court filings in both Monongalia County and Providence, R.I. - where the Big East is headquartered.

Last Tuesday, Monongalia County Judge Russell Clawges denied a Big East motion to dismiss the West Virginia case.

Silverstein has echoed that action in the Big East's case in his state.

At the crux of WVU's motion to dismiss was the argument that the university functions as an "alter ego" or branch within the state government. This would entitle the school to certain legal considerations that WVU attorneys said were grounds for a dismissal.

Silverstein disagreed with that notion, preferring to view the school as a private entity that can be sued in his court's jurisdiction.

"It is evident to this Court that WVU, for all intents and purposes, is a corporation," Silverstein wrote in his decision. "Although the current statutory language establishing the Institutional Board of Governors does not label the WVU Board of Governors a corporation, the statute originally authorizing the Board of Governors stated that the Board 'shall be a corporation.'"

But he noted that local West Virginia courts do provide the university with some privileges afforded a state agency, with rights such as "sovereign immunity," a legal concept Silverstein said was based on the notion, "The King could do no wrong."  

Silverstein said that this distinction could limit the rights of the Big East to adequately obtain damage awards in West Virginia. He also said keeping the case in Rhode Island would not cause any disproportionate "oppressiveness and vexation" for WVU.

And while he did not directly state it, Silverstein's language seemed to imply that West Virginia courts would be biased toward the state university.

"The Big East may be precluded from some remedies in West Virginia and perhaps could not 'litigate equally well' in that state," he said.

"In this Court's judicial discretion, it believes retaining the matter is not significantly inconvenient, and rather, would better serve the interests of justice."

Silverstein will next hear arguments over the Big East's motion requesting he issue an injunction requiring WVU to participate in all conference athletic events until the lawsuits are settled.

Some attorneys have said such a move would be unusual, but Silverstein's Tuesday decision indicated that option might be viable.

He noted that WVU agreed to the conference's bylaws as late as Oct. 17 of this year. Those bylaws spell out the 27-month agreement and requirements of all conference schools for participation.

He said they even include the Big East's option to deal with a school seeking early withdrawal.  

"In the event that a member school does not comply with the requirements for withdrawal," Silverstein said, "the Bylaws state that non-compliance would cause irreparable harm to the conference, and the Big East is entitled to seek and obtain injunctive relief as well as attorneys' fees and costs."

WVU attorneys have not yet responded to that motion. A hearing date on the issue has not yet been set.

Contact writer Jared Hunt at or 304-348-5148. 


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