Baylor University is threatening to sue the Southeastern Conference and Mike Slive personally over Texas A&M's move to the SEC. Last night the SEC formally accepted A&M's bids contingent on the release of outstanding legal claims. The Big 12 has waived all rights to sue the SEC over Texas A&M's addition and so had all member institutions. Until Baylor reversed course and now says it may sue. Why has Baylor's tune changed so quickly? For the same reason it trotted out the, "Don't Mess With Texas Football" campaign.
Naked self interest.
See, a week ago, when the Big 12's letter was written to the SEC, Baylor believed the Big 12 was going to survive. That was before Oklahoma's public flirtations with the Pac 12 became known. Now, suddenly, Baylor is aware that if Oklahoma and its crew bolt -- potentially including Oklahoma State, Texas, and Texas Tech -- then the Big 12 is no more. That means Baylor would fall all the way down to Conference USA. And that's unacceptable to Baylor and Ken Starr.
So Baylor is willing to sue the SEC and Mike Slive for tortious interference.
In its most basic sense tortious interference is when a third party interferes with an existing contract between two other parties. If A is in contract with B, then C can't arrive and induce A to break its contract with B.
Applying it to the given facts, Texas A&M is in a contractual relationship with the Big 12. So the SEC can't then induce Texas A&M to break that contract.
And that hold up is the reason Texas A&M isn't celebrating its induction to the SEC...yet.
"After receiving unanimous written assurance from the Big 12 on September 2 that the Southeastern Conference was free to accept Texas A&M to join as a new member, the presidents and chancellors of the SEC met last night with the intention of accepting the application of Texas A&M to be the newest member of the SEC. We were notified yesterday afternoon that at least one Big 12 institution had withdrawn its previous consent and was considering legal action. The SEC has stated that to consider an institution for membership, there must be no contractual hindrances to its departure. The SEC voted unanimously to accept Texas A&M University as a member upon receiving acceptable reconfirmation that the Big 12 and its members have reaffirmed the letter dated September 2, 2011."
Now Baylor is threatening to sue the SEC and Mike Slive for tortious interference with a contract.
Only that suit has no merit.
1. Texas A&M's departure for the SEC isn't killing the Big 12.
Subsequent departures from the Big 12 could kill the Big 12.
So if Baylor wants to sue a conference for ending the Big 12, it should sue Larry Scott and the Pac 12. It's altogether possible that the threat of suing the SEC and Mike Slive is intended as a threat to the Pac 12. Or it could be that Baylor is going to sue everyone.
Hell, why not?
Remember, just because a suit has no merit doesn't mean it can't be filed. (Especially when you're talking about Baylor president Ken Starr, the king of throw things at the wall and see what sticks litigation strategy. This is the same guy who started an investigation into Bill Clinton's real estate dealings, found nothing, and ended up poring through the explicit details of Bill Clinton's sex life).
2. The SEC has worked to dodge a tortious interference claim from the outset.
Nearly a month ago, I told y'all a key fact that has only recently become acknowledged: Texas A&M approached the SEC first.
A&M's president said that initial contact happened on July 21st. The SEC required that A&M follow all the proper protocols of divorce before it would consider an invitation.
I know Mike Slive pretty well and he's meticulous, brilliant, and reasoned. He's been aware of this possibility since that first phone call. Texas A&M decided the Big 12 wasn't the right fit for it. The SEC didn't woo A&M. That's important.
Both sides have been setting out the parameters for this defense since these details initially went public.
3. I believe the SEC pledged not to take any additional Big 12 teams prior to receiving a letter of nonsuit from the Big 12.
Otherwise why would Big 12 commissioner Dan Beebe agree to that letter? He had to get something in return. And what he got was twofold: a. we won't take any more of your teams b. this dissolution will be prompt and lacking in acrimony.
The SEC and A&M fulfilled its end of this bargain. So did the Big 12. The Big 12's waiver, which still stands, is the most important by far. If the Big 12 isn't filing suit, and it has a much better claim than any members, the SEC and Slive are in pretty safe legal waters.
Baylor didn't. (There's also the issue of whether Baylor waived its right to file suit based on the writing of the initial letter. The Big 12 clearly did, but did the individual member institutions? Perhaps. Of course Baylor will now say that it rescinded its waiver prior to the A&M invite, but the SEC can argue it relied upon Baylor's waiver in making its decision to admit A&M.)
4. Can Baylor even sue the SEC under a count of tortious interference?
This gets in to the privity of contract issue.
In its most basic sense, Baylor's contract is not with Texas A&M, it's with the Big 12 conference. Look at my example up above, Texas A&M's contract is with the Big 12. And the Big 12 has agreed not to sue.
So how can Baylor sue the SEC when Baylor isn't a party to the initial contract, the Big 12 and Texas A&M are.
What Baylor is trying to do is sue the SEC for interfering with Texas A&M's contract with the Big 12.
So the question becomes, is Baylor a party to Texas A&M's contract with the Big 12?
If Baylor isn't a party to the contract, and many judges would probably say it isn't, then there's no foundation for Baylor to sue upon interfering with the contract. Especially when, as is this case here, the other member instititutions contracts remain unimpacted.
5. Baylor has no damages due to Texas A&M's departure.
This is not intended to be a law review article -- if it was you'd already be asleep and baffled, if you're already both anyway, apologies -- but in order for there to be a tort claim of tortious interference there also have to be damages. (We've already seen that there are questions of whether there's a contract to sue under anyway).
What are Baylor's damages from Texas A&M's departure?
There are none.
I guarantee you the television payouts will remain the same from the network partners -- especially from ESPN which is terrified of being sued for inducing A&M to bolt to the SEC. I've been telling you this for weeks. Read why ESPN's position is so complicated here. The same would hold true for Fox if it lured away Oklahoma. The television money is not changing without an ample settlement. But, again, no television contracts are folding based upon Texas A&M leaving.
Without damages you can't have a claim of tortious interference. And I'll be damned if I can come up with actual damages for Baylor.
So now you've got a serious issue with whether Baylor has a contract to sue under and no damages.
Which brings me back to my original premise, there is no basis for a legitimate lawsuit by Baylor against the SEC or Mike Slive. Now, again, that doesn't mean a lawsuit won't be filed, just that there isn't a legitimate reason for one to be filed.
What's really happened here is simple, Baylor thought the Big 12 would survive without Texas A&M a week ago. Now it's worried that other schools are bolting for the Pac 12. So it's trying to throw up as many roadblocks as possible to the dissolution of the Big 12.
6. In fact, the claims of Baylor and crew are so dubious, A&M should call their bluff.
Provide indemnity for the SEC and Mike Slive from the schools that are suing. Sure, the cost might run into the high-hundreds of thousands, but if you're confident there are no claims, you'll recoup this anyway. Getting the signed letters of non-suit from each school is preferable, but this is the second best option. (Credit to legal scholar Mike A. for the idea here. This is why my email is public, so it's easy for you guys to share your brilliance with me).
Plus, it allows A&M to announce for the SEC without being held hostage by schools without any legitimate claims against it.
Unfortunately for Baylor suing the SEC and Mike Slive isn't a viable option. But the threat of a suit can hold up things for a while. Unless A&M gets smart and calls Baylor's bluff.
If you're interested in FSU, Clemson, Oklahoma, Oklahoma State, Texas Tech, Texas, Georgia Tech, North Carolina, Duke, N.C. State, Maryland, Virginia, Virginia Tech, et al. basically we've talked about why those schools are likely or unlikely to join the SEC in the below articles. Just scroll through and you'll be entertained and informed. I promise.
Read all of OKTC's conference realignment stories here.