On Tuesday, February 22, 2022, Marshall University filed a lawsuit against Conference USA in Cabell County Circuit Court in the hopes of leaving the conference early. The lawsuit comes in response to the conference’s demand for arbitration filed on February 15.
How We Got Here
On November 3, 2021, in response to a new round of conference realignment, Marshall University announced its intention to join the Sun Belt Conference no later than July 1, 2023.
On February 11, Marshall announced that the university would be joining the Sun Belt effective July 1, 2022. In response, the conference filed a demand for arbitration arguing that, pursuant to conference § 3.06, Marshall could not withdraw without giving the conference 14 months written notice, among other arguments.
In turn, Marshall’s lawsuit argues that the bylaw provision requiring arbitration should not apply to Marshall because it violates the Eleventh Amendment and the West Virginia Constitution, because the arbitration provision was not included in the bylaws when Marshall signed its New Member Agreement in October 2003, and because the arbitration provision does not apply to “withdrawing members.”
Potential Precedent
This is not the first time a state university in West Virginia has been in this position. In 2011, West Virginia University (WVU) sought to leave the Big East Conference and join the Big 12 Conference. Therefore, WVU filed a lawsuit in West Virginia state courts.
WVU’s lawsuit contained similar issues, including WVU not complying with the notice requirements for withdrawal. In turn, the Big East filed its own lawsuit in Rhode Island. When WVU made a motion to stay or dismiss the lawsuit in Rhode Island due to WVU’s lawsuit in West Virginia, the court denied WVU’s motion.
Ultimately, WVU and the Big East conference settled for an unreported amount, and WVU joined the Big 12 in time for the fall season.
Validity of Marshall’s Arguments
Marshall’s lawsuit is slightly different in that a West Virginia court will now be interpreting the university’s sovereign immunity claim. In the Big East’s case against WVU, the Rhode Island court found strong support in Nevada v. Hall, specifically states: “no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign’s courts.” 440 U.S. 410, 416 (1979). With that support, among other reasoning, the court found that the Big East’s case could move forward in Rhode Island. Now, the state court in West Virginia could rule differently.
Marshall’s second argument appears to be grasping at straws. Marshall entered into an agreement with Conference USA to which Marshall agreed to the following:
“The terms and conditions of Marshall’s participation in the Conference as a member shall be governed by the Conference Bylaws, as such Bylaws may be amended from time to time. As a condition of becoming and remaining a Conference Member, Marshall agrees fully and completely to abide by and comply with all provisions and conditions of the Bylaws, as such Bylaws may be amended from time to time.” (Emphasis added).
Even though the arbitration provision was not included in the original bylaws, the New Member Agreement Marshall signed recognized that the bylaws may be amended, and Marshall agreed to be bound by the bylaws, as amended.
Similarly, Marshall’s claim that it was unaware of the revision to the bylaws seems unavailing. According to § 5.01, as a member of the conference, the President of the university is a member of the board of directors, and the university covenants that the president has “full authority to speak and act for [Marshall] on all matters involving or affecting the Conference.” Thus, the conference should be able to prove that Marshall knew or should’ve known of the amendment to the bylaws and the inclusion of the arbitration provision via meeting minutes.
Third, Marshall attempts to creatively argue that the arbitration provision does not apply to it because it is a “withdrawing member” and § 14.01 only applies to disputes between “members, former members, suspended members, or expelled members.” While § 3.06 does refer to “withdrawing members,” the argument is likely to fail because of Marshall’s failure to comply with the notice requirements for withdrawal, and thus, Marshall remains a member. Even so, Marshall remains a member until they have withdrawn.
Taking West Virginia University’s example, Marshall University’s lawsuit is an attempt to resolve this issue in its home state. Either way, this lawsuit is likely to end in a similar fashion as WVU’s lawsuit against the Big East. Most likely, Marshall’s lawsuit will settle, and Marshall will join the Sun Belt Conference in time for football in the fall.
Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com.
