Initial Thoughts on the PAC-12’s Lawsuit
The PAC-12's complaint is not just weak; it's utterly hypocritical. This hypocrisy severely undermines both its legal arguments and its standing in bringing its suit against the Mountain West.
1.Inherent Nature of Conferences: Athletic conferences, by their very nature, are closed systems of competition. Conferences exist to create exclusive groupings of schools for athletic competition and media rights negotiation. The PAC-12 – in its present diminutive iteration and former ones – has benefited from this closed system for decades.
2.Hypocritical Application of Antitrust Principles: The PAC-12 is essentially arguing against anticompetitive behavior while simultaneously engaging in it. It's not seeking to open up competition broadly, but merely to allow itself to poach schools from another closed system (the MWC) to bolster its own closed system. This is logically inconsistent and legally dubious.
3.Horizontal Antitrust: Believe it or not, this occasionally comes up in IP disputes. While the complaint attempts to paint the poaching penalty as a per se violation of antitrust law, it's more likely that a court would apply the “rule of reason.” Under this analysis, the pro-competitive benefits of conference stability and the ability to negotiate media rights effectively would likely outweigh any anticompetitive effects of the poaching penalty. Furthermore, the horizontal nature of the agreement is totally questionable. The PAC-12 and MWC, while both athletic conferences, were not direct competitors in the context of this scheduling agreement. Rather, this was a vertical agreement between two entities at different “levels of a supply chain,” further weakening the PAC-12's antitrust claims.
4.PAC-12’s Own Protective Measures of Its Own Closed System: Historically, the PAC-12 has likely engaged in similar practices to protect its membership. Even as the PAC-2, I guarantee you it has done something similar. Going forward, it's almost certain that the PAC-12's own bylaws and agreements contain provisions designed to discourage schools from leaving— the very type of provision it's now challenging when it suits its interests.
5.Equitable Principles and Defenses: Did someone say #FSU, #Clemson??? The PAC-12's position is further undermined by the fact that it is a sophisticated party that willingly entered into this agreement with the MWC and has already benefited from it. The conference, represented by experienced executives and undoubtedly advised by competent legal counsel, negotiated and accepted the terms of the agreement, including the poaching penalty. It has since enjoyed the benefits of the scheduling arrangement, which was crucial for its 2x remaining members. Obviously, this raises significant equitable concerns. Principles such as estoppel, waiver, and even "unclean hands" could well bar the PAC-12 from now challenging an agreement it voluntarily entered and from which it has profited. The timing of the lawsuit, coming only after the PAC-12 has received the benefits of the agreement but before it has had to pay any penalties, further undermines its equitable position.
6.True Motivations: This lawsuit reveals that the PAC-12's true motivation is not to promote open competition in college athletics, but to save itself at the expense of another conference. It's attempting to use antitrust law as a tool for its own benefit, not for the broader good of competition.
7.Dismissal under Tombly/Iqbal: Given that this lawsuit was filed in federal court, which strikes me as a potential fatal mistake (can anyone argue that the MWC is not subject to California jurisdiction?), it's worth noting that dismissal under Rule 12(b)(6) and the Twombly/Iqbal standard may well be warranted. While antitrust cases often receive more love or lenient treatment under 12(b)(6) – I think for good reason – the PAC-12's complaint is so fundamentally flawed and contradictory that it may fail to meet even this lower bar. The complaint's internal inconsistencies and its reliance on legal theories that are at odds with the PAC-12's own structure and history could lead a court to conclude that it fails to state a plausible claim for relief, even at this early stage of litigation. The PAC-12's selective application of antitrust principles and its failure to acknowledge the inherently closed nature of athletic conferences - including its own - may be so glaring that a court could find the complaint fails to "state a claim to relief that is plausible on its face," as required by Twombly and Iqbal.
The PAC-12's complaint appears simply seems opportunistic in addition to legally unsound. It's asking the court to ignore the fundamental nature of athletic conferences - a nature from which the PAC-12 has long benefited - solely because it now finds itself on the losing end of conference realignment.
This hypocrisy not only weakens the PAC-12's legal arguments but also raises serious questions about the good faith nature of its complaint. A court would likely view this inconsistency as a significant factor in evaluating both the legal merits of the case and any equitable considerations.
In short, the PAC-12's attempt to use antitrust law to escape a contractual obligation while simultaneously benefiting from anticompetitive conference structures is not just legally flawed - it's a glaring example of trying to have one's cake and eat it too in the realm of college athletics.
