MORGANTOWN, W.Va. -- A judge has denied a motion to dismiss a West Virginia University lawsuit aimed at speeding up its exit from the Big East, indicating doubts about whether the case has a sufficient legal foundation but allowing evidence collection to proceed.After a 90-minute hearing Monday in Morgantown, Monongalia County Circuit Court Judge Russell Clawges said he wanted more time to consider a second Big East motion that the case be put on hold while a similar lawsuit plays out in Rhode Island.Clawges told the lawyers they'd likely hear from him on that issue by Jan. 1.WVU sued the Big East last month, challenging its bylaws in a bid to join the Big 12 in time for the 2012 football season.
The Big East countersued in Rhode Island four days later, arguing that WVU breached its contract with the conference and should remain in the Big East for 27 months as required in the bylaws.Pitt and Syracuse have also filed notice they intend to withdraw from the conference, attorney Benjamin Block argued, but they're abiding by the 27-month rule, and WVU should be forced to do the same.Last week, Providence County Superior Court Judge Michael Silverstein heard similar arguments in Rhode Island, where WVU is trying to have the Big East's lawsuit dismissed. Silverstein, who said he may rule late this week or sometime next week, said both sides seem to be claiming the other has "home-court advantage."Clawges said that at this point in the process, he has no choice but to "construe the facts in the light most favorable" to WVU.Although he said he "might be inclined to agree with the defendants' arguments on whether there's merit to these allegations," it would be presumptuous to dismiss without letting WVU fully develop its case.
If the university doesn't present sufficient evidence, the Big East can renew its motion.Both sides are accusing each other of breach of contract and a failure of fiduciary responsibility.WVU contends the conference violated its responsibility to members by failing to balance the number of football-playing and non-football schools. But the Big East says the bylaws have no such requirement.The Big East was incorporated in Washington, D.C., but wants the case heard in Rhode Island, where the conference is headquartered and its commissioner lives. It argues that would be more convenient for the production of documents and witnesses.The conference bylaws do not address where disputes between the Big East and its member schools should be heard, forcing both parties to claim their home state is the logical site.WVU claims it can't be sued in Rhode Island because it has sovereign immunity as an agency of the state of West Virginia.
Attorney Stephen LaCagnin also argued that even if the Big East's claims were accepted as fact, WVU's alleged breach of contract occurred in West Virginia, giving the local courts jurisdiction.WVU, he argued, can't be punished for the Big East's failure to specify a venue in its bylaws.WVU has already sent half of the required $5 million exit fee to the Big East, and it contends that by accepting the down payment, the conference agreed to the immediate withdrawal.The Big East rejects that argument, too.