Maryland ‘applying serious settlement pressure’ to ACC with latest counterclaim

January 15, 2014

The juicy bits grabbed all the headlines. Here was the University of Maryland, locked in a legal battle with the ACC, alleging that the conference followed the advice of ESPN and attempted to poach Big Ten schools, which happens to be roughly similar to what occurred in November 2012, when Maryland announced its intentions to join the Big Ten.

Except these assertions, filed Tuesday morning in North Carolina by the state’s Office of the Attorney General on behalf of the school in a 53-page counterclaim to the ACC’s lawsuit against Maryland, are of secondary importance. At the core of Maryland’s claim rest antitrust allegations against the ACC, which have little to no relation to ESPN and the potential luring of Big Ten schools.

Perhaps Maryland, by including the revelation that officials from Pittsburgh and Wake Forest attempted to attract two Big Ten schools east of the Mississippi River – Penn State has been reported as one target – intends to paint the ACC as hypocritical by making the school pay dearly for exiting while attempting to attract schools from other conferences at the same time. Yet the juicy allegations could be Maryland’s latest salvo in its attempt to get the ACC to agree to a settlement.

“Maryland is applying some serious settlement pressure to the ACC with the filing of this counterclaim,” said an individual with direct knowledge of the West Virginia-Big East legal battle from 2011, when the Mountaineers accepted an invitation to join the Big 12. “Any proven revelation of joint efforts by ESPN and the ACC would have major implications, not just here but throughout all realignment disputes.”

The counterclaim also cites former Boston College Athletic Director Gene DeFilippo, who in 2011 told the Boston Globe that “ESPN is the one who told us what to do” after the ACC invited Syracuse and Pittsburgh to join the conference.  Those comments were hastily retracted by DeFilippo two days later, but his initial admission serves, in Maryland’s eyes, as evidence that ESPN has “incentivized the ACC to compete more aggressively in the market for conference affiliation/membership.”

“Many Big East partisans have long suspected, admittedly without evidence, that it was ESPN that helped to orchestrate the departure of Pittsburgh and Syracuse from the conference, and the quote from the former Boston College AD cited in the counterclaim only added fuel to that suspicion,” said the individual, who requested anonymity to retain former client confidences. “Maryland would have been a member in good standing of the ACC during the time when any such discussions between ESPN and the ACC would have occurred, so the potential for discovery of some very important documents in this case would be high. If there is an untold story here, the ACC would want to do everything to avoid discovery by settling the case now.”

Besides, would either side truly want this issue to still be on the table when Maryland officially leaves the ACC on July 1? Would ACC Commissioner John Swofford want to attend ACC football media day this summer and still be asked questions about the former conference member? Would Maryland want to proceed into its self-dubbed “fearless future” while still worrying about legal issues left in its “proud past”?

But say the ACC refuses to settle and the matter does reach a courtroom, a far-off prospect given that the ACC will likely file a motion to dismiss Maryland’s counterclaim and the school will file a motion for discovery. Then the presiding judge will focus not on whether the ACC tried to poach Big Ten schools to increase its value in the eyes of ESPN, but whether the conference violated antitrust law.

“I don’t think from an initial pleading standpoint, the stuff about talking to other schools, that’s not what’s going to drive the initial motion practice,” said Stephen M. Chippendale, an attorney with McKenna Long & Aldridge in Washington who specializes in antitrust issues. “From an antitrust perspective, that comes in as coloring for the case.”

By implementing the $52 million exit fee and withholding conference and NCAA revenue from Maryland, the counterclaim alleges the ACC “injured competition in the market for conference affiliation/membership, that is the market in which conferences compete for university members and in which universities compete for membership in conferences.”

Said Chippendale: “The key test, as they say up front under the Maryland antitrust law: Has there been unreasonably harmed competition in the market?”

As for the counterclaim itself, it’s not dissimilar to the antitrust claim made by the state in January 2013, when it tried to have the ACC’s lawsuit dismissed in Prince George’s County Circuit Court. Maryland Attorney General Douglas F. Gansler called the exit fee “an antitrust violation and an illegal penalty” at the time. That antitrust claim was subsequently dismissed in June by Prince George’s County Circuit Court Judge John Paul Davey, but Maryland’s latest legal filing recycles similar language about the antitrust issue. Why?

“That’s a good point to keep in mind, is strategically what are they doing?” Chippendale said. “They didn’t just file this suit. This is their answer and counterclaim. They’re fending off the allegations against them. When you’re representing a party in this case, it’s good to have your own allegations. It gives you leverage. It gives you a punch, if you think of it like a boxing match.”

In other words, Chippendale said, effectively agreeing with the individual who dealt with the Big East-West Virginia case, Maryland could simply be striking back in the hopes that, eventually, both sides agree to sit down and settle out of court.

Alex Prewitt covers the Washington Capitals. Follow him on Twitter @alex_prewitt or email him at alex.prewitt@washpost.com.
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