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Court filings by Washington State, Oregon State provide examples that USC, UCLA were removed from Pac-12 board

By Jon Wilner Bay Area News Group

Last fall, a few months after USC and UCLA announced they were leaving the Pac-12 behind, the conference office created a “Briefing Book” for the member universities. Marked “highly confidential,” the digital document included a section titled “Introduction to the Pac-12 Board of Directors” that featured the names of the presidents and chancellors, along with a picture of each. There was no mention of the Los Angeles schools.

The exclusion of USC’s Carol Folt and UCLA’s Gene Block from the “Briefing Book” illustrates how the Pac-12 treated the presidents and chancellors of the outgoing schools – treatment that stands at the heart of a legal dispute over control of the conference.

The latest development unfolded Wednesday in Whitman County Superior Court, where attorneys for Washington State and Oregon State filed a motion for a preliminary injunction designed to ensure that the outgoing schools lose their seats, leaving the presidents of WSU and OSU as the only members of the Pac-12’s governing board.

“Today Oregon State and Washington State asked the court to confirm the departing schools lost their Board seats following their notices of withdrawal from the conference,” the two schools said in a joint statement.

“The evidence we have uncovered thus far in discovery overwhelmingly shows this is consistent with the position that the conference and the departing members themselves had taken up until just weeks before Oregon State and Washington State were forced to file our litigation.”

That evidence, presented in an expedited discovery process, includes not only the “Briefing Book” but also two sworn statements by commissioner George Kliavkoff that USC and UCLA were removed from the board of directors after the thunderous news of their departures on June 30, 2022.

One statement signed by Kliavkoff in a separate legal matter was discovered and reported by the Hotline earlier this month. The other statement was part of the same case – a wrongful termination lawsuit filed by two former executives – but had not been previously made public.

“USC and UCLA … were removed as Board representatives under the Constitution and Bylaws following their notice of withdrawal from the Pac-12,” Kliavkoff stated.

The Pac-12 did not respond to a request for comment.

The motion for a preliminary injunction filed on Wednesday by WSU and OSU also includes a five-page confidential document (marked Exhibit 36) that features the following section:

“Supplemental distributions expected: Subject to due process rights, the Pac-12 may reduce the anticipated $105M distributions to our departing members (Colorado, USC, and UCLA).

“– Pac-12 bylaws allow the Board to issue penalties against members who withdraw before August 1, 2024.

“– The Board is considering options, but we are contemplating seeking considerable financial damages against our departing members that could result in supplemental distributions to the remaining 9 universities.”

(That is the only viewable section of the document; everything else is redacted.)

Attorneys for Washington State and Oregon State are attempting to prove that the conference systematically removed schools from the board once they agreed to join other conferences – and that the departure of 10 universities leaves the Cougars and Beavers as the only rightful members of the board.

In September, they secured a temporary restraining order from Whitman County Judge Gary Libey that prevents the full board from meeting until the makeup is determined. A preliminary injunction hearing on the issue is scheduled for Nov. 14.

(As the lawsuit plays out, the remaining “Pac-2” schools and the outbound “Pac-10” universities have agreed to mediation under former U.S. District Judge Layn R. Phillips, according to court records.)

“We did not create or seek these circumstances, but OSU and WSU will continue to take whatever actions are necessary to protect our universities,” WSU and OSU said in their joint statement. “The future of the Pac-12 should be decided by the schools that stay, not those that leave.”

In the aftermath of the mass exodus in early August, the Cougars and Beavers are considering rebuilding the conference (with schools from the Mountain West) but fear the 10 outgoing universities could vote as a bloc in a manner that “irreparably” harms WSU and OSU, according to the motion filed Wednesday.

If the two remaining schools are declared the only board members, they would control the Pac-12’s assets, including more than $50 million in future NCAA Tournament payouts, and could use the money to fortify their athletic departments and possibly rebuild the conference.

The 10 schools heading to the Big Ten, Big 12 and ACC next summer “are committed to competitors and have no incentive to invest in the Pac-12’s future,” according to the motion.

“Absent a preliminary injunction, nothing would stop the 10 departing schools from seizing control of the Conference and distributing its assets to themselves on their way out the door.”

Central to the case is the interpretation of the Pac-12 bylaws, which state: “If any member does deliver a notice of withdrawal prior to August 1, 2024, in violation of this chapter … the member’s representative to the CEO Group shall automatically cease to be a member of the CEO Group and shall cease to have the right to vote on any matter before the CEO Group.”

The plaintiffs do not believe notice of withdrawal must be “delivered” in a formal, written statement. It could, instead, take the form of a posting on social media or public comment by a university executive.

Nor do the plaintiffs believe the number of departing schools should impact application of the bylaws. The same approach to the board composition that was taken by the conference after the Los Angeles schools announced their departures (i.e., removal) should be applied regardless of the number of outgoing institutions.

The motion filed Wednesday calls any claim that the 10 outbound members have not delivered notice of withdrawal to be “a lawyer-created contrivance designed to deflect from the fact that the departing schools are directly reversing their prior position because it no longer serves their self-interests.”

The examples of established precedent cited in the motion include:

•Following the announcements by the L.A. schools that they would enter the Big Ten in the summer of 2024, the Pac-12 “convened numerous Board meetings without USC or UCLA’s representatives, where the Board discussed all manner of Conference activities including: financial updates, revenue distribution models, media rights negotiations, expansion analyses, medical and legal matters, HR actions, plans for the Pac-12’s production facility, and NCAA governance updates, among other things.”

The motion adds that “None of the 10 remaining member institutions … ever disputed that USC and UCLA had been rightfully removed from the Board.”

•The September 2022 distribution of the “Briefing Book” that features names and pictures of each board member.

Marked as Exhibit 17, it is at least 40 pages long and begins with a note from Kliavkoff: “On behalf of the Pac-12 Conference and your fellow Pac-12 presidents and chancellors, I am delighted to welcome you to the Board of Directors, the Conference’s governing board.”

On page 15, there are pictures of the presidents and chancellors. Two pages later, the briefing book outlines the board’s “chair rotation.”

USC’s Folt and UCLA’s Block are not mentioned or pictured anywhere.

•A joint public statement, issued in February from “the 10 Pac-12 Conference Board Members,” stating that the “10 Pac-12 universities look forward to consummating successful media rights deal(s) in the very near future.”

•Two sworn statements by Kliavkoff in the wrongful termination lawsuit filed in San Francisco by two former Pac-12 executives.

The first came in April: “Each member institution of the Conference has one representative on the Board which shall be the President of that member institution, except … USC and UCLA who were removed as Board representatives under the Constitution and Bylaws following their notice of withdrawal from the Pac-12.”

The second, previously reported by the Hotline, was in July and took the form of a footnote to his declaration: “The University of California, Los Angeles, and University of Southern California are no longer among the member institutions represented on the Board of Directors.”

The motion filed Wednesday notes that as part of the case in San Francisco, the Pac-12 resubmitted the second sworn declaration on Sept. 20 – “nine days after the Court had entered the TRO in this action.”

•A letter from Pac-12 legal counsel Scott Petersmeyer to Colorado chancellor Phil DiStefano after the Buffaloes announced in late July that they would join the Big 12 next summer.

Under Section CB 2-3 of the bylaws, the letter states, “Chancellor DiStefano and CU’s representation on the Pac-12’s Board of Directors automatically ceases effective immediately, and CU no longer has the right to vote on any matter before the Board.”

The Pac-12 board met several times without DiStefano after CU’s announced departure but before the conference collapsed on Aug. 4.

•On Aug. 5, the day after the announced departures of five more schools – but prior to Stanford and California accepting membership in the ACC – Kliavkoff “sent a text message to a news reporter acknowledging that ‘(a)s of today we have 4 board members.’ ”

(The news reporter was not identified in the motion. However, the Hotline confirmed the reporter to be John Canzano of JohnCanzano.com.)

But weeks later, after excluding USC, UCLA and Colorado from previous board meetings, Kliavkoff attempted to convene the presidents of all 12 schools.

“After more than a year of adhering to its Bylaws and automatically removing Board representatives of schools that had given notices of withdrawal, the Conference abruptly changed course,” the motion states.

Faced with an uncertain future and concerned they would be outvoted, Washington State and Oregon State began the legal proceedings on parallel fronts: They sought a preliminary injunction to determine the makeup of the board and a temporary restraining order to prevent the board from meeting until the composition had been determined.

Libey issued the order that same day (Sept. 11).

As the only outgoing school within the state, Washington is attempting to join the lawsuit – a key step toward eventually getting it dismissed.

A hearing on UW’s motion to intervene had been scheduled for Wednesday, but instead will be added to the agenda for the Nov. 14 hearing on the preliminary injunction.