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Kyle Bonagura, ESPN Staff Writer
A state judge in Washington granted Oregon State and Washington State sole control of the Pac-12 board of directors on Tuesday, issuing the ruling at a preliminary injunction hearing in Whitman County Court.
Judge Gary Libey granted a stay of the decision until Monday — at no objection from OSU and WSU — as the 10 schools leaving the Pac-12 following the 2023-24 school year initiate the appeals process.
The decision comes roughly two months after Libey granted a temporary restraining order at the request of OSU and WSU that prevented Pac-12 commissioner George Kliavkoff from calling any Pac-12 board meetings.
“I grew up where conduct spoke louder than words. That’s how my parents treated me, and that’s how I treated my children when they were growing up,” Libey said before issuing his decision. “With that in mind, this court finds in favor that the plaintiffs are likely to prevail on their interpretation of the bylaws.”
In a small Whitman County courthouse, roughly 15 miles from WSU’s campus in Pullman, Libey heard arguments from three parties: OSU/WSU, the Pac-12 and the University of Washington, which entered the case as an intervenor, working on behalf of the nine other departing schools (Arizona, Arizona State, Cal, Colorado, Oregon, Stanford, UCLA, USC and Utah).
Over the course of about 2½ hours, all three parties argued for different outcomes.
OSU and WSU argued — as they have done for weeks in written briefs — that conference bylaws were clear that when schools announced they were joining other conferences, they immediately surrendered their seat on the conference board. That, they argued, was how it worked when UCLA and USC announced they were joining the Big Ten and, again, when Colorado announced it was leaving for the Big 12.
It was not only until the other seven announced they also were leaving, OSU and WSU argued, that those schools’ interpretation of the bylaws changed and claimed that all 12 deserved a seat on the board.
“There isn’t a single document that’s been produced which shows that the University of Washington thought that this was the correct position until it provided its notice of withdrawal and now the shoe was on the other foot,” argued lawyer Eric MacMichael, for OSU and WSU. “But parties are not allowed to just blatantly flip-flop on the meaning of contractual provisions just so they can have their cake and eat it too.”
The conference attempted to maintain an appearance of neutrality, lobbying for the terms of the temporary restraining order — which required a unanimous vote on any major decision — to remain in place. The conference’s attorney, Mark Lambert, was less assertive when addressing the court, acting more in a capacity of obligation.
Asked by Libey if the Pac-12 wants to continue in its business in the future, Lambert said, “Frankly, that is up to Oregon State and Washington State at this point, and the conference and the commissioner are sensitive to those issues and also sensitive to the notion that without a board that makes things difficult.”
The departing schools asked Libey to rule against OSU and WSU outright, which would have essentially given them the right to govern the conference with a 10-2 supermajority.
At the heart of the dispute is forthcoming revenue. The departing schools, as they did in writing earlier this month, expressed concern that OSU and WSU could withhold revenue set to be distributed during this academic year. They also made the case that OSU/WSU’s fear that the departing schools could vote to dissolve the conference — then evenly distribute the remaining assets — was irrelevant because of their belief that process could be conducted without any board action.
“It’s simply the fact that the members could decide to dissolve that they wanted,” argued Dan Levin, for Washington. “Of course, in all this time during these proceedings and before, no member has called for such a vote.”
It’s unclear if the departing schools would attempt to act on that mechanism if they don’t win on appeals.
“We are disappointed with the decision and are immediately seeking review in the Washington Supreme Court and requesting to put on hold implementation of this decision,” the remaining 10 members said in a statement. “As members of the Pac-12, participating in ongoing and scheduled competitions, we are members of the board under the Pac-12 bylaws. We have the right to the revenue earned by our schools during the 2023-2024 academic year, which is necessary in order to operate our athletics programs and to provide mental and physical health services, academic support, and other support programs for our student-athletes.
“We remain committed to the best interests of our student-athletes, athletic departments, and university communities and will persist in our efforts to secure a fair resolution.”
Meanwhile, WSU president Kirk Schulz and athletic director Pat Chun lauded the court’s “common-sense decision.”
“It has always been our view that the future of the Pac-12 should be determined by the remaining members, not by those schools that are leaving the conference,” they said in a statement. “This position is consistent with the action the Pac-12 Board of Directors took when the first two schools announced their departure from the conference more than a year ago.
“We have always been committed to protecting the best interests of the conference, our student-athletes, coaches and fans. Today’s news allows Washington State University and Oregon State University to start that process as the controlling members of the Pac-12 Conference Board.”
OSU president Jayathi Murthy and athletic director Scott Barnes offered a similar sentiment.
“We are pleased with the Court’s decision today that Oregon State and Washington State constitute the only remaining members of the Pac-12 Conference Board,” they said in a statement. “We look forward to charting a path forward for the Pac-12 that is in the best interest of the Conference and student-athletes. Our intentions are to make reasonable business decisions going forward while continuing to seek collaboration and consultation with the departing universities.”