Everyone who reads A Sea of Blue on a regular basis knows I'm not a lawyer, and I don't play one on this blog. With that said, you don't have to be a lawyer to read and understand the law in its basic form, even though the procedural and precedential twists and turns can always trip you up.
So how about this threatened lawsuit by Baylor against the SEC for tortious interference? "What the heck is 'tortious interference,'" you ask? Rather than trying to explain it myself, I'll direct you to this Burnt Orange Nation post (hat tip: JC25) that describes what that term means. Essentially, it is the common-law concept that it is wrong for a third party to interfere in the contract between two other parties.
Here's how such a claim would likely go, translated into human-readable language: The SEC interfered with Baylor's contractual interests in the Big 12 by inducing Texas A&M to leave the conference, likely leading to a breakup that will cost Baylor a lot of money and prestige by forcing it to affiliate with a lesser conference.
That seems simple enough, even to me. So what does Baylor have to prove to prevail in such a suit, should it ever be filed?
According to my understanding, the elements to proving this tort (legal word for "wrongful act" as applied to contracts) that must be proven by a preponderance of evidence are:
- A legal contract or beneficial business relationship must exist between two parties (one of whom would be Baylor) that was affected by the third party (the SEC, in this case);
- The third party (SEC) must be aware of the contract or relationship;
- The third party (SEC) intended to induce a breach of contract or relationship by one of the parties (Baylor's other party) to the contract;
- The third party (SEC) lacked any contractual or legal privilege to induce the breach;
- The relationship or contract actually was breached;
- The party affected by the breach (Baylor) was harmed by it.
First, lets take the easy ones and dispose of them. There is no doubt that the SEC is aware of the contract between the Big 12 conference and the teams that comprise the Big 12. There is no doubt that the SEC lacks contractual or legal privilege to institute any breach of those contracts. Also, Texas A&M has announced its intention to breach the contract, and if TAMU leaves the Big 12, point 5 is proven. So we can safely consider points 2, 4, and 5 can be proven to the required standard of proof.
Now, let's take the rest in order. A legal contract exists between Texas A&M and the Big 12 Conference, but not between Texas A&M and Baylor. The question therefore becomes one of meeting the first hurdle, which is basically one of standing. Does Baylor, one of ten remaining members of the Big 12, actually have a contractual relationship that is being interfered with?
My reading would be no. Texas A&M has a contract with the Big 12, a legal entity, not the other schools in the conference, as does Baylor. Are Baylor's rights and privileges under the contract affected by the breach by TAMU? No, not really. Is it's business relationship with the Big 12 harmed? No, not at all -- that relationship is the point of the contract between Baylor and the Big 12, which is not being interfered with.
Moving on to intent, it is clear that Texas A&M approached the SEC first, not the other way around. That fact alone indicates the intent to breach was TAMU's idea, not something induced or put in their heads by the SEC. Mike Slive is nothing if not highly intelligent and a lawyer to boot, and the SEC has carefully placed themselves beyond the reach of a provable accusation of intentional tortioius action by allowing TAMU to initiate all conversations with it, either directly or through the media.
Moving on down the list to point 6, it is possible that the result of TAMU's departure could place Baylor in an unfortunate position eventually, but that harm has yet to happen, and cannot be proven at all. There is no way to show what may happen in the future, it is entirely speculation on the part of Baylor. Baylor would have a better case (albeit only marginally, it still has to achieve "party" status within the meaning of the tort and prove the SEC intended to interfere) if TAMU left, the Big 12 collapsed, and Baylor's worst fears were realized. But until that actually happens, or unless they can show to a high standard of proof that it is inevitable, Baylor's case fails utterly on point 6. In my view, it also fails on point 1 and point 3.
So there we go. What do you think? Where will this all end up?