In the latest filing in Oregon State and Washington State's lawsuit against the Pac-12 and commissioner George Kliavkoff, the two schools introduced several exhibits obtained during discovery that establish the conference removed UCLA, USC and Colorado from its board after the schools announced they were leaving for the Big Ten and Big 12.
The schools argued that application of the bylaws should also apply to the conference's seven other departing schools.
"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," OSU and WSU said in a joint statement on Wednesday. "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."
On Sept. 9, WSU and OSU filed a complaint for breach of bylaws in Whitman County (Wash.) Superior Court and sought an emergency temporary restraining order to protect what the schools saw as an "imminent and existential threat" to the future of the conference. The TRO request was granted Sept. 27, which prevented any board meetings to be called.
OSU and WSU had concerns that if a board meeting were held -- and included the 10 departing schools -- those schools could force a vote to take action detrimental to the future of the conference. A hearing for a preliminary injunction is set for Nov. 14, at which point the court will likely determine who has voting rights on the Pac-12 board.
The two remaining schools have argued from the beginning that as soon as the departing schools announced they were joining other conferences -- UCLA, USC, Oregon and Washington to the Big Ten; Arizona, Arizona State, Colorado and Utah to the Big 12; and Cal and Stanford to the ACC -- they no longer had the right to make decisions about the future of the conference.
During discovery, it was revealed that after UCLA and USC announced they were leaving for the Big Ten, the Pac-12 wrote to them to say, in part, that it "would have been a direct conflict and contrary to the best interests of the Pac-12 membership as a whole, to allow [USC and UCLA] to participate in" board discussions, according to the filing.
OSU and WSU argued, "The fact that eight additional schools have withdrawn since USC and UCLA does not erase this conflict or somehow change the meaning of the Bylaws. Indeed, that 'direct conflict' now infects all ten departing schools, who are committed to competitors and have no incentive to invest in the Pac-12's future.
Several other examples were introduced.
In September 2022, a "briefing book" about the board of directors was distributed to conference board members. In the "Introduction to the Pac-12 Board of Directors" section, it listed representatives from 10 schools and did not include anyone from UCLA or USC.
Five months later, the Pac-12 issued a statement related to the ongoing media rights negotiations that was attributed as a "Joint statement from the 10 Pac-12 Conference Board Members." Emails records show there was unanimous consent from the 10 member schools to issue the statement as drafted.
In separate lawsuits earlier this year -- when UCLA and USC were the only schools that had announced they were leaving -- Kliavkoff submitted two sworn declarations that both schools were no longer members of the Pac-12 board.
Another exhibit, a memo drafted by a high-ranking Pac-12 official, shows that after Colorado also announced its intentions to leave the conference, the Pac-12 board -- then made up of nine schools -- was "contemplating seeking considerable financial damages against our departing members that could result in supplemental distributions to the remaining 9 universities." Earlier this month, Washington filed a motion to intervene, seeking to join the lawsuit and file for a dismissal.
"UW has a significant stake in opposing WSU and OSU's claims and preventing the Court from granting the relief requested," the motion states. "True, UW is leaving the Conference after the 2023-24 academic year. But, in the meantime, UW remains a member of the Conference, and board participation and voting power affects the experience of UW's athletics teams and student-athletes for the 2023-24 academic year as well as UW's bargained-for contractual rights and financial interest." OSU and WSU noted that as the Pac-12 board held meetings for more than a year without UCLA and USC, it was chaired by University of Washington president Ana Marie Cauce.
"The Conference and departing schools cannot now redefine the Bylaws and walk back their prior positions because more schools have decided to depart and their prior positions no longer suit them," OSU and WSU argued.
The OSU/WSU joint statement added: "The Pac-12 cannot continue to be paralyzed at such a critical time. We did not create or seek these circumstances, but OSU and WSU will continue to take whatever actions are necessary to protect our universities, ensure accountability and transparency, safeguard student-athletes and the Pac-12 Conference, while preserving our options moving forward. The future of the Pac-12 should be decided by the schools that stay, not those that leave."
It is not clear what will happen with OSU and WSU's conference affiliations next year. On Sept. 21, presidents and ADs from both schools said they were hoping to have clarification within a month about the Pac-12's remaining assets -- a key factor in deciding whether to attempt to rebuild the Pac-12 or seek membership elsewhere. Presumably, they will also have to wait until after the hearing on Nov. 14, before making any official decisions.