“We always keep our television partners close to us,’’ he said. “You don’t get extra money for basketball. It’s 85 percent football money. TV – ESPN – is the one who told us what to do. This was football; it had nothing to do with basketball.’’
Tortious interference, also known as intentional interference with contractual relations, in the common law of tort, occurs when a person intentionally damages the plaintiff‘s contractual or other business relationships. This tort is broadly divided into two categories, one specific to contractual relationships (irrespective of whether they involve business), and the other specific to business relationships or activities (irrespective of whether they involve a contract).(full disclosure: this is from wikipedia. I checked around on other sites to be sure this was an accurate description and because wikipedia has a, uh, how do you say, mixed record on accuracy. This was the clearest definition I could find and I decided to use it. If you want to make fun of me for using wikipedia go ahead. Like I said, I’m not a lawyer. I’ll defer to the great Michael Scott who described it as such: “anybody can add anything, at any time, for any reason….so you always know you’re getting the very best information.” Case closed.) It is described further as generally being composed of the following elements:
On first glance it seemed pretty clear cut to me that ESPN would qualify for some level of interference as described above, but remember the following thing; Pitt and Syracuse have broken no contracts. They will pay the buyout fee as required by the conference and they will leave at an agreed-upon date, 2014 at the latest but most likely sometime before. Additionally the Big East television deal is about a year from expiration, so any team’s rights beyond that are uncommitted. There can be plenty of questions as to the ethics of what was done, but as of yet there is nothing I know of that would suggest either school broke or will break any contract. So that would seem to protect ESPN from the charge that they incited a breach of contract on the part of Pitt or the Orange. Things get much more intriguing when you look at the second category, which is specific to business relationships or activities:
- The existence of a contractual relationship or beneficial business relationship between two parties.
- Knowledge of that relationship by a third party.
- Intent of the third party to induce a party to the relationship to breach the relationship.
- Lack of any privilege on the part of the third party to induce such a breach.
- The contractual relationship is breached.
- Damage to the party against whom the breach occurs. 
Tortious interference with business relationships occurs where the tortfeasor acts to prevent the plaintiff from successfully establishing or maintaining business relationships. This tort may occur when a first party’s conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. Such conduct is termed tortious interference with prospective business relations, expectations, or advantage or with prospective economic advantage.Now that sounds EXACTLY like what the ACC and possibly ESPN might have done. If it can be proven that they (ESPN) had a real role in the decision making of the ACC with regards to addition of members, it’s a short line between that and the much talked about prospective Big East television deal that once seemed to carry such promise. I think it’s pretty hard to argue against the notion of the future TV deal as “a business relationship with a third party that otherwise would probably have occurred.” Every other conference had entered into one, the Big East was the logical next in line. The deal was (and continues to be) in negotiation. Pitt and Syracuse would have been a party to that deal, and if a third party (or pair of parties) stepped in to intentionally prevent it from happening (lessening the value of the product the Big East was selling), they could possibly be held liable for financial damages. Consider further that ESPN itself would have been an entity with which the Big East could have possibly entered into that lucrative TV contract. In fact if you wanted to journey further into the rabbit hole of conspiracy you would point out that ESPN made the Big East an offer which was rejected in hopes of a more lucrative deal. Hell hath no fury like a worldwide television goliath scorned? Would ESPN have had the same advice for the ACC had the Big East agreed to that deal? There’s really no way to know. And there’s almost certainly no way to prove any of it. The best case scenario would be if this newest development provided some chum for digging that turned up something bigger, but even that is a bit of a stretch. But there’s another side to this story. We’ve now reached the “jump to semi-logical conclusions” portion of our post. Follow me for just a moment longer if you will. What if Gene DeFilippo just saved the Big East? In the OutKicktheCoverage.com column I link to above, Clay astutely points out one major point. The biggest reason ESPN may have side-stepping any sort of litigation thus far for their part in expansion-a-palooza is because they are allowing existing contracts with entities harmed by expansion (for example the Big 12) to remain in place. Here’s they key section from that OKTC post:
Big 12 commissioner Dan Beebe was hailed as a genius for getting ESPN to maintain it’s $65 million yearly payments even with the loss of two attractive television properties in Nebraska and Colorado. Indeed, it was these television assurances that kept the Big 12 from imploding last year. I’d argue that rather than being a great negotiator, Beebe didn’t negotiate anything — I bet ESPN told him it would keep the rights fees the same. Why? Because ESPN’s lawyers advised ESPN to keep the payments the same since Nebraska was leaping from one conference it had a television deal with, the Big 12, to another conference it had a television deal with, the Big 10. Yep, ESPN was conflicted then too. Only no one noticed. I haven’t seen anyone write about this factor in ESPN keeping the Big 12 payments the same despite the loss of two members, but I’d guarantee it’s the major reason why ESPN didn’t negotiate a lower rights fee — because ESPN was worried about the conflict and a resulting lawsuit. That’s why I’d bet my house that ESPN will commit to spending the same amount of money to a Big 12 minus Texas A&M as it was paying to a Big 12 with A&M. Because if it used A&M leaving for the SEC as a reason to cancel the contract, the Big 12 would sue the hell out of ESPN for breaching the deal in the first place — inducing A&M to leave by paying the SEC more money for A&M.Basically ESPN is willing to absorb some small losses, overspending on things even after their value has decreased to avoid HUGE losses in potential lawsuits. Could it then stand to reason that Gene DeFilippo just gave ESPN the best motivation to make a re-organized Big East a fair TV offer in the near future (assuming of course that the league is able to find some level of stability)? And since I think we all agree that ironclad television contracts are the only way to insure conference survival – did DeFilippo’s flapping gums just save the Big East? Obviously there are a lot of moving parts and pieces to realignment and you seldom get a clear “cause and effect” relationship between any two components. More likely you have 4 causes and 6 resulting effects. But if nothing else, you’ve got to believe that these comments have put ESPN on the defensive for perhaps the first time in this entire mess. The ethereal resentment of The Evil Empire finally has found some earthly legs. ESPN has been identified by name by someone with a deep knowledge of conference realignment. The only question left is how far those legs could carry the resulting fallout. And if the Big East, long since given up for dead, might actually keep running.
Filed under: NCAA football