Judge: Oregon State, Washington State will be only two governing members of Pac-12 board

The question of who controls the future of the crumbled Pac-12 Conference has finally been answered – at least for now.

After months of legal wrangling, Whitman County (Washington) Superior Court Judge Gary Libey on Tuesday ruled that Oregon State and Washington State will be the only two governing and voting members of the Pac-12 board.

Libey granted OSU and WSU the preliminary injunction both schools have sought. He will grant a stay on the preliminary injunction only until the end of the week.

“I grew up where conduct spoke louder than words,” Libey said before issuing his highly anticipated ruling.

Libey stressed the ruling is “not a shutout,” adding that the departing 10 schools still need to be treated in a fair manner so “nobody is going to take advantage of somebody else.”

The latest development in the lawsuit OSU and WSU filed against the Pac-12’s 10 departing members and commissioner George Kliavkoff will almost certainly be appealed. At the hearing’s start, Libey himself said Tuesday’s decision by the court will only last until an appeal is made in Washington State Supreme Court in Olympia.

The case has been a contentious legal tussle over control of lucrative future and current assets within and governance of the disintegrating Pac-12.

Eric MacMichael, an attorney for OSU and WSU, laid out an argument why the Pac-2 would suffer irreparable harm if the departing schools have voting power on the board, adding that OSU and WSU “would lose a chance to try to chart a path forward.”

At one point, Libey asked Mark Lambert, the Pac-12 attorney, whether the Pac-12 wants to continue operating.

Lambert: “Frankly, that is up to OSU and WSU at this point.”

OSU and WSU are also facing a significant time crunch.

They still do not know their conference affiliation in 2024 and beyond, making the completion of football schedules for next fall all the more daunting. Additionally, the Dec. 4 opening of the transfer portal is fast approaching, with both schools potentially facing a mass exodus of players if there is no clarity on their conference makeup next year.

OSU and WSU have contended that precedent establishes that the 10 departing schools forfeited their rights to voting power on the league’s board once they announced their forthcoming departures in 2024. If the 10 retain voting power, OSU and WSU assert, the 10 could move to formally dissolve the league while taking some lucrative parting gifts to their new power leagues.

But the 10 departing schools contend OSU and WSU aren’t merely trying to seize control over assets like some $60 million in future NCAA tournament financial units. They say OSU and WSU are trying to control league revenue for the 2023-24 year, which court documents ballpark at $420 million. That money could be used to offset exit fees for new schools eager to join a rebuilt Pac-12, they say.

The future for Oregon State, Washington State

Both parties in the Pac-12 lawsuit have been engaged in mediation talks. And Washington has signaled in court documents that if Libey did in fact give control of the conference to the Pac-2, the Huskies would request the court stay the order to maintain the status quo while Washington seeks review in the Washington Supreme Court. It also would request that OSU and WSU cannot use net revenues from the 2023-24 year to, among other things, add to the conference effective after Aug. 1, 2024.

What remains unclear is what the next realignment move will be for OSU and WSU. They have explored a so-called reverse merger with the Mountain West Conference, a scenario that would entail the new league retaining the valuable and historic name and brand of the 108-year-old Conference of Champions.

However, both OSU and WSU have signaled that their hope is to do the improbable: Dig in their heels and rebuild the Pac-12. The NCAA stipulates that conferences must have eight members to formally reach FBS status, but there is a two-year grace period.

One huge question looms: Could Oregon State and Washington State enter 2024 as a two-team football conference and piece together an innovative scheduling alliance with other leagues? It’s on the table. But time is running short.

What is this Pac-12 lawsuit about?

Both sides in the case have filed more than 500 pages of court documents in recent weeks.

In a Nov. 2 court filing, Washington’s attorneys contended: “This lawsuit is not just about the Pac-12’s future, but also its present. The Pac-12 currently has 12 member schools that are earning hundreds of millions of dollars for the Conference this 2023-24 academic/athletic year. 

“If they [OSU, WSU] seize sole control of the Board, they will have control of that revenue earned by all 12 member schools. They have said publicly that they are looking to add schools from conferences that would require the Pac-12 to pay them tens of millions in exit fees.”

However, Oregon State and Washington State assert that the league’s own commissioner repeatedly established that the 10 other schools forfeited their voting power by announcing forthcoming departures. 

An Oct. 25 motion by the schools included a trove of documents, including two sworn declarations by Kliavkoff stating USC and UCLA were removed from the board after their notice of withdrawal in the summer of 2022 when the Bruins and Trojans announced forthcoming departures to the Big Ten.

That motion also includes a text message from Kliavkoff to a reporter on Aug. 5, the day after realignment whittled the league down to just four remaining schools.

Kliavkoff: “As of today we have 4 board members.”

The text is among several pieces of evidence that appeared to bolster the belief that departing schools forfeit their right to serve on the league’s board, which controls decisions regarding the conference’s future. In addition, exhibits include post-realignment letters from Washington’s president and Oregon‘s general counsel that include identical language in the following sentence:

“The University will be excluded from Conference discussions pertaining to matters occurring after August 1, 2024, such as media rights agreements and new Conference member considerations.”

OSU, WSU were kicking tires on realignment moves

One interesting – though not surprising – finding from the discovery process was that Oregon State and Washington State also explored joining other power leagues.

Text messages between Oregon State President Jayathi Murthy and Beavers Athletic Director Scott Barnes revealed the school was looking at other conference options even before seven schools decided in August to leave.

On July 30, Murthy spoke with Virginia‘s president about potentially joining the ACC. On Aug. 5, in a private message, WSU President Kirk Schulz proposed to Murthy and leaders of Stanford and Cal that all four schools could join the Big 12.