UNIVERSITY OF CONNECTICUT; } SUPERIOR COURT OF THE } COMMONWEALTH SYSTEM OF HIGHER } J.D. OF HARTFORD EDUCATION; RUTGERS, THE STATE } UNIVERSITY OF NEW JERSEY; VIRGINIA } AT TOLLAND POLYTECHNIC INSTITUTE & STATE } UNIVERSITY; and } UNIVERSITY, } CASE: CV-03-0826088-S } Plaintiffs, } } v. } } UNIVERSITY OF ; BOSTON } COLLEGE; and ATLANTIC COAST } CONFERENCE, } } Defendants }

INTERVENOR CHARLES J. CRIST, JR.’S MEMORANDUM IN SUPPORT OF THE MOTIONS TO DISMISS

Intervenor Charles J. Crist, Jr., the Attorney General of the State of Florida, respectfully

submits this memorandum in support of the Motions to Dismiss filed by Defendants the University

of Miami and the Atlantic Coast Conference.

I. Introduction: The Freedom To Contract Is A Public Good.

Vigorous competition underlies much of what we value as a society, forming the foundation

of our economic and political system. It is a principle the parties to this action are intimately familiar with - they compete in lecture halls and laboratories, on their playing fields, to recruit new students and faculty members, to establish alumni bragging rights, and for public and private funds.

Underlying competition are the freedoms to contract and to freely associate, and fundamental to

those freedoms are the abilities to both join and leave the voluntary relationships so created. These

principles inure to the benefit of us all, helping to create a dynamic society whose members are

motivated to strive for the best, and the Attorney General of Florida has intervened in support of the jurisdictional motions to dismiss because of his concern that Plaintiffs’ action could cause long-term

harm to these principles.

While the Court will decide these motions based on the allegations in the complaint and on

the jurisdictional facts, it should not ignore the larger context in which this dispute arises. This lawsuit appears to be a strike suit designed to intimidate the University of Miami (“Miami”) and the

Atlantic Coast Conference (“ACC”) from exercising the right to contract and to freely associate. It is a strike suit because the contract governing the members of the Big East expressly contemplates and permits member withdrawal. Plaintiffs’ attempt to intimidate Miami into not exercising its contractual and fundamental right of free association could cause long-term harm to collegiate

athletics and impair the healthy competition that has brought greatness to individual student athletes

and to their schools, and benefitted alumni and fans who enjoy the competition in the athletic and academic arenas.

The lawsuit also flies in the face of a course of dealing among universities that is almost a century old. That history has been dynamic, with new athletic conferences arising to challenge older established ones, and marked by conference members shifting from one league to another. This lawsuit seeks to stifle that competition to the detriment of our public and private educational

institutions.

II. Background: A Brief Overview of Collegiate Conferences

Collegiate conference, or league, play goes back more than a hundred years. The first

collegiate athletic conference, the Big 10, was founded in January 1895 in .1 Over time other

conferences emerged to serve the needs of college athletes and universities. Among the NCAA

1http://www.bigten.org/history/index.cfm.

2 Division 1-A conferences, the Pac-10's roots go back 87 years2, and the is

70 years old.3 The ACC was founded in 1953.4 The Mid-American Conference was founded three years later, in 1956.5 The Western Athletic Conference has existed for 40 years,6 the Big East has operated for 25 years7, and the was established 28 years ago.8 Other Division

1-A conferences are younger: the Big-12 Conference was founded in 1994 in the wake of the

Southwest Conference’s dissolution9, while the Conference-USA and the were founded in 199510 and 199811 respectively. These are just Division 1-A conferences. There are many others.12

Not only have the number of conferences grown over the years, but the existing conferences have expanded. Sometimes this occurs with the recruitment of colleges. For example, the Big East

2http://www.pac-10.org/school/conf-of-champs-intro.html

3http://www.secsports.com/index.php?well_id=2&url_publish_channel_id=19

4http://theacc.ocsn.com/this-is/acc-this-is.html.

5http://mac-sports.ocsn.com/ot/about-the-mac.html.

6http://www.wacsports.com/section_front.asp?arttypeid=5.

7http://www.bigeast.org/about/.

8http://www.sunbeltsports.org/info/history.

9http://big12sports.ocsn.com/aboutbig12/big12-aboutbig12.html.

10http://www.conferenceusa.com/about/.

11http://themwc.ocsn.com/about/mwc-about.html.

12http://sportsillustrated.cnn.com/football/college/conferences/.

3 has expanded four times in the last 11 years by adding new colleges to its membership roster.13

Conference-USA also grew quickly by adding new colleges.14 Sometimes expansion has come with

the merger of conferences, such as when the Sun Belt Conference merged with the American South

Conference in 1991.15

At the same time that colleges have joined conferences, they have also left them. For example, Michigan left the Big-10 in 1907 and Chicago in 1940.16 Wayne State left the Mid-

American Conference in 1947, Butler in 1950, in 1953, Western Reserve in 1955.17 The

Virginia Military Institute left the , where it had been a member since 1924, in

2003.18 Troy State resigned from the in 2001 and Jacksonville State has announced its intention to withdraw from Southland effective this year.19 Georgia left the SEC in 1964 and later joined the ACC in 1978.20 The University of South Carolina left the ACC in

1971.21 The Mountain West Conference arose when eight colleges broke away from the Western

13http://www.bigeast.org/about/.

14http://conferenceusa.com/about.

15http://sunbeltsports.org/info/history.

16http://infoplease.com/ipsa/A0758350.html.

17http://mac-sports.ocsn.com/ot/about-the-mac.html.

18http://www.soconsports.com/article.asp?articleid-10288.

19http://thegatewayconnection.com/petees/iaahistory.html.

20http://theacc.ocsn.com/this-is/acc-this-is.html

21http://theacc.ocsn.cm/this-is/acc-this-is.html.

4 Athletic Conference in 1999.22

Indeed, , a former plaintiff in this case accusing the ACC and Miami of engaging in an improper conspiracy, recently announced its intention to leave the Big East after only a three year membership. Virginia Tech’s surprise announcement, after such a short relationship with the Big East, has elicited little public reaction from the remaining plaintiffs. So much for grand conspiracy theories.

This informal history demonstrates that conference memberships are not marriages expected to last forever. College athletics is competitive on and off the field, with universities aligning and re-aligning as they see fit to obtain the best play opportunities for their athletes. The fact that the Big

East’s 2001 Constitution contains an explicit mechanism for handling resignations from the conference is proof that the Big East and its membership understood this fact and planned for an orderly way to handle it.

This dynamism has benefitted the athletes, the colleges, and the fans. It has increased opportunities for play and better shots at championships and bowl games, with the corresponding exposure and national prominence a champion sports team -- regardless of the sport -- brings to a university. It is a well known fact that successful, prominent college sports teams are a useful recruiting tool -- and not just for sports-minded students. They attract intellectually promising students who, while they may never play an inter-collegiate sport, contribute to the institution’s academic excellence and alumni support network.

Allowing this case even to go forward throws sand in the gears of a competitive process that has served this country and its colleges well for a century. The prospect of similar suits is sure to

22http://sportplanet.com/ncaa/rosterpedia/ncaamoutwest.html.

5 chill other universities contemplating leaving their current conferences to form new affiliations, new alliances, and perhaps even new conferences.

6 III. The Court Should Not Exercise Either Specific Or General Personal Jurisdiction Over The Defendants, Particularly In Light Of The Weakness Of Plaintiffs’ Legal Theories.

The issues currently before the court revolve around the questions of personal jurisdiction

over Miami and the ACC. Defendants’ motions lay out the two-pronged test the Court must apply

to this analysis: (1) does Connecticut’s long-arm statute provide a basis to exercise personal

jurisdiction and, if so, (2) does the exercise of personal jurisdiction comport with constitutional due

process requirements of fair play and reasonable expectations?

It is unclear from the Complaint whether Plaintiffs ask this Court to exercise specific or general jurisdiction over Miami and the ACC. The Attorney General finds it hard to believe that

Plaintiffs seek to assert general jurisdiction over Defendants. For example, unless there is as-yet-- unknown evidence that Miami has such pervasive and regular contacts with the State of Connecticut that uniquely distinguish its activities from the types of activities regularly conducted across the country by other colleges and universities, it is difficult to discern a basis for general jurisdiction over Miami. Indeed, should the Court find that activities such as attending athletic events, recruiting students, and alumni events/contacts in Connecticut are sufficient to establish general jurisdiction,

Plaintiffs - who surely conduct the same activities in Florida - cannot be heard to complain should suit be filed against them in a Florida state court.

Turning to the question of specific jurisdiction, Plaintiffs rely on tort-like legal theories arising from a purported conspiracy between Miami and the ACC to destroy the Big East. Of course,

that conspiracy could not have been too successful, since the other two purported conspirators -

Boston College and Syracuse - remain in the Big East, and a former Plaintiff - Virginia Tech - recently announced its intention to withdraw from the Big East to join the ACC and dropped out of

7 this lawsuit. Turning back to the jurisdictional issue, it is difficult to discern any jurisdictional fact alleged in the Complaint that relates to Connecticut and that would permit the Court to exercise

personal jurisdiction over the Defendants.

The weakness of Plaintiffs’ legal theories may explain this shortcoming. Significantly absent

from Plaintiffs’ legal theories is a breach of contract claim based on the Big East’s 2001

Constitution. The Court might find this odd, since that contract sets forth the rights and

responsibilities of the Big East’s members to each other and would be the logical starting point for

any claim against either Miami or the ACC. That contract creates an unambiguous and

straightforward mechanism governing member withdrawal: (1) the member must give timely notice

of its intention to withdraw and (2) the member must pay a withdrawal fee (either one or two million

dollars, depending on the date of payment). Under the Big East Constitution, a member’s withdrawal does not become effective until the end of the next year (measured from July 1 to June

30), so that Miami and Virginia Tech’s withdrawals will not occur until June, 2004. There is no

allegation that Miami failed to comply with these requirements, nor is there an allegation that the

ACC somehow assisted Miami in avoiding its contractual responsibilities.

The express contract undercuts many of Plaintiffs legal theories which tend to sound in tort

or quasi-contract, e.g., promissory estoppel, unjust enrichment, fiduciary duty. For example, a claim

of promissory estoppel generally requires reasonable reliance on clear and definite promises. See,

e.g., D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 520 A.2d 217, 213 (Ct.

1987). Any notion of reasonable reliance on Miami’s statements regarding its intentions and the Big

East cannot survive scrutiny when balanced against the fact that the contract contemplates and

permits member withdrawal.

8 Plaintiffs’ breach of fiduciary duty claims also fail to pass a common sense test. A fiduciary

duty “is characterized by a unique degree of trust and confidence between the parties, one of whom

has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.”

Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 761 A.2d 1268, 1278 (Ct. 2000) (despite defendant’s superior technical knowledge, no fiduciary relationship existed between parties in arms-length

transaction governing ownership and operation of commercial broadcast tower). Generally, the

“fiduciary [is] either in a dominant position, thereby creating a relationship of dependency, or [is]

under a specific duty to act for the benefit of another,” id. at 1278, and the “unique degree of trust

and confidence” reposed in the fiduciary requires him to “[undertake] to act primarily for the benefit

of the” other party. Id. at 1279. “The law will imply [fiduciary responsibilities] only where one

party to a relationship is unable to fully protect its interests [or where one party has a high degree of

control over the property or subject matter of another] and the unprotected party has placed its trust

and confidence in the other.” Id. at 1279. The classic situations involve the trustee/beneficiary,

corporate director/shareholder, and general partner/limited partner relationships.

In this case, the Court is confronted with sophisticated public and private entities who are

fierce competitors in many arenas. One is hard pressed to discern Plaintiffs’ dominance by and

dependence on Miami, how Plaintiffs’ relationship with Miami involves special trust and confidence,

or the manner in which Miami has undertaken to act primarily in Plaintiffs’ benefit. The parties’ obligations to each other are bounded by the terms of their contractual relationship, and they do not need the extra protections imposed by the doctrine of fiduciary duty’s quasi-tort obligations.23

23Indeed, one would not expect the Court to entertain a claim by one of the Plaintiffs that a fellow member of the Big East breached a fiduciary duty by offering a more attractive financial aid package to a sought-after scholar or athlete. Nor would such a claim exist if a member recruited

9 Similarly, Plaintiffs’ tort claims are likely barred by the economic loss rule. The relationship

between Plaintiffs and the University of Miami was created and is governed by the 2001 Big East

Constitution. The economic loss rule generally bars tort claims for economic damages in favor of

claims brought in contract for the following reason:

Almost any contract breach can be conceived of in terms of a negligent or intentional tort claim. If left unchecked, the incessant tide of tort law would erode and eventually swallow contract law. This court believes that if tort law and contract law are to fulfill their distinctive purposes, they might be distinguished where it is possible to do so. The economic loss doctrine serves the basis for such a distinction...[T]o permit a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of parties to allocate the risks of their own transactions.

Princess Cruises Lines, Inc., v. General Electric Co., 950 F. Supp. 151, 155 (E.D. Va. 1996). Citing

the Supreme Court’s decision in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858

(1986)24, the court in Princess Cruises cautioned that it “must follow the Supreme Court's effort in

East River to prevent contract law from drowning in a sea of tort.” 950 F. Supp. at 156.

Connecticut’s trial courts have applied the economic loss rule to bar tort claims arising from

violations of contracts, see, e.g., Dobco v. Williams Development Co. et al., 2002 Conn. Super.

LEXIS 1681, 2002 CT.Sup. 6454 No. X07CV99-0072152S, 32 Conn. L. Rptr. 214 (holding that the

economic loss doctrine prohibits recovery in tort where the basis for the tort claim arises from

violation of a contract.), although its appellate courts have not expressly adopted the doctrine. The

Connecticut Supreme Court, however, has held that recovery of economic losses caused by a

defective performance of a contract for the sale of goods may be sought only in an action for breach

away another’s tenured professor or received a public research grant the other was vying for.

24In East River, the Supreme Court held that whether stated in negligence or strict liability, a products liability claim cannot be brought in admiralty when only economic losses are claimed.

10 of contract, as opposed to a tort action for fraud and unfair trade practices. Flagg Energy

Development Corp. v. G.M.C., 244 Conn. 126, 709 A.2d 1075 (1998).25

While this brief overview does not begin to detail the problems with Plaintiffs various legal

theories, it hopefully demonstrates that Plaintiffs are asking this Court to stretch to exercise

jurisdiction over claims with dubious validity.

IV. The Court Should Decline To Exercise Jurisdiction Because The Claims Asserted Against Miami And The ACC Are Not Ripe For Adjudication.

This case preemptively claims damages and injunctive relief when no harm has yet occurred.

Although Miami - as well as Virginia Tech - has now announced its intention to withdraw from the

Big East, which it had not done at the time the plaintiffs filed, Miami will not leave until June, 2004.

Any possible harm that might flow from Miami’s withdrawal is purely guesswork at this point.

Because that harm is speculative and hypothetical, the case is unripe, and this court lacks jurisdiction.

Ripeness, as a jurisdictional principle, is well known in Connecticut, as it is in other states.

The Connecticut Supreme Court notes that the rationale for the principle is “‘to prevent courts,

through avoidance of premature adjudication, from entangling themselves in abstract

disagreements.’” Milford Power Co. v. Alstom Power, 263 Conn. 616, 626, 8122 A.2d 196 (Conn.

2003). The court explicitly declared that Connecticut courts should not adjudicate hypothetical

disputes: “[W]e must be satisfied that the case before the court does not present a hypothetical injury

25Moreover, in Flagg the Connecticut Supreme Court cited the Princess Cruises case with approval for the proposition that sophisticated corporations who are familiar with the consequences of a failure to perform a contract as promised are “free to allocate the risks, insure against potential losses, and adjust the contract price as they deemed most wise.” 240 Conn. at 153 – 154, 709 A.2d at 1088.

11 or a claim contingent upon some event that has not and indeed may not transpire.” Id.

A case must therefore present a real, substantial controversy before it is justiciable. U.S. v.

Broadcast Music Inc., 275 F.3d 168, 178 (3d Cir. 2001). An injury that is contingent on the happening of a future event which may not occur is too speculative to support jurisdiction. Id..

“Courts exist for determination of actual and existing controversies . . . ‘It is a well settled general rule that the existence of an actual controversy is an essential requisite . . .’” Harkins v. Driscoll, 165

Conn. 147, 409, 334 A.2d 901 (Conn. 1973). In the absence of such a justiciable controversy,

Connecticut courts lack jurisdiction. Lockwood v. Clark, 2003 Conn.Super. LEXIS 23 (Conn. Jan.

8, 2003).26

Plaintiffs allegedly fear that a Big East team will not get a bid to a “BCS conference” football bowl if Miami resigns, the core harm alleged in the complaint. Complaint at 10-11. The loss of such a bid to a Big East team allegedly could mean the loss of millions in revenues. Id. at 11. But what harm may befall the Big East and its remaining members is purely hypothetical at this moment.

Miami has not withdrawn and will not for another year. Whether the Big East or any member college will later suffer the loss of a football bowl bid and future revenues is speculative. One of the remaining schools might win one, the Big East may recruit new members, the rules governing the bowl bids may change to Plaintiffs’ advantage, or the Big East or any of its members may be denied a bowl bid for reasons wholly unrelated to Miami’s future withdrawal from the conference. It is simply too soon to say.

Virginia Tech’s withdrawal from the Big East merely underscores the speculative nature of

26The Court should note that Plaintiffs do not seek a declaratory judgment, but instead seek to exact permanent injunctive relief and monetary damages from the Defendants.

12 the claimed economic losses. The Court cannot predict whether any harm to Plaintiffs is actually a

result of Miami’s withdrawal, the amount of any such harm, whether and how much of that harm

results from Virginia Tech’s withdrawal, and the extent to which any harm was or could have been

mitigated by steps Plaintiffs took or could have taken in the interim.

The standard is slightly different, although not markedly so, for the plaintiffs’ injunctive

relief claim, as any harm that is hypothetical at this moment bars injunctive relief. Gay & Lesbian

Law Students Ass'n v. Board of Trustees, 236 Conn. 453, 491-492 673 A.2d 484 (Conn. 1996);

Moore v. Ganim, 233 Conn. 557, 570, 660 A.2d 742 (Conn. 1995). Additionally, any alleged harm must be imminent in order to be eligible for injunctive relief. Karls v. Alexandra Reality Corp., 179

Conn. 390, 401, 426 A.2d 784 (Conn. 1980). But no harm is imminent here, as Miami will not

withdraw until next year. Consequently, because the alleged harm is both hypothetical and not

imminent, the court lacks jurisdiction of the injunctive relief claim as well.

In sum, because the alleged harm has not occurred and may not occur, it lacks the

concreteness necessary for a justiciable controversy. Hypothetical harms such as those alleged in the

complaint do not support a lawsuit, and this Court lacks jurisdiction of the claims against Miami

because they are not ripe.

13 Respectfully submitted,

CHARLES J. CRIST, JR. FLORIDA ATTORNEY GENERAL

By local counsel: /s/ John F. Conway Loughlin Fitzgerald 150 South Main Street Wallingford, CT 06492 Tel. (203) 265-2035 Juris. No. 34583 Dated this 30th day of July, 2003.

CHARLES J. CRIST, JR. ATTORNEY GENERAL

/s/ Paul C. Huck, Jr. Deputy Attorney General Florida Bar No.: 968358 Juris No. 421620 Kathleen Von Hoene Bureau Chief, General Civil Litigation Florida Bar No.: 0615765 Charles M. Fahlbusch Senior Assistant Attorney General Florida Bar No.: 0191948 David J. Glantz Senior Assistant Attorney General Florida Bar No.: 504238 Office of the Attorney General 110 S.E. 6th Street, 10th Floor Fort Lauderdale, FL 33301 Telephone: (954) 712-4600 Fax: (954)712-4700

14 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to the following parties on this 30th day of June, 2003:

/s/

Jeffrey A. Mishkin, Esq. New Haven, CT 06508-1832 Skadden, Arps, Slate, Meagher, & Flom, LLP Eric D. Isicoff, Esq. 4 Times Square Isicoff, Ragatz & Koenigsberg, P.A. New York, NY 10036 1101 Brickell Avenue Miami, FL 33131 Paul S. McCarthy, Esq. Assistant Attorney General James D .Smeallie., Esq. Connecticut Attorney General’s Office Holland & Knight LLP 605 Gilbert Road, U-177 10 St. James Avenue Storrs, CT 06296-1177 Boston, MA 02116

Austin J. McGuigan, Esq. Darrell V. McGraw, Jr., Esq. Rome McGuigan-Sabanosh, P.C. West Virginia Attorney General One State Street Building 1, Room 26-E Hartford, CT 06103 Capitol Complex Charleston, WV 25305 Michael E. Lowenstein, Esq. Reed Smith LLP Jerry W. Kilgore, Esq. 435 Sixth Avenue Attorney General Pittsburgh, PA 15219 Commonwealth of Virginia 900 East Main Street David R. Scott, Esq. Richmond, VA 23219 Winants Hall 7 College Avenue Stephen P. Goodwin, Esq. New Brunswick, NJ 08901 Goodwin & Goodwin, LLP 300 Summers Street Jerry D. Cain, Esq. Suite 1500 327 Burruss Hall Charleston, WV 25301 Blacksburg, VA 24061 Hugh F. Keefe, Sr., Esq. Shaun S. Sullivan, Esq. Lynch, Traub, Keefe & Errante, PC Wiggin & Dana LLP 52 Trumbull Street One Century Tower P.O. Box 1612 P.O. Box 1832 New Haven, CT 06506

15 D. Erik Albright, Esq. Smith Moore LLP 300 North Greene Street Suite 1400 Greensboro, NC 27401

Edward F. Spinella, Esq. Reid & Reige, PC One State Street 18th Floor Hartford, CT 06103

James Sicilian, Esq. Day, Berry & Howard CityPlace I Hartford, CT 06103

Ira Grudberg, Esq. Jacobs, Grudberg, Belt & Dow 350 Orange Street New Haven, CT. 06503

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