The Times West Virginian

West Virginia

August 27, 2013

Judge: IMG can air games

Lawsuit against WVU to continue

MORGANTOWN — A judge on Monday refused to dismiss West Virginia Radio Corp.’s lawsuit over how West Virginia University awarded a media rights contract for certain athletic events but allowed the school and its new partner to continue with their plan to cover the football season that starts Saturday.

Circuit Judge Thomas Evans said WVU and North Carolina-based IMG College would face significant financial harm if he awarded the preliminary injunction the radio network wanted. West Virginia Radio wanted to reset the clock, effectively maintaining the status quo from June, before IMG won the contract.

But WVU attorney Jeff Wakefield argued that would leave the university with no partner to broadcast the games and no time to find a new one.

IMG has lined up 42 radio stations to carry Mountaineer games, and Evans said all of those contracts would be jeopardized by invalidating WVU’s 12-year deal. He also accepted WVU’s argument that it would be nearly impossible and exceedingly expensive to try to find a new partner five days before the William & Mary game.

Evans also cited the public’s interest in avoiding a major disruption.

For now, he said, that outweighs the competing interest that public agencies award contracts through processes that are legitimate, legal and fair. But Evans said several times during the daylong hearing in Monongalia County Circuit Court that there are compelling questions of public interest that deserve to be heard.

The radio network wanted Evans to stop WVU from finalizing the contract, which guarantees the university at least $86.5 million in revenue. The network also wanted Evans to order WVU to rebid the contract a third time, disbarring both IMG and subcontractor West Virginia Media Holdings from the process.

WVU’s broadcasts were handled for more than 70 years by university-operated Mountaineer Sports Network, which works closely with West Virginia Radio. The radio network’s owner, John Raese, complained in February about WVU’s first request for proposals and demanded that state Attorney General Patrick Morrisey investigate.

Raese later refused to cooperate with that investigation, citing WVU’s refusal to turn over procurement documents. His attorney, Bob Gwynne, disparaged Morrisey’s investigation in court, saying, “That was a lawyer reviewing his client’s activities.”

The investigation, however, was critical of WVU.

Morrisey’s report cited “significant errors and sloppiness” in how the original deal was crafted. The attorney general also said he found “no evidence of intentional wrongdoing,” based on the witnesses his team could interview and the documents they could review.

West Virginia Radio filed several objections with the procurement office over the first process and did not bid the second time around, arguing the proposal was so narrowly crafted that only IMG could satisfy it.

Evans said West Virginia Radio is alleging serious misconduct and corruption of what should be an above-reproach process, and he’s satisfied it has suffered harm as a result. Some can be quantified for the calculation of possible damage awards, he said, but some cannot, such as “loss of business reputation in the community” where it’s aired games for seven decades.

“To lose that through a process that’s corrupt, that’s not quantifiable in damages,” the judge said. “Not all the harm’s irreparable. But some of it is. I’m satisfied of that.”

West Virginia Radio made a last-ditch effort to salvage its business by proposing that Evans craft an order allowing IMG to carry the football games as planned, but letting West Virginia Radio air the games on three stations, too. Attorney Frank Simmerman also proposed that all WVU basketball games air on West Virginia Radio stations, as they have for decades.

WVU opposed that, saying it effectively asked the judge to give the network “that which it could not get in the competitive marketplace and which it didn’t even bid on.”

Evans also rejected the idea.

The WVU Board of Governors, WVU Foundation, West Virginia Media Holdings, IMG and individuals including Athletic Director Oliver Luck wanted the lawsuit dismissed. They argued, among other things, that West Virginia Radio failed to provide sufficient grounds for its claims of conspiracy, fraud and violation of procurement regulations.

Evans denied those motions without ruling on the merits of the underlying case.

Simmerman also told Evans that West Virginia Radio could not wage an effective case because WVU had refused from February until last Thursday to comply with Freedom of Information Act requests for procurement and purchasing documents.

When it did, he said, the university turned over several dozen redacted pages without sufficient explanation.

That hinders his ability to investigate the relationship between WVU and IMG before the contract was awarded, Simmerman said. Now that the contract has been awarded, he argued, there’s little need to keep those documents secret.

Evans ordered WVU to “fully comply with its statutory duties” and said he would schedule a separate hearing if needed.

He also asked the parties to consider referring the case to West Virginia’s new business court. Evans would remain in charge, but the designation means he could give the case priority over others on his docket. That could result in a speedier resolution.

No one objected, but Wakefield and West Virginia Media said they needed time to consult with their clients.

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