One of the most amazing things to me in all of this is the fact that the Big 12 operates on an agreement that was apparently put in place in 1996. That surprised me, but I was more surprised by the fact that the Big 12 operates without a document that is signed by the member institutions. I couldn’t believe it, so I asked one of my favorite Sports Bloggers, Kristi Dosh. She had checked with the conference and they confirmed that no other documents existed. I should point out that I have formed exactly zero conferences in my life. So you might want to take these notes with a grain of salt.
Frankly, the agreement (look at it here) does not look like anyone had a lawyer. Things that I think are missing from the “agreement” (note that this list is partial, the agreement is short on lots of things beyond this):
- Signatures. There are no signatures. As in, no one signed the document. It’s just a handbook. Does your office have an employee manual? It’s like that. Just a policy manual, really. One that lays out a scheme for all sorts of situations, including a scheme in case someone wants out. But I was surprised that no one signed it. If you have an employee manual at the office, I bet the employer required you to sign it. I mean, if you are going to sue the SEC for interfering with your contract, wouldn’t you want a signed contract? If you are Baylor’s lawyer, the answer is yes. Oh yes.
- Arbitration. This is the clause I was looking for when I first read the agreement. I just figured there would be an arbitration clause. Why would the conference want litigation among its members to be in the courts and therefore very public? I don’t understand. Seems like you would want arbitration to be mandatory to at least allow the dispute to go on in private.
- Choice of Law. Most agreements that govern complex relationships choose the state law that will govern that relationship. When this agreement was drafted there were teams in Texas, Oklahoma, Missouri, Kansas, Colorado, Nebraska and Iowa. I suppose they couldn’t agree on a state law to apply to the disputes, but I wonder how anyone knows which state law applies to anything. Suppose Baylor wants to sue Missouri for the something. Just seems like there should be something addressing this issue.
- Forum/Venue Selection Clause. If you are not going to have an arbitration clause, at least it seems you should come to an agreement about where your lawsuits are going to be filed.
- Attorney’s Fees. I have advised clients in the past not to include a provision for attorney’s fees, but only rarely. In those circumstances the client and I felt that if there was a dispute under the agreement that the client would probably be the plaintiff (and under Texas law entitled to attorney’s fees) and not the defendant (therefore not able to recover attorney’s fees). So it makes sense to not negotiate an attorney’s fee clause. But you would think this situation would be a classic case that would require an attorney fee clause. Not sure what the thinking was here.
- Others. There are other oddities. Like there is no integration clause. But while I think those missing clauses are important, I don’t think they make the agreement “interesting”, like the items listed above do. At least, for me the items above make this document very interesting.