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Perilous precedent: West Virginia suit

Just in case you've been experiencing a little "frustration of purpose" in your life lately, maybe it'll help to know you aren't alone. Apparently, you have that in common with a major college athletic program. (One that wins more than it loses -- just like you, right?) So if your purposes are frustrating (or being frustrated), take a look at them from Courtside Seat's view. We'll get to the puzzling Michael Beasley shortly; but today, we start with …

The realignment follies

It's just what we need: a layer of litigation on top of the turmoil that already surrounds the conference realignments disrupting college football and basketball.

With university presidents, conference commissioners and athletic directors so engaged in their toxic game of fantasy leagues, it seems as if it could not get worse. It is, of course, all about money, an unseemly exercise to start with by institutions supposedly dedicated to the pursuit of excellence in higher education.

And then, just as you hoped the whole thing might finally have hit rock bottom, the University of West Virginia filed a lawsuit against the Big East conference, making the claims you hear every day in every courthouse in the nation: "irreparable damage" and "breach of contract" and "restraint of trade."

Here's what's scary about it: If the West Virginia litigation initiative sets a trend for other schools involved in conference realignments, judges throughout the country will be making decisions about conference bylaws, home-and-home schedules, TV contracts and any other issues that university lawyers think might give them some leverage.

Will judges across the country agree on their interpretations of these issues? No. The only certainty about this kind of litigation is that it will produce uncertainty.

The West Virginia lawsuit offers a look at the kind of thing that will happen if realignment leads to proliferating litigation. The schools and their lawyers will look for local judges who will give them what they want, and they will bend and stretch legal rules and theories to their breaking points. When necessary, they'll invent new legal theories.

The lawyers for West Virginia, recognizing the serious weaknesses in their legal position, filed their suit in Morgantown, W.Va. It's their home court. Their hope is that a local judge, working in the shadow of the state university, will ignore a Big East bylaw that permits withdrawal from the conference only after a 27-month waiting period and allow the university an instant departure.

There is no serious doubt about the effect of the bylaw. There is no ambiguity. It says what it says, and it means what it says -- a school may leave only after 27 months and a payment of $5 million. West Virginia has already paid $2.5 million, an obvious acknowledgement of the rule.

But when the school wants to leave for the Big 12 conference now, and not 27 months from now, the lawyer's job is to fabricate a legal rationale that will allow the judge to give the school what it wants. The lawyers for West Virginia showed some imagination as they prepared their lawsuit, inventing a legal claim never before seen in American jurisprudence: the "frustration of purpose" doctrine.

The lawyers from the firm of Jackson Kelly PLLC in Morgantown are a bit vague on the details that led to West Virginia's "frustration of purpose." They offer things like "circumstances and events … are substantially and materially different from what WVU reasonably anticipated" and the school has been "substantially frustrated."

Even if there were a legal doctrine of "frustration of purpose," it is hard to imagine a fair and impartial judge ruling that the school, like all schools in the Big East that signed the bylaws in March of 2008, is not bound by the 27-month requirement.

But the last thing a lawyer wants is a fair and impartial judge. The lawyer wants a judge who is leaning in the lawyer's direction. That's why the West Virginia lawyers used a legal device known as "declaratory judgment" to file the case in the Morgantown courthouse.

Lawyers use the "declaratory judgment" when they know there is a dispute on the horizon and they want to gain the home-court advantage. Instead of waiting for the Big East to file a lawsuit to stop West Virginia's threatened departure, the lawyers raced into the Morgantown courthouse and filed for help. Without a traditional legal claim against the Big East, the lawyers claim that there is a developing dispute and ask the court to intervene.

It can work, but it's also a device that adds a dimension of complexity to an already tangled situation. In their response to the West Virginia lawsuit, the attorneys for the Big East will not go straight to the issue of the waiting period in the bylaw. They will first attack the Morgantown court as the wrong place for the lawsuit, and then claim that the declaratory judgment maneuver is improper. Resolving these two issues can easily consume several months and hundreds of thousands of dollars in legal fees.

As conference realignments continue to develop, university presidents, conference commissioners and athletic directors will be looking hard at West Virginia's legal action. They will also be listening to their lawyers explain the declaratory judgment procedure and the possibilities of home-court advantage, and they are likely to hear their lawyers describe their own versions of "frustration of purpose."

Moving from conference to conference in pursuit of money should be embarrassing for these schools, but there has been no sign of embarrassment so far by any school president or athletic director. The West Virginia lawsuit should be another source of embarrassment. But the university officials not only aren't embarrassed, they seem to be righteous and indignant about it.

It's likely that there will be more of these lawsuits. How wonderful.

An offseason to remember forget

Michael Beasley was supposed to spend the NBA offseason rehabilitating an injured ankle and a badly damaged reputation. The ankle appears to be much better, thank you, but the reputation has not been rehabilitated and, in fact, might be sinking to a new low.

At 3 a.m. on a Sunday morning late in June, police in a Minneapolis suburb clocked the Timberwolves forward at 84 mph in a 65 mph zone, and pulled him over. According to the police report, when Beasley opened the window, the officer noticed a pungent odor coming from Beasley's car. Within minutes, the officer found 16 grams of marijuana under the passenger seat. The best explanation that Beasley could offer the cop was a claim that the stash belonged to a friend whom he had just dropped off.

This was Beasley's third episode involving pot in a three-year NBA career. At the NBA's rookie symposium in 2007, Beasley was one of three players in a hotel room that reeked of marijuana when a smoke alarm went off. A year later, he entered a rehab facility in Houston after a photo showed him with what might or might not have been a baggie of dope on a table. After these experiences, one might reasonably have expected him to be prepared with a better explanation when the police found the stash in June.

Six weeks later, he was the target of more unwanted publicity when the 6-foot-10 Beasley apparently couldn't handle some taunts at a New York streetball game and reportedly attacked a fan.

And then, late in September, in a bizarre and unnecessary public disclosure of past indiscretions, he filed legal claims against a former agent and his AAU coach, detailing a five-year saga of financial support and recruiting violations that, Beasley says, violate the rules of the NCAA, the National Basketball Players Association and federal and state laws regulating sports agents.

Beasley's story comes in the form of legal papers prepared by attorney Mark A. Smith of Washington. In 20 pages of frequently awkward and occasionally incomprehensible prose, Smith describes a "civil conspiracy" involving agent-attorney Joel Bell and Curtis Malone, the AAU coach who became a mentor and "father figure" for Beasley while Beasley lived with Malone for four years and played on Malone's D.C. Assault team.

Whether it was any kind of conspiracy or just another unsavory tale from the netherworld of agents, summer leagues and shoe companies, Beasley and attorney Smith say it began when Beasley joined Malone's team and Bell began making payments to Beasley's mother, Fatima Smith. The first payment from Bell, according to Beasley, came in the form of $2,500 cash in an envelope delivered in a restaurant parking lot after Bell agreed to help Fatima Smith with traffic tickets. (Fatima Smith and the attorney Mark A. Smith are not related.)

The financial assistance to Fatima Smith continued during Beasley's years with D.C. Assault, even though he was residing with Malone, according to Beasley's version of the story.

Lashing out in all directions, Beasley says that at age 15 he promised to take his talents to UNC-Charlotte. He made this promise, he claims, as UNC-Charlotte hired Dalonte Hill, one of Malone's assistant coaches at D.C. Assault, at a salary of $60,000.

A few years and four high schools later, Beasley agreed to accept an offer from Bob Huggins to play at Kansas State. Beasley and attorney Smith assert in the lawsuit that Huggins made a package offer to Beasley and Hill, claiming "Huggins of Kansas State wanted Beasley, so he offered Hill an assistant coaching job at Kansas State with a salary that ended up being in excess of $420,000." The lawsuit continues, "Hill took the job, and Beasley went to Kansas State."

Beasley and Smith are correct in their statement that Hill's salary was $420,000, the highest salary for any assistant coach at the time. But they are incorrect when they suggest that Beasley and Hill arrived together at Kansas State. Hill became an assistant coach in 2006, and Beasley arrived in 2007.

During his one season at Kansas State (2007-08), Beasley says, Bell and a CPA named Glen Holloway made rental and car payments for Fatima Smith to allow her to live in Manhattan, Kan. It was all a part of a scheme, Beasley asserts, to deliver him to Bell as a client for his NBA and marketing contracts.

Beasley's most remarkable claim in these court papers is that he knew nothing about any of this as it happened, and learned of it only in September of 2008 "from a third party."

Whether or not Beasley's claims are plausible or provable, attorney Smith presents them in what appears to be unedited dictation.

Here's an example, a sentence on Page 12 of the 20-page document in a paragraph bearing number 62: "Because Bell inducement's [sic] were a proximate cause of Malone's breach of his duties to Beasley, Beasley is entitled to rescind the Merchandising Agreement and to recover restitution of the full amount he paid to Malone in connection with his rescission of the Agent Contract and the merchandising Agreement."

Despite what Smith says in this sentence, Malone (the coach) apparently had no duty of any kind to Beasley on any issue. There appears never to have been any contract between Malone and Beasley. There was nothing to rescind. There was no restitution from Beasley to Malone. Malone never asked for restitution. And Malone was not a party or a signatory to the agent contract or the merchandising agreement.

Beasley's case against Bell is marginal at best, and the errors of form and substance in the legal papers make it even worse.

Why would Beasley file this narrative in a public lawsuit, igniting possible trouble for Malone, Bell, Beasley's mother, Hill (who is now an assistant coach at the University of Maryland), Huggins (now the head coach at West Virginia) and Kansas State?

Attorney Smith claims that this story somehow leads to the conclusion that Beasley is not required to pay agent Bell his 20 percent commission for a one-year adidas contract that Bell worked on for five months. Just as Bell was about to conclude the adidas deal, Beasley fired him. Two weeks later, Beasley signed with adidas on terms, Bell says, that were virtually identical to terms that Bell had negotiated. Bell is suing Beasley and demanding his share of the agent's commission on the deal.

No one will discuss the amount of money involved in the dispute over the adidas deal. But, whatever it is, it surely cannot be worth making public the descriptions of Beasley's checkered high school career and its series of apparent violations of numerous rules.

Could Beasley have avoided a public filing and still attempted to make whatever point he is trying to make? Yes. The standard agent contract for all NBA players mandates that all agent-player disputes are to be submitted to arbitration. The arbitrations are private, with only the final decision a matter of public record.

When Bell filed his collection action against Beasley, Beasley easily could have moved the dispute into private arbitration. No one would ever have heard about the $2,500 in the restaurant parking lot or been reminded of the $420,000 salary for the assistant coach who brought the blue-chip prospect with him.

Asked why Beasley did not file for arbitration of the dispute, attorney Smith told ESPN.com, "It is not our focus at this time."

It's not a big surprise that the Timberwolves are rumored to want to attempt to trade Beasley when the lockout ends. He has not shown the signs of maturity the Timberwolves hoped to see, and he seems to enjoy creating unnecessary problems for people who have tried to help him along the way.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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