By Jeff Barker, The Baltimore Sun
10:16 PM EDT, March 21, 2014
Documents filed Friday in the University of Maryland's legal battle with the Atlantic Coast Conference show that subpoenas have been issued to at least 10 ACC schools — plus various broadcast media partners — seeking information about the ACC's $52 million exit fee and a number of other topics.
In accompanying court filings, Maryland, which is contesting the exit fee as it prepares to join the Big Ten Conference in July, accuses the ACC of seeking to withhold information, along with more than $20 million in shared conference revenue.
"The ACC's clear goal is to prevent any meaningful progress or resolution in this case until Maryland formally leaves the ACC in June," Maryland said in a motion filed Friday in Guilford County (N.C.) Superior Court. "Illegally and tortiously engaging in self-help, the ACC has already wrongfully withheld more than $20 million in ACC and NCAA distributions that belong to Maryland. Interest at the legal rate on the amount tortiously withheld to date by the ACC now amounts to approximately $130,000 per month."
Subpoenas were issued in January and February to North Carolina, North Carolina State, Duke, Wake Forest, Virginia, Virginia Tech, Notre Dame, Syracuse, Clemson and Georgia Tech, according to an affidavit filed Friday by J. Alexander S. Barrett, an attorney for Maryland. It's not clear from the filings whether other ACC schools received subpoenas at a later date.
The items in the subpoenas offer a glimpse of Maryland's claims and its legal strategy in the case against the ACC, of which the school was a founding member 61 years ago.
Maryland is seeking documents related to everything from the exit fee to "the formulation of the men's basketball schedule for the 2013-2014 ACC basketball season."
The court documents don't explain why Maryland wants information on how the ACC established the basketball schedule. Maryland fans complained that the Terps' schedule was unusual because it did not include home games against Duke or North Carolina, the league opponents that traditionally attracted the largest Comcast Center crowds.
The ACC said through a spokeswoman Friday that it could not comment because the litigation is ongoing. John Kuchno, a Maryland assistant attorney general representing the university, was unavailable, according to his office.
Many of the requested documents relate to the circumstances of the 2012 vote in which ACC school presidents raised the exit fee from about $20 million to $52.2 million. Maryland, which voted against the increase, contends that the conference violated its constitutional provisions by not submitting the fee as an amendment in writing to its Constitution and Bylaws Committee for review, and by not circulating the plan to members at least 15 days before the meeting.
The ACC has argued that the increase is valid and enforceable and that, by withholding funds, it is merely trying to ensure the fee is paid.
The subpoenas also seek information about "the anticipated benefits to the ACC as the result of the ACC's addition of new member institutions." The conference's 2013-14 basketball season included new members Syracuse, Pittsburgh and Notre Dame. Given that expansion, Maryland has questioned in court whether the ACC will even be damaged by the school's departure, which was announced in November 2012.
Maryland also subpoenaed "various ESPN entities" and ACC consultants, according to Barrett's affidavit. Copies of those subpoenas were not immediately available.
Maryland has alleged in previous filings that that the ACC's desire to expand was driven "in large part on counsel and direction that the conference received from ESPN." Maryland said in a January counterclaim that two ACC members, Pittsburgh and Wake Forest, sought to recruit a pair of unnamed Big Ten schools to the ACC.
Pittsburgh and Wake Forest declined to comment at the time, and an ESPN spokeswoman issued a statement saying that "decisions about potential realignment and expansion were made by the individual schools and conferences." The ESPN spokeswoman could not be reached Friday for comment on the subpoenas.
It is common for parties in a civil action to seek subpoenas to build their case or score public-relations points, said Kent Meyers, an Oklahoma-based lawyer with sports-related antitrust experience. "It's a little unusual to see media organizations drawn into this. That's a tad bit out of the ordinary," said Meyers, who is not involved in the case.
Maryland's subpoenas were first referenced in a motion filed earlier this month by the ACC. The document said the subpoenas "purport to require each entity to search for documents from potentially thousands of current and former employees of these entities over a time frame of 12 or more years."
Maryland has received documents so far from Virginia Tech and Georgia Tech, "and others are pending," according to Barrett's affidavit.
The conference originally filed suit in 2012, asking a court to declare that the university is subject to the full conference exit fee of $52,266,342. Maryland countersued in Prince George's County, but that suit was placed on hold after the ACC argued that the cases in Maryland and North Carolina raised similar issues.
Maryland filed a new, $157 million counterclaim in January, alleging that the conference is improperly withholding revenue and NCAA funds.
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