Tortious Interference and You: Roadblocks to Texas A&M Joining the SEC

First things first: the press release from the SEC Presidents today does not mean that Texas A&M will never join the SEC.  The Aggies could in fact still bolt in the next couple of weeks.  What it does do, however, is (a) smack down the eagerness of the Ags a bit (and refutes the ridiculous notion that A&M had any sort of "standing offer" to join the SEC), giving us a lot of material with which to make fun of them (as if we needed more), and (b) force all parties involved to go through all of the motions to make the move happen.  Essentially, the SEC is refusing to move on the Aggies' timeline, which may or may not make a difference in the long run, but certainly decreases the chances of A&M leaving the Big 12.

The roadblocks that remain are numerous, including involving the Texas state legislature's Higher Ed Committee, allowing them to outline exactly what is going to happen if A&M leaves on its own.  All jokes aside, A&M is a serious educational institution and if there are academic funding repercussions to this move, the faculty will be at Loftin's office door with pitchforks.

Admission of A&M at this point is probably also contingent on the SEC finding a suitable 14th school.  There is allegedly a gentleman's agreement between the SEC schools not to add any other teams from an existing SEC state, narrowing the list of available schools.  The SEC doesn't need A&M (they're doing just fine on their own), so the inability to find a suitable 14th school could derail the addition of A&M.

And finally, there's this whole tortious interference business that you keep hearing about. Here's what that means:

So, say two parties have entered into a contract.  If one party breaches that contract, then the non-breaching party can sue the breaching party under contract law because they have what is called privity of contract.  The remedies under that lawsuit are usually limited to the actual loss that the non-breaching party suffered because of the breach (i.e., the remedy in court is to put the non-breaching party in the monetary position it would have been in if the contract hadn't been breached). This is all subject to any agreements for remedies that the parties agreed to in their contract. 

So, applying this to our current situation, from all information I have seen, whatever agreement the Big 12 has with its member schools, there seems to be an alternative remedies provision whereby the parties agree ahead of time to a "breakup fee" that a member school has to pay if they breach the contract by leaving the conference under certain circumstances. The number I've been hearing with respect to A&M is approximately $30m.

Now, say two parties have entered into a contract, and then a third party comes along and says to one of the parties "Hey, I've got a better deal for you.  I'll give it to you if you breach your current contract."  If that party to the contract does breach, then the non-breaching party can sue the breaching party (as described above), but it can't sure the third party under contract law because it does not have privity of contract with that third party. 

However, the law nevertheless understands that a wrong has been committed by the third party and thus allows the non-breaching party to sue the third party for "tortious interference" with an existing contract.  Tort law is completely separate from contract law, and generally the remedies under torts are not capped at the actual loss suffered by the non-breaching party.  Loss of potential future income and punitive damages can be awarded to the non-breaching party, to be paid by the third party.

And this is what the SEC is worried about.  The Big 12 has a 13-year, $1 billion TV contract with Fox for its second-tier rights, which was entered into last year (and which "saved" the Big 12).  Allegedly, Fox can terminate this agreement if any member leaves the Big 12.  So if the SEC effectively encourages Texas A&M to breach its contract with the Big 12, the SEC could be liable under tort law for loss of the $1 billion contract, as well as other potential losses that the Big 12 could suffer (plus potential punitive damages). 

Needless to say, the SEC would like to avoid this.  Step 1 is obviously not inviting A&M to join the SEC until A&M has already breached its agreement with the Big 12.  That's one reason they didn't make an offer today, and it's obviously a reason that Texas A&M did not have a "standing" offer to join the SEC, as many Aggies have absurdly claimed for the past year.  However, the fact that the Aggies voted to leave the Big 12 before the SEC invited them does not in and of itself void any tortious interference claim that could be brought against the SEC.  There are more ways to tortiously interfere with a contract than this and you can bet that the SEC's lawyers will be spending their time the next few weeks making sure that they're in the clear before admitting A&M.

And while that happens, the Big 12, the Texas Legislature, the SEC schools who don't want a 14th member to come from their home state, and numerous other parties have a chance to make their own moves.  If I were a betting man, I'd put money on the Ags eventually making their way to the SEC, but today's events made the odds little bit longer.