Marshall granted restraining order against Conference USA | Putnam News – Huntington Herald Dispatch

HUNTINGTON — A judge granted Marshall University a temporary restraining order against Conference USA’s demand for arbitration Thursday morning.

Cabell County Circuit Court Judge Christopher D. Chiles ruled in favor of Marshall University’s request, which allows the court more time to review the facts of the case.

Chiles originally granted a 10-day restraining order in the case. He asked the parties to work in conjunction with each other to get to the next hearing date, which he set for 9 a.m. March 16.

Following Chiles’ ruling, Conference USA released a statement.

“While Conference USA respects the court’s decision to temporarily grant the recent motion filed by Marshall University, the Conference USA Board of Directors stand firm in their belief that all Conference USA institutions, including Marshall, are expected to honor their contractual obligations and adhere to the agreed upon bylaws and covenants,” it says. “Conference USA is fully prepared to move forward with the remainder of the legal process.”

The motion centered around Conference USA sending a demand for arbitration to Marshall University on Feb. 17 in reference to Marshall’s intent to leave C-USA for the Sun Belt Conference in time for the 2022-23 season.

Conference USA is trying to keep Marshall in the conference for the 2022-23 season, based on statutes put forth in the league’s bylaws, which require a 14-month notice before exit.

Perry Oxley, a Huntington attorney who represented Marshall in the matter, said in his briefing with Chiles that, as an arm of the state of West Virginia, both the U.S. and West Virginia Constitutions keep Marshall from going through arbitration outside of the state.

“As this arbitration in Dallas, Texas, proceeds forward, it is prejudicing Marshall University because we can’t participate in that venue for that proceeding because we are constitutionally bound to only be made a defendant here,” Oxley said in his opening remarks. “As a result of that fact, there is irreparable harm for that proceeding moving forward.

“Likewise, there’s no remedy of law for that. This is a proper venue, and to preserve our sovereign immunity, we need to have the case here. Conference USA’s argument in the arbitration paperwork that they filed is that we waived sovereign immunity. We think that argument can’t be supported, based on West Virginia law.”

Oxley also pointed out that, at the time Marshall University entered into agreement with Conference USA in October 2003, the bylaws did not include language requiring arbitration for disputes involving the termination of a school’s membership in the conference.

Oxley also stated that Marshall is not in possession of any signed document indicating such.

“At this point, we are not aware of the document that demonstrates mutual assent,” Oxley noted.

Conference USA, which did not dispute the lack of a signed document on the matter, contends that Marshall waived its sovereign immunity based on its adherence with C-USA bylaws that were set forth in October 2013 following a vote from the league’s executive committee — a committee Marshall had a seat on.

Niall Paul, an attorney from Charleston retained by Conference USA to represent the league, maintained that by continuing to participate in the league from that point forward, thus receiving millions of dollars in the process, Marshall accepted the implicit terms of those bylaws.

“The courts are pretty clear in this idea that when you agree to arbitration, sovereign immunity doesn’t protect you from that,” Paul stated. “You have chosen your forum.”

Oxley also pointed out that the current Conference USA bylaws make several references to “withdrawing members” throughout them. However, Bylaw 14.01(a), which refers to arbitration, only mentions “members, former members, suspended members or expelled members.”

Paul offered clarity of Conference USA’s position to Chiles.

“In terms of the arbitration provision, they are a member,” Paul said. “They are still in it. They are still bound by the bylaws.”

He then reiterated his client’s stance on the matter.

“They can’t benefit from it and then try to run away from it,” Paul said. “Their departure will impact every other member. Maybe leaving is good for Marshall — I don’t know that. But (Marshall) leaving is not good for Conference USA.”

Following Chiles’ granting of the temporary restraining order, Paul asked for civil bond, which is sought to protect defendants in cases that are frivolously filed. Chiles denied that motion.

Chiles also noted the difference in opinions within the case and instructed both sides to work together to narrow the focus of what will be heard and what evidence will be presented in the March 16 hearing.

The responses for arguments in the case are due to Chiles and the other party by March 4, while responses to those arguments are to be submitted to all parties by March 10, which gives time for review ahead of the March 16 proceeding.

The case was originally supposed to be heard Wednesday, but Chiles delayed proceedings until Thursday to allow Paul to be present on behalf of Conference USA, which Paul thanked the court for doing.

In addition to Marshall’s legal team of Oxley, Brian Morrison and Eric Salyers, Marshall University Vice President of External Affairs Layton Cottrill and Marshall University interim athletic director Jeff O’Malley were in attendance.

Conference USA had two other members of its legal team — Leane Capps and Phillip Zeeck of Polsinelli Law Firm in Dallas — taking part in the proceedings remotely via Microsoft Teams.