The Pac-12 Conference sued the Mountain West Conference ( MWC ) for breaking the Sherman Act this week in yet another antitrust lawsuit brought by the college sports industry because of the so-called “poaching penalty” the MWC wants to impose on the Pac-12 to encourage the MWC to join the fold.
The federal petition, filed in the Northern District of California, centers on the amount antitrust rules should be used to clear or prevent meeting realignment.
As the Pac-12 sees it, the league’s new selection of Boise State, Colorado State, Fresno State, San Diego State and Utah State reflects those schools deciding to increase their interest and fully applying, in writing, to meet the Pac-12.
However, the Pac-12 claims that the MWC has imposed a fine that accounts for “exorbitant and punishing economic fees” and acts as a means of punishment for the Pac-12 for enrolling in MWC institutions. The MWC has already imposed “tens of millions of dollars” in return taxes on the institutions that drop it for the Pac-12, in addition to the poaching charges.

For those reasons, the Pac-12 says the hunting penalty is not about deterring member schools from leaving the MWC, but rather embodies a “duplicative, superfluous and wholly disciplinary” measure intended to diminish or even damage the Pac-12 economically. If the Pac-12 fails, there would be less inter-conference opposition in Division I, which was lower opportunities for players, coaches and other officers and detract from the lover experience.
In the upcoming weeks, the MWC will respond to the complaint. Its attorneys will raise several defenses.
As a starting defense, and one already observed by Mountain West commissioner Gloria Nevarez, the Pac-12—a sophisticated business actor—willingly accepted the terms that the MWC is imposing. The complaint notes the origin of the contractual relationship. The Pac-12 and MWC reached a deal last year that set up football games between MWC schools and WSU and OSU after 10 of the 12 Pac-12 schools left and sued the conference and its two remaining members, Washington State University and Oregon State University.
The Mountain West is accused of exploiting the Pac-12 at its weakest point, when it appeared as though the Pac-12 might collapsed, and when WSU and OSU were stranded.
” Knowing that the Pac-12 was running out of time and short on leverage”, the complaint asserts,” the MWC not only charged the Pac-12 supra-competitive prices to schedule football games—over$ 14 million for OSU and WSU to play just six games each” but then “forced” the Pac-12 to sign off on an “unprecedented Poaching Penalty provisions” that contemplated liquidated damages if it makes an offer to an MWC school.
The Pac-12 reaffirmed its position, saying even if the penalty provision was made at an especially exploitative time and even if it was unfair or oppressive. The Pac-12 is a multimillion-dollar entity advised by experienced business and legal professionals. This is not a situation where, say, an elderly person of limited means, knowledge and capacity was duped by a charlatan and there’s a viable case for unconscionability. One significant, deeply entrenched collegiate sports conference came to an agreement with another in this situation.

Expect the MWC to repel the Pac-12’s framing of competition, too.
The MWC could insist that the exit fees, which the Pac-12 suggests are sufficient to preserve the MWC’s competitive interests, are conclusively insufficient, given that five of the 12 schools are leaving for the Pac-12. To keep with NCAA conference regulations, the Mountain West now needs an eighth member.
The MWC could claim that the current situation is the exact reason it was concerned about helping the Pac-12 and that imposing a poaching penalty made sense. The MWC helped a rival conference in its time of need by allowing that conference to regain its footing and then ( MWC would contend ) opportunistically subvert the MWC’s interests.
The MWC could argue that a lessening Mountain West would benefit fans and consumers in the same way. If the MWC is weakened, the same concerns about opportunities for athletes and consumer choices that the Pac-12 outlines apply.
The MWC might also countersue the Pac-12, by claiming the conference ( assuming it does n’t pay ) is in breach of contract and that by recruiting MWC members, the Pac-12 engaged in tortious interference.
The case has been assigned to U. S. Magistrate Judge Susan van Keulen. The judge is familiar with sports antitrust cases because van Keulen presided over the litigation involving LIV Golf and the PGA Tour along with U.S. District Judge Beth Labson Freeman.