MORGANTOWN, W.Va. — A judge denied West Virginia Radio Corp.’s request for a temporary injunction against WVU’s media deal with IMG College, but he allowed the case to proceed noting that allegations of bidding corruption “cannot be ignored.”

Judge Thomas Evans said a permanent injunction may still result as the case moves forward to trial. However, he refused to suspend WVU’s current contract with IMG, citing that broadcast arrangements couldn’t be reconfigured a mere five days before the start of the football season. WVU hosts its football opener Saturday against William & Mary, a game whose radio broadcast will be handled through IMG College, ending a seven-decade run on WVRC’s network.

WVRC had asked Evans to stop WVU from implementing a 12-year contract with IMG College worth $86.5 million. The network claims the contract, signed in June after a second round of bidding, should be stricken because of fraudulent missteps by the university—and specifically athletics director Oliver Luck—during the first round of bidding.

“Can WVU simply cancel the first request for proposals?” Evans asked nearly seven hours after Monday’s proceedings began. “That’s an unanswered question in my mind.”

Evans denied motions to dismiss from 10 defendants named in the civil suit—including Luck, WVU president Jim Clements, the WVU Board of Governors, board chairman Drew Payne, board member Dave Alvarez, and West Virginia Media Holdings president Bray Cary.

Luck was barred from overseeing the second round of third-tier rights bidding after West Virginia Attorney General Patrick Morrisey confirmed Luck shared confidential information with Payne, a stakeholder in West Virginia Media. Morrisey’s report also questioned Luck’s autonomous decision last October to add three members to the evaluation team when the other original panelists—deputy athletics director Mike Parsons and associate AD for business operations Mike Szul—didn’t give immediate approval to the IMG College/West Virginia Media bid.

WVRC’s suit charges Luck with “improperly, incompetently, and unlawfully managing the media rights RFP process.” WVRC claims the university subsequently tailored the second media rights bidding “to render WV Media’s partner, IMG College, the only qualified bidder, thereby transforming the RFP process into a sham.”

WVU’s attorneys argued an injunction so close to the season would leave the school without a media rights partner and would cause undo harm to IMG and new radio affiliates who within the past month agreed to broadcast Mountaineers football games this fall.

“The public has an interest in these sorts of (broadcasts) not being disrupted,” the judge said. “On the flip side, the public interest is very high in making sure that public contracts are left in conformance with the statutes. That’s kind of a mixed bag there.”

Even as he decided against a temporary injunction, Evans warned the university’s attorneys that this “is not the end of the injunction issue.”

“There are very, very serious allegations of misconduct,” said the judge, who went on to describe the matter as “an extremely complicated case.”

Even the fact that Evans wound up on the bench was a point of contention. The Jackson County circuit judge replaced Monongalia County Circuit Judge Phillip Gaujot after WVRC asked that Gaujot be disqualified based on a 26-year-old disagreement he had with Greer Industries attorney Robert Gwynne. (Greer is the parent company of WVRC, which also operates MetroNews.) State Supreme Court Chief Justice Brent Benjamin subsequently replaced Gaujot with Evans.

Some snippets from the courtroom Monday:

• WVRC attorney Frank Simmerman Jr. claimed WVRC’s initial bid for third-tier rights was worth $78 million over 10 years and that IMG College’s initial bid—the one wiped out after the attorney general’s review—was worth only $70 million.

• Simmerman also questioned whether IMG’s second bid actually included $86.5 million guaranteed as the school claims. “What’s a guarantee?” Simmerman asked, pointing to the lack of a performance bond or payment bond within the contract. “I’ll respectively submit that upon review of the contract you won’t find one. There’s not one.”

• WVRC attorney Bob Gwynne on Monday’s rulings:
“Through the course of today’s hearing we demonstrated that West Virginia Radio’s bid for the third-tier media rights was, in fact, superior to IMG’s bid. And further we proposed a solution that would deliver Mountaineer football and men’s basketball to more WVU fans than IMG can reach—a solution refused by WVU and IMG. Although we are disappointed by the court’s decision not to grant a preliminary injunction, it is clear the court understands the seriousness of our allegations and the importance to West Virginia Radio and the public at large of insuring that WVU maintain and apply fair and appropriate procurement practices. In light of the court’s decision to deny all defendants’ motions to dismiss our claims, this case shall proceed and the truth shall come out.”

• Charleston attorney Heather Jones, on behalf of IMG, said the international firm had hired six sales team members at a cost of $350,000.
“We’re not just talking about money,” Jones said. “We’re talking about human beings who have made personal sacrifices to move from across country—taking new jobs, moving their households—all to support West Virginia University and to help it expand its brand, expand its marketing and support its broadcast of its athletics.

“(Blocking this contract) would be a crime to West Virginia University and a crime to our state. We’re lucky that IMG wants to do business with our state.”

• Simmerman admitting a time crunch would have been created by a temporary injunction: “I recognize that there is a game this weekend. I recognize that the game must be broadcast. I didn’t come in and ask of this court to disappoint all the fans in the state of West Virginia. I wish we had been heard early on. I wish we had been heard in March and could have resolved this timely.”

He presented an injunctive alternative that would allow IMG to broadcast football games and WVRC to broadcast the basketball season “to afford this court an opportunity to work through these issues.” Simmerman cited “large gaps in coverage under the (IMG) network” and that WVRC would offer three affiliate stations—WELK in Elkins, WVMD in Romney and WQZK in Keyzer—to plug the gaps in football coverage in 2013.

But WVRC offered to do so under the arrangement of the Mountaineer Sports Network and not IMG’s guidelines.

• WVU board of governors attorney Jeff Wakefield objecting to WVRC’s plan: “West Virginia Radio is attempting to get that which it could not get in the competitive marketplace. … The court is getting involved in the business of trying to craft how media rights are going to be handled.”

• Judge Evans on why WVRC has a claim for a temporary injunction: “I do believe that, based on the allegations in the complaint, there is irreparable harm to the plaintiff. … How about the loss of business reputation in the community where they’ve been an established vendor for, I think I heard 72 years? To lose that through a process that is corrupt, that is something that is not quantifiable.”

• Judge Evans on why WVRC shouldn’t be granted the temporary injunction: “If the court should say that the contract with IMG is—at least on a temporary basis—rescinded, IMG is going to have some legal difficulties with people with whom they contracted to provide goods and services.” He was speaking of the football affiliates IMG has been lining up market-by-market the past eight weeks.

• WVU’s official response to Monday’s rulings:
“West Virginia University officials are pleased with the Honorable Judge Thomas C. Evans’ ruling today in Monongalia County Circuit Court denying a preliminary injunction in West Virginia Radio Corp.’s civil case versus the WVU Board of Governors and others. We look forward to continuing a great relationship with our new partner, IMG College.”

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Comments

  • Kojack

    Maybe raese will be an honorary captain on Sat...........

  • cutty77

    Its funny i see 6 responces to my post's,but all of my post are gone from this. Which makes me very happy,because what i said was true,and 6 of you couldn't handle the truth. To you Alan, this is your story and if your not man enough to handle the truth thats fine. Then don't make comments on me,if you can't take it. WVRC is like this. The Like Pitching The Ball,but they don't like when someone knocks it back up the middle at them. Such a Childish group. Keep pounding the nail in the Demise of WVRC.

  • WV Patriot

    This is just another black eye for all West Virginians for the corruption that takes place here in our beautiful state... No wonder the FBI has so many open corruption investigations in WV... Question authority... Ever wonder how someone in power goes from having very few assets in the beginning and within three years of obtaining a position of power then has millions in the bank... This is just another example trying to keep the people in the dark so millions of dollars can keep those in power in power....

  • Joe

    To me, Hop, Kyle and Jeff Jenkins are the voices of WVU football Saturdays, and, along with Jim Stalling's production, I will look forward to listening into their broadcast throughout this Saturday.

    I understand change, but in this case we already had one of the best teams in the industry right here in Morgantown.

    Joe

  • Mark

    I found this quote interesting...

    "Charleston attorney Heather Jones, on behalf of IMG, said the international firm had hired six sales team members at a cost of $350,000.
    “We’re not just talking about money,” Jones said. “We’re talking about human beings who have made personal sacrifices to move from across country—taking new jobs, moving their households—..."

    Seriously, they couldn't find six qualified sales people in WV?

  • OhMY

    I laugh harder after each of your posts. Just so you know, I'm laughing AT you and not with you.

  • Big John

    Allan since you wrote this article which was very well written-the judge stated that"On the flip side the public interests is very high in making sure thet public contracts are let in conforemance with the statues"-Attorney General a Republican stated that it was not necessary to bid the contract in the first place and since WVRC did not give not give 30 day notice of their intention to sue as required byWVa Code 55-17-3 why should WVRC have any rights by breaking the law by failing to give proper notice, All this will do will go on for a year and WVRC will lose and will be placed on a list to never be able to bid on WVU sports programs again.

  • takemetoemstar

    SOME RANDOM THOUGHTS HERE... first, you ppl bash OL all of the time. i've got news for you. if you dont' think other universities play hard ball with subject matter of this type you are smoking crack. OK, OSU, FSU, ND all have agressive media rights to protect and sell their brand. OL is doing his job allbeit a little muddy. next i agree BC is slimy no doubt about that, but I dont' think WVRC can offer what IMG is going to offer and the networking offered. most of the posters here like to bash OL... but progress is progress and make no mistake the 'university business' is exactly that big BUSINESS.

  • Followers

    But wait guys... WVRC should've gotten the bid! They did list that they have 30k twitter followers LOL

  • Mac

    "And further we proposed a solution that would deliver Mountaineer football and men’s basketball to more WVU fans than IMG can reach"

    That is for certain. I've been checking on the stations signed on with IMG and the vast majority of them of under 5000 watts. Most seem to be at or under 3000. I don't know the signal topography for the stations, but I do know that 100.9 in Morgantown can not be heard 12 miles to the south. I can only imagine the holes in the broadcast area statewide when they leave massive holes in the area around Morgantown.

    • Alum

      You are not mentioning one difference between the two - SiriusXM coverage of WVU will be (is) available through IMG. I have seen no such offer from WVRC. The only "media" offering outside of radio (and the recently passed edition of MSN) from WVRC is 30,000 Twitter followers of WVRC's personalities.

      Also remember the original timeline to implement of the contract was delayed by the rebid. Giving that due consideration it seems that IMG has been quite aggressive in meeting its contractual obligations with WVU.

      • OhMY

        ALUM,

        The offer to help with coverage was made in court so it would be on record. So IMG and WVU can no longer mislead the public about their so-called "reaching out" to WVRC. SirIusXM has less than 5% penetration in WV. You must have a digital sat. receiver to get it. Unfortunately that doesn't help many people

        • Alum

          Too bad WVRC won't stop their misleading behavior.

          BTW, where do your SiriusXM statistics come from? I am very suspicious of data cited without a reference.

          And have you ever heard of smart phones and apps? I guess smart phones have only penetrated the state by about a 5% market share too.

          • OhMY

            You must still be getting your info from the Charleston newspapers. WVU & IMG announced that if you want to listen online, it's $9.95 per month.

  • Clark

    Monopolizing is what is denying those in the affected locations (Keyser, Elkins and others) from hearing West Virginia University Sports broadcasts. WVRC (and AJG) wants to own every radio station in the state. WCLG is the next victim.

    • JL

      That is a gigantic untruth from IMG. WVRC offered up 14 football and basketball affiliates and were met with an affiliation contract that was a joke by industry standards. Don't confuse IMG with some exceptional broadcast group. They receive little or no respect from the broadcast community for program quality or content. They are a marketing firm that maximizes dollars and cents. It's about more money from everyone - rampant over commercialization of properties - seating licenses - inflated prices on everything around, in and near the ballpark. It's the business model in today's modern college athletics that allows a $500,000 a year coaching FAILURE move over to a $500,000 a year "special teams" coach. We better run every punt back this year and block about ten for that type of misguided management.

  • Aaron

    While WVRC stations may have carried WVU games for 70 years, their exclusive agreement with WVU was much, much shorter than that. I think that's an important thing to note when describing the partnership between WVU and WVRC.

    • WVUP

      Aaron,

      WVRC has never had an exclusive agreement with WVU.......never. WVU will confirm that statement. They (WVU) has always owned the rights to their products....not WVRC

  • WVUfan07

    I guess we should let some crooked business man destroy our program just to take a few bucks. Oliver Luck is the best thing to ever happen to WVU.

    • OhMY

      based on your first sentence, i thought you were talking about Ollie.

  • CaptainQ

    Does anyone else think all of these legal 'gymnastics' are both confusing and insane? WVRC LOST, IMG WON! Poor ol' JR's got to just accept this and move on.

    • Alum

      Let's see, the original RFP was tossed and a new one was issued. WVRC and some others opted to not participate the second time around. The second process was deemed to be sound and IMG, which participated, was awarded the contract.

      Why did JR refuse to participate the second time around if the orignial proposal was so good? Was he upset that WVU didn't bow and present the contract to him on a silver platter?

    • OhMY

      I think an accurate depiction of this would be
      WVRC was cheated, IMG won!

      footnote based on AG's statements and facts presented in the actual suit. If you haven't read it you should!

    • Mac

      Yes, but what if WVRC lost due to illegal activity? Would you accept a WVU losing to Pitt if Pitt brought in Steelers on the team?

  • Alum

    And Learfield wrote (see the exhibits)....