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

  • wvajoker

    @cutty77
    "Money is the Root of all evil."
    Again a misquote, due to not reading the facts. According to the Bible that I read, it is "the love of money is the root of all evil".

  • ron "from morgantown"

    -The Judge certainly didn't mince words re today's proceedings but still wouldn't pull the trigger on a temp injunction- however left open the possibility for an injunction at a later date .This was prudent on his part , because realistically , a temp injunction simply wasn't feasible give the fact a game will go in 5 days. I wasn't in the courtroom today but I find it interesting that the Judge seems to imply that WVRC met the standard for a temp injunction but only denied it because of the mayhem it would cause both to IMG and more importantly to WVU fans who want to listen to the game Saturday .

  • Joe

    Can someone help me understand the statement in the article that there was no bond put up to guarantee the revenue from IMG? Thanks in advance, as I'm seeing that through clearly.

    Joe

    • Allan Taylor

      @Joe: Like most journalists covering this story, we haven't perused too many media rights contracts, and so I'm not entirely sure whether the lack of a "guarantee mechanism" within the contract is cause for alarm or simply standard practice. However, when WVRC raised the contention today questioning a guarantee, the WVU and IMG counselors did not object.

      • Luke

        Simmerman's point was the "guarantee" was simply a promise to make a payment which was not secured with a performance bond, which would pay in the event IMG defaulted on its promise. It is a common provision in many contracts. In fact IMG wasn't "guaranteeing" anything.

      • Joe

        @Allan and Luke....thx for clarifying this. Seems to me a loose use of the word guarantee used by IMG.

        Take care,

        Joe

        • Bitmapped

          Even without a performance bond, it would still be a contractual obligation. If IMG didn't pay up, there'd be a very strong basis for WVU to sue (and win) against IMG.

          WVRC was offering nothing actionable at all - if they didn't meet their figures, they were just estimates anyway so WVU would have no recourse.

  • WVUP

    Mr. Taylor,

    Maybe you should use allows in the headline instead of lets

  • WVUP

    Cutty77,
    Over the past couple of months I have silently followed this issue with great interest, including many of your 'objective' posts on this site. Today I had the opportunity to observe the parties in this case in person. Your posts are so slanted and without basis that they do nothing but waste space. It's a shame that you can't look at this situation and truly be objective. If you don't like the results you resort to name calling. What gives?

    • WVUP

      Cutty77,

      According to the proceedings today you have been misinformed. WVRC has never owned the rights in question. WVU has always owned the rights and managed,them through the Mountaineer Sports Network (MSN). WVRC and MSN are not the same and never have been, as I always assumed. This was confirmed by WVU. Today the judge said he has read everything that has been submitted to the court from both sides at least 3 times. I'm confident he based his statements on the facts presented to him. I am interested in hearing what you have ' watched WVRC do to WVU over the last 15 years' and if you don't mind, I'd like to hear your proof of these actions

      • WVU1425

        @cutty77,

        "Familys", "an", "save the drama for your mama... And the judge"

        Lol

        @WVUP this guy doesn't deserve a response from you

      • HAHA

        I am interested in hearing what you have as well. Please inform us.

  • John c

    Maybe WVRC should have bidded more money for the rights! Because WVU would be crazy not to take the highest bidder!

    • Fentanyl Bomb

      Dale Miller all but said they were beat by a more competent bidder.

      IMG submitted a proposal that guaranteed WVU revenue for the next 10 years.

      WVRC submitted a bid with many more ifs and buts. Not as many candy and nuts.

      Even if WVRC had the better bid, they did not convey their intentions in a competent manner. Blame that on their in-house advice or the reluctance to hire outside counsel.

      IMG knew what they wanted and how to achieve it. They did.

      What would be a win for WVRC now?

      Denying Mountaineer fans their Saturday rituals of listening to the game with family?

      Good luck with that.

      • WVUP

        In the proceedings today "out of interest to serve the public and the stat of WV" WVRC offered to air the football games this year in several of the markets that will not be served by IMG's current radio network. That offer was denied by both WVU and IMG. Therefore, if there are areas that can't hear the games, they have no one to blame but WVU and IMG. It had been published that IMG had attempted to work with WVRC but that WVRC had declined. Not true at all.

        • wv2ga

          WVRC is still trying to get a piece of the pie they used to have all to themselves. Doing the right thing by air games while this ludacris lawsuit continues is no more than WVRC trying to squeeze the last remaining dollars out of WVU that it can.

          • wv2ga

            Oh forgot to ask since WVRC is being to gracious in offering to air games. Don't you feel they are being hypocritical in asking for the injunction 5 days away from kickoff? If WVRC cannot air the games, no one should?

          • OhMY

            I think WVRC made the offer to prove that the published reports that IMG had requested a partnership and been denied were totally false. PLUS, WVRC requested the injuction weeks ago, not 5 days before...

  • WVUP

    As an observer at the court proceedings today I was quite surprised at some of the evidence presented and submitted. 1. As I had suspected but had no way to confirm, WVRC's original bid was much closer (and in some ways better) than IMG's. WVRC' bid was in excess of $74,000,000 compared to $78,000,000. The articles in the charleston newspapers have been grossly misleading. WVRC's bid included WVU keeping 100% of their current contracts (for 2012 that number was more than $6.1 million), plus WVRC would manage and service those accounts at no charge to WVU. WVRC's bid also included a revenue split for every new $ brought in by WVRC with 65% going to WVU and 35% to WVRC. IMG's also included revenue sharing, however no additional dollars will be shared with WVU until certain thresholds were met and to me the revenue sharing thresholds set by IMG seemed very high. For example, this years revenue sharing threshold is $9,000,000. Considering that in public reports, IMG has signed 70 ad agreements totaling only $2,500,000, I find it difficult to believe that WVU will see any share of revenue. Incidentally, the IMG revenue sharing threshold increases each year to a total of more than $13,000,000 in the final year. Information was presented to show that if the ad revenue fell above the IMG guarantee but below the rev. Sharing threshold each year, the WVRC bid would have given WVU nearly $8,000,000 more over the ten years. Mainly because the WVRC bid gives WVU 65% of all new revenue and the IMG contract gives WVU $0 until the thresholds are met. I question whether they will ever be met because they are so high. Just a little math tells me that between the IMG guarantee and the IMG revenue sharing threshold, there is a $35,000,000 profit window for IMG before they ever share a penny of the profit with WVU. Again, the WVRC bid gives WVU 65% of every new dollar. In addition to their bid being better in the long run, WVRC suggested that WVU should keep the rights in-house and continue to maintain complete control of their rights, instead of giving control to an out of state company. This also makes good sense to me. Based on what I saw today, WVU made a major mistake. Finally there have been published reports that IMG has offered to partner with WVRC. Today, I heard with my own ears WVRC offer to help IMG fill in some of the unserved areas in IMG's radio network and they decline outright. Based on this, I do not believe IMG has reached out to WVRC as reported. Again, I believe the charleston print media have grossly mislead the public.

    • Wilson

      Cutty77,

      As WVUP points out above. You ignore the facts and start name calling. I submit that if you want to see a joke....look in the mirror. If you have nothing more to add to the comment section of this website, continue to read Phil Kabler's column. The two of you have much in common. You never let facts get in the way of a false and misleading post or story.

    • Alum

      Guaranteed money or estimated earnings? There is a difference. What I read in the WVRC proposal was a guarantee of $5.7 million, not $78 million. Seems that WVRC also wanted WVU to keep MSN going, and it is my understanding WVU did not want to do so.

    • JimmyTwo Times

      If WVRC proposal was really for $70-$80 million why didn't they put it into the proposal? They ranked "dead last" according to the ratings of all proposals. If anyone should get a chance at the contract, it should be the group that was rated 2nd, not WVRC. IMG's proposal talked about the future; WVRC's talked about the past. They are a complete joke and always have been!

      • OhMY

        you tend to forget that the suit is NOT about WVRC getting the bid, it is about the unethical bid process by which WVU insured that their preferred bidder would win. If you would simply read WVRC's bid you would see that by simply doing some elementary math their bid, over the ten year period WAS better for WVU. They stated that WVU wouldn keep all current contracts ($6.1+ million in 2012) (thats more than $61,000,000 over 10 years) and would recieved 65% of all new dollars. Nearly every scenerio where more $$ are sold puts WVRC's bid in front of IMG's because IMG does not share any $$ with WVU until the $9 million mark in year one and that rev. sharing threshold goes up to $13 million in the final year. Who really believes those thresholds will ever be met?

        • Jim

          OhMY, how much of that is guaranteed by WVRC?

          I'll help you, zero. And to say that it's clear if you do the math. That's not exactly how bids should work when you are asking the receiver to figure it out for themselves. No wonder they failed at their bid.

    • WV Patriot

      Revenue sharing threshold... Hmmm.... It sounds like a scheme to insure that if IMG won't do it's job... Typical corporate language to keep all profits while the person doing the work gets paid nothing and has no legal recourse cause they signed a contract....just like coal we produce for the world, others benefit while we are left with obligations for the environmental damage left behind...

  • Big John

    Alan: Is the Headline wrong-LET"s- should it not be let as their is only one lawsuit

  • William

    Isn't it funny when certain people get caught doing very shady things, they have a way of making their problems go away! I guess when you have MONEY and high up on the food chain and know the right people you can make things go away. I just glad that JR did the right thing and let all West Virginia know what type of people we have in charge of WVU.

    • wv2ga

      You are so right. WVU should go back to taking less money than it can potentially earn. Makes sense....

      • DC

        I just hope in the end WVRC has nothing to do with WVU.....could care less if they have to pay them off, just never partner with them on anything ever again.

    • Big John

      Maybe you should apply for Athletic Director?

      • CaptainQ

        Why not?

      • DC

        Now is that something we can fill the application for online or is it a drop off?

  • Justin

    Oilver is a man of money and he'll destroy all that gets in his way.

    • Fentanyl Bomb

      Or attract a nationally recognized Coach and move us into the highly competitive Big 12.

      I hope he destroys us all the way to competing for a Championship.

  • Big John

    I can see no reason why WVRC is still having any rights. First of all they are required under W.Va. code 55-17-3 to give written notice of 30 days before they can file a lawsuit-this was not done. They did not even rebid on the second proposal so how could they have legal standing if they did not bid on the contract.I would like this information from a respected attorney why this was not completely dismissed.

  • Alum

    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.”

    So the moral of the story is WVU should not have bid it and just awarded the contract to IMG. Applying the judge's logic to this instance, it would have been 73 years without a bid, so all is okay.

    • Allan Taylor

      @Alum: The context of the judge's statement there was to validate one factor in assessing whether to issue an injunction—that harm was done to the plaintiff. He subsequently found that an injunction also would bring harm to the defendants, and thus, no injunction.

      • Alum

        Well if that's the case, some interesting editing was done to the judge's comments.

        Oh and 72 years of no bid? Did WVRC do harm to WVU over those years? I don't know if they harmed WVU or not but it's obvious WVU was under paid for the value of the product based on the proposals received.

        Also, footnote 6 in WVU's injuction statement (available at the WVU Today site) indicates that WVRC's proposal ranked "dead last."

        Finally, the "business reputation comment" from the judge is quite interesting indeed.

        • OhMY

          ....remember the evaluation process and comittee were fraudelent and flawed.......so they could make the evaluation look however they wanted. as I understand it, now that the FOIA is out, the WVRC bid was better overall for WVU and it allowed WVU to maintain complete control of their rights.

          • Jim

            ohMy, the bid was NOT better. Many of the dollar figures they are now tossing around were actually NOT in there bid to the University. And WVRC has no guaranteed dollars as IMG has.

            Oh well, don't let the facts get in the way.

          • OhMY

            Jim,

            Sorry to inform you, the $$ were in the bid. I saw it with my own eyes. In the courtroom yesterday, WVU did not dispute that fact

          • Alum

            And also remember that the initial process was suspended then abandoned at the AG's recommendation. A new RFP was issued and WVRC opted to not participate. You point is moot.

  • Fentanyl Bomb

    Just a note from other news outlets:

    WVRC wanted to be able to broadcast the football games on three stations and all the basketball games state-wide. Swinging for the bleachers there, guys.

    Thankfully, the Judge dismissed that fiasco out-of-hand. I can see how that would play out.

    "Hey IMG, that is a very pretty girl that you brought to the dance. Known her long?"

    "Since early this summer, why?"

    "Well, you see, her and I have history and I just wanted you to know that she is a gold-digger."

    "So, I'm rich and she and I just announced that we are exclusive. Whats your angle?"

    "Nothing."

    "In fact, we just arrived here on my private jet while sipping champagne and noshing on caviar. Now if you will excuse us, we want to enter this club. Anything else?

    "Not really, hey, do you mind if you pay for everything and I dance with her for a couple songs?"

    "Yeah, I do."

    "So, I can't still sleep with her until this Spring?"

    "She already said no."

    And scene...

    • Allan Taylor

      Just a note from THIS news outlet FBomb: those three offered-up stations were in this post as well.

      • Fentanyl Bomb

        And?

        Three stations can carry the bulk of the Mountaineer nation on their backs?

        I feel for your obligation to write and moderate these stories.

        I do not accept your contraction of my User Nick, though.

        Fentanyl Bomb can be shortened, but to refer to it as FBomb insinuates a vulgar aspect that I abhor.

        I try to be respectful to any and all without ad hominem and lowest common denominators.

  • Alum

    Maybe it wasn't a mistake (let us)...

  • William

    Oliver Luck should RESIGN, because of one word in Judge Evans statement ------------- 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.

    • Alum

      Sounds like the judge may have just passed judgement without a trial. WVU needs to argue for his disqualification based on your assessment billy.

      BTW - it pays to read some other sources before you post based exclusively on what appear here (if you can read).

    • Big John

      The attorney General stated it clearly no harm was done=rebid the proposal.

      • Luke

        The Attorney General is WVU's attorney, what did you expect him to say?

        • wv2ga

          WVU's attorney? Luke, who asked for the Attorney General to get involved? Yep, WVRC, NOT WVU.

    • Big John

      Why should Oliver Luck resign? He has West Virginia Univerisity in a power conference- He had the rights bid which was never done before-He chose the highest bidder-you do not think that WVRC bid was higher than IMG??? He wwould have been run out of town if WVTC was higher than IMG-He is not stupid and we are extremely lucky to have him as oue Athletic Director. Maybe this investigation may reveal that all was not above board when WVRC was handed the bid without bidding?

    • 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....

  • Allan Taylor

    And I can tell when cutty77 is committing English manslaughter: His fingers are on the keyboard. (Love ya, man, but "your" skills need some refinement "there."

  • JL

    You are just an apologist for a bunch of rum dumb cronies who steal from the University and from all of us who support and love WVU.